IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.1963 of 2007
and
M.P.No.1 of 2007
The Managing Director
Tamil Nadu State Transport
Corporation Ltd.,
Branch-2, Erode District,
Coimbatore Division-II .. Appellant
Vs
1.Thangavel
2.S.Sakthivel .. Respondents
(R2-Given up)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 24.02.2006, made in M.C.O.P.No.108 of 2005, on the file of the Motor Accident Claims Tribunal (II Additional Sub-Court), Gobichettipalayam.
For appellant : Mr.Rajinish Pathiyil
For respondents : Mr.Ma.P.Thangavel, 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 24.02.2006, made in M.C.O.P.No.108 of 2005, on the file of the Motor Accident Claims Tribunal (II Additional Sub-Court), Gobichettipalayam, awarding a compensation of Rs.82,120/-, with 9% 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/second respondent, The Managing Director, Tamil Nadu State Transport Corporation Ltd., Erode District, Coimbatore Division-II, has filed the above appeal praying to set aside the said award and decree.
3.The short facts of the case are as follows:
On 28.08.2004, the petitioner was travelling as a passenger in the Tamil Nadu State Transport Corporation Bus bearing registration No.TN33 1155, plying on the Kothagiri to Sathyamangalam route. At about 10.30 a.m. when the bus was passing through Sirumugai and nearing Sirumugai Bannariamman Hospital, the first respondent, the driver of the above said bus, drove the bus at a high speed, in a rash and negligent manner and without sounding horn, while negotiating a turning in the road. As a consequence, the bus turned turtle and fell down into a pit. Due to the accident, the petitioner sustained injuries in his right hip. Further, he sustained injuries in his right leg and other injuries all over his body. The petitioner along with other passengers, who were hurt in the accident, were immediately admitted at Government Hospital, Coimbatore. After taking first aid, the petitioner has been receiving treatment under Dr.Selva Kumar of Sathyamangalam. Due to the injuries sustained by the petitioner in his right leg, right hip and left collar bone, he has been taking treatment at a private hospital. The Doctors, who had given treatment to him had advised him to desist from lifting of heavy things and consequent to this he would not be able to work as a loadman in a lorry as before. He would also not be in a position to stand, or bend for long periods at a stretch. Though, he has spent in excess of Rs.10,000/- towards medical expenses, his health has not returned to normal.
4.At the time of the accident, the petitioner was aged about 45 years. He was a hale and healthy before the accident took place and was employed as a loadman in a lorry and was earning a sum of Rs.200/- per day. He was the only earning member in his family and was supporting his wife, a son and a daughter. As a result of the accident, the petitioner has sustained permanent disability. If, he takes long period of rest, as advised by his Doctors, he would incurred loss of income. As such, the petitioner has claimed a compensation of Rs.2,00,000/- together with interest at the rate of 24% per annum and costs, from the first respondent, the driver of the said bus and the second respondent, the owner of the bus, as compensation under Section 166 of the Motor Vehicles Act.
5.The second respondent, in his Counter has resisted the claim stating that the petitioner has to prove his age, income and occupation as well as establish that he had travelled as a passenger in the said bus at the time of accident. It has been stated that at the time of accident, the second respondent’s driver was driving the bus beyond Alankombu Busstop and when it had crossed a bridge, which is two furlongs farther away from Alankombu, the driver had to negotiate the bus through a curved road branching on the left. This curved road was rough and had a lot of ups and downs. On entering this road, the bus driver saw a lorry coming in the opposite direction and to give way to the lorry, the driver of the bus drove the bus on the extreme left of the rough and narrow road. The driver of the bus, after crossing a steep and rough spot on the road, found that he had lost control of steering the tyres as the steering wheel broke and came off in his hands. As such, the bus travelled straight. The bus driver applied brakes and tried to stop the bus, but before he could achieve that, the bus fell down into a ditch 20 feet below the road. As such, it has been stated that the accident did not happen due to any fault of the first respondent but was entirely due to an act of god.
