IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.3560 of 2006
and
M.P.No.1 of 2006
The Metropolitan Transport
Corporation (CDII) Ltd.,
Chennai-2 .. Appellant
Vs
N.Selvendran .. Respondent
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 31.10.2005, made in M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai.
For appellant : Mr.M.Krishnamoorthy
For respondent : Ms.A.Jothi
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 31.10.2005, made in M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai, awarding a compensation of Rs.2,67,500/- together with 7.5% interest 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, the appellant/respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 21.07.1999, at about 09.10 a.m. when the petitioner was travelling in the respondent’s Corporation bus bearing registration No.TN02 N0026, route No.56, from east to west in Basin road at Thiruvottiyur Railway Level Crossing, the driver of the said bus drove the bus in a rash and negligent manner and dashed against the road side post. In the result, the petitioner, who was standing at the entrance of the bus, thrown out and sustained grievous injuries. Immediately after the said accident, he was taken to Government Stanley Hospital, Chennai and admitted as inpatient and continued treatment. Regarding the said accident, Washermenpet Police registered a case in Crime No.151/H-3/99. At the time of the said accident, the petitioner was a student. Further, the accident had occurred only due to the rash and negligent driving of the driver of the respondent’s Corporation bus. As such, the petitioner claimed a compensation of Rs.3,00,000/- before the Tribunal.
4.The respondent/Metropolitan Transport Corporation Ltd., in their Counter, had resisted the claim petition that the respondent denies the averments in para 23 and 23(A) of the claim petition. On 21.07.1999, the driver of the bus bearing registration No.TN02 N0026 started its trip at 08.20 a.m. in the route No.56D from High Court and proceeded towards Manali in Basin Salai from the east to west direction by observing all traffic regulations and rules. Whileso, the bus proceeding further and crossing the Thiruvottiyur Railway Gate, a student who tried to got into the foot board rash and negligently and he hit with the safety iron post of the railway gate and due to that he sustained injuries in his knee. As the claimant voluntarily invited the accident, this respondent is not liable to pay any compensation. The driver was not responsible for the accident. The MTC bus driver was cautious in driving. The petitioner himself invited the accident. The accident occurred due to the contributory negligence of the petitioner. The petitioner should prove the averments in Para 3 to 13, 19 and 20. The compensation claimed is highly excessive and the petition may be dismissed.
5.The learned Motor Accident Claims Tribunal had framed four issues for the consideration namely:
(i) Whether the petitioner sustained injury in a road traffic accident happened on 21.07.1999 involving the bus bearing registration No.TN02 N0026 driven by its driver?
(ii) Whether the petitioner is entitled for compensation? If so, what is the quantum?
(iii)To what relief the petitioner is entitled for compensation? If so, what is the quantum?
(iv)To what relief the petitioner is entitled?
6.On the petitioner’s side, the petitioner was examined as PW1, one eye witness Devaraj is examined as PW2 and Dr.Thiagarajan was examined as PW3 and nine documents were marked as Exs.P1 to P9 namely Ex.P1-Discharge Summary, Ex.P2-Discharge Summary, Ex.P3-Photograph, Ex.P4-Copy of the First Information Report, Ex.P5-Copy of the Rough Sketch, Ex.P6-Handicapped Certificate, Ex.P7-Transfer Certificate, Ex.P8-Conduct Certificate, Ex.P9-Disability Certificate. On the respondent’s side, the driver of the bus Elumalai was examined as RW1 and no documents were marked.
7.The PW1, the claimant, had adduced evidence stating that on 21.07.1999, at about 09.10 a.m. while he was travelling in the respondent’s Corporation bus bearing registration No.TN02 N0026 from east to west and when the bus was nearing Thiruvottriyur Railway Cross, he had driven the bus in a rash and negligent manner and dashed against the road side post, resulting that he fell down. Immediately, he was taken to the Government Stanley Hospital, Chennai, wherein he had undergone medical treatment as an inpatient. Further, he stated that four operations were conducted, ten bottles of blood were injected, his left leg was amputated above the knee. In order to prove the accident and mode of treatment Exs.P1 and P2-Discharge Summary, Ex.P3-Photo, Ex.P4-First Information Report and Ex.P5-Rough Sketch were marked. Further, the PW1 had adduced evidence stating he was an inpatient at the Stanley Hospital from 21.07.1999 to 19.08.1999.
8.PW2, Devaraj, eye witness of the accident had adduced evidence stating that the claimant attempted to board the bus and at that time the driver of the bus had moved the bus on the reverse side, as such, the bus had run over the claimant’s leg.
9.PW3, Dr.Thiagarajan had adduced evidence stating that he examined the claimant and assessed the disability at 70%. Further, he stated that the claimant’s left leg was amputated upto the knee joint.
10.RW1, Elumalai, the driver of the respondent’s Corporation bus had adduced evidence stating that the claimant had attempted to board the bus while the bus was crossing the Railway Gate and as such fell down, the same was being noticed in the bus mirror.
