IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.02.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.1743 of 2008
and
M.P.No.1 of 2008
The Managing Director,
Tamil Nadu State Transport
Corporation Ltd.,
Dharmapuri. .. Appellant
Vs
1.P. Nanchundareddy
2.A. Muniappa
(Given up in appeal) .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 11.12.2006, made in M.C.O.P.No.30 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Court, Hosur.
For appellant : Mrs.B. Vijayalakshmi
For respondents : No Appearance
J U D G M E N T
The Civil Miscellaneous Appeal has been filed by the appellant/second respondent, against the Award and Decree, dated 11.12.2006, made in M.C.O.P.No.30 of 2004, passed by the Motor Accident Claims Tribunal, Sub Court, Hosur, awarding a compensation of Rs.72,000/- 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.
2.Aggrieved by the said Award and Decree passed by the Tribunal, the appellant/second respondent, the Tamil Nadu State Transport CorporationLtd., Dharmapuri, has filed the above appeal praying to set aside the award and decree passed by the Tribunal.
3.The short facts of the claim case is as follows:
On 18.08.2003, when the petitioner was travelling as a passenger in the Respondents Town bus bearing registration no.TN29 N0170, proceeding from Denkanikottai to Hosur, and when the bus was nearing Betthur bus stop the driver of the said Town bus drove the bus at a High speed and in a rash and negligent manner. As a result of this, the bus rolled over and the petitioner sustained injuries in his head, hip bone, Right knee and left leg. Due to injuries sustained in the accident, the petitioner is not able to breathe freely as before, and also not able to do work as he was before the accident. The petitioner has also sustained a loss in his earning capacity; due to the disability caused to him in the accident. As the accident has been caused due to the negligence of the 1st respondent, the driver of the said bus and as the said bus is owned by the 2nd respondent, both the respondent’s are liable to pay compensation to the petitioner. The petitioner has therefore claimed a compensation of Rs.3,00,000/- from the Respondent’s.
4.Regarding the said accident, a criminal case has been registered by the Denkanikottai Police Station in Crime No.293 of 2003 under section 279, 337 and 338 of IPC.
5.The Respondent, in his counter has resisted the claim denying the manner of accident as alleged in the claim. It has been submitted that on 18.08.2003, the driver of the Respondent’s bus was driving the said bus in a slow and careful manner, and at about 2-15 p.m in the afternoon, while the bus was proceeding on the road between Perur and Elumpur, as the road was not proper and had inundations on it, some mechanical problems arose in the said bus and due to this the bus and overturned, and resulted in the accident. It was submitted by the Respondent that the petitioner has not sustained any grievous injuries or permanent disability due to the accident. It has also been submitted that the petitioner is in a position to do normal work as before and hence the claim of the petitioner is excessive. As such, it has been prayed by the Respondent to dismiss the claim petition.
6.The Motor Accident Claims Tribunal framed three issues for the consideration in this case namely:
(i) Was the accident caused to the rash and negligent driving of the driver of the Respondent’s bus bearing registration No.TN29 N 0710?
(ii)Is the petitioner entitled to get compensation?
(iii)If so, what is the quantum of compensation which he is entitled to get? 7.On the petitioner's side, one witness was examined as PW1 and 2 documents were marked as Exs.P1 to P2. On the respondents' side, one witness was examined as RW1.
8.The petitioner was examined as PW1, before the Tribunal. PW1, in his evidence has deposed that on 18.08.2003, while he travelling in the Respondent bus bearing registration No.TN29 N0170, which was proceeding from Denkanikottai towards Melur, and when the bus was nearing Belur bus stop, the driver of the bus drove the bus at a high speed and in a rash and negligent manner, and that as a result of this, the bus had turned turtle and caused the accident. In support of his evidence, PW1 has marked Ex.P1, the F.I.R. On scrutiny of Ex.P1, the F.I.R, it is seen that on 18.08.2003, at about 14-15 hours when the bus was nearing Belur Bus stop, the driver of the Respondents bus bearing registration no.TN29 N0710 had driven the said bus at high speed in a rash and negligent manner, and caused the accident and that a Criminal Case has been registered by the Denkanikottai Police as against, the driver of the bus. The respondent in his counter has resisted the claim stating that the bus driver had driven the bus at a moderate speed and in a careful manner. The driver of the bus was examined as RW1. Though RW1, in his evidence deposed that when the bus was nearing belur village, he had seen a post box pillar broken and lying on the road and that on seeing this, he had stopped the bus and as such no one had been injured, he had not stated that he had driven the bus slowly and carefully. On examination of the F.I.R, it is seen that the driver of the bus had himself taken the three injured passengers in the accident in a ‘GPT’ bus to the Denkanikottai Government hospital and admitted them as impatients. The Tribunal, on considering that the driver of the bus had only admitted the three passengers, who had travelled in the bus, at the Denkanikottai Government Hospital, because of the fact that they had sustained injuries in the accident were of the opinion that if the Respondents bus driver had driven the bus at a moderate speed and in a careful manner, he could have averted the accident; the Tribunal therefore held that only because the bus had been driven at high speed and in a rash and negligent manner, by the driver, he had lost control of the bus and this had resulted in the bus turning turtle and causing the accident, PW1, in his evidence has stated that because of the accident, he has sustained injuries on his head, hip bone and right knee and that he had initially taken treatment at Denkanikottai Government Hospital and subsequently taken treatment at Vijaya nursing home, for a period of one week and that he had spent Rs.25,000/- for his medical expenses. He had stated in his evidence that before the accident he was engaged in agricultural work and also to trading in seeds and was getting a monthly income of Rs.10,000/- and that after the accident, he is not able to work as before due to the injuries sustained by him in the accident. In support of his evidence, he has marked EX.P2, the wound certificate issued by Denkanikottai Government Hospital and also the medical report issued by Vijay Nursing home. From on suspection of the above documents marked, it is seen that the petitioner has sustained injuries in four areas of his body and that the injuries sustained by him in his left leg and right side of head are simple injuries and that for treatment of the above simple injuries the petitioner had initially taken treatment at Denkanikottai hospital and later on had taken treatment at Vijay nursing home, Hosur. From a scrutiny of the wound certificate issued by the Government Hospital, Hosur, it is seen that the petitioner had sustained fracture of bones in the chest and nose based on ‘X’ rays taken of these areas. The Tribunal, were of the opinion that the petitioner had undergone pain and suffering and mental agony consequent to the injuries sustained in the accident. The Tribunal were of the opinion that as the petitioner had stated that he was doing agricultural work and business before the accident and earning a sum of Rs.10,000/- per month, he would have sustained a reduction in his earning capacity because of the injuries sustained by him in the accident and that he was not in a position to work as he used to do before the accident.
