IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.3103 of 2007
and
M.P.No.3 of 2007
and
Cross.Objn.No.8 of 2008
The Managing Director
Tamil Nadu State Transport Corporation
(Villupuram Circle-2)
Vellore .. Appellant
Vs
Revathy .. Respondent
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 12.02.2007, made in M.C.O.P.No.106 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore.
For appellant : Mr.V.Ramesh
For respondent : Mr.V.Jaganathan
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 12.02.2007, made in M.C.O.P.No.106 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, awarding a compensation of Rs.1,34,462/- with 7.5% 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 Tamil Nadu State Transport Corporation, Vellore, has filed the above appeal praying to set aside the said award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 07.12.2004, at about 3.30 p.m. the petitioner was riding as a pillion rider, along with her husband in a two wheeler ‘Suzuki Samurai’ bearing registration No.AP03 D4183, from Chittoor to Vellore and when the vehicle was in Katpadi, on the Vallimalai Junction road, the passenger bus belonging to the respondent bearing registration No.TN23 N1318, coming from south to north, driven by its driver in a rash and negligent manner hit against the petitioner riding the vehicle. In the result, the petitioner and her husband sustained grievous injuries. The upper row teeth in the right join of the petitioner was broken and her hip bone was fractured. Then, the petitioner was immediately shifted to Government Vellore Medical College Hospital, Vellore and then shifted to Christian Medical College Hospital, Vellore, for treatment and hospitalised.
4.Regarding the said accident, Katpadi Police registered a criminal case in Crime No.774 of 2004 under Sections 279 and 338 of I.P.C. As such, the petitioner has claimed a compensation of Rs.4,00,000/- with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation and costs from the respondent, who is the owner of the said bus involved in the accident.
5.The respondent, in his Counter has resisted the claim denying the manner of accident as alleged in the claim petition. The respondent has stated that on 07.12.2004, the driver of the respondent Corporation was driving the bus bearing registration No.TN23 N1318 from Bagayam to Katpadi and that when the driver of the bus was trying to turn the bus at the Junction of Katpadi Vallimalai Road, the driver of the bus saw a two wheeler coming in the opposite direction, driven by its rider in a rash and negligent manner and at a high speed and going on the Vellore route. On seeing this, the driver of the bus, stopped the bus but in spite of this the rider of the two wheeler dashed his vehicle on the left front portion of the bus and hence had caused the accident. As such the accident was only caused by the fault of the two wheeler rider and hence the respondent Corporation cannot be held liable to pay compensation to the petitioner. It has also been submitted that the petitioner has to prove the nature of injuries sustained by her, her medical treatment and expenses incurred, loss of earning capacity, through documentary evidence to establish her claim.
6.It has also been submitted that the non-inclusion of the owner and insurer of the two wheeler bearing registration No.AP03 D4183, involved in the accident, renders the claim not maintainable and as such the petition has to be dismissed. Further, it has been submitted that the claim is excessive.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Whose negligence had caused the accident?
(ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, which she is entitled to get?
8.On the petitioner side, three witnesses were examined as P1 to P3 and eight documents were marked as Exs.P1 to P8. On the respondent side, one witness was examined and no documents were marked.
9.The PW1, in her evident has adduced that the rash and negligent driving of the driver of the respondent Corporation had caused the accident and that because of the accident, she and her husband had sustained injuries. In support of her evidence, she has marked Ex.P1-the copy of FIR; Ex.P2-Discharge Summary of Hospital, wherein it has been stated that the petitioner had sustained grievous injuries; Ex.P3-the Discharge Summary given by C.M.C.Hospital, Vellore; Ex.P4-the Medical Bills; Ex.P5-the Disability Certificate. The Tribunal on scrutiny of evidence of PW1 and examination of Ex.P1-FIR, held that the accident was caused only due to rash and negligent driving of the driver of the respondent’s bus Corporation.
