IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.2100 of 2005
The Managing Director
Tamil Nadu State Transport
Corporation Ltd.,
Coimbatore .. Appellant
Vs
1.Halammal
2.M.Krishnakumar .. Respondents
(R2-Given up)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 15.06.2004, made in M.C.O.P.No.16 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Udagamandalam.
For appellant : Mr.A.Babu
For respondents : Mr.Mr.A.Bobbilie for R1
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 15.06.2004, made in M.C.O.P.No.16 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Udagamandalam, awarding a compensation of Rs.2,93,175/- with 9% 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/second respondent, The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore has filed the above appeal praying to scale down the compensation amount passed by the Tribunal.
3.The short facts of the case are as follows:
On 30.12.2002, at about 06.00 p.m. the petitioner along with her grand daughters Usha and Sharmila were standing at Nundala Bus stop to go to Udagamandalam, when at that time, the Corporation bus bearing registration No.TN43 0199 driven by its driver stopped the bus at the bus stop. When the petitioner tried to board the bus, when the driver of the bus suddenly started at high speed and had driven the bus in a rash and negligent manner, resulting in, the petitioner lost her control and had fallen on the floor. The rear wheel of the bus had ran over the legs of the petitioner. Immediately, she was taken to the Udagamandalam Hospital for preliminary treatment. Thereafter, she was referred to Lolly Hospital at Coonoor. Since her condition is serious she was referred to Coimbatore Hospital wherein she was inpatient for four months and she had spent about Rs.1,00,000/- towards medical expenses. At the time of the accident, she was involved in the agricultural operations. After the said accident she is unable to continue her usual occupation. Hence, she is claiming a sum of Rs.7,00,000/- as compensation against the respondents with interest. The said accident case was registered by the E1 Police Station, Ooty, in Crime No.1/2003, under Sections 279 and 337 of I.P.C. against the driver of the bus.
4.The second respondent has filed a counter statement and resisted the claim stating that the claimant’s age, income and occupation are not admitted. Actually, on 30.12.2002, the bus had been driven by its driver by observing all the traffic rules. The driver had driven the bus from Manjacombai to Ootacamund in its 5.50 p.m. scheduled trip. When the bus was nearing Nunthalamattam by 06.00 p.m., the driver had noticed that a huge crowd and the heavy traffic at Nunthalamattam. Hence, the driver had stopped the bus 100 feet away from the bus stop. The crowd suddenly came near the bus and every one was trying to get into the bus by pushing each other. After loading of the passengers, the conductor give a whistle for the driver to proceed. Due to the heavy crowd and traffic the driver could not move the bus forward and hence with the help of the conductor, the driver reversed the bus for clear road view, in the meanwhile, the petitioner hurrily tried to get down in the moving bus and lost her balance and fell down. The back tyre of the bus ran over the leg of the claimant. The accident had happened to the contributory negligence of the claimant. Further, the second respondent submitted that the claim amount is excessive.
5.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Whether the accident had happened on the negligence of the driver?
(ii) Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation?
6.On the petitioner’s side two witnesses were examined as PW1 and PW2 and 21 documents were marked as Exs.P1 to P21. On the respondents’ side one witness was examined as RW1 and no documents were marked.
7.The petitioner was examined as PW1. The PW1 in her evidence had adduced evidence stating that on 13.12.2002 at about 06.00 p.m. she had boarded the bus and tried to be seated, when the driver of the bus suddenly started his vehicle at high speed and at that moment she lost her balance and fell on the floor and rear side of the wheel ran over his legs, immediately, she rushed to the Government Hospital at Coonoor for preliminary treatment, thereafter she had undergone treatment at Lolly Hospital, Coonoor and V.G.Hospital at Coimbatore for better medical treatment.
8.Considering the evidence of the petitioner and counter statement of the second respondent there was no dispute that the accident had happened and the rear wheel of the bus had run over the petitioner’s legs. Hence, the Tribunal had came to the conclusion that the accident had happened due to the rash and negligent driving by the bus driver. As such, the second respondent is liable to pay compensation to the petitioner.
9.The PW1 further adduced evidence stating that at the time of accident, she was 58 years old and was doing field cultivation. By her profession she was earning a sum of Rs.1,00,000/- per year. If this accident had not occurred, the petitioner was capable to do the agricultural work upto the age of 65. Due to the said accident, she is unable to do her normal work, even in attending calls of nature. Supporting the nature of her injuries, the PW2, Dr.Ganesh Sandeep, had adduced evidence that he verified the records of PW1 and assessed her disability as 30% sustained by her in the said accident. Further, the PW2 adduced evidence that the petitioner had undergone skin grafting operation and her femur bone had fractured on her right thigh an operation was conducted. Due to the accident, the petitioner is unable to walk, squat and attend calls of nature.
