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The Managing Director vs P.Ragupathy on 17 December, 2009

Madras High Court
The Managing Director vs P.Ragupathy on 17 December, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.12.2009

CORAM

THE HONOURABLE MR. JUSTICE. C.S.KARNAN
									
C.M.A.No.194 of 2005


The Managing Director
Tamil Nadu State Transport 
                      Corporation Ltd.,
Coimbatore Division-I					.. Appellant

Vs

1.P.Ragupathy
2.Sivasubramaniam						 .. Respondents
(No relief claimed against 2nd respondent)



	Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 19.06.2003, made in M.C.O.P.No.914 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track No.III, Coimbatore.

		For appellant	    : Mr.C.Prabakaran

		For respondents     : Mr.AR.M.Arunachalam
                                                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 19.06.2003, made in M.C.O.P.No.914 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track No.III, Coimbatore, awarding a compensation of Rs.1,79,625/- with 9% interest from the date of filing the petition till the date of payment of the compensation.

2.Aggrieved by the said Order, the appellant/second respondent, Tamil Nadu State Transport Corporation Ltd., has filed the above appeal to set aside the award. It has been contended in the appeal that apportionment of contributory negligence has not been done in a proper manner by the Tribunal and in this regard, a Judgement reported in 2003 IMLJ P489 has also been cited. Further, it has been submitted that the real cause of the accident was the travelling of three persons in the TVS-50 Moped, which is contrary to the Motor Vehicles Act. Further, the award granted under various heads are highly excessive and hence has prayed for reconsideration according to law.

3.The short facts of the case are as follows:

On 07.12.2000, at 9.30 a.m. the petitioner and his friend Leelakrishnan were taking another friend Mr.Parthasarathy, who was sick, to the Doctor at Ramanathapuram in TVS-50, bearing registration No.TN37 R5074 and when they were proceeding from east to west on Trichy road in front of Shanthi Precision Industries Ltd., Singanallur, the bus bearing registration No.TN38 N0211, which was coming in the opposite direction in a rash and negligence manner dashed against the petitioner’s vehicle and all of them fell down and sustained severe injuries and fractures. Immediately after the accident, the petitioner was admitted in KG Hospital, Arts College Road, Coimbatore, wherein he was treated in-patient from 07.12.2000 to 25.12.2000 and from 12.03.2001 to 20.03.2001.

4.In the said accident, the petitioner sustained grievous injuries. The petitioner was aged about 32 years at the time of the accident and was running a Press in the name and style of “Vasanth Printers”, thereby earning a sum of Rs.5,000/- per month at the time of the accident. After the accident,he is not able to continue the Press. The petitioner has become a disabled person. He is the only son to his parents and he is unmarried and his life is completely ruined and his dreams to rise up in the Society are all destroyed. But for the rash and negligent driving of the TNSTC Bus bearing registration No.TN38 N0211 by the first respondent, the accident would not have taken place.

5.The first respondent is the driver of the TNSTC Bus bearing registration No.TN38 N0211 and the second respondent is the Managing Director of the TNSTC and hence the respondents are jointly and severally liable to pay compensation of Rs.6,00,000.

6.In the said accident, a criminal case has been filed by the Traffic Investigation Wing (East) Police against the first respondent, in Crime No.423/2000, under Sections 279 and 337 of I.P.C.

7.The second respondent in his Counter has rebutted the claim stating that on 07.12.2000, the first respondent/driver took the bus bearing registration No.TN38 N0211 at 9.09 p.m. from Coimbatore and was proceeding towards Tiruppur following Traffic rules and regulations with due care and caution. At about 9.30 p.m. when the bus was nearing Radharani Theatre, the driver of the bus saw a moped rider with two pillion riders coming in a rash and negligent manner by overtaking one Tempo Van and came to the middle of the road and dashed against the bus and fell down. Immediately, they were taken to the K.G.Hospital and first aid was given to them. It was submitted that the moped rider by having two pillion riders is alone responsible for the accident. Further, it has been alleged by the respondent’s driver that the driver and pillion riders of the TVS-50 moped had consumed alcohol and that when they overtook the tempo van, they could not control the speed and hence had dashed against the bus. As such, the moped driver and pillion riders were responsible for the accident. Further, the respondent has not admitted the petitioner’s age, income, occupation, alleged injuries and disablement suffered and has submitted that all these should be proved before the Tribunal by means of documentary evidence. Further, it was submitted that the claim of the petitioner under various heads are excessive and were not admitted.

