BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 26/03/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1263 of 2008 and Cros.Obj.(MD)No.53 of 2009 and M.P.(MD)No.1 of 2008 M.P.(MD)No. 3 of 2009 and M.P.(MD)No.1 of 2010 Tamil Nadu State Transport Corporation, Kumbakonam Limited, Trichy, Division II, represented by its Managing Director, Trichy. ... Appellant / Respondent Vs Antony Xavier Rayer, K. ... Respondent/Petitioner Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and award made in M.C.O.P.No.2938 of 2002 dated 27.09.2007, on the file of the Motor Accident Claims Tribunal, Additional District Court/Fast Track Court No.II, Trichy. !For Appellant ... Mr.Royce Emmanuel ^For Respondent ... Ms.J.Maria Roseline * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against
the judgment and award made in M.C.O.P.No.2938 of 2002 dated 27.09.2007, on the
file of the Motor Accident Claims Tribunal, Additional District Court/Fast Track
Court No.II, Trichy.
2. The appellant is the Transport Corporation. On 03.04.2002 at about
8.00 p.m., the respondent rode a two wheeler namely TVS XL on Trichy-Dindigul
main road. The bus bearing Registration No.TN-45-N-1655 of the appellant
Corporation hit the respondent behind the two wheeler. The respondent was thrown
out and he got grievous injuries at the head, on the right eye and all over the
body. He was admitted in Maruthi Hospital, Trichy on 03.04.2002 as in patient.
He was treated upto 22.07.2002. The respondent was employed as Office
Superintendent in Southern railways. He was aged about 53 years at the time of
the accident. Due to severe injuries, his vision in right eye was seriously
affected. He also suffered giddiness, loss of memory and head ache due to the
head injuries. In these circumstances, he opted to go under voluntary
retirement as he could not continue in the employment. He voluntarily retired
from service on 01.08.2004.
3. He filed M.C.O.P.No.2938 of 2002, claiming Rs.7,00,000/- as
compensation. His son, the owner of the two wheeler filed M.C.O.P.No.2939 of
2002, claiming damages for the vehicle. Both M.C.O.Ps were tried together
before the Tribunal. Five witnesses were examined on the side of the claimants.
Documents Ex.A.1 to A.15 were marked. On the side of the appellant, the driver
of the bus was examined and no document was marked. The Tribunal passed an
award dated 27.09.2007 granting Rs.2,50,000/- as compensation with 7.5% interest
and costs to the claimant.
4. This appeal has been filed by the Transport Corporation questioning the
award on the ground that the Tribunal erred in holding that the driver of the
bus was rash and negligent in causing the accident and that the Tribunal awarded
excessive amount.
5. The respondent filed cross objection seeking for enhancement of the
award amount upto Rs.9,75,000/-
6. Heard the learned Counsel for both sides.
7. The learned Counsel for the appellant submits that the driver of the
bus was not responsible for the accident and that the road where the accident
took place was a crowded road and that the respondent on seeing a pit, came to
the right side of the road and hit against the bus. Since the respondent came
to the right side of the road to avoid a pit on the road, he should be held
responsible for the accident. He relies on the deposition of R.W.1, the driver
of the Transport Corporation in this regard.
8. On the other hand, the learned Counsel for the claimant submits that
the driver of the bus was solely responsible for the accident and that he came
rashly and negligently and hit behind the two wheeler.
The learned Counsel submits that F.I.R. was registered against the driver and
that three witnesses including the claimant who witnessed the accident spoke
consistently that the driver of the bus drove rashly and negligently and caused
the accident. Therefore, the Tribunal could not be found fault in its finding
as to the rash and negligent driving of the driver of the Transport Corporation.
9. The learned Counsel for the claimant submits that nowhere the appellant
stated in the counter statement that was filed in M.C.O.P. that there was a pit
on the road and that the claimant came to the right side to avoid the pit and
hit against the bus. It is submitted that it was an after thought and the story
was invented by the driver to escape his responsibility.
10. I have considered the submissions made on either side and perused the
records.
11. As rightly contended by the learned Counsel for the claimant that the
Transport Corporation nowhere stated in the counter that the claimant came to
the right side of the road to avoid a pit on the road and in that process, he
hit against the bus. Paragraph 3 of the counter statement of the appellant is
relevant in this regard and the same is extracted here:
“3. The allegations in para 23 of the petition are all denied as false and the
accident did not happen in the manner as set out in the petition. On
03.04.2002, this respondent’s vehicle bearing Reg.No.TN-45-N-1655 driven by its
driver with all care and caution was proceeding from Trichy to Palani. At about
20.00 hrs. the above said vehicle was proceeding near National College, Trichy.
