BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/07/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A(MD).No.320 of 2004 J.Senthilkumar .. Appellant/Petitioner Vs The Managing Director, Tamil Nadu Transport Corporation, Tirunelveli. .. Respondent/Respondent Prayer Appeal filed under Section 173 of the Motor Vehicles Act, against the award dated 11.03.2004 passed in M.A.C.T.O.P.No.2 of 2000 by the Motor Accidents Claims Tribunal - Sub Judge, Tuticorin. !For Appellant ... Mr.M.Ajmalkhan ^For Respondents... Mr.D.Sivaraman for M/s.Rajinish Pathiyil :JUDGMENT
Challenge in this Civil Miscellaneous Appeal is against the award dated
11.03.2004 passed in M.A.C.T.O.P.No.2 of 2000 by the Motor Accidents Claims
Tribunal – Sub Judge, Tuticorin, granting a total compensation of Rs.44,237/-
(Rupees Forty Four Thousand Two Hundred and Thirty Seven only) together with
interest at 9% p.a., from the date of filing of the petition till date of
payment.
2. The appellant/claimant has filed the claim petition claiming a total
compensation of Rs.3,82,400/- (Rupees Three Lakhs Eighty Two Thousand and Four
Hundred only) and restricting the same to a sum of Rs.2,00,000/- (Rupees Two
Lakhs only).
3. Aggrieved against the award passed by the Tribunal, the
appellant/claimant has projected this appeal.
4. The short facts of the claim are as follows:
(i) On 01.10.1998, the appellant/claimant (the injured), his father and
his friends were returning after attending ‘Dashra’ festival at Kulasekarapatnam
to Tiruchendur in a bus bearing Registration No.TN-72-N-0617, belonging to the
State Transport Corporation, driven by its driver Subburaj at about 22.30 hours
and the said bus was proceeding 2 furlongs south of ice factory of Kallamozhil
on Kulasekarapatnam – Tiruchendur road from south to north in a rash and
negligent manner. The passengers including the appellant/claimant asked the bus
driver to drive in a safe condition, but the request proved in vain and he
dashed on the backside of an unknown lorry which was coming from north to south,
i.e from Tiruchendur to Kulasai and caused injuries to the appellant/claimant
and some others.
(ii) The appellant/claimant sustained two fractures, one in his right
Humerus and another in right forearm I MCB and underwent operation for fixing
implanted plates in his right arm which resulted in permanent disablement of his
right arm due to the dislocation of bones and affected his shoulder joint and
elbow joint. The driver of the lorry did not stop his vehicle, but ran away
with the lorry. The appellant/claimant sustained fractures and he was
immediately referred to T.V.M.S.Hospital, Tirunelveli from Tiruchendur
Government Hospital and he was admitted on 02.10.1998 and remained as an
inpatient till 12.12.1998. The accident took place because of the negligent
driving by the driver of the bus. Hence, the restricted claim of Rs.2,00,000/-
(Rupees Two Lakhs only) was made by the appellant/claimant together with
interest at 12% from the date of accident with costs.
5. The respondent/State Transport Corporation, took a plea that the
respondent’s bus was driven by its driver in a careful manner and when the bus
came near the ice factory at Kulasai, a lorry came in the opposite direction and
the respondent’s driver kept left to allow the lorry to proceed, but the
respondent’s driver stopped the bus, hearing the loud noise of the passengers
inside the bus and came to know that the passengers sitting in 4th and 5th rows
near window were injured in their right hands and they were immediately taken to
Tiruchendur Government Hospital for treatment and that the lorry which injured
the appellant/claimant fled away without stopping and after slightly hitting the
bus and hence, the accident took place due to the rash and negligent driving of
the lorry by its driver and the driver of the respondent’s bus was included in
the F.I.R on the belated complaint of the appellant’s father just to help the
appellant/claimant in his claim and in any event, the compensation claim of
Rs.2,00,000/- (Rupees Two Lakhs only) was too high and that the
appellant/claimant was not entitled to such amount.
6. On the side of the appellant/claimant before the Tribunal, witnesses,
P.W.1 to P.W.3 were examined and Exs.P.1 to P.10 were marked and on the side of
the respondent, witness R.W.1, the bus driver, was examined and no documents
were marked.
7. After contest, on an appreciation of oral and documentary evidence, the
Tribunal has awarded a total compensation of Rs.44,237/- (Rupees Forty Four
Thousand Two Hundred and Thirty Seven only) along with interest at 9% from the
date of filing of the petition till date of payment. The Tribunal has fixed the
lawyer’s fee at Rs.1,500/- (Rupees One Thousand and Five Hundred only).
