IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.4207 of 2005
and
C.M.P.No.20450 of 2005
The Metropolitan Transport
Corporation Ltd.,
rep.by its Managing Director
Chennai Division-I
Chennai .. Appellant
Vs
P.John Justin .. Respondent
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 29.03.2005, made in M.C.O.P.No.474 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Sessions Judge, Fast Track Court-IV, Chennai.
For appellant : Mr.M.Krishnamoorthi
For respondents : Mr.P.K.Sabapathi
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 29.03.2005, made in M.C.O.P.No.474 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Sessions Judge, Fast Track Court-IV, Chennai, awarding a compensation of Rs.10,20,000/- together with 9% 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 27.01.2000, at about 2.35 p.m. The petitioner was riding his TVS Champ motorcycle bearing registration No.TN07 F0487 from Guindy to Saidapet. While he was nearing Maraimalai Adigalar Bridge, the respondent’s Corporation bus, route No.23C, bearing registration No.TN01 N2057, came from Saidapet towards Adyar, in a rash and negligent manner and dashed against the center median and hit the petitioner. Due to which, the petitioner had sustained grievous injuries on his chest, head and stomach and multiple fracture on his left fore arm and left leg and abrasions all over his body. Immediately after the said accident, he was taken to Government Hospital, Saidapet and he was shifted to Appollo Speciality Hospital, Chennai. The said accident had happened only due to the rash and negligent driving of the driver of the respondent’s Corporation bus. As such, he had claimed a sum of Rs.10,00,000/- before the Tribunal.
4.The respondent, in their Counter, had resisted the claim petition, which reads as follows:
“The respondent states that on 27.01.2000 their bus, Route No.23C, bearing registration No.TN01 N2057, was on its trip from Egmore at 12.05 hours to Besant Nagar. Whileso, at about 12.45 hours, when the bus had just started from Saidapet and when it was going near Maraimalai Adigalar Bridge, opposite to Panagal Maligai, a lady pedestrian, who attempted to cross the road from left to right without taking notice of the approaching bus, the driver on becoming aware of her crossing, swerved to his right, still it was too late to be the position to avoid the accident. The bus being out of central, had to hit the central median and etc. and the impugned accident took place.
All other allegations are denied and put the petitioner to strict proof of them.
The respondent, without prejudice, further states that the age, occupation, income of the injured, nature of injuries and the duration of treatment are not admitted. The petitioner is put to strict proof of each and every one of the averments by positive documentary evidence. Wherever necessary, to substantiate his claim, whatsoever. The allegations in Para-23 of the claim petition are incorrect and denied. Without prejudice to the above contentions, the respondent states that the amount claimed in Para 21 of the claim petition is highly excessive and liable to be rejected.”
The respondent prayed accordingly.
5.The learned Motor Accident Claims Tribunal framed two issues for consideration namely:
(i) At whom negligent the accident had occurred?
(ii) Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation?
6.On the petitioner’s side, the petitioner himself was examined as PW1, one Jeyabalan was examined as PW2 and Dr.N.Saichandran was examined as PW3 and twenty one documents were marked as Exs.P1 to P21 namely Ex.P1-Paper publication regarding the accident, Ex.P2-Discharge Report, Ex.P3-Discharge Summary, Ex.P4-Letter sent to the Medical Board regarding leave, Ex.P5-Half Salary drawn particulars, Ex.P6-Bill for artificial leg purchase, Ex.P7-Bill for Rs.25,000/- issued by Balakrishnan, Ex.P8-Order for earned leave, Ex.P9-Bills series, Ex.P10-Transport expenses receipts, Ex.P11-Bills towards Physiotherapy, Ex.P12-Lab test expenses particulars, Ex.P13-Invoices, Ex.P14-Quotation, Ex.P15-Order issued by Endolite Company, Ex.P16-Medical expenses estimate, Ex.P17-Photo and Negative, Ex.P18-First Information Report, Ex.P19-Rough Sketch, Ex.P20-X-ray and Ex.P21-Disability Certificate. On the respondent’s side, one T.Kumaravijayan, Supervisor in the Metropolitan Transport Corporation, was examined as RW1 and the Certificate issued by the Director was marked as Ex.R1.
