BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/12/2008 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A. No.461 of 2001 and Cross Objection No.1 of 2004 C.M.A. No.461 of 2001:- Tamil Nadu State Transport Corporation (Madurai Division II) Limited, rep. by its Managing Director, Vannarpet, Tirunelveli. .. Appellant Vs. 1.V.Sasi 2.V.Poulose 3.The Oriental Insurance Company Ltd., Maliq Mahal, Head Post Office Junction, Nagercoil. .. Respondents Cross Objection No.1 of 2004:- #V.Sasi .. Cross Objector Vs. $1.Tamil Nadu State Transport Corpn. (Madurai Division-II) Ltd., through its Managing Director, Tirunelveli-3. 2.Y.Poulose 3.The Oriental Insurance Co. Ltd., Nagercoil. .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in MCOP No.219 of 1999 on the file of the Motor Accidents Claims Tribunal (Addl. Sub Court), Tirunelveli dated 9.8.2000. Cross Objection filed under Order 41, Rule 23 C.P.C. against the judgment and decree passed in MCOP No.219 of 1999 on the file of the Motor Accidents Claims Tribunal (Addl. Sub Court), Tirunelveli dated 9.8.2000. !For Appellant in CMA and for R1 ... M/s.Rajnish Pathiyil in Cross Objection ^For R1 in CMA and for Cross Objector ... Mr.T.Selvakumaran :JUDGMENT
This Civil Miscellaneous Appeal and the Cross Objection are directed
against the judgment and decree passed in MCOP No.219 of 1999 on the file of the
Motor Accidents Claims Tribunal (Addl. Sub Court), Tirunelveli dated 9.8.2000.
2. The brief facts arising out of this appeal are as under:-
On 20.12.1998, the claimant was travelling in the bus bearing Registration
No.TN-72-N-0605 belonging to the appellant in CMA, from Nagercoil towards
Madurai. When the bus was nearing Salaiputhoor on the Tirunelveli to Madurai
Main Road, in the northern direction, the driver drove the bus rashly and
negligently and attempted to overtake a lorry and dashed against a mini lorry
bearing Registration No.KL-01-E-6147. The mini lorry belongs to the second
respondent and insured with the third respondent in the CMA. The claimant, who
was travelling in the bus sustained multiple fractures in his right hand. The
Kayathar Police have registered a case against the driver of the bus in
Cr.No.406 of 1998 under Sections 279, 337 and 338 IPC. The claimant claimed a
sum of Rs.5,00,000/- as compensation.
3. Before the Tribunal, P.W.1, P.W.2 and R.W.1 were examined and Ex.P1 to
P10 were marked. On consideration of the evidence on record, the Tribunal
awarded a compensation of Rs.2,08,200/- with interest at 12% p.a. from the date
of petition. The details of the compensation are as under:-
Rupees
Partial permanent disability 85,000/-
Loss of income 43,200/- Pain and suffering, shock, nourishment and others 80,000/- ---------------- Total... 2,08,200/- ================
4. Challenging the award of the Tribunal, the present appeal has been
filed by the Transport Corporation and the Cross Objection has been filed by the
claimant.
5. Counsel for the appellant disputed the liability and submitted that the
compensation awarded by the Tribunal is very high. On the other hand, the
counsel for the claimant has submitted that the quantum of compensation awarded
by the Tribunal is very low and it needs to be enhanced.
6. The points for determination in this appeal are:-
1) Whether the appellant’s bus was driven in a rash and negligent manner or not?
2) What is the just compensation to the claimant?
Point No.1:-
7. On 20.12.1998, the first respondent in CMA / claimant was travelling in
the bus bearing Registration No.TN-72-N-0605 belonging to the appellant in CMA,
from Nagercoil towards Madurai. When the bus was nearing Salaiputhoor on the
Tirunelveli to Madurai Main Road, in the northern direction, the driver drove
the bus rashly and negligently and attempted to overtake a lorry and dashed
against a mini lorry bearing Registration No.KL-01-E-6147. The mini lorry
belongs to the second respondent and insured with the third respondent in the
CMA. The claimant, who was travelling in the bus sustained multiple fractures
in his right hand. The accident was spoken by P.W.1-the claimant. His evidence
would show that the appellant’s bus attempted to overtake another vehicle and
dashed against the mini-lorry. Ex.P1 is the copy of the F.I.R. Ex.P4-Motor
Vehicle Inspector’s Report would show that the accident did not occur due to
mechanical defect. Ex.P5-Observation Mahazar would show that the appellant’s
bus driver drove the bus in wrong side. The bus was going from Nagercoil to
Madurai from south to north. The accident occurred in the eastern side of the
road. Evidence on record would show that the appellant’s bus crossed the middle
line in the road and dashed against the mini-lorry. R.W.1 is the driver of the
bus. He claimed that the victim was placing his hand outside the window and
that therefore, the victim was responsible for the accident. In the cross
examination, he said that he was not aware of the same. P.W.1 is not competent
to say that the victim was responsible for the accident.
