IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.09.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1648 of 2006 and C.M.P.No.7285 of 2006 Andhra Pradesh State Road Transport Corporation rep.by its Managing Director Hyderabad .. Appellant Vs Nandhakumar .. Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 04.04.2005, made in M.C.O.P.No.615 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. For appellant : Mr.M.Sriram For respondent : Mr.V.Kumaravelan 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 04.04.2005, made in M.C.O.P.No.615 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, awarding a compensation of Rs.8,66,900/- together with 9% interest per annum, from the date of filing the claim 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 scale down the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
The petitioner had gone to Tirupathi Thirumalai Swamy Dharsanam with his friends on 11.10.2002 from his village in a Tata Sumo Van and stayed the night of 11.10.2002 at Tirumalai. On the early morning of 12.10.2002, at about 06.00 a.m. when he was walking towards the Temple near S.N.C.Complex, on the left side of the road for Dharasanam with his cousin brother Jayakumar, the respondent/Corporation bus bearing registration No.AP11 Z1848, driven rashly and negligently by its driver at high speed, dashed against the petitioner and his cousin brother. Due to which, both had sustained injuries. The petitioner sustained severe degloving injury at his left leg and hip area. Immediately, after the said accident, he was admitted in Ashwini Hospital for first aid. Thereafter, he was shifted to SVRRGG Hospital Tirupathi. Thereafter he was taken to C.M.C.Hospital, Vellore and admitted there as inpatient from 13.10.2002 to 21.10.2002. During that period, skin grafting was done to his left leg for the severe degloving injury by taking flesh from his other leg. Thereafter, he was referred to special hospital for urology at Chennai. Further, he was admitted in Miot Hospitals, Chennai from 21.10.2002 to 12.12.2002. During that period, various operations were done to the injury at hip, pelvis fracture. Again he had taken treatment in Miot Hospital as inpatient from 22.01.2003 to 07.02.2003, during that period operation was conducted at his kidneys and removed fractured bone parts from his urinal passage. The accident had occurred only due to the rash and negligent driving of the driver of the respondent’s Corporation bus. As such, he claimed a compensation of Rs.19,27,000/-, but he restricted his claim to Rs.12,00,000/- before the Tribunal.
4.The respondent, in their Counter, had resisted the claim petition as follows:
“It is not true that the driver of this respondent’s bus driver drove the bus rashly and negligently as alleged in the petition.
It is not true that on the early morning of 12.10.2002, at 06.00 a.m. when the petitioner was walking towards the Temple near S.N.C.Complex at Tirupathi Thirumalai on the left side of the road for Dharsan with his cousin brother and at that time the bus bearing registration No.AP11 Z1848 driven rashly and negligently by its driver at high speed came and dashed against the petitioner and his cousin Jayakumar and as a result of which the petitioner and the said Jayakumar sustained injuries.
It is submitted that the petitioner while walking along the road abruptly crossed the road from left side to right side without minding the bus coming on the road and the driver in spite of applying the brakes the petitioner involved himself in the accident. Hence, this respondent is not liable to meet the claim of the petitioner. The accident was due to the carelessness and negligence of the petitioner only.
It is not true that the petitioner underwent treatment as stated in Column 12 and 13 of the petition. It is not true that the petitioner is not able to do his work as before. In fact the petitioner has not sustained any serious injuries nor any disability whatsoever. The normal life of the petitioner was not at all affected.
The amount of compensation claimed namely Rs.12,00,000/- is too high, excessive, exorbitant, exaggerated, disproportionate without any basis besides being not due. The petitioner is not entitled to the same.”
5.The learned Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Who is responsible for the said accident?
(ii) Whether the petitioner is entitled for compensation, If so what is the quantum of compensation?
6.On the petitioner’s side, the claimant himself was examined as PW1, and Dr.Ashok Kumar was examined as PW2 and Dr.P.V.A.Mohan Doss was examined as PW3 and eleven documents were marked as Exs.P1 to P11 namely Ex.P1-Xerox copy of the First Information Report, Ex.P2-Xerox copy of the Wound Certificate, Ex.P3-Discharge Summary, Ex.P4-Discharge Summary-II issued by the Miot Hospital, Ex.P5-Discharge Summary issued by the Miot Hospital, Ex.P6-Medical Bills, Ex.P7-Car Receipts, Ex.P8-Photo Negative, Ex.P9-Xerox copy of the driving licence of the petitioner, Ex.P10-X-ray taken in Miot Hospital and Ex.P11-Permanent Disability Certificate. On the respondent’s side one Salapathi, the driver of the bus, was examined as RW1 and and no documents were marked.
7.The claimant, PW1 had adduced evidence stating that the driver of the offending vehicle had driven the bus in a rash and negligent manner and dashed against him. The said accident was registered by the concerned Police in that jurisdiction. The FIR was registered and the same was marked as Ex.P1. After considering the same, the learned Tribunal has come to the conclusion that the driver of the bus was the cause for the said accident. As such, the respondent Corporation is liable to pay compensation.
8.The PW1, further adduced evidence stating that the left side tyre of the respondent’s Corporation bus had run over his leg. Due to which, the muscles separated from his leg and he also sustained injuries on his hip. Immediately, he was taken to Aswini Hospital for preliminary treatment and again he was referred to SVRRGG Hospital for further treatment. The very next day ie.on 30.10.2002 he was admitted to CMC Hospital, Vellore, wherein skin grafting was conducted and surgical operation was performed for the extraction of urine. Again, he was referred to Miot Hospital, wherein two surgical operations were conducted on his hip and left leg, wherein also another tube was fixed for the extraction of urine from his bladder. Subsequently, he was discharged and readmitted on 22.01.2003 to 07.02.2003. During this treatment period, the fixed urinary tube was removed. He had further adduced evidence stating that he had undergone medical treatment for a total period of six months, as inpatient and outpatient. His avocation was as an agriculturist and earning a sum of Rs.5,000/- per month. His marriage prospects are also diminished.
