IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.03.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.796 of 2005
and
M.P.No.4449 of 2005
The Managing Director
Tamil Nadu State Transport
Corporation Ltd.,
Division-II, Dharmapuri .. Appellant
Vs
Aarthi .. Respondent
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 03.11.2004, made in M.C.O.P.No.172 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Dharmapuri.
For appellant : Mr.P.Jagadeeswaran
For respondent : Mr.M.Selvan
for Mr.Pappiah Dharmaraj
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 03.11.2004, made in M.C.O.P.No.172 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Dharmapuri, awarding a compensation of Rs.2,25,235/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/respondent has filed the above appeal praying to set aside the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 23.10.1998, the petitioner Aarthi, as usual waited at Erikollanur bus stop in order to board the bus for travel to Pennagaram, to attend her school. At that time, the respondent’s bus bearing registration No.TN29 N0313, came and stopped at the bus stop. The petitioner boarded the bus and the bus proceeded towards Pennagaram. When the bus was nearing Pennagaram bye-pass road, the driver, while turning the bus at high speed, when the petitioner was standing inside the bus adjacent to the front foot board, was thrown out of the bus and the back wheel of the bus ran over her left leg and proceeded for a distance of 50 feet and then stopped the vehicle. The petitioner sustained multiple grievious injuries, was given first aid at the Government Head Quarters Hospital, Dharmapuri. For further medical treatment, the petitioner was admitted at St.John’s Medical College, Bangalore as an inpatient till today.
4.Due to the said accident, the petitioner is unable to walk and squat. At the time of accident, the petitioner was 13 years and she was studying in the seventh standard at the Government Girls High School, Pennagaram. At the school, she is considered as a brilliant student. The parents of the petitioner had intentions of giving her a high standard of education. But, due to the permanent disability to the girl the hopes and aspirations of the parents are cruelly terminated. Hence, this petition has filed this petition claiming a compensation of Rs.5,00,000/- against the respondent Corporation bus, with 14% interest per annum.
5.The said accident was investigated by the Pennagaram Police Station, after registering a case in Crime No.790/1998, under Section 279 and 338 of I.P.C.
6.The respondent, in his counter statement, resisted the claim petition. The respondent claimed that the allegation made in the petition is that on 23.10.1998 as usual the petitioner waited at Erikollanur Bus stop to catch a bus in order to attend her school at Pennagaram. At that time, the bus bearing registration No.TN29 N0313 came and stopped at the bus stop, the petitioner boarded the bus and the bus proceeded towards Pennagaram. At that time about 8.45 a.m. at the place where Mudugampatty road, which joins the Pennagaram bye-pass road, when due to the rash, negligent and speedy driving of the bus by its driver, at the turning, the petitioner, who was a standing passenger inside the bus and adjacent to the front foot board was thrown out of the bus and the back wheel of the bus ran over the left leg of the petitioner and proceeded further, thus the petitioner, who sustained injuries are all false and incorrect. The driver of the bus had driven the vehicle very slowly and carefully with observing all the rules of the road, while it was nearing Mudugampathy road, which joins the Pennagaram bye-pass road, when the petitioner had slipped her books from the bus and thus while trying to catch her books and thus she lost her control and fell down from the bus trying to secure her books from falling down, when she lost her control and fell down from the bus and in this way she sustained injuries. The accident had occurred due to the rash and carelessness of the bus driver, hence, the respondent is not liable to pay compensation to the petitioner. The respondent further denied that the petitioner’s age, occupation and income was correct. Further, no medical bills have been produced. Hence, the respondent prays to dismiss the claim petition with costs.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident due to the rash and negligent driving of the respondent’s bus driver?
(ii) What is the quantum of compensation that the petitioner is entitled to?
8.On the petitioner’s side two witnesses were examined as PW1 and PW2 and seven documents were marked as Exs.P1 to P7 namely Ex.P1-FIR; Ex.P2 and P3-Wound Certificates; Ex.P4-Medical Bill series; Ex.P5-Petitioner’s mark sheet; Ex.P6-Photograph of the wound and Ex.P7-Disability Certificate. On the respondent’s side one witness was examined as RW1 and no documents were marked.
9.The petitioner was examined as PW1. The PW1, in her evidence, adduced that she was waiting for a bus on 23.10.1998 at Erikollunur Village bus stop, the respondent’s bus bearing registration No.TN29 N0313 arrived and the claimant had boarded into the bus. At about 08.45 p.m. when the bus was nearing Mudugampatti road, the driver of the bus driving the vehicle in a rash and negligent manner turned the vehicle resulting with the petitioner being thrown out of the bus and the left wheel of the bus running over the petitioner’s left leg, in which the petitioner sustained bone fracture injuries. The petitioner further stated in her evidence, that the respondent bus driver is the cause of the said accident, as such, the respondent Corporation is liable to pay the compensation.
10.On the respondent’s side, a counter statement has been filed in which the respondent denied the allegation of the petitioner stating that due to the negligent driving by the driver of the transport Corporation bus the said accident had occurred. Actually, the respondent’s bus driver had driven the vehicle in a slow and cautious manner. The respondent further stated in his counter statement, that the claimant was travelling on the steps of the bus, whilst so, the petitioner’s books slipped down from her grasp. In an attempt to recover her books, she missed her balance and fell down from the bus. As such, the accident happened. In the said accident, the petitioner had not sustained grievious injuries. No disability was sustained by her. As such, the compensation amount claimed by the petitioner is excessive. Considering the evidence of the PW1 and the counter statement of the respondent, the Tribunal had come to the conclusion that the accident had happened due to the negligence by the driver of the bus.
