IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3339 of 2004 The Managing Director Metropolitan Transport Corporation Ltd., Dvn.II, Chennai .. Appellant Vs E.Ramesh .. Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 12.11.2001, made in M.C.O.P.No.3528 of 1998, on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai. For appellant : No appearance For respondent : Mr.K.Mohana Murali 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 12.11.2001, made in M.C.O.P.No.3528 of 1998, on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai, awarding a compensation of Rs.1,85,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/respondent, The Managing Director Metropolitan Transport Corporation Ltd., Dvn.II, Chennai, 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:
The petitioner Ramesh, aged about 25 years, was working as the collection Manager at Singhvi Company (Finance Group), Chennai-79 and was earning a sum of Rs.3,000/- per month. On 28.02.1998, at about 9.30 hours, while the petitioner was riding his motorcycle bearing registration No.TN04 E2423, on Mahabalipuram East Coast Road, from north to south, the MTC bus bearing registration No.TN01 N1835, driven by its driver in a rash and negligent manner, came from south to north and hit against the petitioner, resulting in grievous injury in the right leg, thigh, right foot fracture and injuries all over his body. Initially, the petitioner took treatment at Royapettah Government Hospital, Chennai and took treatment at M.N.Ortho Hospital, New Avadi road from 28.02.1998 to 02.03.1998. Subsequently, he had taken treatment at bone setting hospital, Puthur for three times from 22.04.1998 to 04.05.1998. As a result of the said accident, the petitioner is not able to walk and is not able to fold leg and sit for morning recessess.
4.The petitioner has claimed a compensation of Rs.4,00,000/- from the respondent, the owner of the vehicle bearing registration No.TN01 N1835, under Sections 140 and 166 of the Motor Vehicles Act, 1988.
5.Regarding, the said accident, a criminal case has been registered at the Neelankarai Police Station as Crime No.218/1998, dated 28.02.1998.
6.The respondent, in his Counter has resisted the claim stating that on 28.02.1998, the bus bearing registration No.TN01 N1835, on route No.19G, started its trip from Kovalam and proceeded to Broadway. While so, at 9.30 hours, when the bus was nearing the junction of Kannappa Nagar, a Tata Sumo car proceeding before the bus and which was closely following a tricycle, suddenly applied brake. In order to avoid a major accident, the driver of the bus lightly swerved the bus to the right and at that time, the petitioner, who was riding the motorcycle bearing registration No.TN04 E2423, came in the opposite direction, in a rash and negligent manner and dashed his bike against the front right side bumper of the bus, fell down and courted the accident. The accident occurred due to the rash and negligent driving of the motor cycle by the petitioner. Further, it has been submitted that as the owner of the motorcycle and its insurer have not been impleaded as necessary parties to the claim, it renders the petition not maintainable. The respondent has further not admitted the age, occupation and income of the petitioner and the period for treatment. The respondent has further stated that the amount claimed is highly excessive.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident caused by the high speed and rash, negligent driving by the driver of the respondent’s bus bearing registration No.TN01 N1835?
(ii) Is the petitioner entitled to get compensation?
8.On the petitioner’s side, four witnesses were examined as PW1 to PW4. PW1 is the injured petitioner; PW2 is the Doctor, who had assessed the disability of petitioner; PW3 is the Head Constable and PW4 is the owner of the firm, wherein the petitioner was working at the time of accident. On the petitioner’s side ten documents were marked as Exs.P1 to P10. Ex.P1 is the Discharge Summary; Ex.P2 is the Medical Bills; Ex.P3 is the Medical Receipts; Ex.P4 is the Salary Certificate; Ex.P5 is the FIR; Ex.P6 is the Disability Certificate; Ex.P7 is the X’ray; Ex.P8 is the Rough Sketch and Ex.P9 is the Case Bill and Ex.P10 is the Visiting Card.