6.It has further been stated that the claim is excessive and unreasonable and the second respondent has prayed for dismissal of the petition with costs. Regarding the said accident, a criminal case has been registered by the Sirumugai Police against the first respondent, as Crime No.302/2004, under Sections 279, 337 and 338 of I.P.C and the criminal case is under investigation.
7.The first respondent did not enter appearance before the Tribunal even on being issued summons and hence was set exparte.
8.The petitioner was examined as PW1. The PW1 in his evidence had deposed that on 28.08.2004, he was returning from Coimbatore, after completing his work and had travelled as a passenger in the bus bearing registration No.TN33 1155 belonging to the second respondent and driven by the first respondent, at about 10.30 p.m. and plying on the route from Kothagiri to Sathyamangalam, via Mettupalayam. When the said bus was passing through Sirumugai and nearing Bannari Mariamman Hospital, the first respondent had driven the bus at a high speed and in a rash and negligent manner and that while negotiating a curved road, the bus went of the road, turned turtle and had fallen into a ditch. The PW1 has deposed that as a result of this fall, he had sustained serious injuries in his right hip, right leg and minor injuries all over his body; that he and the other passengers injured in the accident were admitted in a Government Hospital. Subsequently, he had taken further treated under Dr.Selvakumar of Sathyamangalam. In support of his evidence, PW1 has marked 11 documents as Exs.P1 to P11 and examined two witnesses including himself. The PW1 has marked Ex.P1-FIR; Ex.P2-Rough Sketch; Ex.P3-Motor Vehicle Inspector’s Report; Ex.P4-Copy of the Accident Register; Ex.P5-Charge Sheet; Ex.P6-Discharge Summary issued at Government Hospital, Coimbatore; Ex.P7-Medical prescription given by Dr.Selvakumar; Ex.P8-Medical Bills issued by Dr.Selvakumar’s Hospital; Ex.P9-Medical expenses incurred for medicines and Ex.P10-X’rays.
9.On the respondents side, no documents were marked. The driver of the said bus Sakthivel was examined as RW1. The RW1, in his evidence had stated that on 27.08.2004, while he was driving the bus from Kothagiri to Sathyamangalam, and after passing a bridge, which was two furlongs away from Alankombu Bus stop, he had driven the bus on a curved road. On seeing a lorry coming from the opposite side, he had driven the bus on the extreme left of the narrow and rough road. As the road was rough and had many ups and downs, the bus driver while going on this road, after suddenly found that the steering wheel had become detached after the bus moved up on a rough spot and came down. In the result, he was not able to control the movement of tyres and so he tried to bring the vehicle to a stop after applying brakes. But prior to that, the bus had moved off the road and had fallen into a ditch 20 feet depth. As such, he had stated that it is only due to the mechanical fault in the bus that the accident had occurred and hence he and the second respondent could not be held responsible for the accident.
10.But, the RW1, during cross-examination, had denied the first respondent version regarding the manner of the accident and in support of this had marked Ex.P3-Motor Vehicle Inspector’s Report. On scrutiny of the Ex.P3, it is seen that the said bus involved in the accident had been inspected by the Motor Vehicles Inspector on 10.00 a.m. On the next day, after the accident took place, and he had certified that the accident had not taken place due to any mechanical defects in the said bus. Further, the Tribunal on scrutiny of Ex.P1-FIR had seen that a criminal case has been filed against the first respondent by the Sirumugai Police as Crime No.302/2004, under Sections 279, 337 and 338 of I.P.C. The Tribunal was of the opinion that if the first respondent had driven the bus at a slow speed and in a careful manner, while negotiating the curved road, the accident would not have occurred. The Tribunal, on scrutiny of Ex.P3-Rough Sketch of the accident came to a conclusion that the accident happened only because the first respondent had driven the bus at a high speed and in a negligent manner while negotiating the bus through the curved road. Further, on scrutiny of Ex.P5-Charge Sheet filed by the Police, it is evident that a criminal case has been filed against the first respondent under Sections 279 and 338 of I.P.C.