7.The PW1, the claimant had adduced evidence stating that on 27.01.2000, he was riding his TVS Champ motorcycle bearing registration No.TN07 F0487 from Guindy to Saidapet. While he was nearing Maraimalai Adigalar Bridge, the respondent’s Corporation bus, route No.23C, bearing registration No.TN01 N2057, came from Saidapet towards Adyar, in a rash and negligent manner and dashed against the center median and hit the petitioner. Due to which, he had sustained grievous injuries on his chest, head and stomach and multiple fracture on his left fore arm and left leg and abrasions all over his body. Immediately after the said accident, he was taken to Government Hospital, Saidapet. Thereafter, he was referred to Appollo Hospital for further treatment, where he took treatment as inpatient from 27.01.2000 to 21.03.2000 and his left leg below the knee was amputed. Further, on 04.02.2000 and 22.02.2000 an operation was conducted in the left hand injured portions and affixed rods. Due to the said operations, his left hand was shortened by four inches than the right hand. Thereafter, he was discharged on 21.03.2001 and the Doctor advised him to take Physiotherapy treatment for once in a week. Further, the petitioner had adduced evidence stating that as per the Doctor instructions, he took Physiotherapy treatment from 01.07.2000 to 30.10.2000. However, he could not return to the normal stage. Due to the said accident, he could not hold or carry any things. At the time of the said accident he was working in Health Department in Fitter Grade-II. Due to the disability, he was transferred to writer. To prove the same, he had marked Ex.P1-Paper Publication regarding the accident, Ex.P2-Discharge Certificate issued by the Appollo Hospital, Ex.P4-Letter sent to the Medical Board regarding leave, Ex.P5-Half Salary drawn particulars, Ex.P6-Bill for artificial leg purchase, Ex.P7-Bill for Rs.25,000/- issued by Balakrishnan, Ex.P8-Order for earned leave, Ex.P9-Bills series, Ex.P10-Transport expenses receipts, Ex.P11-Bills towards Physiotherapy, Ex.P12-Lab test expenses particulars, Ex.P13-Invoices, Ex.P14-Quotation, Ex.P15-Order issued by Endolite Company, Ex.P16-Medical expenses estimate, Ex.P17-Photo and Negative, Ex.P18-First Information Report, Ex.P19-Rough Sketch, and Ex.P20-X-ray.
8.PW2, Jayabalan, who is the Cousin of the petitioner had adduced evidence stating that he is working as a Supervisor in an Electronic Company and he assisted the claimant during the medical treatment period, so that he could not go to his work for a period of six months. Therefore, he lost his income of Rs.39,000/-.
9.Dr.N.Saichandran was examined as PW3. He had adduced evidence stating that on 01.08.2004 he examined the petitioner. Due to the accident, he sustained grievous injuries and due to the injuries his left leg below the knee was amputed and fixed artificial leg and he assessed the disability at 95%. To prove the same he had marked the Ex.P22-Disability Certificate and Ex.P23-X-ray.
10.T.Kumaravijayan, Supervisor in the Metropolitan Transport Corporation was examined as RW1. He had adduced evidence stating that as per Ex.R1, letter issued by the Director regarding the income, leave and job about the petitioner, the petitioner’s service was not affected and he is still in service.
