IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.07.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.2150 of 2002 K.Santhanam @ Alagar ... Appellant Vs. The Managing Director Metro Transport Corp. Ltd. Pallavan Salai Chennai - 600 002 ... Respondent This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the order of the Motor Accidents Claims Tribunal (Sub court), Poonamallee dated 10.08.2001 made in M.C.O.P.No.21 of 1994. For Appellant : Mr.J.Mahalingam For Respondent : Mr.G.Munirathnam J U D G M E N T
This civil miscellaneous appeal has been preferred by the appellant herein who figured as the claimant in MCOP No.21/1994 on the file of the Motor Accidents Claims Tribunal (Sub Court), Poonamallee against the judgment and decree of the said Tribunal dated 10.08.2001 made in the said MCOP in so far as the disallowed portion of the claim is concerned.
2. The appellant herein had preferred a claim in MCOP No.21 of 1994 on the file of the Motor Accidents Claims Tribunal (Sub Court), Poonamallee claiming a sum of Rs.3,00,000/- as compensation for the injuries allegedly sustained by him in a road accident that took place on 11.03.1993 at about 8.35 a.m. The averments made in the petition are as follows:-
i) On 11.03.1993 at about 8.30 a.m while the petitioner was travelling in a scooter bearing Regn. No.TNH 5804 on the GST Road near St. Thomas Mount, the bus belonging to the respondent bearing Regn. No.TN-01 N-1258 driven by its driver at a dangerous speed, came in the same direction and overtook the scooter very closely and in the said process of overtaking the scooter it grazed against the petitioner, as a result of which the petitioner was thrown off from the scooter causing grievous injuries to the petitioner. The said accident occurred solely due to the rash and negligent driving of the bus by its driver. Therefore, the respondent, as the owner of the said vehicle is vicariously and statutorily liable to pay compensation to the appellant herein/petitioner.
ii) The appellant/petitioner was aged about 31 years and was employed as a clerk under an advocate named Thiru.J.Mahalingam. He was having a total income of Rs.2,500/- per month. Soon after the accident, the petitioner was treated as an in-patient in Sri Balaji Hospital in three spells – 1) 11.03.1993 to 21.03.1993, 2) 12.04.1993 to 19.04.1993 and 3) 18.07.1993 to 31.07.1993 – and there after he took treatment as an out patient. Despite proper treatment, the injuries resulted in permanent disability.
3. Based on the above said pleadings, the appellant/petitioner had claimed a sum of Rs.3,00,000/- as compensation.
4. The claim was resisted by the respondent transport corporation by filing a counter statement wherein the petition allegations regarding the manner in which the accident took place were denied. The respondent/transport corporation contended further in the counter statement that there was no negligence on the part of the driver of the bus; that on the other hand one Haridoss, a passenger in the bus was travelling hanging on the foot board disregarding the warning given by the conductor; that when the bus reached the place of accident, said Haridoss lost his grip and fell down on the scooter driven by the petitioner herein which came very close to the bus and that as a result of the same the appellant and one Rajaram who was travelling in the said scooter as a pillion rider fell down and sustained injuries. Apart from the said contention, the respondent transport corporation also denied the petition allegations regarding the age, occupation, income, nature of injuries and the disability allegedly sustained by the appellant/ petitioner. It was also contended therein that the petitioner was also guilty of contributory negligence. Based on the said contentions raised in the counter statement, the respondent had pleaded for the dismissal of the petition with cost.
5. The Tribunal, after framing necessary issues, tried the MCOP filed by the appellant herein, namely MCOP No.21/1994 and another MCOP, namely MCOP No.20/1994 filed by the above said Haridoss, jointly and at the conclusion of trial, passed an award directing the respondent/transport corporation to pay a sum of Rs.78,000/- as compensation to the appellant herein together with an interest at the rate of 9% per annum from the date of petition till realisation along with cost.
6. Contending that the amount awarded by the Tribunal as compensation is highly inadequate, the appellant/ petitioner has preferred the present civil miscellaneous appeal on various grounds set out in the memorandum of grounds of civil miscellaneous appeal. The point that arises for consideration in this appeal is as follows:-
” Whether the award of the Tribunal is inadequate as contended by the appellant requiring upward revision?”
7. This court heard the submissions made by Mr.J.Mahalingam, learned counsel for the appellant and Mr.G.Munirathnam, learned counsel for the respondent. The materials available on record were also perused.