8.On the side of the petitioner, the petitioner was examined as PW1 and the Doctor, who issued Disability Certificate to PW1 was examined as PW3 and eleven documents were marked as Exs.P1 to P11. On the respondents side, the first respondent was examined as RW1 and no documents were marked.

9.The PW1, in his evidence has deposed that on 07.12.2000, at about 09.30 p.m. he along with the petitioner and Leelakrishnan were riding in a Motorcycle TVS-50, bearing registration No.TN37 R5074, on the Trichy Road from east to west and while they were nearing Santhi Industries, the bus bearing registration No.TN38 N0211 came from the opposite direction in a rash and negligent manner and dashed against the motorcycle and thus the accident had happened. Ex.P1 the First Information Report shows that the rash and negligent driving of the first respondent is the cause for the accident. Ex.P2 the Final Report laid under Section 173(2) Cr.P.C. also reveals that after a full fledged investigation, the Investigating Officer, who made the investigation came to a conclusion that the rash and negligent driving of the bus by the first respondent is the cause for the accident and accordingly the final report was held as against the first respondent.

10.The RW1, the first respondent, in his evidence has deposed that on 07.12.2000, at about 9.00 p.m. while he was driving the bus from Kovai to Tiruppur, and when he was nearing Santhi Industries, three persons, who were riding the TVS-50 were in the process of overtaking a Van, in a rash and negligent manner and had dashed against the bus and caused the accident. Further, it was contended on the side of the second respondent that as the TVS-50 was carrying three persons at the time of the accident, the rider viz. PW1 lost control of the vehicle and thereby he dashed against the bus and invited the accident. The Tribunal was of the opinion that the Motor Cycle and any other two wheeler was meant only for two persons, namely the rider and a pillion rider. If, more than two persons are travelling in a motorcycle or any other two wheeler, undoubtedly, such action of the individual would become illegal and unauthorised. Further, the Tribunal considered the ruling of the Judgement in 2003(1) MLG, Page 489, High Court of Madras, wherein it was held that the conduct of the persons, who travelled in such a manner are liable to be held for contributory negligence, especially when their action is contrary to the statute.

11.But, a reading of Ex.P3, Rough Sketch, reveals that the bus travelled away from the middle of the road, ie. the right side of the road and thereby the accident had happened. On the right had side of the road with respect to the bus. As such, the Tribunal on considering the fact that the accident had happened on the right hand side of the road with regard to the bus and also on considering the fact that three persons were travelling in the TVS-50, which was against established legal dictum, held that both the driver of the bus and the rider of the two wheeler had been negligent and fixed 75% contributory negligence on the driver of the bus and 25% contributory negligence on the rider of TVS-50 for the cause of the accident.

12.The PW1, in his evidence has deposed that in the said accident, he sustained injuries on his right leg, thigh and other parts of his body and immediately after the accident, he was removed to KG Hospital and there he had taken treatment for a period of 18 days and a series of surgeries were done on his body. Ex.P5-Wound Certificate pertaining to PW1, reads that in the said accident, the petitioner sustained two grievous injuries. Ex.P7, the Discharge Summary issued from KG Hospital reads that the petitioner had taken treatment for a period from 07.12.2000 to 25.12.2000, totally for a period of 19 days. The PW3, the Doctor, who examined PW1 with regard to the injuries sustained by him in the accident, came to a conclusion that due to the injuries the petitioner had sustained permanent disability at the rate of 45% and has marked Ex.P16-Disability Certificate. Further taking into account the nature of injuries sustained by the petitioner ie. tenderness deformity in lower 1/3rd temur, abrasion injury where the bone has been exposed and compound temur fracture right as were reflected from Ex.P5, and considering the nature of the treatment from the Discharge Summary and considering the disability as certified by PW3, in his evidence, the Tribunal fixed the disability sustained by the petitioner at 25% only. In Ex.P6 Transfer Certificate, it has been mentioned that the petitioner’s age is between 30 and 35 at the time of the accident. It is evident from the evidence of PW1, that he was running printing Press at the time of the accident thereby earning a monthly income of Rs.5,000/-. But, no documentary evidence is adduced before the Tribunal to prove the above said claim. As such, the Tribunal fixed the annual income of the petitioner at the rate of Rs.36,000/-. Therefore, the Tribunal, considering a multiplier of seven relevant to the petitioner’s age and taking into account a disability at 25% arrived at the loss of earnings due to permanent disability as Rs.36,000/- X 25 X 7 / 100 = Rs.1,53,000/-. For pain and suffering, the Tribunal granted a sum of Rs.10,000/- and also granted a sum of Rs.74,000/-, being medical expenses incurred by the petitioner as per Ex.P8 Medical Bills. Further, the Tribunal granted a sum of Rs.2,500/- as compensation to the petitioner towards damages to clothing, transport expenses to Hospital and extra nourishment expenses, though no documentary evidence was adduced before the Tribunal for the above claim under the heads.