10.The Tribunal after scrutiny of Ex.P2, was of the view that the petitioner had been on inpatient at C.M.C.Medical College Hospital, from 09.12.2004 to 28.12.2004 and had received treatment. The Doctor, who had treated the petitioner was examined as PW2. The PW2, in his evidence had adduced that he is a senior Doctor in the Surgical Department at C.M.C.Medical College Hospital; that on examination of the petitioner he had found that she had swelling in her right cheek and that a bone in her right cheek had been broken; that she had sustained fractures in her left hip; that both the above said injuries were grievous in nature; that a surgical operation had been done whereby a plate had been implanted. He had further deposed that he had inspected the petitioner on 21.03.2006 at the Hospital and had found that the petitioner has difficulty in opening and closing her mouth and that she still has pain in the portion of her mouth, which had been operated upon and as such he had assessed the disability sustained by her, on this count as 45% and had marked Ex.P5-Disability Certificate and Ex.P6-X’rays. From the evidence of PW2, the Tribunal understood that the petitioner’s teeth had been removed and that four of her teeth had been broken and that she had sustained fractures in her hip. It was also evident from the evidence of PW2, that the petitioner experiences pain on pressing of her hip and due to this she experiences difficulty during sitting and squatting.
11.Further, the Doctor PW2 had deposed that the permanent disability sustained by the petitioner was 20% and that five of her teeth in the lower jaw and four of her teeth in the upper jaw of her left cheek were missing and in support of this evidence had marked Ex.P7-Disability Certificate and Ex.P8-X’rays. So, the Tribunal held that the teeth of the petitioner had been broken in the said accident and that surgery had been done to correct this. From a scrutiny of medical bills, totalling Rs.93,462/- the Tribunal, after deducting a sum of Rs.10,000/-, which had already been paid by the petitioner as on advance, granted an amount of Rs.83,462/- as compensation under the head of medical expenses. For the grievous injuries sustained by the petitioner, the Tribunal granted an award of Rs.20,000/-. For attendant charges, incurred by the petitioner, during the period of her hospitalisation, the Tribunal granted an award of Rs.10,000/-; an award of Rs.10,000/- was granted by the Tribunal for her food expenses and a sum of Rs.1,000/- was granted by the Tribunal for transport expenses. The Tribunal, on considering the disability of 20% sustained by the petitioner granted an award of Rs.10,000/- and in total, the Tribunal granted an award of Rs.1,34,462/- to the petitioner and directed the respondent to pay the above said award with interest at the rate of 7.5% 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.106 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, within a period of one month from the date of its Order. Further, after such deposit was made, the award with interest has to be deposited in a nationalised Bank as fixed deposit for three years and the petitioner was permitted to receive interest on such deposit, once in six months. The Advocate fees was fixed at Rs.5,689.24/-, the respondent’s cost was fixed at Rs.5,694.24 and the cost of the petition for the petitioner was fixed at Rs.6,368.86.
12.The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that the driver of the appellant Corporation has stopped the bus at the time of accident and that the accident took place only due to the rash and negligent driving of the respondent’s husband. It has also been contended that the Tribunal erred in awarding a sum of Rs.1,34,462/- as total compensation with interest at the rate of 7.5% from the date of petition, without any basis and material evidence on record. As such, the learned counsel for the appellant has contended that the award of the Tribunal is excessive and has prayed to set aside the award and decree passed by the Tribunal.
13.The learned counsel appearing for the respondent argued that the claimant was an inpatient at C.M.C.Hospital, Vellore, for about 19 days and that during her treatment here, the claimant had spent a sum of over Rs.1,00,000/-. Further, the claimant had undergone surgical operation and had also sustained injuries on her right hip. She had lost four of her teeth in the accident and her right jaw bone was also fractured in the accident. The learned counsel for the respondent further argued that the claimant was unable to sit and squat and finds difficulty in opening and closing of her mouth. It was further argued that the Tribunal’s award of compensation of Rs.1,34,462/- is on the lower side, as the medical bills alone amounted to Rs.83,462/-, which comes under the pecuniary loss.