11.So, the Tribunal, based on evidence given by PW1, scrutiny of Ex.P1-FIR; Ex.P2-Rough Sketch and Ex.P5-Charge Sheet held that the accident happened only due to the rash and negligent driving of the bus by the first respondent.
12.The petitioner, PW1, in his evidence had deposed that due to the accident, he had sustained severe injuries on his right hip and right leg and injuries all over his body; that he had been initially taken first aid at Government Hospital, Coimbatore and subsequently has been taking specialised treatment under Dr.Selvakumar of Sathyamangalam. In support of this contention, he had marked Ex.P4-copy of Accident Register and Ex.P6-Discharge Summary given by the Hospital. On scrutiny of Ex.P4, it is seen that the injuries sustained by the petitioner is simple in nature. Based on this, the criminal case filed against the respondent was only under Section 337 of I.P.C.
13.Dr.Sudhakar, who had issued Disability Certificate to the petitioner, during examination as PW2 had deposed that he had inspected the medical records marked as Ex.P1 and had also given physiotherapy treatment to the petitioner and that even after such treatment of the petitioner’s right hand, the petitioner is not able to bend his right arm and as such he had assessed the disability as 15% and had marked Ex.P11-Disability Certificate given by the Government Hospital, Coimbatore, which was marked as Ex.P6, it is seen that the petitioner, during the time of his admission and medical examination in the Hospital, was not able to sit and that he had injuries on his right fore arm and on the backside of his body.
14.Though the petitioner had stated that before the accident he had been hale and healthy and had worked as a loadman in a lorry and was earning Rs.200/- per day, he did not produce any documentary evidence to back this claim. So, the Tribunal took his notional income as Rs.3,500/- per month and computed his annual income as Rs.42,000/-. Though the Doctor had certified that the disability sustained by the petitioner as 17%, the Tribunal took the disability sustained by the petitioner in the accident as only 12% and as such computed the loss of annual income to the petitioner as Rs.42,000/-X12/100=Rs.5,040/-. On scrutiny of Ex.P4-Wound Certificate and Ex.P6-Medical Reports, it is seen that the petitioner’s age has been given as 50 years. But the PW1, in his evidence had stated that he was only 45 years at the time of the accident. As such, the Tribunal was of the opinion that the age of the petitioner could be only taken as 48 years. Adopting a multiplier of 13, relevant to the age of the petitioner under second Schedule, Section 163(A) of the Motor Vehicles Act, the Tribunal assessed the total loss of income of the petitioner as Rs.5,040/-X13=Rs.65,520/-. Further the Tribunal on scrutiny of Exs.P8 and P9, the Medical Receipts given by Dr.Selvakumar of S.R.S.Clinic, Sathyamangalam, awarded a sum of Rs.8,000/- towards fees paid to the Doctor and Rs.14,600/- towards medical expenses respectively. The Tribunal awarded a sum of Rs.5,000/- as compensation under the head of pain and suffering and awarded a sum of Rs.3,000/- under the head of nutrition. In total, the Tribunal awarded a compensation of Rs.82,120/- to the petitioner and directed the respondents to deposit the above award, jointly and severally, with interest at the rate of 9% from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.108 of 2005, on the file of the Motor Accident Claims Tribunal (II Additional Sub-Court), Gobichettipalayam, within a period of one month, from the date of its Order. Further, the award, after such deposit was made, to be invested in a nationalised bank as fixed deposit for a period of three years. The petitioner was permitted to receive the interest on such deposit once in six months. The excess Court fee paid by the petitioner was to be refunded to him. The Advocate fees was fixed at Rs.3,882/-.