11.The respondent admitted that the accident had happened on 23.10.1998 in which the petitioner had sustained injuries. The said accident was registered by the Pennagaram Police Station in Crime No.790/1998 against the driver of the bus. To prove the same Ex.P1-FIR was marked. Ex.P2-Wound Certificate was marked. Considering Ex.P2, the claimant sustained injuries on the left side, left fore arm, left knee below the leg. After the X’ray, the Doctor also opined that the petitioner sustained fracture on the left side. The claimant also underwent treatment at St.John’s Hospital at Bangalore. To prove the same, Ex.P3 was marked. As per the Exhibit, she underwent operation in which a steel plate was fixed, skin grafting was also performed on her left thigh. The claimant was an inpatient from 24.10.1998 to 19.12.1998. The said special multiplicity hospital had rendered her the said treatment. Exs.P3 and P4 is to prove the operations for fixing a steel plate and for skin grafting. The petitioner had further adduced that medical expenses were huge. The petitioner had met out all these huge expenses.
12.Dr.Elangovan was examined as PW2. In his evidence, he adduced that the petitioner sustained 40% disability. Thereby he issued a Disability Certificate that was marked as Ex.P7, after examining the PW1. Further, the PW2 stated that the petitioner is unable to walk, sit or squat besides unable to do her normal work as before. After considering the evidence of the PW1 and PW2, the Tribunal had awarded a compensation as follows:
1.For medical expenses, on the strength of the Ex.P4-medical bill series, the Tribunal awarded a compensation of Rs.55,235/-,
2.For loss of basic amenities and loss of income, the Tribunal awarded a sum of Rs.1,00,000/-,
3.For transport expenses, the Tribunal awarded a sum of Rs.2,000/-,
4.For nutrition, the Tribunal awarded a sum of Rs.3,000/-,
5.For pain and suffering, the Tribunal awarded a sum of Rs.25,000/-,
6.For disability, the Tribunal awarded a sum of Rs.40,000/-,
In total, the Tribunal awarded a sum of Rs.2,25,235/-, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.172 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Dharmapuri, within a period of one month, in turn the amount to be deposited into a nationalised bank for a period of three years. The Advocate fee fixed at Rs.7,505/-.
13.The appellant/State Transport Corporation challenges the said award on the following grounds that Rs.40,000/- towards permanent disability; Rs.25,000/- towards pain and suffering; Rs.1,00,000/- towards loss of happiness and comforts; Rs.5,000/- towards nutrition and transport are all excessive. The learned counsel appearing for the appellant has argued that Rs.40,000/- awarded under the head of permanent disability, as well as Rs.1,00,000/- awarded towards happiness and comforts are not pertinent. The learned counsel further pointed out that the Tribunal had committed error in assessing the compensation to the claimant. As such, the quantum of compensation is to be scaled down.
14.Learned counsel appearing for the respondent argued that the quantum of compensation awarded by the Tribunal on various heads are proper after considering the nature of injuries, mode of treatment, duration of hospitalisation, the award was granted. As such, the award is found to be fair and reasonable one.
15.Considering the facts and circumstances of the case and the arguments advanced on either side and scrutiny of findings, this Court is of the view that there is a discrepancy in the award for assessing the compensation. Hence, this Court restructures the mode of compensation as follows:
1.For permanent disability, this Court awards a sum of Rs.80,000/-, considering the claimant’s age being 13 years at the time of accident,
2.For medical expenses, this Court confirms the award of Rs.55,235/- granted by the Tribunal,
3.For pain and suffering, this Court confirms the award of Rs.25,000/- granted by the Tribunal,
4.For nutrition, this Court awards a sum of Rs.5,000/- as compensation to the petitioner,
5.For transport expenses, this Court awards a sum of Rs.5,000/- as compensation to the petitioner,
6.For loss of pleasure of life, this Court awards a sum of Rs.30,000/- as compensation to the petitioner,
In total, this Court awards a sum of Rs.2,00,235/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, which is found to be fair and reasonable.
16.On 22.03.2005, this Court directed the appellant/transport corporation to deposit the entire compensation amount including interest and cost to the credit of the M.C.O.P.No.172 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Dharmapuri. After such deposit is made, the respondent/claimant is permitted to withdraw 50% of the award amount, with entire accrued interest with costs.
17.As the accident, happened in the year 1998, it is open to the claimant to withdraw the balance compensation amount as per this Court award amount together with interest thereon, lying in the credit of the M.C.O.P.No.172 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Dharmapuri, after filing necessary payment out application in accordance with law, subject to the withdrawals of earlier payment, as per the Court Order dated 22.03.2005.
18.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 03.11.2004, in M.C.O.P.No.172 of 1999, passed by the Motor Accident Claims Tribunal, Additional District Court, Dharmapuri, is modified. Consequently connected miscellaneous petition is closed. There is no order as to costs.
18.03.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The Motor Accident Claims Tribunal,
Additional District Court, Dharmapuri,
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.796 of 2005
18.03.2010