IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.02.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.522 of 2005
The Managing Director
Tamil Nadu State Express
Transport Corporation
Division-I, Chennai .. Appellant
Vs
1.Kamal Kumar
2.Thennarasu
3.The New India Assurance Co., Ltd.,
Pondicherry .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 14.11.2003, made in M.C.O.P.No.789 of 1997, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Cuddalore.
For appellant : Mr.Mr.P.Jagadeeswaran
For respondents : Mrs.Manjula Baskar
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 14.11.2003, made in M.C.O.P.No.789 of 1997, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Cuddalore, awarding a compensation of Rs.90,000/- with 9% interest 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, the Managing Director, Tamil Nadu State Express Transport Corporation, Division-I, 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:
On 17.09.1997, at about 14.00 hrs, while the petitioner was travelling in the second respondent’s TVS Suzuki Max 100R, from south to north as a pillion rider, on the Trichy to Chennai GST Road and when the vehicle was nearing New Collector’s Buildings at Villupuram, the employee of the first respondent drove the bus bearing registration No.TN01 N6165, at a high speed and in a rash and negligent manner and dashed against the petitioner. As a result of the accident, the petitioner sustained grievous injuries in his right leg and all over his body. Immediately, he was taken to the Government Hospital, Villupuram and then taken to Jipmer Hospital, Pondy, on 17.09.1997, wherein he took treatment for more than one month as an inpatient. After the accident, the petitioner is unable to work without assistance from others. As the first and second respondents are the owners of the vehicles involved on the accident and the third respondent is the insurer of the above said TVS Suzuki Max 100R, all the respondents are liable to pay compensation to the petitioner.
4.The petitioner has claimed a compensation of Rs.4,00,000/- from the respondents, together with interest at the rate of 15% per annum from the date of filing the petition till the date of payment with costs under Section 166(1) of the Motor Vehicles Act.
5.The first respondent, in his Counter has resisted the claim denying the manner of the accident as alleged in the claim. It has also been submitted that the driver of the first respondent had not driven the car at a high speed and in a rash and negligent manner but on the contrary, the accident had been caused only because petitioner had ridden the motorcycle at a high speed and in a rash and negligent manner and crossed the road suddenly. Further, the averments made in the claim regarding the pain and suffering, injuries sustained, loss of income, age, income and occupation of the petitioner, were not admitted. The first respondent had also not admitted that the driver of the said car had a valid driving licence at the time of the accident. It was also submitted that the claim was excessive and hence it was prayed that the claim should be dismissed with costs.
6.The second respondent did not enter appearance, in spite of summons issued to him, and so he was set-exparte.
7.The third respondent, in his counter has resisted the claim denying that the said vehicle involved in the accident was operated with relevant RC and FC and also denying that the driver the said vehicle had a valid driving licence, at the time of the accident. The averments made in the claim regarding the age, income, occupation, nature of injuries and disability sustained by the petitioner were also not admitted by the third respondent. It was also submitted that the driver of the vehicle had not been driven the vehicle at a high speed and in a rash and negligent manner, as alleged in the claim and that the accident had not been caused by the driver. It has been submitted that the claim is excessive and has to be dismissed with costs.
8.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Whose negligence had been the cause for the accident?
(ii) Is the petitioner entitled to receive compensation from the respondents? If so, what is the quantum of compensation, which he is entitled to get?
9.On the petitioner’s side two witnesses were examined as PW1 and PW2 and ten documents were marked as Exs.P1 to P10. On the respondents’ side, one Gurumurthy, the driver of the bus, was examined as RW1 and no documents were marked.
10.The petitioner was examined as PW1 before the Tribunal. In his evidence, he deposed that on 17.09.1997, while he was travelling as a pillion rider on the TVS Suzuki Motorcycle, ridden by the second respondent, on the Trichy Chennai Road, and nearing New Collector’s Office at Villupuram, the first respondent’s bus, driven at a high speed and in a rash and negligent manner, had come from behind and dashed against the motorcycle and caused the accident. On cross-examination, the PW1 has stated that the bus had come on the national highways road only and that it had not been driven at a slow speed and that the place of the accident was a crowded area and hence any vehicle coming on that stretch of road has to be necessarily driven at a slow speed, and that vehicles cannot ply at a high speed in that area. He has further not accepted as true the argument that as the place of the accident was a crowded area the said bus could not have hit the vehicle from behind and gone ahead at a high speed. He had stated that the second respondent had ridden the said motorcycle and that he had lodged the complaint with the police station regarding the said accident. The learned counsel for the third respondent had argued in his appeal that as the accident had been caused by the negligence of the first respondent’s driver, only the first respondent should be held liable to pay compensation to the petitioner. But, no documentary proof or evidence had been marked in support of this contention. The Tribunal was of the view, that on a broad road, the driver of any vehicle trying to overtake another vehicle going ahead of it should try to do so only at a moderate speed. The Tribunal were also not inclined to hold that the accident had been caused only because of the high speed and rash and negligent driving of both the drivers of the said vehicles involved in the accident. Further, it is seen from a scrutiny of Ex.P1, the FIR, filed by the Police after investigation and from the criminal case, which has been filed against the driver of the said bus; that the accident had been caused only by the rash and negligent manner of the driving and the high speed at which the driver of the bus had driven the bus.
