IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3176 of 2009 and M.P.No.1 of 2009 Tamil Nadu State Transport Corporation Division II, Coimbatore Limitted, Erode, rep.by Managing Director .. Appellant Vs 1.Minor.S.Jeevanandham 2.A.Dhanapal .. Respondents (R1 rep.by next friend and guardian P.Subramaniam R2 is the driver hence given up) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 21.06.2004, made in M.C.O.P.No.952 of 2000, on the file of the Motor Accident Claims Tribunal, II Additional Subordinate Court, Erode. For appellant : Mr.A.Babu For respondents : --- J U D G M E N T
The Civil Miscellaneous Appeal has been filed by the appellant/second respondent, against the Award and Decree, dated 21.06.2004, made in M.C.O.P.No.952 of 2000, on the file of the Motor Accident Claims Tribunal, II Additional Subordinate Court, Erode, awarding a compensation of Rs.4,03,942/- 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.
2.Aggrieved by the said Award and Decree passed by the Tribunal, the appellant/second respondent, the Tamil Nadu State Transport Corporation Division II, Erode has filed the above appeal praying to set aside the award and decree passed by the Tribunal.
3.The short facts of the claim case is as follows:
On 02.11.1998, when the petitioner was riding his bicycle on the Tiruppur to Perumanallur road near the new bus stand and near to Vigneswara Xerox, from south to north and keeping to the extreme left side of the road, the respondent’s bus bearing registration No.TN33 N0315, driven by its driver at a high speed and in a rash and negligent manner, dashed against the bicycle. As a result of this, the petitioner sustained severe injuries on his hip and his bicycle was damaged. Immediately, afterwards, the petitioner had taken first aid treatment at T.N.F.Hospital, Tiruppur and later on taken treatment at Ganga Hospital, Coimbatore, wherein surgery and blood transfusion were done. The petitioner sustained fractures on the bottom half of the right knee and in his hip in the accident and sustained injuries on his right arm and right shoulder. His small intestine has also been affected and even after the treatment the petitioner is not able to move his right arm and right shoulder. As the petitioner is not able to emit urine, a catheter has been fixed in the body of the petitioner and urine is being extracted into a bag attached to the tube. As a result of the accident, the kidney of the petitioner has also been affected. The petitioner’s school education has also been affected. Therefore, the petitioner has claimed a compensation of Rs.12,00,000/- from the second respondent, the owner of the said bus involved in the accident, under Section 166 of the Motor Vehicles Act.
4.Regarding the said accident, a criminal case has been registered in Crime No.1213/1998.
5.The second respondent, in his Counter, which the first respondent was also in agreement with, has resisted the claim denying the manner of accident as alleged in the claim. It was submitted that the first respondent, the driver of the bus started the bus at Tiruppur bus stand and drove the bus bearing registration No.TN33 N0315 on the Nambiyur-Tiruppur route at a moderate speed. Subsequently, the bus was stopped at the new bus stand to facilitate passengers to alight and board the bus. After this, the conductor blew the whistle and the bus was started slowly. After the bus had proceeded slowly forward for about 10 feet, on hearing the loud commotion and noise heard from outside of the bus and as the passengers in the bus had asked the driver of the bus to stop the bus, the first respondent stopped the bus. It was then seen that the petitioner, who had tried to overtake the bus and tried to come ahead of the bus, had dashed his cycle against the front portion of the bus and caused the accident. It was submitted that the petitioner had courted the accident and that the first respondent has not been responsible for the accident. It was submitted that as the accident had been caused due to the fault of the petitioner, the second respondent has submitted that the averments in the claim regarding the age, education, nature of injuries and manner of treatment of the petitioner has to be proved. It was also submitted that the claim was excessive and has to be dismissed with costs.
6.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
1.Was the accident caused due to the rash and negligent driving of the first respondent?
2.Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, which he is entitled to get?
7.On the petitioner’s side four witnesses were examined as PW1 to PW4 and sixteen documents were marked as Exs.P1 to P16. On the respondents’ side one witness was examined as RW1 and no documents were marked.
