IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.11.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.NO.226 of 2005 The Managing Director Tamilnadu State Transport Corporation Ltd., Villupuram Division Vellore Region (Cause title accepted vide Order of the Court dated 18.01.2005, made in C.M.P.No.21227 of 2004) .. Appellant Vs 1.Natarajan 2.Ilangovan .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 26.07.2004, made in M.C.O.P.No.189 of 1997, on the file of the Motor Accidents Claims Tribunal, Arani. For appellant : Mr.A.Babu For respondents : Mr.S.D.Balaji, for R1 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 26.07.2004, made in M.C.O.P.No.189 of 1997, on the file of the Motor Accidents Claims Tribunal, Arani, awarding a compensation of Rs.50,500/- with 9% interest from 14.10.1997 to 26.07.2004.
2.Aggrieved by the above award, the second respondent/Tamil Nadu State Transport Corporation, Vellore-9 Division, has filed the above appeal praying to set aside the Order.
3.The short facts of the case are as follows:
On 20.08.1995, at 7.00 p.m. the petitioner herein was travelling in the Bullock Cart, which belongs to his father along with one Shanmugam of Thennangur Village, from Thennangur to Wandiwash. The first respondent herein, who is the driver of the second respondent’s Corporation, drove the bus bearing registration No.TN 23 N0585, rashly and negligently and hit the Bullock Cart and pushed down the Bullock Cart and the persons in the Cart into the roadside put and thereby caused injuries to the petitioner and grievous injury to one bullock. After treatment, the bullock died. The petitioner has got injuries over the left back of the knee joint, over the right polesteir shoulder and multiple abrasions over the inter scapular and scapular region, over the left tibia and tibula and skull bone. The petitioner was hospitalised and he had undergone treatment for the 15 days in hospital. Because of the accident, one bullock died due to the rash and negligent driving of the first respondent. Post-mortem Certificate is enclosed. In the accident, the Bullock Cart was also severely damaged to the tune of Rs.10,000/-. Estimation cost slip for report is enclosed.
4.The petitioner is a young man and his family depends upon only his income. Due to the accident, he has not been able to do his daily work. The petitioner has claimed a compensation of Rs.95,000/- from the respondents.
5.The second respondent in his Counter has resisted the claim stating that on 20.03.1995, the driver of the second respondent’s bus bearing registration No.TN23 N0585 started the bus from Uthiramerur at 8.15 p.m. and was proceeding towards Vandavasi, at moderate speed and following all traffic rules and regulations and when it was nearing Pulivai Village, a Bullock cart was travelling on the left side of the road, in front of it. So, the driver, intending to overtake the bullock cart, sounded horn. But, the bullocks were startled by the sound of the horn and so pulled the bullock cart to the right side of the road. The driver of the bus sensing the situation applied brakes and stopped the vehicle, but still was not able to prevent the bus from hitting on the left front portion of the bullock cart. As such, the second respondent’s driver is not responsible for the accident.
6.Further, the petitioner has to prove his age, occupation and income and further establish that he has suffered permanent disability by producing documentary evidence. Further, for an accident which had occurred as an act of god, the petitioner has claimed fanciful and excessive amounts under various heads. As such, the second respondent has prayed for dismissal of claim petition with costs.
7.Based on the above pleadings, the Tribunal framed two issues for consideration namely
(i) Who was responsible for the accident?
(ii) Is the petitioner entitled to receive compensation?
8.On the petitioners side, four witnesses were examined and four documents were marked as Exs.P1 to P4. On the respondents side, one witness was examined and no documents were marked.
9.The petitioner himself was examined as PW1, in his evidence, he has stated that when he was proceeding from Thennangur to Vandavasi in his bullock cart on the left side of the road, the second respondent’s State Transport Corporation Bus, driven by its driver at high speed and without headlights on, had dashed against the back of the bullock cart. Further, the PW1 has stated that a criminal case was registered by the Police and that Ex.P1 is the Copy of the FIR.
10.One, Parthasarathi, an eyewitness to the accident was examined as PW2. In his evidence, he has stated that on 20.08.1995, when he was coming from Vandavasi to Thennangur, he had seen the second respondent’s bus dashing on the back of the bullock cart and that in the accident, one bullock had also died. Further, the passengers in the bullock cart namely the petitioner PW1 and another person sustained injuries in the accident. He had taken them to the hospital and had given the complaint to the police.