At that time, ahead of this respondent bus a moped rider was proceeding in the
same direction. The driver of this respondent sounded horn and made his
intentions clear to overtake the moped rider. When actually 3/4th of this
respondent’s bus has passed the moped rider in the process of overtaking, the
moped rider turned his moped to its right side and the moped dashed against the
left side rear body of this respondent bus. Thus the driver of this respondent
was in no way responsible for the accident. The petitioner was solely
responsible for the accident.”
12. But the driver spoke differently when he deposed before the Tribunal.
The following is the discussion of the Tribunal that is found in paragraph 9 of
the award. The following passage is extracted hereunder:
“v.k.rh.1 muR Bghf;Ftuj;J fHf BgUe;jpd; Xl;Leh; uj;jpdk; jd; rhl;rpaj;jpy;,
03.04.2002 md;W nut[ Rkhh; 8.15 kzpf;F Berdy; fy;Yhp mUBf Bghf;Ftuj;J mjpfkhf
nUe;jjhy; kpf epjhdj;Jld;, ftdkhft[k; bkJthft[k; BgUe;ij naf;fp bry;Yk;BghJ
Berdy; fy;Yhp jpUr;rp-jpz;Lf;fy; rhiyapy; jdf;F Kd;dhy; brd;w o.tpv!;. 50I Ke;jp
bry;Yk;BghJ jFe;j Mud; moj;J vr;rhpf;if bra;J bfhz;L o.tp.v!; 50I Ke;jp
bry;Yk;BghJ o.tp.v!; 50 Xl;Ldh; rpwpa gs;sk; nUe;jjhy; rlhbud;W o.tp.v!; 50
bkhbghl;il jpUg;gpajhy; jhd; BgUe;jpd; nlJg[wk; irL ghoapy; noj;Jtpl;ljhf
Fwpg;gpl;L..”
13. It is clearly seen that the driver of the bus came with a different
version. His deposition before the Tribunal is not consistent with the statement
in the counter. Further three witnesses including the claimant spoke
consistently that the driver of the bus was responsible for the accident. In
these circumstances, I do not find any infirmity in the award of the Tribunal as
to its finding that the driver was rash and negligent in causing the accident.
14. The learned Counsel for the appellant submits that the Tribunal ought
not to have awarded Rs.70,000/- towards disability compensation when the
Tribunal awarded Rs.50,000/- towards loss of earning. The learned Counsel
further submits that the Tribunal also committed error in awarding Rs.25,000/-
towards pain and suffering.
15. The learned Counsel for the claimant submits that the Tribunal failed
to adopt the multiplier method as per clause 5(b) of the Second Schedule of the
Motor Vehicles Act for assessing the loss of income. The learned Counsel
submits that though the doctor assessed at 35% permanent partial disability, it
should be taken as 100% loss, as the claimant left the employment and opted to
retire voluntarily. The learned Counsel also submits that the claimant is
entitled to be compensated towards his loss of income until his retirement.
16. In this regard, clause 5(b) of the Second Schedule of the Motor
Vehicles Act, which is relevant for the purpose of the case, is extracted
hereunder:
“5.Disability in non-fatal accidents:
The following compensation shall be payable in case of disability to the victim
arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty-two
weeks.
Plus either of the following:-
(a) In case of permanent total disablement the amount payable shall be arrived
at by multiplying the annual loss of income by the Multiplier applicable to the
age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation
which would have been payable in the case of permanent total disablement as
specified under item(a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial
Disablement and percentage of loss of earning capacity shall be as per Schedule
I under Workmen’s Compensation Act, 1923.”
17. In view of Clause 5(b) of the Second Schedule of the Motor Vehicles
Act, the Tribunal ought to have applied multiplier method and should have worked
out the compensation payable to the claimant. The learned Counsel for the
claimant states that though the doctor certified that the claimant suffered 35%
partial permanent disability, since he left the employment due to the injuries,
it should be taken that he suffered 100% disability. That is, the learned
Counsel argues that the loss of earning was 100%.
