IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.09.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.2040 of 2006
and
C.M.P.No.1 of 2006
Tamil Nadu State Transport
Corporation Ltd.,
Coimbatore Div.II, Ltd.,
Erode
rep.by its Managing Director .. Appellant
Vs
1.S.Mahesh Kumar
2.Devadoss .. Respondents
(R2-Given up)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 18.08.2005, made in M.C.O.P.No.401 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Gobichettipalayam.
For appellant : Mr.A.Babu
For respondents : Mr.A.Thiyagarajan for R1
Given-up - R2
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 18.08.2005, made in M.C.O.P.No.401 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Gobichettipalayam, awarding a compensation of Rs.2,22,800/- 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/second 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:
On 20.04.2004, at about 05.30 p.m. the claimant’s friend one Ramesh rode the motorcycle bearing registration No.TN21 Z1021, towards Coimbatore, in which the claimant was travelling as a pillion rider. When the vehicle was proceeding from east to north on the Avinashi road and on nearing the College Railway bridge and at that point of time, the respondent’s Corporation bus bearing registration No.TN33 N1303, came at high speed and driven in a rash and negligent manner in the same direction and dashed against the motorcyclist. In the result both the rider and the pillion rider had sustained injuries. Immediately, the claimant was taken to the K.M.C.H.Hospital at Coimbatore, wherein he was an in-patient for a period of five days. During the period of medical treatment, he had undergone a surgical operation on his right leg thigh. The accident case was registered by the Traffic Investigation Wing of Coimbatore East, in Crime No.140/2004, under Sections 279 and 337 I.P.C. The accident had occurred only due to the rash and negligent driving of the driver of the second respondent’s Corporation bus. As such, the petitioner claimed a compensation of Rs.3,38,000/- with interest before the Tribunal.
4.The second respondent, in their Counter, had resisted the claim petition. The second respondent denied the allegation made by the claimant regarding the manner of accident. Actually the rider one Ramesh had driven the motorcycle at high speed and in a rash and negligent manner and dashed against the right side of the front wheel of the bus. Further, the rider is not in possession of a driving licence. The accident case was lodged with the Police at a belated stage. Further, the claimant is claiming more compensation and the claimant’s age, income and profession are denied. Hence, he prays to dismiss the case.
5.The learned Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) At whose negligence the accident had occurred?
(ii) Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation?
6.On the petitioner’s side, the claimant was examined as PW1 and one Dr.Periasamy, was examined as PW2 and thirteen documents were marked as Exs.P1 to P13 namely Ex.P1-Xerox copy of the First Information Report, Ex.P2-Xerox copy of the Wound Certificate, Ex.P3-Xerox copy of the Charge Sheet, Ex.P4-Xerox copy of the Motor Vehicle Inspector’s Report, Ex.P5-Discharge Summary, Exs.P6 & P7-Medicine Receipts, Ex.P8-Medical Receipts, Ex.P9-C.T.Scan, Ex.P10-X-ray 5 Nos, Ex.P11-Disability Certificate, Ex.P12-X-ray, Ex.P13-Driving Licence. On the respondents’ side no witnesses were examined and no documents were marked.
7.The claimant, PW1 had adduced evidence stating that on 20.04.2004 at about 05.30 p.m. his friend one Ramesh rode the motorcycle and he was travelling on the motorcycle as a pillion rider. When the motorcycle was going on the Avinashi road towards Coimbatore, nearing Hope College Railway Bridge on the left side of the road, at that point of time, the respondent’s Corporation bus bearing registration No.TN33 N1303 came in the opposite direction and dashed against the two wheeler. In the said accident both of them had sustained injuries. The claimant was taken to the K.M.C.H.Hospital at Coimbatore. The accident case was registered by the Traffic Investigation Wing of Coimbatore East, in Crime No.140/2004, under Sections 279 and 337 I.P.C. In order to prove his case, he had marked Ex.P1-First Information Report, Ex.P2-Wound Certificate, Ex.P3-Charge Sheet and Ex.P4-Motor Vehicle Inspector’s Report. Further, the PW1 had adduced evidence stating that he was admitted at K.M.C.H.Hospital, Coimbatore as inpatient, wherein a surgical operation was conducted on his injured leg. Before the accident, he was earning a sum of Rs.6,000/- per month as a Marketing Agent. After the said accident, he is unable to walk and do his normal work as before. To prove his treatment he had marked, discharge medical summary, hospital medicine receipt, medical bills, CT scan, X-ray etc., In view of the evidence of the PW1 and the documentary evidence, the learned Tribunal had decided that the driver of the second respondent’s Corporation bus had caused the accident, as such, the second respondent is liable to pay compensation.
