IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.2905 of 2009
and
M.P.No.1 of 2009
The Managing Director
Tamil Nadu State Transport
Corporation (Villupuram) Ltd.,
Salamedu, Villupuram District .. Appellant
Vs
Settu .. Respondent
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 14.10.2008, made in M.C.O.P.No.1378 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Krishnagiri.
For appellant : Mr.V.Ramesh
For respondent : No appearance
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 14.10.2008, made in M.C.O.P.No.1378 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Krishnagiri, awarding a compensation of Rs.78,854/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/respondent has filed the above appeal praying to set aside the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 08.09.2006, at about 04.30 hrs. ie.4.30 a.m. when the petitioner came out of his house at Dhoolikottai to answer the calls of nature, the Tamil Nadu State Transport Corporation bus bearing registration No.TN32 N2193, belonging to the respondent coming on the Pondicherry Bangalore Road, towards Krishnagiri, and driven by its driver at a high speed and in a rash and negligent manner, suddenly dashed against the road side trees, electric pole and subsequently on the petitioner. On account of the impact, the petitioner fell down and sustained grievious injuries. In continuation of the accident, the electric pole was also broken and fell on the petitioner. In the above said accident, the petitioner sustained grievious injuries over his right arm, left arm, left elbow, right parietal and chest. His hip was also dislocated and he sustained fracture of his right humerus and sustained multiple injuries all over his body.
4.After the accident, the petitioner was taken to Government Head Quarters hospital, Krishnagiri and was treated as an inpatient for 15 days, during which period he underwent operation to set right the fracture right humerus. Thereafter, he took treatment at Dr.Ashok Kumar’s Clinic at Kaveripattinam and Dr.D.V.Gandhi’s Clinic at Hosur.
5.The petitioner was an agricultural coolie, and was also carrying on milk business and earning a sum of Rs.7,500/- per month before the accident. Due to the grievious injuries sustained by him, he is unable to do any hard work and has also spent a lot of money towards medical expenses and has undergone a lot of pain and mental agony. As the accident took place only due to the rash and negligent driving of the respondent’s bus bearing registration No.TN32 N2193, the respondent is liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.12,73,500/-, but has restricted it to Rs.5,00,000/- together with interest and costs, in his claim from the respondent under Section 166 of the Motor Vehicles Act.
6.The respondent, in his Counter, has resisted the claim denying the averments made in the claim regarding the manner of accident. It has been submitted that on 08.09.2006, the driver of the Corporation bus bearing registration No.TN32 N2193, was proceeding on the left side of the road, slowly and cautiously and adhering to the traffic rules and regulations. While he was thus proceeding near Dhoolikottai in Puducherry to Bangalore N.H.Road, the petitioner, who was standing on the left side of the road, suddenly crossed the road to go to the other side and came in the centre of the road, in spite of seeing the corporation bus. On seeing this, the driver of the Corporation bus had applied sudden brake to avoid hitting against the petitioner. But, before the bus had come to stop, the petitioner came into contact with the bus and sustained some minor injuries. The respondent has submitted that as the accident had been caused only due to the negligence of the petitioner, he is not able to pay any compensation to the petitioner. The respondent has also not admitted the averments in the claim regarding the age, occupation, monthly income, the nature of treatment, medical expenditure and percentage of disability suffered. The respondent has also submitted that the claim is excessive and has to be dismissed with costs.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident caused due to the fault of the driver of the respondent’s bus?
(ii) Is the petitioner entitled to get compensation If so, what is the quantum of compensation, which the petitioner is entitled to get?
8.On the petitioner’s side, two witnesses were examined and six documents were marked as Exs.P1 to P6. On the respondent’s side, one witness was examined as RW1 and no documents were marked.