8. It is an admitted fact that while the petitioner was travelling in his scooter bearing Regn. No.TNH 5840 on the GST Road near St. Thomas Mount on 11.03.1993 at about 8.35 a.m. One Haridoss, who was travelling in the bus belonging to the respondent/transport corporation bearing Regn. No.TN-01 N-1258 hanging on the foot board of the said bus, lost his grip while the said bus was closely overtaking the scooter, as a result of which he fell down on the scooter; that consequently the petitioner herein who was riding the scooter and one Rajaram who was travelling as a pillion rider in the said scooter, fell down and sustained injuries. No doubt the respondent/transport corporation might have taken a defence plea that there was no negligence on the part of the driver of the bus belonging to the respondent/transport corporation; that it was due to the act on the part of the above said Haridoss who was travelling in the bus hanging on the foot board disregarding the warning of the conductor the accident occurred and that there was also contributory negligence on the part of the appellant/petitioner in coming so closely to the bus in his scooter. But, the Tribunal, on an appreciation of evidence, has taken a view that by allowing the passenger to travel on the foot board and driving the bus so closely to the scooter at a high speed in a rashness and negligent manner, as a result of which the body of the bus grazed against the scooter and one of the foot board passengers fell down on the scooter leading to the injuries sustained by the petitioner and that the rash and negligence on the part of the driver of the bus was the cause of the accident. The said finding of the Tribunal has not been challenged by the respondent/transport corporation and hence the same has become final.
9. So far as the quantum of compensation is concerned, the Tribunal rejected the contention of the appellant/ petitioner that prior to the accident he was working as a clerk under an advocate and was having a monthly income of Rs.2,500/-. As there was no evidence except the ipse dixit of the appellant/petitioner who deposed as P.W.1 and that he himself admitted that the advocate did not have any account for payment of salary to him as clerk, the Tribunal took the view that in the absence of proper evidence it had to come to a conclusion that he was unemployed and was not having any income prior to the date of accident. As a result of the said finding, the Tribunal has chosen not to award any amount towards loss of income during the period of treatment. Even in respect of an unemployed person, at least the notional income should have been taken. As per Ex.P1 to P4, the appellant/petitioner was taking treatment as an in-patient in three spells during the period of 4 months. Therefore, it shall be proper to hold that he could have lost income at least for a period of four months from the date of accident. As indicated supra, if the notional income of Rs.15,000/- per annum is adopted taking the schedule II as guideline, his monthly income can be fixed at the minimum of Rs.1,250/-. Hence a sum of Rs.5,000/- to be awarded towards total loss of income for four months from the date of accident.
10. The Tribunal has awarded a sum of Rs.46,000/- towards medical expenses as against a sum of Rs.46,188/- covered by the medical bills produced by the appellant/petitioner as Ex.P4 series. The same, in no way can be held low or unreasonable. Considering the nature of injuries and the period of treatment, compensation for pain and suffering awarded by the Tribunal can be enhanced from Rs.5,000/- to Rs.10,000/-. The amount awarded towards transport expenses and extra nourishment at the rate of Rs.1,000/- each seems to be low and hence they are to be enhanced to Rs.2,000/-. Though the petitioner might have taken a stand that he sustained a tear in the medial ligament of the left knee which resulted in the permanent disability and P.W.3 might have issued Ex.P14-disability certificate certifying that the petitioner had suffered 30% permanent disability. The Tribunal has arrived at a finding that the disability did not result in loss of earning as it was admitted by the petitioner while deposing as P.W.1 that after the filing of the petition he was employed in a computer company and was drawing a monthly salary of Rs.3,000/-. However, for the permanent disability, the Tribunal has awarded a sum of Rs.25,000/- as lumpsum compensation. P.W.3 seems to have assessed the disability suffered by the appellant/ petitioner at 30% and the disability spoken to by P.W.3 that there was restriction of movement of knee joint on the left leg. He had certified that the knee could be folded to 70 degree and the restriction in movement was 30 degree. Therefore the extent of disability certified by P.W.3 is definitely on the higher side, P.W.3 also admitted that the disability was assessed by him by clinically examining the appellant. What practice was used as guideline was also not elaborated by him. Under such circumstances fixing the permanent disability at 20% shall be quite reasonable. Taking into account the fact that the petitioner was aged about 31 years at the time of accident, the lumpsum compensation for permanent disability can be awarded at the rate of Rs.1,500/- per one percentage of disability which works to Rs.30,000/- for the disability of 20%. If such adjustments are made, the total amount awarded by the Tribunal as compensation to which the appellant/petitioner is entitled shall be quite reasonable and the contention made by the appellant/petitioner that the said amount is highly inadequate can be discountenanced. At the cost of repetition, the split up particulars of the compensation to which the appellant/petitioner is entitled is furnished here under.
Loss of earning from the date of accident for 4 months : Rs. 5,000.00 Transport expenses : Rs. 2,000.00 Expenses on extra nourishment : Rs. 2,000.00 Pain and suffering : Rs. 10,000.00 Medical expenses : Rs. 46,000.00 Lumpsum amount for permanent disability : Rs. 30,000.00 --------------- Total Rs. 95,000.00 --------------- 11. In the result the appeal is allowed in part and the award of the Tribunal is modified by enhancing the amount of compensation from Rs.78,000/- to Rs.95,000/-. In all other respects, the award of the Tribunal shall P.R.SHIVAKUMAR, J. asr/ stand confirmed. There shall be no order as to cost in the appeal. asr To Motor Accidents Claims Tribunal (Sub court), Poonamallee