8. On consideration of the evidence of P.W.1 and R.W.1, this Court is of
the considered view that P.W.1 is speaking truth in this respect. There is no
reason to reject his claim. Hence the finding of the Tribunal that the accident
had occurred only due to the rash and negligent driving of the driver of the bus
belonging to the appellant / Transport Corporation, is confirmed. Point No.1 is
answered accordingly.
Point No.2:-
9. The claimant has claimed a sum of Rs.1,00,000/- towards shock, mental
agony and loss of expectation of life and Rs.50,000/- towards pain and
suffering. For this , the Tribunal has awarded Rs.80,000/- under the head “Pain
and suffering, shock, nourishment and others”. Counsel for the claimant relied
on the decisions of this Court in the case of The New India Assurance Co. Ltd.,
Chennai v. K.Kartheeswaran & Another, 2002-2-L.W.109 and in the case of National
Insurance Co. Ltd. v. A.Kala Mohan and another, 1998 ACJ 295 and argued that the
amount awarded by the Tribunal towards pain and suffering should be increased.
10. In 2002-2-L.W.109, the victim was a 17-year old boy and he required
operations and hence the Division Bench of this Court has awarded the
compensation accordingly. In 1998 ACJ 295, the victim aged 34 years has become
unfit for sexual life and he has no control over passing of urine and his spinal
cord was broken and his entire body below the hip has become functionless and
senseless. In view of these reasons, the Division Bench awarded the
compensation accordingly. But, in the case on hand, the victim was 49 years old
at the time of accident and he was continuing in service after the accident. His
hand was amputated. The pain and suffering on account of the loss of hand
cannot be expressed in terms of words. Taking into consideration of these
aspects, I feel that the amount awarded by the Tribunal at Rs.80,000/- towards
pain and suffering, shock, nourishment and others, is very reasonable and hence
it is confirmed.
11. The disability was spoken by P.W.2-the Doctor. He examined the
claimant and assessed the disability at 84%. Loss of one hand will naturally
affect his life and it cannot be expressed in words. Therefore, I feel that the
amount awarded by the Tribunal at Rs.85,000/- towards partial permanent
disability is correct and accordingly it is confirmed.
12. For loss of earning power, the claimant claimed a sum of Rs.1,00,000/-
. The claimant retired in the year 2007. Till the year 2007 there was no loss
of income. There is no evidence to show that he was deprived of income. It is
claimed in the claim petition that the claimant was working as a fitter. Now he
is a Store-Keeper. There is no evidence on record to show what was the pay of
fitter and what was the pay for Store-Keeper. He claimed that he was not given
any promotion. There is no evidence on record to show what was the promotions
available for the claimant. He has not chosen to examine anybody to show that
his promotion was stopped, due to the accident. There is no evidence to show
that due to the accident, his income was deprived of. But due to the accident,
certainly he would not have been able to get overtime work. At the time of
accident, he was 49 years old. He was only 9 years service at that time. Today
he is not in service. Even though it can be inferred that he would have lost
some amount for overtime work, there is no evidence to show what was the amount
available for overtime duty. Evidence marked on the side of the claimant, is
silent about the same. However, since his hand was amputated, this Court is of
the considered view that certainly he would not have been able to work for a
period of four years after retirement. As per the decision of the Hon’ble
Supreme Court, even for an ordinary coolie, Rs.3,000/- can be fixed as the
monthly income. Therefore, in the present case also, I feel that it would be
fit and proper to fix the monthly income at Rs.3,000/-. If 1/3rd is deducted
towards personal expenses, the annual income works out to Rs.24,000/-. For a
period of four years, the loss of income after retirement, works out to
Rs.96,000/-. Therefore an amount of Rs.96,000/- is now awarded under the head
“loss of income after retirement”.
13. Regarding loss of income during service, even though there is no
satisfactory evidence to hold that due to the amputation of his hand, his income
was affected, he would be very much affected and found it difficult to perform
his duties and his income would have been affected to some extent. Taking these
aspects into consideration, it would be appropriate to award Rs.40,000/- towards
loss of income. Accordingly, the amount awarded by the Tribunal at Rs.43,200/-
towards loss of income stands modified to Rs.40,000/-.
14. The details of the modified compensation are as under:-
Rupees
Partial permanent disability 85,000/-
Loss of income 40,000/- Pain and suffering, shock, nourishment and others 80,000/- Loss of income after retirement 96,000/- ------------ Total.. 3,01,000/- ============
The interest rate fixed by the Tribunal at 12% p.a. from the date of petition is
confirmed. Therefore, the claimant is entitled to the modified compensation of
Rs.3,01,000/- with interest at 12% p.a. from the date of petition. Point No.2
is answered accordingly.
15. The Civil Miscellaneous Appeal and the Cross Objection are disposed of
accordingly. Consequently, M.P.(MD)No.1 of 2008 is closed. No costs.
km
To
The Additional Subordinate Judge,
Motor Accidents Claims Tribunal,
Tirunelveli.