14.The learned counsel appearing for the respondent/claimant, in support of his case, has cited the following Judgments made in
2008 ACJ 9, Supreme Court of India, Sunil Kumar Vs. Ram singh Gaud and others, the relevant head notes of which are as follows:
“Quantum Injury Leg Three fractures in leg including one at tibia Injured aged 29, truck driver, drawing Rs.4,000 p.m. suffered 45 per cent permanent disability and would not be able to drive Tribunal awarded Rs.45,000 for permanent disability, Rs.21,000 towards medical expenses, Rs.6,000 for physical pain and mental agony; total Rs.72,000 which was upheld by the High Court Apex Court assessed loss of earning capacity at Rs.1,200 p.m., adopted multiplier of 18 and allowed Rs.2,59,200 for loss of earning capacity Award of Rs.72,000 enhanced to Rs.3,31,200.”
2008 (1) TN MAC 499, High Court of Madras, M.D., T.N.S.T.C. (Dn.-2) Ltd. v. J. Senthil Kumar, the relevant head notes of which are as follows:
“MOTOR ACCIDENT CLAIM Compensation Quantum Determination Non-fatal Accident Injured aged 41 7ears a Civil Engineer earning Rs.10,000 p.m. – Sustained multiple injuries all over body and abrasions on forehead, skull right side, left had, right foot and cheek right side Disability:25% : Injured often getting headache and giddiness, unable to eat hard food, unable to sit, stand, bend, walk and ride any two wheeler : Unable to carry weight and do work as before Injured claimed Rs.10,60,000 but restricted to Rs.9,00,000 before Tribunal Tribunal awarded Rs.1,77,000 as total compensation with 7% interest Appeal against Tribunal awarding Rs.50,000 against 25% Permanent Disability, held, proper Rs.10,000 awarded towards Future Medical Expenses without any basis and justification, set aside Further, Rs.25,000 awarded towards Pain and Suffering as also Rs.25,000 towards Mental Shock Tribunal having already awarded Rs.25,000 towards Pain & Suffering, award of Rs.25,000 towards Mental Shock, not proper, set aside Awards of Tribunal in other aspects confirmed Rs.1,77,000 awarded by Tribunal, reduced to Rs.1,42,000 Interest at 7.5% being reasonable confirmed.”
15.After considering the facts and circumstances of the case, award and decree passed by the Tribunal and after hearing arguments advanced by the learned counsels for their respective parties, this Court is of the view that the Tribunal had awarded Rs.83,462/- on the basis of Ex.P4-the Medical Bill Series and so is pertinent and appropriate and as such this Court confirms the award passed under this head. The Tribunal awarded a sum of Rs.20,000/- for grievous injuries and this Court grants the above said award of Rs.20,000/- under the head of pain and suffering. The Tribunal awarded a sum of Rs.10,000/- for attendant charges and this Court modifies the award granted under this head as Rs.5,000/-. The Tribunal had awarded a sum of Rs.10,000/- for nutrition and this Court modifies the award granted under this head to Rs.5,000/-. The Tribunal awarded a sum of Rs.10,000/- for disability, whereas this Court grants an award of Rs.20,000/- under the head of disability. Considering the evidence of the PW2 and PW3 and the Disability Certificate marked as Ex.P5. The Tribunal awarded a sum of Rs.1,000/- for transport expenses and this Court confirms the award granted under this head. In total, the Tribunal granted a sum of Rs.1,34,462/- together with interest, at the rate of 7.5% 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.106 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, which this Court considers as fair and equitable. This Court has only modified the heads under which the award has been granted.
16.This Court imposed a condition, on the appellant/Tamil Nadu State Transport Corporation on 06.12.2007, to deposit the entire compensation amount, into the credit of the M.C.O.P.No.106 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore. Further, this Court permitted the claimant to withdraw 50% of the award amount with accrued interest from the amount lying in the credit of the M.C.O.P.No.106 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore.
17.As the accident happened in the year 2004, it is open to the claimant/respondent to withdraw the balance compensation amount, which is lying in the credit of the M.C.O.P.No.106 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, after filing necessary payment out application, in accordance with law.
18.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, in M.C.O.P.No.106 of 2005, is confirmed. Consequently, connected miscellaneous petition and cross objection are also closed. No costs.
krk
To
1.Motor Vehicles Accident Claims Tribunal,
Chief Judicial Magistrate Court, Vellore.
2. The Section Officer,
VR Section, High Court,
Madras