9.The petitioner was examined as PW1 before the Tribunal. The PW1, in his evidence, has deposed that on 08.09.2006, at about 04.30 a.m. in the morning, when he had come out of his house, at Thullikottai, on the Krishnagiri Tiruvannamalai High road and was answering the calls of nature near to his house, the respondent’s bus bearing registration No.TN32 N2193, coming from Tiruvannamalai towards Krishnagiri and driven at a high speed and in a rash and negligent manner by the driver of the bus, dashed against him. In the impact, he was thrown up and fell downwards. Subsequently, as the bus had dashed against a electric pole nearby, the electric pole had broken and had fallen on his right hand. As a result of this, the petitioner sustained fracture of his right arm bone and severe injuries on his left forearm, head, chest, hip and other bleeding injuries all over his body. He was admitted in the Krishnagiri Government Hospital and treated as an inpatient and subsequently took medical treatment at a private hospital and at a hospital at Bangalore. He had further stated that the accident had been caused due to the fault of the bus driver and in support of his evidence, he had marked Exs.P1, the FIR; Ex.P2, the Wound Certificate; Ex.P3, the Medical Bills, wherein the medical expenses have been shown as Rs.854/- and Ex.P4, the original photos and negatives of the petitioner.
10.On the respondent’s side, the driver of the respondent’s bus, Chakravarthi, was examined as RW1. The RW1, in his evidence, has deposed that at the time of accident, when the bus was at the accident site, he had seen a loaded vegetable lorry coming on the opposite side and that it was about to dash against the bus. As there were a lot of people gathered on the left side of the bus near a Tea Stall situated there, the driver of the bus in order to avoid collision of the bus with the lorry had turned the bus towards the right side of the road and dashed the bus against a tamarind tree situated there. Hence, the RW1 has claimed that the accident had been caused only due to the fault of the lorry driver. On cross-examination, he had admitted that a criminal case had been filed against him by the police. Even during cross-examination of the petitioner by the respondent’s side, the occurrence of the accident had not been denied on the part of the respondent’s side. On the contrary, the petitioner had been questioned as to whether the accident had happened because he had negligently come onto the middle of the road without seeing the oncoming bus and that as a result of this, the bus driver, in order to avoid dashing the bus against him had dashed against a tamarind tree and an electric pole and due to this the electric pole had fallen against him. The petitioner has denied this contention of the respondent during his cross-examination. Under the circumstances, the respondent had not produced any reliable oral or documentary evidence to back their contention that the accident had been caused only due to the negligence on the part of the petitioner. Further, the Tribunal on considering that the averments in the counter of the respondent was contradictory to that of the evidence of RW1 and on considering that the evidence of PW1 was inconsonance with the report in the FIR and that there is no genuinity in the arguments and contentions made by the respondent’s side, held that the accident had been caused only due to the fault of the driver of the respondent’s bus.
11.The petitioner has stated in his sworn affidavit that due to the accident he had sustained fracture in his right arm bone and severe injuries in his left forearm, head, chest and hip and bleeding injuries all over his body; that he had incurred a travel expense of Rs.10,000/- for going by rented car to hospitals at Krishnagiri, Hosur and Bangalore to take medical treatment; that he had incurred an expense of Rs.40,000/- for medical treatment; Rs.7,000/- towards attendant charges and Rs.10,000/- for nutrition. He had further stated that after the accident he is not able to do work as he used to do before the accident; that he has difficulty in lifting weights; that he is not able to ride motorcycles; that he experiences pain on moving his right arm; that due to the head injury, he suffers from frequent headache, loss of memory and impairment of his eyes. He had stated that he had sustained permanent disability and has claimed a compensation of Rs.5,00,000/-.
12.Dr.Ashok Kumar, who assessed the permanent disability of the petitioner, was examined as PW2. The PW2, in his evidence, has deposed that the petitioner had taken treatment for the fracture sustained in his right upper arm bone at Krishnagiri Medical Hosptial, wherein a surgery had been done and due to puss formation at the affected portion of the bone, the steel plates fixed inside the petitioner’s right arm had been removed; that at present his fractured bone had not set in a proper manner and the muscles around this area had hardened; that the petitioner has difficulty in bending and stretching his right arm, difficulty in lifting heavy weights, difficulty in doing his day to day routine work and also has difficulty in driving vehicles. The Doctor had therefore stated that the petitioner has sustained 45% permanent disability and in support of his evidence has marked Ex.P5, the Disability Certificate and Ex.P6, the X’rays.
13.On inspection of the Wound Certificate marked as Ex.P2, it is seen that the petitioner has sustained the following injuries:
1.A fracture of the humerus in his right hand,
2.Injuries on his left hand and inflamed injury on his left fore arm,
3.An injury of size 3 X 0.5 cms on the right side of head,
4.An injury of size 3 X 2 cms. in the top of his head,
5.Pain in his chest and
6.Dislocation of his hip bone
It has further been stated in the Wound Certificate that injury No.1 is grievious in nature and that the other injuries are simple in nature.
