IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26-11-2008
CORAM
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH
C.M.A.No.3194 of 2003
The State Express Transport Corporation
(Tamilnadu) Ltd.,
rep. by its Managing Director, Chennai ... Appellant
vs.
Moorthy ... Respondent
Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and Award of the Motor Accidents Claims Tribunal (Fast Track Court 1) at Tindivanam in M.A.C.T.O.P.No.325 of 2002 dated 29.01.2003.
For Appellant : Mr. M. Krishnamoorthy
For Respondent : Mr. R. Sunilkumar
JUDGMENT
This appeal is directed against the award passed by the Motor Accidents Claims Tribunal (Fast Track Court 1) Tindivanam in M.A.C.T.O.P.No.325 of 2002 (Tindivanam Sub-Court No.783 of 1996) dated 29.01.2003, preferred by the State Express Transport Corporation against the compensation awarded in favour of the claimant.
2. Brief facts relied upon by the parties before the Lower Court are as follows:
2. (i) On 19.5.1995 at about 11.30 a.m. while the claimant and his friend one Mohammed Latheef were returning back to Tindivananam, after finishing their work, along Tindivanam to Pondycherry Road near Marakkanam Junction Raod, a bus belonged to the State Express Transport Corporation bearing Registration No.TN-01-N-0054, driven by its driver in a rash and negligent manner had dashed the cycle in which the claimant and his friend were riding and that they were thrown away from the cycle and sustained head injuries. Initially they were removed to the Government Hospital, Tindivanam, and thereafter to the Government Hospital, Chennai for treatment. On 25.5.1995 the friend of the claimant died in the Government Hospital, Chennai. Due to multiple injuries on his head and body, the right hand and leg of the claimant was permanently disbled. The claimant was 19 years at the time of accident and was earning Rs.2,000/- p.m. from cotton business. He was the only bread winner of his family. Hence a sum of Rs.2,00,000/- is claimed, towards compensation.
2. (ii) In the Counter filed by the respondent it is stated that the accident took place due to the negligence of the claimant. The driver of the respondent corporation bus, drove the bus slowly and carefully, while he was about to overtake the cyclist/claimant, the claimant suddenly crossed the road on the right side without making any sign or signal and the driver swerved the bus to his right side to avoid the accident, but the cyclist/claimant had hit his cycle on the left bumper of the bus, fell down and sustained injuries. The respondent denies the age, avocation and income of the claimant. According to him the claim is high, excessive and out of proportion.
3. The lower Court after a full-fledged trial, had come to the conclusion that the claimant was entitled to a sum of Rs.1,11,000/- with subsequent interest at 9% p.a. from the date of petition till the date of realisation. Against the decision of the lower Court, the Transport Corporation, the respondent before the lower court has preferred the present appeal.
4. Heard the learned counsel for the appellant and respondent herein.
5. Learned counsel for the appellant/Transport Corporation would submit in his argument that the lower Court had found while dealing the question of rash and negligence that the cyclist who was riding the cycle at the time of accident had turned on his right side i.e., the junction of Marakkanam Road and Tindivanam-Pondy Road and due to the sudden turning of the cycle on the right side, the driver of the bus belonging to the appellant Corporation had to swerve the bus on his right side and fell into the ditch and therefore the cyclist came and hit against the bus and sustained injuries. But however, it was found that the driver of the Appellant Transport Corporation was responsible for the accident since he did not make sound horn and drive the vehicle in a controllable speed. He would further submit that the lower Court, atleast, ought to have apportioned the liability on the claimant and fixed a partial liability on the appellant. Apart from that the apportionment of the compensation for the injuries sustained by the claimant on the basis of multiplier is not in accordance with law and the compensation awarded for temporary loss of income at Rs.2,500/-, for extra Nourishment for a sum of Rs.2,000/-, for damages to cloth at Rs.500/- and for pain and sufferings at Rs.10,000/- were also beyond any proportion and the compensation awarded at Rs.96,000/- for permanent disability of 40% is also too high.
6. He would further submit that the claimant had not spoken about the income derived by him. But however, the lower Court had adopted the calculation of compensation on the basis of the multiplier method which is not correct. Therefore he would request the court to set aside the award, as the driver of the appellant was not responsible for the accident or to modify the award after fixing contributory negligence on the part of the claimant for the cause of the accident and to reduce the quantum of compensation and thereby to allow the appeal.
7. Learned counsel for the respondent/claimant would submit in his argument that the lower Court had correctly appraised the evidence and fixed the responsibility for the cause of accident on the driver of the bus, as there was no negligence on the part of the claimant at the time of accident. The lower Court had found that the driver of the bus was driving the same in an uncontrollable speed without sounding horn. Therefore, he could not stop the vehicle immediately after the accident but to drive the same to the right side ditch for the purpose of avoiding accident. The lower Court had mistakenly mentioned in its Judgment that the claimant riden the cycle had suddenly crossed the road. But however, the main cause for the accident was the uncontrollable speed without sounding horn on the part of the driver of the appellant corporation and accordingly decided that the appellant was liable to pay compensation.
8. He would further submit in his argument that the Judgment of the lower Court had not conclusively concluded that the claimant was also responsible for the cause of accident. He would further submit that the lower court while assessing the compensation had reduced the percentage of permanent disability from 60% to 40% without any reason whatsoever. He would further submit that if the quantum of permanent disability at 60% was assessed by the lower Court either through calculation of pecuniary loss method or through non-pecuniary loss method, that itself would exceed the total compensation awarded at Rs.1,11,000/- and therefore, the quantum of compensation as fixed by the lower court at Rs.1,11,000/- with subsequent interest and cost should not be disturbed even though it was inadequate to the injuries caused to the claimant. Therefore, he would request the Court to confirm the award and thereby to dismiss the appeal.