8.The father of the minor petitioner was examined as PW1 before the Tribunal. The PW1 in his evidence deposed that on 02.11.1998, at about 4.15 p.m. when his son was returning from school and travelling on his cycle, on the Tiruppur-Perumanallur road, and when he was coming near Vigneswara Xerox at Tiruppur, from south to north, the respondent’s town bus bearing registration No.TN33 N0315, route No.26, came from behind the cycle ridden by his son at a high speed, and dashed against the cycle. As a result of this accident, his son had sustained fracture in his right arm bone and severe injuries on his hip and also sustained injuries on his right leg and all over his body. He has also stated that the accident had been caused only due to the fault of the driver of the bus and a criminal case has been registered only as against the driver of the bus by the Police and in support of his evidence, he had marked Ex.P1, the FIR; Ex.P5, the Charge Sheet and Ex.P6, the copy of the Judgment in the criminal case, wherein it is seen that the driver of the bus admitted his guilt and paid the fine imposed on him by the criminal Court.
9.The elder brother of the minor petitioner was examined as PW2. The PW2, in his evidence deposed that when he had travelled along with his younger brother ie.the minor petitioner on the cycle, the said accident had occurred and that his brother had sustained injuries in the accident. He had also stated that the accident was caused only by the fault of the driver of the bus.
10.The conductor of the bus was examined as RW1. The RW1 has deposed in his evidence that on 02.11.1998, the said bus was started at Tiruppur and was proceeding towards Nambiyur and that he had been the conductor of the bus and the first respondent had been the driver of the bus; that when the bus was started at Tiruppur new bus stand, after passengers had alighted and boarded the bus, and was proceeding onwards, the cyclist, who had been travelling on the left side of the bus, had lost his balance and not seeing the advancing bus coming behind him, dashed his cycle on the left front step entrance of the bus, and caused the accident. He had stated that the accident had been caused by the rashness and negligence of the cyclist and that there was no fault on the part of the first respondent.
11.The first respondent has stated in his evidence that on account of the accident, which had occurred on 02.11.1998, his son had sustained a fracture in his right arm and also sustained injuries all over his body; that he had initially taken first-aid treatment at T.M.F.Hospital, Tiruppur and subsequently had taken treatment at Ganga Hospital, as an inpatient, for a period of 50 days; that subsequent to this he had further taken treatment as an inpatient for a period of 35 days; that due to the accident, his son’s small intestine has been affected and his penis has become reduced in size; that the urine gets excreted of its own accord; that as there is no free movement of urine and as it gets accumulated, it has to be removed using a catheter; that the defect, cited above, cannot be rectified even by medical treatment; that he had spent over Rs.5,00,000/- for the treatment of his son; that his son is not able to attend school; that his son has to be assisted by an attendant and that his son is not in a position to do any work on his own; that his son is unable to bend and stand straight and that the wound in his left hip had not healed; that the catheter had to be changed twice in a month; that he had sold his house for Rs.1,65,000/- to pay the medical expenses incurred for his son; that he had voluntarily resigned his job at Tiruppur Cotton Mills and used the compensation of Rs.1,30,000/- got out of voluntary retirement for the medical treatment of his son; that he still has outstanding dues of Rs.85,000/- to be paid and that another Rs.50,000/- is needed for further surgical treatment of his son. He had stated that he has therefore claimed a compensation of Rs.12,00,000/-.
12.The Dr.Venkatramanan, who examined the petitioner, was examined as PW3. The PW3, in his evidence has stated that the petitioner has sustained a fracture in the bone in his hip near the area, where urine is excreted and that there is a tear injury of size 10cm X 3cm in the back of the petitioners hip and that the petitioner experiences pain due to swelling in the bottom half of his abdomen; that there is a fracture of the bone in the upper half of the petitioner’s right arm; that the petitioner was unable to pass urine due to blockage of its path in the pelvic area; that the urine accumulated inside the petitioner’s body had to be removed by means of a catheter; that the petitioner had taken treatment as an inpatient; at the hospital from 02.11.1998 to 25.12.1998; 11.05.1999 to 04.06.1999 and from 21.12.1999 to 25.02.1999. He had further deposed that the small intestine of the petitioner has been affected and that he would not be able to partake in the act of sexual intercourse in his future life, and that his penis has been reduced in size. He had stated that the disability sustained by the petitioner in the accident was 100% and in support of his evidence, he had marked the Disability Certificate as Ex.P11.