8. To prove negligence, the appellant/claimant’s father, Jayapal, has been
examined as P.W.1 besides examination of P.W.3, Senthilkumar, the
appellant/claimant before the Tribunal. P.W.1 Jeyapal, in his evidence has
deposed that he along with P.W.3 Senthilkumar, travelled in the bus bearing
Registration No.TN-72-N-0617 on 01.10.1998 belonging to the respondent State
Transport Corporation from Kulasekarapatnam to Tiruchendur and at that time, a
lorry came in the opposite direction and because of the negligence of their bus
driver, the back portion of the bus dashed against the lorry’s back portion, as
a result of which, his son, the appellant/claimant P.W.2 sustained fracture in
his right forearm, two fractures in the back arm and immediately, the
appellant/claimant was admitted into Tiruchendur Government Hospital and
thereafter, in T.V.M.S.Hospital, Tirunelveli, a surgery was performed on the
appellant/claimant and a plate was also fixed and later, the fixed plate was
removed as per Ex.P.5 and that the lorry fled away from the scene and therefore,
he was not aware of the Registration Number of the lorry and further, four or
five persons sustained injuries in the accident and his son, the
appellant/claimant suffered a serious injury.
9. P.W.2, the appellant/claimant, Senthilkumar, in his evidence has
categorically stated that their bus driver did not notice the lorry which was
coming in the opposite direction and when the bus came near the lorry, the
driver of the bus turned towards left, as a result of which the lorry came in
the opposite direction dashed against the back portion of their bus and some co-
passengers who travelled in the bus sustained injuries and his right hand was
fractured and the backside glass of the bus was damaged and that their bus
driver was responsible for causing the accident and the lorry which came in the
opposite side did not stop and fled away from the scene of occurrence and
therefore, the same was not identified and that he was admitted as an inpatient
in T.V.M.S.Hospital, Tirunelveli, from 02.10.1998 to 12.12.1998.
10. R.W.1, Subburaj, the driver of the bus (who drove the offending
vehicle bearing Registration No.TN-72-N-0617, on 01.10.1998 from
Kulasekarapatnam to Tiruchendur) in his evidence, has deposed that when the bus
came near ice factory, a lorry in the opposite direction came in front of him
and after seeing the lorry, he drove his vehicle on the left side and at that
time, the lorry dashed against the back portion of the bus, as a result of
which, the passengers of the bus sustained injuries in hand and he immediately,
stopped his vehicle, but he could not see the Registration Number of the lorry
and that he immediately admitted the appellant/claimant into Government
Hospital, Tiruchendur and on the basis of the complaint given by the
appellant/claimant’s father, the police lodged the F.I.R as against him.
11. In Ex.P.1, certified copy of F.I.R, the informant is one Jayapal, who
is P.W.1, the father of the appellant/claimant. The accused’s name is Subburaj,
R.W.1, the driver of the bus bearing Registration No.TN-72-N-0617. On the basis
of the complaint of P.W.1, Jayapal, Kulasekarapatnam Police have registered a
criminal case in Cr.No.443 of 1998 under Sections 279, 338, 201, 217, 506(i)
I.P.C.
12. In Ex.P.2, the Motor Vehicles Inspector’s report, dated 03.12.1998, in
respect of the offending vehicle bearing Registration No.TN-72-N-0617, the Motor
Vehicles Inspector has opined that ‘this accident was not due to any mechanical
defect of this vehicle.’.
13. In Ex.P.6, the attested copy of the Accident Register, in respect of
the appellant/injured, it is mentioned that ‘alleged to have been involved in a
road traffic accident at about 10.15 p.m, on 01.10.1998 nearer to Kallamozhi
Kulasai to Tiruchendur road and that the injuries sustained by the
appellant/claimant are mentioned as follows:
“(1) Lacerated injury right elbow 3 X 2 X 1 cm bleeding present.
(2) Abrasions right elbow just distal to first injury 2 X 1 X r cm
bleeding present.
(3) Abrasion right index finger 1 X r X r cm, bleeding present.”
and that the opinion given by the Doctor is that the injury is simple in nature.