9.On the respondent’s side only a Counter has been filed to refute the claim of the petitioner. The respondent has not examined the driver of the bus or the Assistant Manager (Legal), who has issued the Counter for the respondent or the Conductor of the bus as necessary parties to establish his case. Further documentary evidence like Trip Sheet and Schedule was not marked on the respondent’s side. Though, it has been alleged in the Counter of the respondent that “in order to avoid a major accident, the driver of the bus swerved slightly to the right and that at that time, the petitioner, who was riding a motorcycle bearing registration No.TN04 E2323, came in the opposite direction in a rash and negligent manner and dashed on the front right side bumper of the bus, fell down and courted accident”, the respondent has not examined either the conductor or driver of the bus to prove this point during the course of trial. Further, the respondent has also not furnished the Motor Vehicle Inspector’s Report for the said bus involved in the accident to prove that the bus did not have any mechanical defects at the time of accident. On the contrary, on scrutiny of Exs.P5, the FIR; Ex.P8, the Rough Sketch, it is evident that only the driver of the bus was responsible for the accident. Even in the FIR, it has been mentioned that only the driver was at fault, and had caused the said accident. It is further seen that based on the complaint given by the injured petitioner, a criminal case has been filed as against the driver of the bus under Sections 279 and 337 of I.P.C. and that the said case is under investigation. The Tribunal was of the opinion that if the bus driver had driven the bus carefully and slowly and it had adhered to all the traffic rules and regulations, the accident could have been averted. Further, the respondents had also not furnished any details as to the status of the criminal case filed against the driver of the bus. The Tribunal was of the opinion that just for the sake of formality a Counter has been given by the respondent in the said accident case and that the respondent has failed to provide oral or documentary evidence to prove their case. As such, the Tribunal, on consideration of evidence of the PW1 and on scrutiny of FIR and Rough Sketch, held that the accident had been caused only due to the fault of the bus-driver and held that the compensation, assessed by them, has to be paid by the respondent.
10.The petitioner has claimed a compensation of Rs.20,000/- for loss of income sustained by him, during the period of 28.02.1998 to 26.07.1998. On consideration of Ex.P4, it is seen that the salary of the petitioner is Rs.3,000/- per month and that in addition he gets a daily allowance of Rs.50/-. As such, the Tribunal, considering the claim of the petitioner reasonable, granted an award of Rs.20,000/- to the petitioner under the head of loss of income. The petitioner has claimed a compensation of Rs.12,000/- for transport expenses. The Tribunal on consideration of the fact that the petitioner has taken treatment at various hospitals and had also gone to Puthur for medical treatment, but, no documentary evidence had been advanced by the petitioner in support of this, decided to grant the petitioner an award of Rs.6,000/- under the head of transport expenses. The Tribunal further granted an award of Rs.1,000/- under the head of nutrition and an award of Rs.3,000/- for damage to dress and articles. The Tribunal on consideration of the nature of case, medical treatment taken by the petitioner, his age, income and occupation, granted an award of Rs.10,000/- to the petitioner under the head of loss of future income. The Tribunal further granted an award of Rs.30,000/- under the head of medical expenses, after scrutiny of Ex.P2, the medical bills, and further granted an award of Rs.15,000/- under the head of future medical expenses. The Tribunal, on consideration of the pain and suffering undergone by the petitioner due to the injuries caused to him in the accident, granted an award of Rs.20,000/- to the petitioner under the head of pain and suffering.
11.Further, PW2, the Doctor, who had examined the petitioner regarding the nature of injuries sustained by him and who had also inspected the medical records and taken X’rays, had deposed in his evidence that the partial, permanent disability sustained by the petitioner was 55% and had marked Ex.P6, the Disability Certificate. Hence, the Tribunal, on consideration that such assessment may differ marginally from one Doctor to another Doctor, held that there may be a variance of 5% on the disability assessed and therefore granted an award of Rs.50,000/- to the petitioner under the head of disability and Rs.30,000/- under the head of loss of earning capacity. In total, the Tribunal awarded a sum of Rs.1,85,000/- to the petitioner as compensation, which was inclusive of interim compensation, and directed the respondent to deposit the said award 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.3528 of 1998, on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai, within a period of two months, from the date of its Order and that after such deposit was made, the award with accrued interest was to be deposited in a nationalised bank, as fixed deposit, for a period of three years. The Advocate fees was fixed at Rs.6,700/- and the respondent was directed to pay the cost of the petitioner of Rs.7,944/- to the petitioner.
12.The learned counsel appearing for the appellant has contended in his appeal that as the accident took place due to the negligent riding of the respondent/claimant, who dashed his vehicle on the front of the bus, the lower Court ought to have held that the accident took place due to negligence of the respondent. It has been contended that the mere filing of FIR against the driver of the bus would not prove that the driver of the bus had been negligent. Further, it has been contended that the lower Court has failed to see that no document has been filed by the respondent to show or to establish that he has suffered loss of income due to the injuries sustained by him in the accident. Further, the learned counsel appearing for the appellant has contended that as no documents were advanced by the petitioner to prove his claim for transport expenses and damage to property, the award of Rs.6,000/- and Rs.3,000/- granted by the lower Court under the said heads were erroneous. Further, it has been pointed out that the insurer of the motorcycle has not been impleaded as a party and the driving licence of the respondent has not been produced before the Lower Court. It has also been pointed out that the learned Court has erred in awarding compensation of Rs.10,000/- for future loss of income and another sum of Rs.30,000/- under the same head.