8.One Dr.Periasamy, PW2 had adduced evidence stating that he had examined the claimant and scrutinised the medical records and assessed the disability as 32% sustained by the claimant. He has also marked Ex.P11-Disability Certificate and Ex.P12-X-ray.
9.After considering the evidence of PW1 and PW2 and documents, which were marked by the claimant, the learned Tribunal had come to the conclusion that the driver of the second respondent Corporation bus had committed the accident, therefore the second respondent is liable to pay compensation and awarded the compensation as follows:
i. Rs.1,72,800/- under the head of loss of income, after adopting the multiplier method on the formula basis (Rs.9,600/- X 18 X 32/100 = Rs.1,72,800/-),
ii. Rs.45,000/- under the head of medical expenses,
iii.Rs.3,000/- under the head of pain and suffering,
iv. Rs.2,000/- under the head of nutrition,
In total, the Tribunal awarded a sum of Rs.2,22,800/- 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 second respondent to deposit the compensation amount of Rs.2,22,800/- 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 one month from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period of three years and the claimant was directed to withdraw the interest once in six months. Accordingly ordered.
10.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal.
11.The learned counsel appearing for the appellant argued that the Tribunal adopted a multiplier method and awarded a compensation of Rs.1,72,800/- under the head of loss of income, which is not covered in the instant case. Since the claimant had sustained simple injuries and was hospitalised as an in-patient for a period of five days, the Doctor assessed the disability as 32%, which is arbitrary. Hence, he prays to scale down the compensation amount awarded by the Tribunal.
12.The learned counsel appearing for the claimant/first respondent argued that the claimant sustained bone fracture injuries on his leg, for which a surgical operation was conducted on his injured area. Before the accident, he was a marketing agent and was earning a sum of Rs.6,000/- per month. After the said accident he is unable to perform his normal avocation, as such he lost his livelihood. As such the award passed by the Tribunal is a fair and equitable one. Therefore, he prays to dismiss the appeal.
13.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 there is a discrepancy in the award passed by the Tribunal. Therefore, this Court decides to scale down the compensation as follows:
i. The Tribunal awarded a sum of Rs.1,72,800/- under the head of loss of income, this Court reduces the same to Rs.64,000/- under the same head,
ii. The Tribunal awarded a sum of Rs.45,000/- under the medical expenses, this Court confirms the same as it is pertinent,
iii. The Tribunal awarded a sum of Rs.3,000/- under the head of pain and suffering, this Court enhances the same to Rs.15,000/-,
iv. This Court awards a sum of Rs.5,000/- under the head of transport expenses,
v. The Tribunal awarded a sum of Rs.2,000/- under the head of nourishment, this Court enhances the same to Rs.5,000/-,
vi. This Court awards a sum of Rs.5,000/- under the head of attender charges,
vii. This Court awards a sum of Rs.9,000/- under the head of loss of income, during the period of medical treatment,
In total, this Court awards a sum of Rs.1,48,000/- 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.
14.On 12.07.2006, this Court directed the appellant to deposit 50% of the compensation amount, into the credit of the M.C.O.P.No.401 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Gobichettipalayam. Now, this Court hereby directs the appellant/Tamil Nadu State Transport Corporation Ltd., to deposit the remaining compensation amount together with accrued interest thereon as observed above, as per this Court Order, into the credit of the M.C.O.P.No.401 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Gobichettipalayam, within a period of six weeks from the date of receipt of a copy of this Order.
15.As the accident had happened in the year 2004, the claimant/first 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.401 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Gobichettipalayam, by making proper payment out application, subject to the deduction of withdrawals, if any, in accordance with law.
16.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 18.08.2005, in M.C.O.P.No.401 of 2004, passed by the Motor Accident Claims Tribunal, Principal Sub Court, Gobichettipalayam is modified. Consequently, connected civil miscellaneous petition is closed. No costs.
24.09.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The Motor Accident Claims Tribunal,
Principal Sub Court, Gobichettipalayam.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.2040 of 2006
24.09.2010