13.In total, the Tribunal held that the petitioner was entitled to receive compensation of Rs.2,39,500/- and considering that the respondents contributory negligence has been fixed at 75%, awarded a compensation of Rs.2,39,500 X 75/100 = Rs.1,79,625/- to the petitioner.

14.The Tribunal directed that the above said award has to be deposited, by the respondents, with interest at the rate of 9% per annum from the date of petition till the date of deposit, within a period of one month of its Order, into the credit of the M.C.O.P.No.914 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track No.III, Coimbatore. Further, it permitted the petitioner to withdraw 50% of the award amount, when made at once. The remaining amount of award has to be deposited in a Nationalised or Scheduled Bank at Coimbatore for a period of three years and the accrued interest therefrom will be paid to the petitioners once in three months, by the Bank directly. Advocate fees was fixed at Rs.6,593/-.

15.The learned counsel for the appellant argued that the quantum of compensation given by the Tribunal is on the higher side. The claimant and two others had travelled in a motorcycle, which is against traffic rules. So, as the claimant has breached the traffic rules, he is not entitled to get any compensation. The learned counsel for the appellant further submitted that the multiplier method is not applicable in the instant case as there is no permanent disability in this case.

16.The learned counsel for the respondent submitted that the claimant had undergone surgeries for treatment of the fractures in his body. At the time of the accident, the claimant was running a printing press. After the accident, he was not able to run the printing Press due to his physical disability. So, the multiplier method adopted by the Tribunal is perfectly justified. Hence, there is no infirmity in the award passed by the Tribunal.

17.Considering the facts and circumstances of the case, findings of the Tribunal, arguments advanced by the learned counsel on either sides, grounds of appeal, the Court is of the view that the claimant was running a printing Press at the time of the accident for which physical strength is also necessary. As per the Doctor’s Report, the claimant had undergone surgery and assessed his disability as 45%. On the basis of the Disability Certificate and on consideration that the claimant had undergone surgeries, the Tribunal had adopted the multiplier method to assess compensation. This Court finds the finding of the Tribunal and calculation as per multiplier method, justified in the circumstances of the case and hence confirms the finding on this count as also the award of Rs.1,53,000/- granted on this count as reasonable. The claimant has incurred medical expenses of a sum of Rs.74,000/- as per Ex.P8 series and hence this Court confirms the award under this head. For pain and suffering, the Tribunal had awarded a sum of Rs.10,000/- and a sum of Rs.2,500/- was awarded for transport, nutrition and damage to clothes. In total, a sum of Rs.2,39,500/- was granted by the Tribunal and considering contributory negligence of 75% on the part of the appellant Corporation bus driver, had granted an award of Rs.1,79,625/- to the petitioner. As such, this Court is of the view that the finding of the Tribunal and the award granted to the petitioner is reasonable. The rate of interest of 9% per annum fixed by the Tribunal is also reasonable. As such, this Court is unable to find any error in the findings of the Tribunal.

18.This Court directed the appellant / Transport Corporation on 04.02.2005 to deposit the entire compensation amount, into the credit of the M.C.O.P.No.914 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track No.III, Coimbatore, together with interest and costs. The claimant was permitted to withdraw 50% of the award amount as the accident happened in the year 2000, it is open to the respondent/claimant to withdraw the balance compensation amount with accrued interest, lying in the credit of the M.C.O.P.No.914 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track No.III, Coimbatore, after filing necessary payment out application, in accordance with law.

19.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Vehicles Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track No.III, Coimbatore, in M.C.O.P.No.914 of 2001 is confirmed. No costs.

17.12.2009
Index: Yes/No
Internet: Yes/No

krk

To

1.Motor Vehicles Accident Claims Tribunal,
Additional District and Sessions Judge,
Fast Track No.III, Coimbatore.

2. The Section Officer,
VR Section, High Court, Madras.

C.S.KARNAN, J.

Krk

,
Pre-deliver Order in
C.M.A.No.194 of 2005

17.12.2009

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