9.Dr.Ashok Kumar and Dr.P.V.A.Mohan Doss were examined as PW2 and PW3. They had adduced evidence stating that they had examined the claimants and verified the medical history sheet and assessed the disability of the claimant as 70%. The disability certificate was marked as Ex.P11.
10.After considering the evidence of PW1, PW2 and PW3 and documents, which were marked by the claimant, the learned Tribunal had come to the conclusion that the driver of the respondent Corporation bus had committed the accident, therefore the respondent/Transport Corporation Ltd., is liable to pay compensation and awarded the compensation as follows:
i. Rs.3,00,000/- under the head of injuries,
ii. Rs.2,64,900/- under the head of medical expenses,
iii.Rs.2,000/- under the head of damage to clothes,
iv. Rs.10,000/- under the head of loss of partial income,
v. Rs.10,000/- under the head of transport expenses,
vi. Rs.10,000/- under the head of nutrition,
vii.Rs.10,000/- under the head of attender charges,
viii.Rs.1,00,000/- under the head of pain and suffering,
ix. Rs.1,35,000/- under the head of permanent disability,
x. Rs.25,000/- under the head of loss of future earning capacity,
In total, the Tribunal awarded a sum of Rs.8,66,900/- 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. Further, the Tribunal directed the respondent to deposit the compensation amount of Rs.8,66,900/- 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, within a period of two months. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period of three years. Accordingly ordered.
11.Aggrieved by the said Award and Decree, the appellant/respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal.
12.The learned counsel appearing for the appellant argued that the claimant’s income was not properly assessed. The Tribunal awarded a sum of Rs.3,00,000/- under the head of injuries, which is not pertinent to the instant case. Further, the Tribunal awarded a sum of Rs.1,35,000/- under the head of disability, which is also inadmissible. Further, the learned counsel vehemently argued that the compensation amount awarded by the Tribunal is an arbitrary one. Therefore, he prays to scale down the compensation amount awarded by the Tribunal.
13.The learned counsel appearing for the respondent/claimant argued that the injured person had undergone surgical operation more than five times, his urinary system was affected, for which operations were conducted on two occasions. It proves medically that the claimant lost his strength particularly in his sexual life. Further, the learned counsel argued that the claimant had undergone treatment for a period of six months at different hospitals as an inpatient as well as outpatient. During the treatment period he lost his usual income. Medical expenses amounted to about Rs.3,00,000/-. After deducting this amount, the balance compensation amount is inadequate. Therefore, he prays to dismiss the appeal.
14.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the claimant had undergone five surgeries including skin grafting and insertion of tubes for urine extraction, besides undergoing treatment at various hospitals and on different occasions continuously. As such, the award amount of Rs.8,66,900/- with interest at the rate of 9% per annum granted by the Tribunal is found fair and equitable. Hence, this Court concurs with the same. However, there is a discrepancy for awarding the mode of compensation, hence, this Court decided to restructure the compensation as follows:
i. The Tribunal awarded a sum of Rs.2,64,900/- under the head of medical expenses, this Court confirms the same as it is pertinent,
ii. The Tribunal awarded a sum of Rs.1,35,000/- under the head of permanent disability, this Court enhances it to Rs.1,40,000/- towards 70% disability, since the claimant was aged 27 years.,
iii. The Tribunal awarded a sum of Rs.2,000/- under the head of damage to clothes, this Court confirms the same as it is pertinent,
iv. The Tribunal awarded a sum of Rs.10,000/- under the head of loss of partial income, this Court enhances the same to Rs.30,000/-,
v. The Tribunal awarded a sum of Rs.10,000/- under the head of transport expenses, this Court enhances the same to Rs.25,000/- under the same head,
vi. The Tribunal awarded a sum of Rs.10,000/- under the head of nutrition, this Court confirms the same as it is pertinent,
vii. The Tribunal awarded a sum of Rs.1,00,000/- under the head of pain and suffering, this Court reduces the same to Rs.50,000/-,
viii.The Tribunal awarded a sum of Rs.25,000/- under the head of loss of future earning capacity, this Court enhances the same to Rs.75,000/- under the same head,
ix. The Tribunal awarded a sum of Rs.3,00,000/- under the head of injuries, this Court sets aside the same and awards a sum of Rs.2,50,000/- for affecting his urinary system. As such his manhood has been affected in his future family life.
x. The Tribunal awarded a sum of Rs.10,000/- under the head of attender charges, this Court enhances the same to Rs.15,000/- under the same head,
In total, this Court awards a sum of Rs.8,61,900/- as compensation to the claimant, 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, which is fair and equitable.
15.On 20.06.2006, this Court directed the appellant to deposit 50% of the award amount, into the credit of the M.C.O.P.No.615 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. Now, this Court directs the appellant to deposit the remaining compensation amount, into the credit of the M.C.O.P.No.615 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, within a period of six weeks from the date of receipt of a copy of this Order.
16.As the accident had happened in the year 2002, the claimant/respondent is at liberty to withdraw the entire compensation amount with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.615 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, by making proper payment out application, subject to deduction of withdrawals, if any, in accordance with law.
17.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 04.04.2005, made in M.C.O.P.No.615 of 2003, passed by the Motor Accident Claims Tribunal, Sub Court, Krishnagiri is modified. Consequently, connected civil miscellaneous petition is closed. No costs.
23.09.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The Motor Accident Claims Tribunal,
Sub Court, Krishnagiri.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.1648 of 2006
23.09.2010