11.After considering the evidence of PW1, PW2, PW3 and RW1 and documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the respondent’s Corporation bus, therefore the respondent/Metropolitan Transport Corporation Ltd., is liable to pay compensation and awarded the compensation as follows:
i. Rs.3,000/- under the head of transport expenses,
ii. Rs.9,000/- under the head of extra nourishment,
iii. Rs.1,000/- under the head of damages to clothes and articles,
iv. Rs.500/- under the head of medical expenses,
v. Rs.5,000/- under the head of artificial leg expenses,
vi. Rs.15,000/- under the head of pain and suffering,
vii. Rs.2,40,000/- (Rs.2,500/- X 12 X 16 X 50/100) under the head of loss of earning and permanent disability,
In total, the Tribunal awarded a sum of Rs.2,67,500/- as compensation to the petitioner, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the respondent to deposit the compensation amount of Rs.2,67,500/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of two months from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period three years. Accordingly ordered.
12.Aggrieved by the said Award and Decree, the appellant/ respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal.
13.The learned counsel appearing for the appellant/Metropolitan Transport Corporation Ltd., argued that in the said accident, compound negligence was involved, as such there is negligence on the side of the claimant too. The PW3 assessing the disability at 70% is on the higher side. The Tribunal erroneously had come to the conclusion that the claimant’s income was Rs.2,500/- per month, while he is a student and adopted the multiplier method and awarded the compensation, which is not pertinent in the instant case. Therefore, the learned counsel prays before this Court to scale down the compensation amount awarded by the Tribunal.
14.The learned counsel for the respondent/ claimant argued that the claimant had undergone treatment as an inpatient for more than three months at the Stanley Government Hospital. During the treatment period, he had undergone four surgical operations and his left leg was amputated upto the knee potion. At the time of the accident, the claimant’s age was 20 years and was a student. His left leg being amputated his entire life is effected and physical condition abnormal and categorised as handicap. Further, the learned counsel argued that the compensation amount awarded by the Tribunal is on lower side, considering the above mentioned aspects. Therefore, the learned counsel prays before this Court to dismiss the appeal filed by the appellant.
15.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the claimant’s age being 20 years, he had undergone four surgical operations, his left leg being amputated upto the knee portion and also being a student; as such the quantum of compensation of Rs.2,67,500/- is fair and reasonable. Therefore, this Court is unwilling to interfere with the findings of the Tribunal. However, there is a slight error in the break up of the compensation and accordingly this Court restructure the same as follows:
i. The Tribunal awarded a sum of Rs.2,40,000/- under the head of loss of earning and permanent disability, this Court reduces it to Rs.1,40,000/-, as it is pertinent,
ii. The Tribunal awarded a sum of Rs.15,000/- under the head of pain and suffering, this Court enhances it to Rs.25,000/-, since the claimant was hospitalised for a period of three months, during the medical treatment, four surgical operations were conducted and the left leg was amputated upto the knee portion,
iii. The Tribunal awarded a sum of Rs.9,000/- under the head of extra nourishment, this Court enhances it Rs.10,000/-,
iv. The Tribunal awarded a sum of Rs.3,000/- under the head of transport expenses, this Court enhances it to Rs.10,000/-,
v. This Court awards a sum of Rs.15,000/- under the head of attender charges,
vi. The Tribunal awarded a sum of Rs.500/- under the head of medical expenses, this Court enhances it to Rs.5,000/-,
vii. This Court awards a sum of Rs.62,500/- under the head of deficiency as an handicapped,
In total, this Court awards a compensation of Rs.2,67,500/- together with interest at the rate of 7.5% per annum, from the date of filing the claim petition, till the date of payment of compensation. Therefore, this Court concurs with the Award and Decree, dated 31.10.2005, made in M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai, which is fair and equitable.
16.On 21.12.2006, this Court directed the appellant/Metropolitan Transport Corporation Ltd., to deposit 50% of the compensation amount, into the credit of the M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai and on 26.03.2008, this Court permitted the respondent/claimant to withdraw 50% of the deposited amount, lying in the credit of the M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai.
17.Now, this Court directs the appellant/Metropolitan Transport Corporation Ltd., to deposit the remaining compensation amount with accrued interest thereon, as observed by the Tribunal, into the credit of the M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai, within a period of six weeks from the date of receipt of a copy of this Order.
18.After such deposit being made, the respondent/claimant is at liberty to withdraw the remaining compensation amount, with accrued interest thereon, lying in the credit of the M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai, by making proper payment out application, subject to the deduction of withdrawals, if any, in accordance with law.
19.In the result, this Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 31.10.2005, made in M.C.O.P.No.4329 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai is confirmed. Consequently, connected miscellaneous petition is closed. No costs.
krk
To
1.The Motor Accident Claims Tribunal,
Small Causes Court No.IV, Chennai.
2. The Section Officer,
VR Section, High Court,
Madras