14.As such, the Tribunal, on considering the nature of injuries sustained by the petitioner were of the opinion that the Doctor’s assessment of 45% disability was excessive and therefore held that the disability of the petitioner could be taken as 30% only. As such, the Tribunal awarded a compensation of Rs.30,000/- to the claimant under the head of permanent disability. The Tribunal further granted an award of Rs.25,000/- to the claimant as compensation for injuries sustained by him; Rs.15,000/- under the head of pain and suffering; Rs.5,000/- under the head of mental agony; Rs.1,000/- under the head of transport expenses; Rs.2,000/- under the head of nutrition. The Tribunal also granted an award of Rs.854/- to the petitioner under the head of medical expenses as per Ex.P3, the medical bills. In total, the Tribunal awarded a sum of Rs.78,854/- as compensation to the petitioner, with costs, and directed the respondent to deposit the above said award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, with costs, into the credit of the M.C.O.P.No.1378 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Krishnagiri, within a period of two months from the date of its Order. Further, after such deposit was made, the award was to be deposited in a nationalised bank as fixed deposit, for a period of three years and the petitioner was permitted to receive the interest on such deposit, once in three months, directly from the bank. The excess Court fee paid by the petitioner was to be refunded to him. The Advocate fees was fixed at Rs.3,678/- and the respondent was directed to pay the cost of Rs.3,965/- to the petitioner.
15.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal failed to note that the driver of the appellant Corporation was driving the bus slowly and cautiously at the time of accident and that the accident had been caused only because the driver had to swerve the bus, in order to avoid collision against a lorry and that due to this the bus had hit the petitioner, who was standing on the road.
16.It has also been contended that the Tribunal after awarding a sum of Rs.30,000/- for 30% disability had erroneously awarded another award of Rs.25,000/- for injury. It has also been contended that the award granted under the various other heads are also excessive. It has also been contended that the Tribunal should have fixed contributory negligence on the petitioner also in the occurrence of the said accident. It has also been pointed out that the Tribunal failed to note that no documentary evidence was produced to prove the occupation and income of the claimant. The learned counsel appearing for the respondent has contended that the award of the Tribunal is excessive and has to be set aside.
17.Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal and after hearing the arguments advanced by the learned counsel appearing for the appellant, this Court is of the view that the quantum of compensation assessed by the Tribunal is reasonable, considering the nature of injuries, disability sustained by the claimant and considering that the claimant was an agricultural coolie at the time of accident. There is a discrepancy in the award granted under the various heads and hence this Court restructures the award as follows:
1.This Court grants an award of Rs.45,000/- for 45% disability sustained by the claimant.
2.This Court grants an award of Rs.10,000/- to the claimant under the head of pain and suffering.
3.This Court grants an award of Rs.3,000/- under the head of transport expenses and also grants an award of Rs.5,000/- under the head of nutrition.
4.This Court grants an award of Rs.6,000/- to the claimant under the head of attendant charges for three months.
5.This Court grants an award of Rs.9,000/- to the claimant under the head of loss of income for three months, considering that the petitioner has been hospitalised and surgery was also done during this period, during which time steel plates had been fixed to set right the fracture.
6.The Court confirms the award of Rs.854/- granted by the Tribunal under the head of medical expenses.
As such, this Court confirms the award of Rs.78,854/- granted by the Tribunal, together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, made in M.C.O.P.No.1378 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Krishnagiri.
18.Therefore, this Court directs the appellant/State Transport Corporation to deposit the entire compensation amount, with accrued interest thereon as observed above, within a period of four weeks from the date of receipt of this Order, into the credit of the M.C.O.P.No.1378 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Krishnagiri, after deducting earlier deposits made by the appellant.
19.After such deposit is made, the respondent/claimant is permitted to withdraw the entire compensation amount, with accrued interest thereon, after filing necessary payment out application, in accordance with law.
20.As such, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 14.10.2008, in M.C.O.P.No.1378 of 2007, passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Krishnagiri, is confirmed Consequently, connected miscellaneous petition is closed. There is no order as to costs.
11.03.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.Motor Vehicles Accident Claims Tribunal,
Chief Judicial Magistrate Court, Krishnagiri.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.2905 of 2009
11.03.2010