13.The Tribunal, on considering the fact that the minor petitioner was a school going student and that he was studying in the sixth standard at Bishop Ubakarasamy Senior Secondary School, fixed the notional income of the minor petitioner as Rs.15,000/- per year, as laid down for a non-earning member under Section 163(A) of the Motor Vehicles Act and adopted a multiplier of 15, as applicable to the age of the minor petitioner at the time of the accident, to assess the loss of future income of the minor petitioner. The Tribunal, therefore, assessed the total loss of income to the petitioner as Rs.15,000 X 15 = Rs.2,25,000/-.
14.Though it has been laid down under the rules of the Motor Vehicles Act that 1/3 of the total income should be deducted for personal expenses before computation of total loss of future earnings, the Tribunal, on considering that the minor petitioner was aged only 12 and a school going student and that he was living under the support of his parents and considering several Judgments of the High Court in similar cases, held that it was not necessary to deduct 1/3rd share of total income of minor petitioner to arrive at his future loss of earnings.
15.The Tribunal, considering that the minor petitioner has sustained a tear injury of size 10 cm X 3 cm on the back of his hip and swelling in the lower half of his abdomen and fractures in the upper part of his right arm and also considering that the small intestine of the minor petitioner has been damaged and that his penis has become shrunk; that he has sustained 100% disability and not able to do any work without the help of others, awarded a compensation of Rs.2,25,000/- to the minor petitioner, without making any deductions towards his personal expenses under the head of loss of income.
16.The Tribunal, on scrutiny of Ex.P8, Medical Bills and on going through evidence of PW4, granted an award of Rs.1,57,242/- under the head of medical expenses.
17.The Tribunal, on considering that the petitioner had taken initial treatment at T.M.F.Hospital, Tiruppur and subsequently had taken treatment at Ganga Hospital, Coimbatore for a period of two months as inpatient, granted an award of Rs.1,500/- for transport expenses incurred for transportation of the petitioner to the hospital. The Tribunal further granted an award of Rs.700/- under the head of damage to cycle and clothes, the Tribunal granted an award of Rs.5,000/- under the head of nutrition and attendant charges and also awarded a sum of Rs.15,000/- under the head of pain and suffering. In total, the Tribunal granted an award of Rs.4,03,942/- to the petitioner and directed the first and second respondents to jointly and severally deposit the said award together with interest at the rate of 9% from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.952 of 2000, on the file of the Motor Accident Claims Tribunal, II Additional Subordinate Court, Erode, within a period of one month, from the date of its Order. After such deposit was made, the parents of the minor petitioner were permitted to withdraw half of the award amount with total accrued interest and costs. The other half of the award amount was to be deposited in a nationalised bank, as fixed deposit, until such time the minor petitioner becomes a major. The Advocate fees was fixed at Rs.11,039/- and the petitioner was directed to pay the Court fee due on award amount within a period of one week from the date of its Order. The respondents were directed to pay the cost of Rs.14,596/- to the petitioner.
18.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal ought to have seen that the petitioner was riding the cycle in the same direction of the bus and rubbed with the Corporation bus, due to which he fell down and sustained the injury and that the driver of the bus was in no way responsible for the negligent act of the claimant. It was also pointed that the lower Court failed to see that no other witness was examined to prove negligence on the part of the appellant Corporation bus, except the solitary evidence of PW1, the minor claimant. Further, it was contended that the lower Court failed to see that the FIR did not disclose the involvement of the Corporation bus in the instant case. It was also pointed out that the lower Court failed to see that the petitioner has not proved the avocation by material evidence and as such the loss of income does not arise in the instant case. It was also contended that the disability of 100% assessed by the Doctor PW2 was disproportionate to the injury suffered by the respondent and hence the award of Rs.2,25,000/- granted by the lower Court was excessive. Hence, it has been prayed by the learned counsel appearing for the appellant to set aside the award and decree made in M.C.O.P.No.952 of 2000, passed by the Motor Accident Claims Tribunal, II Additional Subordinate Court, Erode, dated 21.06.2004.
19.The learned counsel appearing for the appellant further argued that the injured claimant was a school going boy and as such loss of income will not arise. On the basis of the medical bills, award has been granted but loss of income assessed by the Tribunal is erroneous. The award granted under the head of pain and suffering and attendant charges are not pertinent since the parents of the injured persons are taking care of him.