11.On examination of Ex.P1, FIR, it came to light that a case has been registered against the driver of the respondent/State Transport Corporation Bus. But, the first respondent, Ilangovan, the driver of the bus on examination as RW1 has stated that on 20.08.1995, when he was driving the said bus from Uthiramerur to Vandavasi, the said bullock cart was travelling on the left side of the road. Intending to overtake it, he had sounded horn, but, the bullocks were startled by the horn and hence had fallen into a road side pit. He had then got down from the bus and checked the bullock cart. It was loaded with paddy bags. Immediately, he had taken the injured persons and admitted them in the hospital. Further, RW1 admitted that a case had been registered and he had paid time at the Vandavasi criminal Court and marked Ex.R1, copy of the criminal case Judgement.
12.Hence, the Tribunal, considering the Ex.P1, the FIR as also Ex.R1, the criminal Court Judgement decided that the accident was caused by the first respondent, driver of the second respondent’s bus. As the first respondent was working as an employee under the second respondent and as the accident happened during the course of the employment, the second respondent was held liable to pay the compensation to the petitioner.
13.Immediately, after the accident, the petitioner had been admitted at Vandavasi Government Hospital for treatment. On examination of Wound Certificate issued by the Hospital marked as Ex.P2, it is evident that the petitioner had sustained four injuries in the accident. Further, the medical officers of the hospital have opined that the said injuries are simple in nature. The Tribunal therefore, awarded a sum of Rs.2,000/- for each simple injury and awarded a total of Rs.8,000/- for the simple injuries. On the petitioner’s, the Doctor, who had issued Disability Certificate, was examined as PW2. The PW2 has stated in his evidence that on his examination of the petitioner, he had found that the petitioner had sustained a blood injury on his left leg knee, 6 X 3 = and due to this his left leg knee has been immobilised and that he had issued a Disability Certificate stating that the petitioner had sustained 60% disability. Further, he had found that the petitioner had lost hearing in both ears and he had issued a Certificate mentioning disability on this Court at 60%. But, on cross-examination, the PW2, the Doctor has admitted that he had examined the petitioner only on 29.06.2000 and had issued a Disability Certificate marked as Ex.P4 and that he had retired from service, when he issued the Disability Certificate. Further, he had admitted that he had not given any treatment to the petitioner at the time of the issuance of Disability Certificate and that PW2, X’ray was not taken on the petitioner and he had also not asked the petitioner to take X’ray. Further, issuing his experience alone, he had certified that the disability suffered by the petitioner was 60%. Further, the Doctor was also not a neurologist. Taking into account, all the above factors, the Tribunal decided that the petitioner had only sustained only 30% disability in the above accident and awarded a sum of Rs.30,000/- as compensation to the petitioner towards disability. Further, the Tribunal granted a sum of Rs.2,000/- for pain and suffering and a sum of Rs.1,000/- for nutrition as compensation to the petitioner.
14.Further, the petitioner had claimed that he was an agriculturist and earning a sum of Rs.2,500/- p.m. He has stated that due to the injuries sustained in the accident, he is not able to work and that he had taken treatment in a hospital for 15 days and subsequent to that had taken treatment with a private Doctor Ramasamy. Considering that the petitioner would have lost income during the period of his medical treatment, the Tribunal granted a sum of Rs.1,500/- towards this as compensation to the petitioner.
15.Further, the said PW1 has stated in his evidence that due to the accident, one bullock had died on the accident spot itself and that another bullock was injured. Further, he had submitted that the cost of a bullock was Rs.15,000/- and he had also spent a sum of Rs.10,000/- for treatment of the other bullock. He had marked Ex.P3, Post-mortem Certificate for the dead bullock. The petitioner has not produced any documentary evidence to show that he had incurred expenses towards repair of bullock cart and towards the treatment of the injured bullock. However, PW4, Dr.V.Ramakrishnan in his evidence has submitted that he had issued the Post-Mortem Certificate for the dead bullock stating that it had suffered multiple injuries in the accident and had died due to shock and marked Ex.P3, the Post-Mortem Report.
16.So, the Tribunal considering only this report, granted an award of Rs.8,000/- as compensation to the petitioner for loss of one bullock.
17.In total, the Tribunal granted a sum of Rs.50,500/- as compensation to the petitioner. It further directed the second respondent to deposit the above amount with interest at 9% into the credit of M.C.O.P.No.189 of 1997, on the file of the Motor Accidents Claims Tribunal, Arani, within a period of two months from the date of its Order. It further permitted the petitioner to withdraw 50% of the award amount with interest after deposit was made and directed that the balance award amount has to be deposited in a bank for a period of one year. Excess court fees paid by the petitioner was to be returned. Further, the cost of Rs.3,161/- incurred by the petitioner in this case has to be paid by the second respondent.