14. As far as the present case is concerned, the evidence of P.W.1 Jayapal
and P.W.3 Senthilkumar, in regard to the manner and mode of happening of the
occurrence are cogent, coherent and convincing and therefore, this Court accepts
the same. Per contra, even though R.W.1, the bus driver of the offending
vehicle, in his evidence has stated that the lorry dashed against the back
portion of the bus etc., the same is unbelievable and interested one and
therefore, this Court rejects the same. In view of the clear cut and
unimpeachable evidence of P.W.1, Jayapal and P.W.3, Senthilkumar, in regard to
the manner and happening of the occurrence and taking note of the vital fact
that the appellant/claimant has sustained injury in the accident, this Court
after bearing in mind the surrounding facts and circumstances of the case, comes
to the conclusion that the accident has taken place because of the negligent
driving of the bus belonging to the respondent State Transport Corporation
bearing Registration No.TN-72-N-0617 by its driver R.W.1, Subburaj and that he
is solely responsible for causing the accident and the point is answered
accordingly.
15. Coming next to the quantum of compensation to be awarded, it is
significant to point out that the Tribunal has awarded a sum of Rs.1,000/-
towards transport expenses as against a claim of Rs.2,000/-. Towards medical
expenses, as per Ex.P.5, the Tribunal has awarded a sum of Rs.24,237/- as
against a claim of Rs.30,000/-. Towards pain and sufferings, it has granted a
sum of Rs.4,000/- as against the claim of Rs.25,000/-. For partial permanent
disability of 25% as per Ex.P.8, the Tribunal has granted a sum of Rs.10,000/-
though the claimant has claimed a sum of Rs.2,16,000/- in this regard. Towards
loss of earning capacity, the Tribunal has awarded a sum of Rs.5,000/- as
against the claim of Rs.86,400/-. In all, the Tribunal has awarded a sum of
Rs.44,237/- (Rupees Forty Four Thousand Two Hundred and Thirty Seven only) as
total compensation along with interest at 9% p.a from the date of filing of the
petition till date of payment.
16. According to the learned Counsel for the appellant/claimant, the
Tribunal has erred in awarding a meagre sum of Rs.44,237/- as against the
reasonable claim of Rs.2,00,000/-, when that too, the appellant/claimant has
suffered a permanent disability of 25% and therefore, prays before this Court
for enhancement of compensation and to allow the appeal consequently, to prevent
miscarriage of justice.
17. The learned Counsel for the appellant/claimant cites the decision in
United India Insurance Company Limited v. R.Chinnaraj and others (2008 (1) TN
MAC 8), wherein this Court held that ‘taking into consideration the nature of
the injuries and disability certificates, an award of Rs.2,000/- per percentage
of disability would be proper and reasonable.’.
18. At this juncture, this Court points out that in the decision, Kapil
Kumar v. Kudrat Ali and others (2002 ACJ 852), wherein it is inter alia observed
as follows:
“According to P.W.5, an orthopaedic expert, appellant’s right hand became
irregular in shape and its movement became restrained and he cannot lift heavy
articles with the right hand. The normal movement will be painful. However,
the disability sustained was assessed at 20 per cent. As rightly observed by
the High Court, the loss of earning capacity on account of permanent partial
disability suffered by the appellant cannot be calculated in terms of percentage
only. It will have serious repercussions on his studies and prospects of
earning. He will have to face other handicaps on life. Though the High Court
did realise the need to enhance the compensation, we feel that the extent of
enhancement is still inadequate. The increase of Rs.5,000 is only marginal.
Taking, inter alia, the Table in the Second Schedule as guiding factor, we are
of the view that the compensation on account of disability incurred by the
appellant should be enhanced by Rs.20,000 more; that means, he will get
Rs.40,000 instead of Rs.20,000 awarded by the High Court under the first head.
In respect of other items, the award as modified by the High Court remains
undisturbed. In all, the appellant shall get Rs.50,000. This amount should
carry interest at the rate and from the period specified by the High Court. The
other directions in the award of the Tribunal shall stand.”.
19. P.W.2, Dr.Pavalan, in his evidence has stated that he is serving as
Doctor in the Tuticorin Medical College Hospital in Orthopaedic Department and
he examined the appellant/claimant on 20.10.2003 and that the appellant/claimant
informed him that he sustained injury in the accident that took place on
01.10.1998 and that the appellant/claimant was given treatment in different
nursing homes and that the appellant/claimant’s right hand was malunited then
and that the appellant/claimant found difficulty in using the right shoulder
portion and right hand portion and that the appellant/claimant was having pain
and on examination, he found that in the appellant/claimant’s right shoulder
portion, there were scars for the injuries sustained and that the movements of
the appellant/claimant’s right hand were restricted and that the
appellant/claimant’s partial permanent disability was assessed at 25% as per
Ex.P.8 disability certificate given by him and that the appellant/claimant was
not treated by him and that the fracture in the right hand of the appellant was
united.
