IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.1291 of 2007
and
M.P.No.2 of 2007
The Managing Director
Tamil Nadu State Transport
Corporation Ltd.,
Villupuram .. Appellant
Vs
V.Thirumurugan .. Respondent
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 31.08.2006, made in M.C.O.P.No.197 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore.
For appellant : Mr.P.G.Padmanabhan
For respondent : No appearance
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 31.08.2006, made in M.C.O.P.No.197 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore, awarding a compensation of Rs.58,000/- 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 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 02.10.2004, at about 02.15 p.m. while the petitioner was riding his scooter at the extreme left side of the road at Chokkankollai, the respondent’s bus bearing registration No.TN32 N0841, came at a very high speed and driven in a rash and negligent manner by its driver, hit behind the scooter of the petitioner and caused the accident.
4.Due to the accident, the petitioner was thrown out of the scooter and sustained grievious injuries and multiple fractures all over his body and head. He was immediately taken to Government Hospital, Chidambaram and was admitted there as an inpatient. The accident occurred only due to the rash and negligent driving by the driver of the respondent’s bus bearing registration No.TN32 N0841.
5.The petitioner was hale and healthy at the time of accident and was aged only 27 years and was earning a monthly income of Rs.7,500/- as a Tinker. Due to the accident, he has sustained disability and not able to work and earn as he used to do before the accident.
6.The respondent, being the owner of the State Transport Corporation bus, is liable to pay compensation. The petitioner has claimed a compensation of Rs.5,00,000/- from the respondent, together with interest at the rate of 18% per annum from the date of accident till the date of payment of compensation, under Section 166(1) of the Motor Vehicles Act.
7.Regarding the said accident, a criminal case has been filed at the Bhuvanagiri Police Station, in Crime No.285/2004.
8.The respondent, in his counter, has denied the averments in the claim as regards the age, income and occupation of the petitioner, manner of the accident, nature of alleged injuries sustained by the petitioner, the period of treatment, medical expenditure and the disability. The respondent has submitted that on 02.10.2004, at about 13.45 hrs. the respondent’s driver was driving the bus bearing registration No.TN32 N0841 from Kurinjipadi to Chidambaram and was crossing Chokkankollai bridge, where paddy straw was spread-up on the bridge, for drying. At that time, a scooter, on which three persons were travelling, skidded due to the straw spread out on the bridge, and so the rider of the scooter lost his balance. As a result, the scooter dashed against the rear foot board of the bus and overturned. Out of the three persons, who were travelling on the scooter, one died on the way to hospital and another person absconded. The third person was admitted in the Government Hospital by the driver of the respondent’s bus. But, the respondent has stated that in the FIR, it has been shown that only two persons had travelled in the scooter. The respondent has contended that as the accident had occurred solely due to the negligent driving of the scooter bearing registration No.TN07 C6949, he cannot be held liable to pay compensation to the petitioner. It was also contended that the petitioner has to prove that the driver of the scooter had a valid driving licence at the time of accident and has also pointed out that the petition is bad for non-joinder of necessary parties in the case ie.the owner and insurance company of the scooter bearing registration No.TN07 C6949. The respondent has further submitted that the claim is excessive and has to be dismissed with costs.
9.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i)Was the accident caused due to the rash and negligent manner of driving by the driver of the respondent’s bus bearing registration No.TN32 N0841?
(ii)Is the petitioner entitled to receive compensation? If so, what is the quantum of compensation, which he is entitled to get?
10.On the petitioner’s side, two witnesses were examined as PW1 and PW2 and six documents were marked as Exs.P1 to P6. On the respondent’s side no witnesses were examined and no documents were marked.
11.The petitioner was examined as PW1. The PW1, in his evidence, adduced that on 02.10.2004, at about 2.15 p.m. in the afternoon, while he was riding his scooter on the extreme left side of the Chokkankollai road, the respondent’s bus bearing registration No.TN32 N0841, coming from behind the scooter and driven at a high speed and in a rash and negligent manner by its driver, without adhering to traffic rules and regulations, dashed against the scooter and caused the accident. It is seen that the petitioner had given the complaint to the police regarding the accident, while he was taking treatment at the Government Hospital, Chidambaram and that the FIR had been registered on the basis of this complaint. On scrutiny of the Ex.P1, the copy of the FIR, it is seen that a criminal case had been registered as against the driver of the respondent’s bus at Bhuvanagiri Police Station in Crime No.285/2004. The evidence of the PW1 regarding the accident was found to be in consonance with that of the statements in the FIR and also with the averments in his petition. The copy of the Motor Vehicle Inspector’s Report of the said bus bearing registration No.TN32 N0841 was marked as Ex.P2. It is seen from the Ex.P2, that the accident had not been caused due to mechanical faults in the said bus.
12.Though the respondent had contended in his counter, that the driver of the respondent’s bus had not driven the bus at a high speed and in a rash and negligent manner and that he had not caused the accident. They had also contended that the accident had been caused only due to the negligence of the petitioner. But, the Tribunal on considering that the respondent had not examined the driver of the said bus as a necessary witness to establish their contentions and also on considering the evidence of the PW2 and scrutiny of exhibits marked as P1 and P2 held that the driver of the respondent’s bus bearing registration No.TN32 N0841 had driven the said bus at a high speed and in a rash and negligent manner and caused the accident.