11.Further, on the petitioner’s side, Ex.P6, the RC and FC of the respondent’s bus and Ex.P7, the driving licence had been marked. From Ex.P8, it is seen that the said TVS Suzuki Motorcycle has been covered by a valid policy of insurance with the third respondent/Insurance Company. Further, the Tribunal on considering the statements made by the petitioner that the second and third respondents cannot be held liable to pay compensation as they were not responsible for the accident and also considering that the claim of the petitioner that the accident had been caused only by the rash and negligent driving of the first respondent’s driver had been proved adequately through oral and documentary evidence let in by the petitioner’s side, held that only the first respondent is liable to pay compensation to the petitioner and that the second and third respondents are not liable to pay compensation to the petitioner.
12.From the evidence of the PW1, it is seen that the petitioner had sustained fractures of the bone in his right leg and inquiries in his left leg, eye, forehead and other parts of his body, in the said accident and that he had initially taken treatment at Government Hospital, Villupuram and subsequently at Jipmer Hospital, Pondicherry and later on at A.R.Hospital, Cuddalore. In support of his evidence, he had marked Ex.P2, the Wound Certificate; Ex.P3, the Discharge Summary; Ex.P4, the Medical Bills and Ex.P5, the Medical Prescriptions.
13.The petitioner has stated that he was a Contractor and was earning a sum of Rs.4,500/- and that after the accident he was not able to conduct his business as he used to do prior to the accident. The learned counsel for the petitioner had also argued that the medical expenses incurred by the petitioner for treatment of the fractures sustained in his leg and for treatment of other injuries was high and his marked Ex.P4, the Medical Bills in support of his claim. He had further stated that the petitioner is continuing to receive medical treatment for the injuries sustained in the accident.
14.The Doctor, who had inspected the petitioner, was examined as PW2. The PW2, in his evidence has stated that surgical operation had been done in the petitioner’s right leg to set right the fractures sustained in the Tibia and Tibula bones; that the right leg of the petitioner is not straight but is bent and inclined inwards at an angel of 15 Degrees; that the petitioner has restricted movement from 0 Degree to 110 Degrees only in his right leg; that the petitioner has difficulty in sitting and squatting; that the medical melviyaras bone near the toe of the petitioner has not been set properly. The Doctor had assessed that the permanent disability sustained by the petitioner due to the accident as 35% and in support of this has marked Ex.P9, the Disability Certificate.
15.One Gurumurthy, the driver of the bus, has deposed in his evidence that the said bus was not involved in any accident and that the accident has been caused in some other manner and due to some other vehicle. But from the inspection of the FIR, it is seen that the complaint had been given by the rider of the said TVS Suzuki Motorcycle involved in the accident and that the said motorcycle had been damaged in the accident; that the driver of the bus after hitting the said motorcycle from behind had not stopped the bus but proceeded onwards at a high speed towards Chennai. The rider of the motorcycle had further stated that he had only received minor injuries in the accident and that the pillion rider had been admitted at Government Hospital, Villupuram for treatment of injuries sustained by him. From the evidence of RW1, it is seen that when he had driven the bus to Tindivanam, some Police Officers had stopped his vehicle and questioned him regarding the accident caused at Villupuram. The RW1 had stated to the Police Officers that as the bus was stopped at Tindivanam, he had taken the bus back to Villupuram and that the bus driven by him was not involved in any accident at Villupuram. From this, the Tribunal concluded that the driver of the first respondent’s bus, knowing that he had caused the accident, had wantonly not stopped the bus at the site of the accident and hence held that the first respondent’s driver had caused the accident. As such, the Tribunal on considering that the petitioner was aged only 22 years and holding that the injuries sustained by him in the accident was grievous in nature, awarded a lump sum compensation of Rs.9,00,000/- to the petitioner for the pain and suffering undergone by the petitioner, permanent disability sustained by him, medical expenses and loss of income incurred by him. The Tribunal further held only the first respondent liable to pay the above compensation and held that the second and third respondents are not liable to pay any compensation to the petitioner.