10.After considering the evidence of the petitioner’s side the Tribunal had awarded the compensation as follows:
1.Rs.70,925/- awarded under the head of medical expenses,
2.Rs.10,750/- awarded under the head of transport,
3.Rs.30,000/- awarded under the head of disability,
4.Rs.1,00,000/- awarded under the head of permanent disability,
5.Rs.10,000/- awarded under the head of pain and suffering,
6.Rs.15,000/- awarded under the head of nutrition,
7.Rs.1,500/- awarded under the head of damages to clothes,
8.Rs.20,000/- awarded under the head of loss of income during the period of treatment,
9.Rs.35,000/- awarded under the head of loss of earning power,
In total, the Tribunal awarded a sum of Rs.2,93,175/- as compensation to the petitioner, together with interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation. The said amount to be deposited into the Court within a period of three months. In turn, the said amount to be deposited in any one of the nationalised bank under the fixed deposit scheme. The Advocate fees fixed at Rs.8,863/-.
11.Learned counsel appearing for the appellant argued that the learned Tribunal had wrongly relied upon the evidence of the PW1, in respect of the manner of accident, nature of injuries, period of treatment, disability, age and occupation of the claimant. The Tribunal had totally ignored the evidence of the driver of the bus. Further, the Tribunal had failed to consider the rashness and negligence of the claimant. The learned Tribunal without documentary evidence had come to a conclusion that the age of the claimant was 58 years and an income of Rs.25,000/- per month. The learned Tribunal had awarded compensation under the head of loss of earning power, partial loss of earning, disability, a sum of Rs.20,000/-, Rs.35,000/- and Rs.1,00,000/- respectively, which are not only pertinent, but contrary to each other. Hence, the learned counsel prays to scale down the award.
12.Learned counsel appearing for the first respondent argued that it was an admitted fact that the rear wheel of the bus had ran over the claimant’s legs for which FIR was registered against the offending vehicle driver. As such, negligent cannot be fastened on the claimant. The claimant is an agriculturist. In the said accident she sustained severe injuries of bone fracture on her legs, so could not pursue with her normal occupation. For her occupation, physical strength is very essential. Considering this aspect the Tribunal had awarded the compensation, which is well considered. Transport expenses and medical expenses were awarded on the basis of exhibits. The other heads of compensation had been properly assessed. Further, the Tribunal considering the nature of injuries and the treatment undergone at three hospitals and mode of treatment, all of these were well discussed. Hence, the learned counsel prays to dismiss the case.
13.Considering the facts and circumstances of the case, scrutiny of the findings of the Tribunal and arguments advanced by the learned counsel appearing on either side, this Court is of the view that there is a slight discrepancy in the said award. Hence, this Court modifies the award as follows:
1.The Tribunal awarded a sum of Rs.1,00,000/- under the head of disability against 30% disability, this Court reduces it as Rs.60,000/-,
2.The Tribunal awarded a sum of Rs.70,925/- under the head of medical expenses, this Court confirms the same,
3.The Tribunal awarded a sum of Rs.10,750/- under the head of transport expenses, this Court confirms the same,
4.The Tribunal awarded a sum of Rs.30,000/- under the head of pain and suffering, this Court reduces it to Rs.20,000/-,
5.The Tribunal awarded a sum of Rs.15,000/- under the head of nutrition, this Court reduces it to Rs.10,000/-,
6.The Tribunal awarded a sum of Rs.1,500/- under the head of damages to clothes, this Court confirms the same,
7.The Tribunal awarded a sum of Rs.20,000/- under the head of loss of earning power and Rs.35,000/- under the head of partial loss of earning power, this Court sets aside both the heads and awards a sum of Rs.35,000/- towards loss of earning power,
8.The Tribunal awarded a sum of Rs.10,000/- once again under the head of pain and suffering, which is not pertinent. Hence, this Court sets aside the award under this head,
In total, this Court awards a sum of 2,08,175/- as compensation to the claimant, which is found to be fair and equitable. Therefore, this Court hereby scale down the award amount of Rs.2,93,175/- to Rs.2,08,175/-. The said award amount will carry an interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation.
14.On 22.07.2005, this Court imposed a condition on the appellant to deposit 50% of the award amount into the credit of the M.C.O.P.No.16 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Udagamandalam. Therefore, this Court directs the appellant to deposit the balance compensation amount with accrued interest as observed above, into the credit of the M.C.O.P.No.16 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Udagamandalam, within a period of four weeks from the date of receipt of a copy of this Order.
15.As the accident had happened in the year 2002, it is open to the claimants to withdraw the compensation amount with accrued interest thereon as per the Court order, after making such deposit, lying in the credit of the M.C.O.P.No.16 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Udagamandalam, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals if any made.
16.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree dated 15.06.2004, in M.C.O.P.No.16 of 2003, passed by the Motor Accident Claims Tribunal, Sub Court, Udagamandalam, is modified. There shall be no order as to costs.
krk
To
1.The Motor Vehicles Accident Claims Tribunal,
Sub Court, Udagamandalam.
2. The Section Officer,
VR Section, High Court,
Madras