9. I have given anxious consideration to the arguments advanced by both sides.
10. The appeal has been preferred by the Transport Corporation against the decision of the lower Court in fixing the responsibility and the assessment of the compensation awarded in favour of the claimant. The contention of the appellant corporation was that though the lower Court had decided that the claimant was also responsible for the cause of accident, but in the next sentence, it had fixed the responsibility on the driver of the appellant bus since he was coming in an uncontrollable speed without sounding horn. Therefore, we have to see whether such a finding in respect of fixing the responsibility on the driver of the bus is correct or the responsibility has to fixed on both the claimant and the Transport Corporation.
11. On a careful perusal of the evidence adduced, the F.I.R. was given by one of the riders of the cycle. The claimant was examined as P.W.1 and he would speak that he and yet another person were cycling for the purpose of their business in cotton and the appellant Corporation Bus which was driven by the driver in a rash and negligent manner without sounding horn came from their back and dashed against them and caused injuries. He would admit in his cross examination that the bus had finally landed into a ditch on the right side of the road and before that he was hit by the bus. The F.I.R. which was marked as Ex.P.1 would also go to show that while the claimant was riding on the cycle along with one Mohammed Latheef in Marakkanam Road junction with Tindivanam-Pondy Road, the accident had happened. When both the versions are similar, the lower Court had mistakenly found that there was contradiction in between the F.I.R. and the evidence of P.W.1.
12. The driver of the bus was not examined and on the other hand the conductor of the bus was only examined. He had also admitted that the bus had hit against the claimant when he was cycling alongwith another person. It is not disputed that the bus was not sounding horn at the time of accident. The sequence of the accident as admitted by both parties that the bus had landed into the ditch on the right side of the road would go to show that the bus driver had driven the bus in an uncontrollable speed. Therefore, even the submission of the learned counsel for the appellant that the claimant in the cycle had suddenly swerved on his right side was true then the driver of the bus could have stopped the vehicle by applying brake if really he was driving the same in a controllable speed. The left side of the bus was said to have hit against the cyclist which could not have been possible in the event of the bus, swerved on its right side immediately on seeing the cyclist turned on his right side. The driver of the bus ought to have driven the bus in a controllable speed when he sighted two persons cycling in front of the bus. It was also the duty of the driver to sound horn for the purpose of averting any accident with the said persons. While discussing the said situation, the lower Court mistakenly mentioned that the cyclist has also contributed to the cause of accident, but at the end the Tribunal had come to a correct conclusion that the driver of the bus alone was responsible for the accident. Therefore, there is no point, in appreciating the argument of the learned counsel for the appellant, to invoke contributory negligence against the claimant.
13. Coming to the quantum of the compensation awarded in favour of the claimant is concerned both the injuries sustained on his head by the claimant were admittedly grievous injuries. It was found in the Accident Register copy (Ex.P.3) that the bleeding was found on the right ear of the claimant due to internal injuries caused on his head and yet another injury was also sustained by the claimant on his head. It was also found that the claimant was vomiting at the time of his examination before the Tindivanam Government Hospital, thereafter he had been shifted to Government Hospital, Chennai and to Rehabilitation Centre at K.K. Nagar for improving his speech through Speech Therapy and thereby the medical records produced on the side of the claimant would go to show that the injuries sustained by the claimant are grievous in nature and he had undergone speech treatment for two months, while he was not able to speak properly and to do his duties as he did before the accident. Therefore the claimant was certified by the doctor that he sustained permanent disability at 60%.
14. The lower Court had adopted multiplier method taking the monthly income of the claimant at Rs.1,250-/ and reduced the permanent disability as 40% for the purpose of calculating the compensation. Admittedly the claimant was a young person, aged about 19 years at the time of accident. The lower Court without any reason, had come to the conclusion that 40% permanent disability alone could be maintained for the purpose of calculating the compensation, whereas we could see that the blood clot in his brain were removed by surgeries through drilling holes on his head and the blood vessels in the brain have also have been damaged and there is no chance for its revival. All these have been considered by the doctor who was examined as P.W.2 and he had awarded 60% of permanent disability. Yet another doctor who had examined the claimant at Madras had also given permanent disability certificate at 60% which could be seen from Ex.P.6. Therefore, the reduction of permanent disability for the purpose of calculating the compensation on the part of the lower Court is without any basis. If the compensation is calculated either on pecuniary loss method or non-pecuniary loss method, the claimant could have been awarded a minimum from Rs.1,20,000/- to Rs.1,44,000/- approximately, if the formula of Rs.2,000/- per 1% has been adopted. Moreover, the loss of amenities was not considered by the lower court. Medical Expenses incurred by the claimant was also not awarded. The other heads of compensation awarded by the lower court, for the loss of temporary income at Rs.2,500/-; Rs.10,000/- towards pain and sufferings and for loss of clothes at Rs.500/-; for Extra Nourishment at Rs.2,000/- are all sustainable and therefore the total compensation would have been more than 1,20,000/-. However, the lower Court had arrived at a compensation of Rs.1,11,000/- only. The claimant had not preferred any separate appeal or cross appeal in this appeal for the purpose of enhancement of compensation. Therefore, such enhancement is not possible in this appeal.
15. For the foregoing reasons, I am of the view that the finding of the lower Court in fixing the responsibility is unassailable and even though the compensation was unequally fixed by the Court below and no appeal has been preferred on the part of the claimant for the enhancement, this Court is inclined to confirm the award passed by the lower Court and accordingly the appeal is dismissed with costs.
ggs
To
The Motor Accidents Claims Tribunal
(Fast Track Court 1),
Tindivanam