20. Even though Ex.P.6, copy of the accident register shows that the
appellant/claimant had suffered simple injury and that the appellant was not
willing to get himself admitted into the Hospital, a perusal of Ex.P.8
disability certificate, issued by Dr.Pavalan, P.W.2, indicates that the
appellant/claimant had suffered a permanent disability of 25% and therefore,
this Court awards a sum of Rs.43,750/- (Rupees Forty Three Thousand Seven
Hundred and Fifty only) {Rs.1,750/- X 25 = Rs.43,750/-} [calculating at the rate
of Rs.1,750/- for 1% disability] towards the disability sustained by the
appellant/claimant.
21. For pain and sufferings, this Court grants a sum of Rs.5,000/-.
Towards transport charges, this Court awards a sum of Rs.1,000/- and this Court
has not interfered with the amount awarded under this head by the Tribunal.
Towards medical expenses, this Court grants a sum of Rs.24,237/- as per Ex.P.5,
medical bills, and has not interfered with the amount awarded by the Tribunal in
this regard. In view of the disability sustained by the appellant/claimant and
the disability of 25% suffered by him, this Court grants a sum of Rs.2,000/-,
towards loss of happiness and as a Global compensation.
22. Thus, in all, the appellant/claimant is entitled to a total
compensation of Rs.76,000/- (Rs.43,750/- + Rs.5,000/- + Rs.1,000/- + Rs.24,237/-
+ Rs.2,000/- = Rs.75,987/-) as a rounded off figure, together with interest at
9% p.a from the date of filing of the petition till date of payment, payable by
the respondent State Transport Corporation and therefore, this Court opines that
a sum of Rs.44,237/- (Rupees Forty Four Thousand Two Hundred and Thirty Seven
only) awarded by the Tribunal as compensation to the appellant/claimant is an
inadequate one considering the facts and circumstances of the present case.
23. This Court determines the lawyer’s fee at Rs.3,500/- and the
respondent State Transport Corporation is directed to pay the balance amount of
Rs.2,000/- (Rs.3,500/- – Rs.1,500/- = Rs.2,000/-) to the appellant/claimant
since the Tribunal has awarded a sum of Rs.1,500/- as lawyer’s fee for the
compensation of Rs.44,237/- (Rupees Forty Four Thousand Two Hundred and Thirty
Seven only).
24. In the light of the above discussions and on consideration of material
evidence on record and taking note of the attendant circumstances of the case,
this Court comes to the inevitable conclusion that the award of Rs.44,237/-
(Rupees Forty Four Thousand Two Hundred and Thirty Seven only) determined by the
Tribunal is an inadequate one and instead, this Court awards a sum of
Rs.76,000/- (Rupees Seventy Six Thousand only) together with interest at 9% p.a
from the date of filing of the petition till date of payment with proportionate
costs, which is reasonable, fair and equitable too, payable by the respondent
State Transport Corporation.
25. Already, the Tribunal has awarded a sum of Rs.44,237/- (Rupees Forty
Four Thousand Two Hundred and Thirty Seven only) together with interest at 9%
p.a from the date of filing of the petition till date of payment along with
proportionate costs. Hence, the balance sum of Rs.31,763/- (Rupees Thirty One
Thousand Seven Hundred and Sixty Three only) together with interest at 9% p.a
from the date of filing of the petition till date of payment with proportionate
costs, is directed to be paid by the respondent State Transport Corporation, to
the credit of M.A.C.T.O.P.No.2 of 2000 on the file of the Motor Accidents Claims
Tribunal – Sub Judge, Tuticorin, within a period of two months from the date of
receipt of a copy of this order.
26. On such deposit, the appellant/claimant is entitled to withdraw the
same from the Tribunal by filing necessary payment out application in accordance
with Civil Rules of Practice. The Tribunal is directed to ensure that the
payment of proper Court fee is paid by the appellant/claimant before disbursing
the award amount.
27. In the result, the Civil Miscellaneous Appeal is allowed in above
terms. Resultantly, the award dated 11.03.2004 passed in M.A.C.T.O.P.No.2 of
2000 by the Motor Accidents Claims Tribunal – Sub Judge, Tuticorin, is modified,
to the extent indicated above. Bearing in mind the facts and circumstances of
the case, there shall be no order as to costs.
rsb
To
The Motor Accidents Claims Tribunal –
Sub Judge, Tuticorin.