13.It is seen that the injured petitioner had been initially given first aid at Government Hospital, Chidambaram and later on admitted at Government Head Quarters Hospital at Cuddalore. The petitioner had been treated as an inpatient at the Government Head Quarters Hospital at Cuddalore, from 04.10.2004 to 07.10.2004 and in support of this the medical admission chit issued at the hospital has been marked as Ex.P4. Ex.P3 is the report issued by the Doctor, who had given the report after inspection of the X’ray taken in the right chest of the petitioner. It is seen from the report that the third bone in the petitioner’s hip had been fractured.
14.Dr.R.Venugopal, who had examined the petitioner to assess the disability was examined as PW2. The PW2, in his evidence, has stated that he had carried out medical examination of the petitioner on 24.07.2006 and taken X’ray of the chest of the petitioner, which has been marked as Ex.P5. He has stated that on inspection of the X’rays taken, he had seen that the third fractured hip bone of the petitioner had joined in an improper manner and due to this the petitioner experiences frequent pain in his chest, pain and difficulty in breathing and also difficulties in doing his normal day to day work. The PW2 had therefore certified that the petitioner had sustained permanent disability of 20% taking into consideration all the difficulties experienced by the petitioner in doing his work and has marked Ex.P6, the Disability Certificate.
15.The nature of injuries sustained by the petitioner is evident after scrutiny of Exs.P3 and P6. As such, the Tribunal awarded a compensation of Rs.10,000/- to the petitioner under the head of pain and suffering; Rs.2,000/- under the head of nutrition and Rs.3,000/- under the head of attendant charges.
16.The petitioner was aged about 27 years at the time of accident. He had stated that he was working as a Tinker and earning a sum of Rs.7,500/- per month. But, no documentary evidence had been let in by the petitioner’s side to prove this contention. As such, the Tribunal fixed the notional income of the petitioner as Rs.3,000/- per month, after considering that the petitioner was aged about 27 years and he could have got employment as a daily labourer and earned a sum of Rs.100/- per day. The Tribunal, on considering that the petitioner could not have got employment for one month after the accident, due to the fracture in the third hip bone of the petitioner in the accident, granted an award of Rs.3,000/- as compensation to the petitioner under the head of loss of income. Further, the Tribunal on consideration of the disability of the petitioner assessed as 20% as per Ex.P6 issued by the PW2, Doctor, awarded a compensation of Rs.40,000/-, under the head of loss of earning capacity due to disability. In total, the Tribunal awarded a sum of Rs.58,000/- as compensation to the petitioner.
17.As the driver of the respondent’s bus bearing registration No.TN32 N0841 has been found to be at fault in causing the said accident, the Tribunal held that the respondent is liable to pay the compensation to the petitioner, awarded by them.
18.The Tribunal accordingly directed the respondent to deposit the award amount of Rs.58,000/- 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.197 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore, within a period of one month from the date of its Order. Further, after such deposit was made, the award amount, with accrued interest had to be deposited in a nationalised or scheduled bank, as fixed deposit for a period of three years and the petitioner was permitted to receive interest on such deposit, once in six months, directly from the bank. The excess Court fee paid by the petitioner was directed to be refunded to him, after deducing the Court fee due on the award amount and also deducting 5% towards cost.
19.The Advocate fees was fixed at Rs.2,300/- and the respondent was directed to pay the cost of Rs.2,482/- to the petitioner.
20.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal had erred in awarding a sum of Rs.40,000/- towards disability and future loss of earning power as it is excessive. It was also contended that the monthly income of Rs.3,000/- fixed by the Tribunal as the notional income of the claimant was excessive and was done without proper documentary evidence. It has also been contended that the award of Rs.10,000/- granted by the Tribunal under the head of pain and suffering is erroneous, since the injured claimant had taken treatment in the Government Hospital, Cuddalore, only for three days ie.from 04.10.2004 to 07.10.2004.
21.The learned counsel appearing for the appellant has therefore contended that the total award of Rs.58,000/- granted by the Tribunal is excessive and against the principles of law and has prayed to set aside the award and decree passed by the Tribunal.
22.Considering the facts and circumstances of the case and arguments advanced by the learned counsel appearing for the appellant and after going through the findings of the Tribunal, this Court is of the view that as per the Doctor’s evidence, the claimant has sustained 20% disability and that the third bone of the rib was fractured. Further, he has taken treatment at two hospitals in Cuddalore and Chidambaram. Considering that the claimant was aged about 27 years and that he was working as a Tinker, the Court does not find any error in the assessment of quantum of compensation awarded by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore, in M.C.O.P.No.197 of 2005, and as such this Court confirms the said award, as it is found to be fair and equitable.
23.This Court imposed a condition on the appellant to deposit the entire compensation amount to the credit of the M.C.O.P.No.197 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore.
24.As the accident happened in the year 2004, it is open to the claimant to withdraw the entire compensation amount together with accrued interest thereon, lying in the credit of the M.C.O.P.No.197 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore, after filing necessary payment out application, in accordance with law, subject to deduction of withdrawals, if any.
25.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 31.08.2006, in M.C.O.P.No.197 of 2005, passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore, is confirmed. Consequently, connected miscellaneous petition is closed. There is no order as to costs.
krk
To
1. Motor Vehicles Accident Claims Tribunal,
Chief Judicial Magistrate Court, Cuddalore.
2. The Section Officer,
VR Section, High Court,
Madras