18. On the other hand, the learned Counsel for the appellant Corporation
seriously objects for taking that the claimant suffered 100% loss of earning
capacity. The learned Counsel submits that there is no evidence placed before
the Tribunal that he left the employment due to the injury. Further, it is
stated that he went under voluntary retirement and he is in receipt of pension
and other benefits. Both Counsel relies on the evidence of the doctor in support
of their contentions. The evidence of the doctor who was examined as P.W.4 is
extracted hereunder:
“kDjhuUf;F ehd; Behpilahf rpfpr;ir mspf;ftpy;iy. fhar;rhd;wpjH; tHA;Fk;BghJjhd;
ehd; kDjhuiu ghh;j;Bjd;. 03.04.2002 ypUe;J jw;BghJ tiu kDjhuh; vd;d rpfpr;irfs;
Bkw;bfhz;lhh; vd;w tptuk; vdf;F bjhpahJ. kDjhuUf;F jiytyp, kaf;fk; kDjhuh;
Twpajhy;jhd; vdf;F bjhpa[k;. ehd; Kis euk;gpay; kUj;Jth; vd;why; rhpjhd;.
kDjhuUf;F cjtp bra;a[k; Behf;fj;jpy; Cdj;jpd; msit kpifg;gLj;p TWfpBwd; vd;why;
rhpay;y.”
The learned Counsel for the claimant also seeks to compensate the loss in actual
earning due to voluntary retirement upto the date of the actual retirement.
19. I am not inclined to treat that the claimant suffered 100% loss of
earning capacity. Nowhere, the doctor said that he could not do any work.
Further no evidence is placed that he opted to go under voluntary retirement due
to the injuries. In these circumstances, the submissions of the learned Counsel
for the claimant that the claimant is entitled to compensation treating that he
has suffered 100% disability, deserves to be rejected. Likewise, the other
submissions of the learned Counsel for the claimant that the claimant is
entitled to the loss of the salary due to the voluntary retirement upto the date
of actual retirement has no force.
20. However, as per clause 5 (b) of the Second Schedule of the Motor
Vehicles Act, the claimant is entitled to compensation for 35% of permanent
partial disability. The claimant was paid Rs.15,252/- as monthly salary at the
time of the accident as per Exs.A.4 and A.5 and the same is not disputed. The
multiplier for the age of 53 years is “11” as per the decision of the Honourable
Apex Court in Sarala Varma’s case reported in 2009(2) TNMAC 1. Hence, the
compensation for loss of income payable to the claimant as per clause 5(b) of
the Second Schedule of the Motor Vehicles Act is
Rs.15,252x12x11x35/100=Rs.7,04,642.40/-
21. As rightly contended by the learned Counsel for the appellant, if the
claimant is awarded Rs.7,04,642.40/- as per clause 5(b) of the Second Schedule
of the Motor Vehicles Act, the claimant is not entitled to Rs.70,000/- towards
disability compensation awarded by the Tribunal, as held by the Full Bench
decision of this Court in Cholan Roadways Corporation Limited Vs. Ahamed Thambi
and six others reported in 2006(3) L.W.1025. Therefore, the amount of
Rs.70,000/- towards disability compensation and Rs.50,000/- towards loss of
income are deleted from the award.
22. I am not in agreement that the Tribunal awarded on the higher side
towards pain and sufferings.
23. The learned Counsel for the appellant does not dispute the other
heads, though grounds were raised in the appeal.
24. In these circumstances, this Court awards compensation to the claimant
as follows:
(i) compensation under clause 5(b)
of the Second Schedule of the
Motor Vehicles Act Rs.7,04,642.40
(ii) for medical expenses Rs. 90,000.00
(iii)for pain and sufferings Rs. 25,000.00
(iv) for transport, extra
nourishment and
medical attendant Rs. 15,000.00
(v) for loss of amenities
and enjoyment in life Rs. 25,000.00
---------------
Rs.8,59,642.40
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25. The appellant is directed to deposit the enhanced amount of
compensation within a period of six weeks from the date of receipt of a copy of
this order with the same interest as ordered by the Tribunal from the date of
application. On such deposit being made, the claimant is permitted to withdraw
the same.
26. Accordingly, this Civil Miscellaneous Appeal is disposed of in the
above terms. Consequently, the connected Miscellaneous Petitions are closed. No
costs.
ssl
To
The Motor Accident Claims Tribunal,
Additional District Court/
Fast Track Court No.II, Trichy.