18.The learned counsel appearing for the appellant in his appeal has argued that as the accident was caused only due to the bullocks being startled by the horn of the bus, the blame should have been laid on the bullocks only for the cause of the accident. The Tribunal has erred in only taking into account FIR and oral evidence of PW1 and PW2 to conclude the negligence on the appellant. The Lower Court had failed to give due credence to the evidence of RW1 in proper perspective. The Tribunal awarded only a sum of Rs.8,000/- to the petitioner for the four simple injuries sustained by him and hence the disability of 30% arrived at by the Tribunal is erroneous. Further, in the evidence of the Doctor PW3, it has been stated that he had not given treatment separately for the injuries and wounds sustained by the claimant and had further adduced that no X’rays were taken while assessing the disability in respect of injuries and that he assessed the disability only on the Wound Certificate. Hence, the assessment of the Tribunal is only on assumption, which vitiates the award. Further, the amount awarded for simple injuries is also on the higher side and needs re-consideration.
19.As such, the learned counsel appearing for the appellant had prayed to set aside the award and decree passed.
20.The learned counsel appearing for the respondent argued that the award passed by the Tribunal has been well considered, fair and equitable. The claimant is an agriculturist involved in the agricultural operations. After, sustaining injuries, he was not able to involve himself in agricultural operations. The claimant’s bullocks and cart are very important to him to carry out agricultural operations and helps him earn his livelihood. Due to this accident, his entire normal life and livelihood has been affected and as such irreparable loss has been caused to him.
21.For the foregoing reasons and on the consideration of the facts and circumstances of the case, and after hearing the arguments of the learned counsel on either sides and after perusal of the discussions about findings in the Trial Court, this Court is of the opinion that the driver of the bus has himself admitted the negligence and pleaded guilty before the criminal Court. As such, the negligence finding of the Tribunal is confirmed by this Court.
22.Regarding quantum of the compensation, the claimant has sustained four simple injuries and in support of this, the petitioner has filed Wound Certificate marked as Ex.P2. Further, the claimant has marked Ex.P3, Post-Mortem Certificate for one dead bullock. Doctor issued certificate regarding disability of the petitioner and Post-mortem of the dead bullock. The disability of the petitioner was certified as 60% by the Doctor. But, the Tribunal had reduced this disability to 30% without assigning any reason. On the other heads of pain and suffering for four injuries, a sum of Rs.8,000/- was granted by the Tribunal. For loss of earning, a sum of Rs.1,500/- was granted. For pain and suffering a sum of Rs.2,000/- was granted and for nutrition a sum of Rs.1000/- was granted. For death of bullock, a sum of Rs.8,000/- was awarded. In total, a sum of Rs.50,500/- was awarded by the Tribunal with 9% interest which is equitable, fair and payable by the appellant/State Transport Corporation.
23.So, this Court hereby directs the appellant/State Transport Corporation to comply with the award and decree passed by the Motor Accidents Claims Tribunal, Arani, in M.C.O.P.No.189 of 1997, dated 26.07.2004, by depositing the compensation amount of Rs.50,500/-, together with interest at the rate of 9% per annum from the date of filing of the petition till the date of payment into the credit of M.C.O.P.No.189 of 1997, on the file of the Motor Accidents Claims Tribunal, Arani, within a period of six weeks from the date of receipt of this Order. (If any payment has been made already, to the Court, the appellant is permitted to deduct such amount from the award confirmed by this Court).
24.It is open to the respondents/claimants to receive the compensation amount, after such deposit has been made to the credit of M.C.O.P.No.189 of 1997, on the file of the Motor Accidents Claims Tribunal, Arani, by filing necessary payment out application in accordance with law.
25.In the result, this Civil Miscellaneous Appeal is dismissed and consequently the award passed by the Accidents Claims Tribunal, Arani, in M.C.O.P.No.189 of 1997, dated 26.07.2004 is confirmed. No costs.
30.11.2009
Index: Yes/No
Internet: Yes/No
krk
To
1.Motor Accidents Claims Tribunal,
Arani.
2.The Section Officer, VR Section,
High Court, Madras.
C.S.KARNAN, J.
krk
Pre-deliver Order in
C.M.A.No.226 of 2005
30.11.2009