16.The Tribunal directed the first respondent to deposit the above 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.789 of 1997, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Cuddalore, within a period of two months from the date of its Order. The Tribunal further directed that after such deposit was made, it has to be invested in a nationalised bank, as fixed deposit, for a period of three years and the petitioner was permitted to receive the interest on such deposit, once in six months, directly from the bank. The petitioner was directed to pay the Court fee due on the award amount within a period of two months from the date of its Order. The Advocate fees was fixed at Rs.4,375/-. The first respondent was directed to pay cost of Rs.4,709/- to the petitioner. The claim as against the second and third respondents were dismissed.
17.The learned counsel appearing for the appellant has argued in his appeal that the Tribunal had erred in holding that the driver of the appellant’s bus was rash and negligent and was responsible for the accident. It was contended that the Tribunal ought to have held the insurer and owner of the TVS Suzuki, liable to pay compensation to the claimant. Further, it was pointed out that the Tribunal erred in presuming the income of the claimant as Rs.4,500/- per month, when there was no proof advanced to establish the income of the petitioner. As such, the learned counsel appearing for the appellant has contended that the award of Rs.90,000/- granted by the Tribunal is excessive and arbitrary and has prayed for setting aside the award and decree passed by the Tribunal.
18.The learned counsel appearing for the respondents vehemently argued that the claimant was 22 years old, at the time of accident and that he had sustained grievous injuries namely fracture in his right leg, a wound in his left hand, eyebrow and all over his body. Due to these injuries, the claimant underwent preliminary treatment at Villupuram Government Hospital and further treatment was taken by him at Government Hospital, Cuddalore and subsequently at A.R.Hospital, Cuddalore. After the said accident, the claimant could not get back his normal strength. The learned counsel further argued that in several Judgments of this High Court, only a award of Rs.2,000/- for 1% disability has been granted. As such, as per the competent Doctor’s Disability Certificate, the claimant is entitled to get a sum of Rs.70,000/- for disability alone and the rest of the award amount for nutrition, transport, medical, attender charges and loss of income in the course of medical treatment period has not been considered in the assessment of compensation by the Tribunal. The claim amount is for a sum of Rs.4,00,000/-, but the Tribunal had awarded a sum of only Rs.90,000/-, which is too low a figure.
19.Considering the facts and circumstances of the case, arguments advanced by the learned counsels for their respective parties, and scrutiny of findings of the Tribunal, the Court is of the view that the Tribunal had rightly come to a conclusion on the two issues of the negligence and quantum of compensation in favour of the claimant based on documentary and oral evidence let in to the Court. However, the Tribunal’s award of Rs.90,000/- as a lump sum compensation is not pertinent and so the Court splits the award and grants the award under the following heads:
1.For loss of earning due to 35% disability, this Court awards a sum of Rs.70,000/- (taking Rs.2,000/- for 1% disability) and also considering that the age of the claimant was 22 years at the time of accident.
2.For pain and suffering undergone by the claimant, this Court grants an award of Rs.10,000/-.
3.For medical expenses incurred by the claimant, this Court grants an award of Rs.5,000/- and for transport expenses incurred by the claimant, this Court grants an award of Rs.5,000/-.
With the above mentioned observations, this Court confirms the award of Rs.90,000/-, granted by the Principal Sub-Judge, Motor Accident Claims Tribunal, Cuddalore, in M.C.O.P.No.789 of 1997, together with interest at the rate of 9% per annum, from the date of filing the petition till the date of payment of compensation, as it is found to be fair and equitable in the circumstances of the case.
20.At the time of admission, on 08.03.2005, this Court imposed a condition on the appellant/Tamil Nadu State Express Transport Corporation to deposit the entire compensation amount including the interest and costs, into the credit of the M.C.O.P.No.789 of 1997, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Cuddalore. On 19.10.2006, this Court permitted the claimant to withdraw 50% of the award amount with accrued interest and costs.
21.As the accident happened in the year 1997, it is open to the claimant to withdraw the balance compensation amount with accrued interest, lying in the credit of the M.C.O.P.No.789 of 1997, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Cuddalore, after filing necessary payment out application, in accordance with law, subject to deduction of withdrawals, if any, as per the earlier Order of this Court.
22.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 14.11.2003, passed by the Principal Sub-Judge, Motor Accident Claims Tribunal, Cuddalore, in M.C.O.P.No.789 of 1997, is confirmed. Consequently, connected miscellaneous petition also closed. No costs.
05.02.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The Principal Sub-Judge
Motor Vehicles Accident Claims Tribunal,
Cuddalore.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
Krk
Pre-deliver Order in
C.M.A.No.522 of 2005
05.02.2010