15.The learned counsel for the appellant has contended in his appeal that the Tribunal had failed to note that the driver of the appellant Corporation was driving the bus slowly and cautiously at the time of the accident. It was further contended that the Tribunal ought to have seen that the disability sustained by the petitioner was only 12% and as such, the Tribunal had erred in adopting the multiplier method in determining the compensation for the injured. Further, it was contended that the award of Rs.65,520/- passed by the Tribunal under the head of loss of income is erroneous as the same has been given without any documentary proof being produced by the claimant.
16.As such, the learned counsel for the appellant has contended that the award is excessive and is liable to be set aside.
17.The learned counsel for the respondent argued that the claimant is a lorry loadman and as such he is dependent on his physical strength to his livelihood. Further, the learned counsel for the respondent has produced the Certificate issued by a Physiotherapy Doctor, wherein it has been stated that the claimant had undergone treatment in his clinic. Further, he argued that the claimant is the only breadwinner of his family. After the said accident, the claimant is unable to do his normal work as a loadman. His nature of injuries is a grievous one. The claimant sustained injury on his right hip and right leg and these two injuries are grievous in nature. Initially, he had undergone treatment in a Government Hospital, Coimbatore. Thereafter, he took further treatment at Dr.Selvakumar’s Hospital. As such, the medical expenses, incurred by the petitioner is high. But, the Tribunal, without considering all aspects had awarded a meagre compensation.
18.For the foregoing reasons and consideration of facts and circumstances of the case and taking into account the nature of injuries sustained by claimants and period of treatment, the Court is of the view, that the disability sustained by the petitioner is not permanent disability. Therefore, the multiplier method adopted by the Tribunal is erroneous. Hence, the Court decides to award compensation to the claimant as follows:
1.For 17% disability sustained by
the claimant as per Doctor PW2’s
(taking Rs.2,000/- for 1% disability) : Rs.34,000/-
2.For medical expenses
(as per Exs.P8 & P9) : Rs. 8,600/-
3.For pain and suffering : Rs.10,000/-
4.For nutrition : Rs. 5,000/-
5.For transportation expenses : Rs. 5,000/-
6.For loss of income for three months : Rs. 2,400/-
In total, this Court awards a sum of Rs.65,000/- to the claimant as compensation, 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 this is found to be fair and just in the circumstances of the case.
19.The Motor Accident Claims Tribunal had awarded a compensation of Rs.82,120/- with interest at the rate of 9% per annum. This Court has scaled down the compensation amount from Rs.82,120/- to Rs.65,000/-. The appellant had already deposited a sum of Rs.65,000/- as per this Hon’ble Court’s conditional Order dated 22.08.2007. Hence, the Court directs the appellant to deposit the accrued interest and costs on the amount of Rs.65,000/- awarded by this Court, within a period of six weeks from the date of this Order. The Court confirms the rate of interest of 9%, passed by the Tribunal, on the award amount, from the date of filing the petition till the date of deposit of Rs.65,000/-, into the credit of the M.C.O.P.No.108 of 2005, on the file of the Motor Accident Claims Tribunal (II Additional Sub-Court), Gobichettipalayam.
20.Therefore, it is open to the claimant to withdraw the entire compensation amount, lying in the credit of the M.C.O.P.No.108 of 2005, on the file of the Motor Accident Claims Tribunal (II Additional Sub-Court), Gobichettipalayam, after filing necessary payment application, in accordance with law.
21.In the result, the above Civil Miscellaneous Appeal is partly allowed with the above observations and the award passed by the Motor Accident Claims Tribunal (II Additional Sub-Court), Gobichettipalayam, in M.C.O.P.No.108 of 2005, is modified. Consequently, connected miscellaneous petition is also closed. No costs.
08.01.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.Motor Vehicles Accident Claims Tribunal,
II Additional Sub-Court, Gobichettipalayam.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-deliver Order in
C.M.A.No.1963 of 2007
08.01.2010