20.Considering the facts and circumstances of the case and hearing the arguments of the learned counsel appearing for the appellant, and scrutiny of findings of the Tribunal, this Court is of the view that in the said accident PW1 had adduced evidence that his injured minor son sustained grievious injuries namely fractures on the bone in his right hand, right leg, hip and his kidney was also affected. So, PW1 had admitted his son at Tiruppur TMF hospital for first aid subsequently he had taken treatment at Ganga Hospital, Coimbatore, wherein the injured was treated as an inpatient for 50 days. Further, the PW1 has stated that his minor son’s kidney was not functioning and that his reproductive organ has shrunk. Further, as the urine accumulates in the body, the same has got to be removed only by the use of catheters inserted in the bladder of the injured minor son. It is also seen that the boy is unable to continue his school education and the same has been confirmed by the evidence given by the PW3, who is a Doctor. He also has categorically adduced that as the reproductive organ of the minor petitioner has been shrunk in size, he would not be able to engage in sexual relationship in his life. As such, this Court considering the magnitude of the injuries caused to the minor petitioner, especially the loss of sexual life of the minor school going boy decides to enhance the compensation awarded by the Tribunal, as follows:
1.For loss of income, the Tribunal had awarded a sum of Rs.2,25,000/-, this Court confirms the same, on the basis of Doctor’s evidence and disability of 100% assessed by the Doctor.
2.For medical expenses, the Tribunal awarded a sum of Rs.1,57,242/- on the basis of Ex.P8, the Medical Bill series and also based on the evidence of PW4, Doctor. This Court confirms the award granted under the said head as it is found to be correct.
3.For transport expenses, the Tribunal had awarded a sum of Rs.1,500/-, this Court enhances the award granted under this head to Rs.5,000/-, considering that the injured boy had taken treatment intermittently for a period extending upto two months.
4.For damage to clothes, the Tribunal awarded a sum of Rs.700/- as compensation, this Court confirms the same as it is found to be in order.
5.For pain and suffering, the Tribunal awarded a sum of Rs.15,000/-, this Court enhances the award under this head to Rs.25,000/-, considering that catheters had to be changed frequently to facilitate removal of urine accumulated in the bladder of the minor boy.
6.This Court is of the view that in the human life cycle, sexual relationship is an essential part of life and is also dominant only for a period of limited period in the human life cycle. In the instant case, the minor boy has been deprived of this pleasure of life, which is considered to be, of highest pleasures in life (Raja Sugam), due to the fact that in the said accident the injured boy’s reproductive organ has been shrunk. Hence, the Court grants an additional compensation of Rs.2,00,000/- under the head of loss of pleasure of life, due to deprival of sexual relationship in his life.
In total, this Court awards a compensation of Rs.6,12,942/- to the petitioner, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. This Court directs the appellant/Tamil Nadu State Transport Corporation to deposit the above award fixed by this Court with accrued interest thereon as observed above, into the credit of the M.C.O.P.No.952 of 2000, on the file of the Motor Accident Claims Tribunal, II Additional Subordinate Court, Erode, within a period of four weeks from the date of receipt of a copy of this Order, subject to deduction of earlier deposits made by the appellant.
21.As the accident happened in the year 1998, it is open to the injured claimant, who would have become a major, to withdraw the entire compensation amount together with accrued interest and costs, lying in the credit of the M.C.O.P.No.952 of 2000, on the file of the Motor Accident Claims Tribunal, II Additional Subordinate Court, Erode, after filing necessary payment out application, along with ‘major’ declaration application, in accordance with law.
22.In the result, the Civil Miscellaneous appeal is dismissed and consequently, this Court enhances the compensation amount from a sum of Rs.4,03,942/- to Rs.6,12,942/- and has modified the Award and Decree, dated 21.06.2004, in M.C.O.P.No.952 of 2000, passed by the Motor Accident Claims Tribunal, II Additional Subordinate Court, Erode. The connected miscellaneous petition is closed. There is no Order as to costs.
krk
To
1.Motor Vehicles Accident Claims Tribunal,
II Additional Subordinate Court, Erode,
2. The Section Officer,
VR Section, High Court,
Madras