9.The Tribunal therefore awarded a sum of Rs.60,000/- to the petitioner under the head of pain and suffering and mental agony, and also awarded a sum of Rs.5,000/- as compensation for loss of earning capacity of petitioner. The Tribunal, on scrutiny of medical bills, awarded a compensation of Rs.2,000/- to the petitioner. The Tribunal, further awarded a sum of Rs.5,000/- as compensation under the head of nutritious and Transport expenses. In total, the Tribunal granted a sum of Rs.72,000/- as compensation to the petitioner and directed the respondent to deposit the above said awarded with interest at the rate of 9% per annum from the date of filing the claim petition till date of payment of compensation into the credit of M.C.O.P.No.30 of 2004, on the file of the Motor Accident Claims Tribunal, Sub Court , Hosur, within two months from the date of its order. Further, the Tribunal 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. The Advocate fees was fixed at Rs.3,125/-. The Respondent was directed to pay the cost to the petitioner. The petitioner was directed to pay the balance Court fee within one month from the date of its order.
10.The Learned Counsel for the appellant has contended in his appeal that the Tribunal failed to consider that the claimant did not file his bus ticket to prove that he was a passenger in the said bus involved in the accident. It has also been contended that the Tribunal failed to consider that the claimant has not filed medical bills, Discharge summary and wound certificate. It was pointed out that the award of Rs.60,000/- for pain and suffering was not proper and that the Tribunals award of Rs.5,000/- granted for transportation has also been alone without any documentary evidence. As such, it has been prayed, by the Learned Counsel for the appellant, to set aside the award and decree dated 11.12.2006 passed by the Tribunal.
11.The Learned Counsel for the appellant vehemently argued that the rate of interest in the year 2006, was only 7.5%, but the Motor Accident Claims Tribunal had wrongly fixed the rate of interest at 9% per annum, which is exorbitant. Further, the Learned Counsel pointed out that the doctor was not examined in this case. As such, the nature of injuries, mode of treatment has not been discussed before the Motor Accident Claims, Tribunal . In the absence of doctor’s evidence, the Tribunal’s award a sum of Rs.60,000/- under the head of pain and sufferings is not pertinent.
12.Considering the facts and circumstances of the case and arguments advanced by the Learned Counsel for the appellant and scrutiny of findings of the Motor Accident Claims Tribunal, the Court is of the view that the quantum of compensation awarded and the rate of interest fixed are excessive and as such it is scaled down as follows:
(1) Considering the period of hospitalisation and that he was treated in two hospitals, and considering the nature of his injuries, this Court awards a compensation of Rs.40,000/- for loss of income, inspite of the fact that the petitioner has not furnished the disability certificate.
(2) This Court awards a sum of Rs.5,000/- under the head and pain and suffering.
(3) The Tribunal awarded a sum of Rs.2,000/- towards medical expenses and this Court confirms the same.
(4) The Tribunal awarded a sum of Rs.5,000/- for nutritious and Transport. This Court confirms the same.
13.Considering that the award was granted by the Tribunal in the year 2006, the Tribunal fixes the rate of interest on the award amount of 9%per annum. As such, this Court awards a sum of Rs.52,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation.
14.At the time of admission, this Court imposed a condition on 30.06.2008 on the appellant to deposit a sum of Rs.25,000/-. Therefore, this Court hereby directs the appellant/State Transport Corporation to deposit the balance award amount within a period of four weeks from the date of receipt of copy of this order. The accrued interest on the entire award of Rs.52,000/- granted by this Court has to be worked out at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation, subject to deduction of interest on the earlier deposit amount of Rs.25,000/- from the date of the earlier deposit upto the date of payment of balance award amount.
15. As the accident, happened in the year 2003, it is open to the claimant to withdraw the compensation amount awarded by this Court with accrued interest lying in the credit of M.C.O.P.No.30 of 2004, on the file of the Motor Accident Claims, Tribunal, Sub Court, Hosur, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals, if any.
16.As such, the above Civil Miscellaneous appeal is partly allowed. Consequently, the award and decree passed by the Motor Accident Claims, Tribunal, Sub Court, Hosur, in M.C.O.P.No.30 of 2004 dated 11.12.2006, is modified. Connected Civil Miscellaneous petition is closed. There is no order as to costs.
15.02.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.Motor Accident Claims Tribunal,
Sub Court, Attur,
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-deliver Order in
C.M.A.No.1743 of 2008
15.02.2010