13.It has also been contended that the lower Court had erroneously awarded a sum of Rs.30,000/- as against the medical expenses, when the bills were established to a sum of Rs.26,128.25 by Ex.P2; that the lower Court had erred in awarding a sum of Rs.15,000/- towards future medical expenses.
14.It has also been pointed out that the lower Court ought to have taken into consideration that there has been a contributory negligence on the part of the respondent/claimant and as such the award ought to have been reduced proportionately. It was also contended that the award granted by the lower Court is excessive and hence the appellant’s counsel has contended that award granted by the lower Court has to be scaled down.
15.The learned counsel appearing for the respondent argued that at the time of accident, the claimant was 25 years old and he was working in a finance company and earning a salary of Rs.3,000/- per month, besides a daily allowance of Rs.50/-. Further, he is the only person supporting his family. The learned counsel appearing for the respondent further argued that the claimant’s vehicle, cloths, watch, valued at Rs.8,500/- were damaged. The claimant underwent treatment initially at Royapettah Hospital and thereafter in a private hospital and also at Puthur, bone setting hospital. In the said accident, he had sustained grievous injuries all over the body especially in his right leg, thigh, and also fractures in that area. The claim amount was Rs.4,00,000/-, but the Tribunal had granted a sum of Rs.1,85,000/-, together with interest at the rate of 9% per annum and as such the compensation awarded is on the lower side. Due to the said accident, the claimant is not able to walk, fold his legs, sit and squat. He has sustained permanent disability. The learned counsel appearing for the respondent further argued that a competent Doctor had issued Disability Certificate stating that the claimant sustained 55% disability in the accident. The said disability has not been fully considered by the Tribunal.
16.Considering the facts and circumstances of the case and the learned counsel appearing for the appellant’s contention in the appeal, and arguments advanced by the learned counsel appearing for the respondent, this Court is of the view that the answers issued by the Tribunal in respect of the two issues of negligence and quantum are correct. It is found by this court that the heads under which the award was granted was not pertinent. Hence, this Court restructures the award as follows:
1. The Tribunal awarded a sum of Rs.20,000/- for loss of income; a sum of Rs.6,000/- for transport expenses; a sum of Rs.1,000/- for nutrition; a sum of Rs.3,000/- for damage to property; a sum of Rs.10,000/- for future loss of earning; a sum of Rs.30,000/- for medical expenses; a sum of Rs.15,000/- for future medical expenses; a sum of Rs.20,000/- for pain and suffering; a sum of Rs.50,000/- for disability and a sum of Rs.30,000/- for loss of earning capacity.
2. This Court awards a sum of Rs.1,10,000/- for compensation for 55% disability sustained by petitioner (Rs.2,000/- for 1% disability); a sum of Rs.27,000/- for medical expenses, as per Ex.P2, the medical bills; a sum of Rs.4,000/- for transport expenses; a sum of Rs.5,000/- for damages to cloths and vehicles; a sum of Rs.4,000/- for nutrition; a sum of Rs.25,000/- for pain and suffering and a sum of Rs.10,000/- for loss income.
In total, this Court grants an award of Rs.1,85,000/- 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, as it is found to be reasonable and fair in the circumstances of the case.
17.This Court imposed a condition on 23.11.2004 on the appellant/Metropolitan Transport Corporation Ltd., to deposit the entire compensation amount including the interest and costs, into the credit of the M.C.O.P.No.3528 of 1998, on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai.
18.As the accident happened in the year 1998, it is open to the claimant/respondent to withdraw the entire compensation amount, with accrued interest and cost, lying in the credit of the M.C.O.P.No.3528 of 1998, on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai, after filing necessary payment out application, in accordance with law, subject to the deduction of withdrawals, if any.
19.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 12.11.2001, made in M.C.O.P.No.3528 of 1998, passed by the Motor Accident Claims Tribunal, II Small Causes Court, Chennai, is confirmed. Connected miscellaneous petition is closed. No costs.
27.01.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.Motor Vehicles Accident Claims Tribunal,
II Small Causes Court, Chennai.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-deliver Order in
C.M.A.No.3339 of 2004
27.01.2010