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 is liable to pay compensation and awarded the compensation as follows:
i. Rs.10,000/- under the transport expenses,
ii. Rs.10,000/- under the head of extra nourishment,
iii.Rs.2,00,000/- under the head of medical expenses,
iv. Rs.1,00,000/- under the head of future medical expenses,
v.Rs.5,00,000/- under the head of physical difficulties, mental agony, loss of promotion and expectation of life,
vi. Rs.20,000/- under the head of pain and suffering,
vii. Rs.50,000/- under the head of loss of earning capacity,
viii.Rs.30,000/- under the head of loss of income,
ix. Rs.1,00,000/- under the head of attender charges,
In total, the Tribunal awarded a sum of Rs.10,20,000/- as compensation to the petitioner, together with interest at the rate of 9% 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.10,20,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of three 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 argued that the Tribunal awarded a sum of Rs.10,2000/-, which is exorbitant. PW3-Dr.Saichandran had assessed the disability as 95% sustained by the claimant. The Tribunal failed to consider the evidence of the RW1, who stated that the claimant’s service was not affected and he is still in service. The learned counsel specifically argued that the claimant did not suffer any loss of income. The Tribunal awarded a sum of Rs.1,00,000/- under the head of future medical expenses and Rs.2,00,000/- under the head of medical expenses, which were not properly analysed. Further, the Tribunal awarded a sum of Rs.5,00,000/- towards mental and physical difficulties, which is not pertinent, since the claimant is in service. Further, the learned counsel vehemently argued that a sum of Rs.50,000/- under the loss of earning capacity, which is not applicable in the instant case, since the claimant is continuing in Government service. Therefore, the learned counsel prays to scale down the compensation amount passed by the Tribunal, before this Court.
14.The learned counsel appearing for the respondent/claimant vehemently argued that the claimant’s leg was amputated and one of hands is completely broken, surgical operations were done. The Tribunal, after considering the evidence of the claimant and Doctor’s evidence and on seeing the physical condition of the claimant, the award was granted. After the accident, the claimant used to go by hired auto to his work spot. Further, the learned counsel pointed out that till his life time, he has to move with another persons physical support, as such attender charges is required on a permanent basis. During the medical treatment period he had drawn only half salary. The accident had happened in the middle part of his life, hence he lost his happiness and peace of mind. The learned counsel in support of his contentions has cited the following Judgments made in 2003 (3) CTC 106, S.Achuthan and another Vs. M.Gopal and another, the relevant head notes of which are as follows:
“Motor Vehicles Act, 1988, Section 166 Compensation Quantum of Claimant an Advocate sustained severe injuries in road accident Claimant operated to set right blood vessel in left side but extra transmission in left leg was not successful another operation had to be performed for fixing blood vessel in left leg, and claimant could walk with crutches or with help of others Disability fixed at 70% and claimant could not squat Doctor assessed that claimant lost memory power Compensation awarded towards expenses for future medical increased from Rs.50,000 to Rs.2,00,000 and increased compensation for loss of proper marital alliance from Rs.50,000 to Rs.3,00,000 and towards pain and suffering from Rs.50,000 to Rs.3,00,000 Total compensations increased by Rs.11,20,000 Appeal filed by Insurance Company dismissed and appeal filed by claimant partly allowed.”
2005 (1) CTC 38, United India Insurance Company Ltd Vs. Veluchamy and another. the relevant head notes of which are as follows:
“Motor Vehicles Act, 1988, Second Schedule, Clause 5 Compensation in case of disability arising in non-fatal accidents In case of permanent or partial disablement Court can arrive at amount payable by multiplying annual loss of income by multiplier applicable to age on date of determining compensation Proper multiplier is prescribed in Clause 1 of II Schedule Percentage of permanent total disablement or permanent partial disablement arising out of injuries has to be arrived at as per Schedule I under Workmen’s Compensation Act, 1923 However Court should not mechanically apply multiplier method to ascertain future loss of income or earning power in all non-fatal accident cases Compensation depends upon factors like nature and extent of disablement avocation of injured and manner in which disablement would affect employment or earning power of injured Multiplier method provided under II Schedule to Motor Vehicle Act, 1988 could be adopted if injured lost his employment or avocation completely and has to be idle till rest of his life and in such cases also same period as applicable to fatal cases need not be adopted Lesser period may be adopted if no amputation Claimant held valid driving licence and owned Van and claimed to earn Rs.10,000/- per month No evidence was adduced to prove earning Claimant did not suffer amputation of limbs and even though percentage of disability was 49% and one leg was shorter than other leg Earning could be fixed at Rs.5,000 per month and claimant being van driver would have spentRs.1,500 on himself Claimant’s capacity to earn not totally taken away and could still hire some drivers and earn Contribution to family would have been Rs.3,500 per month and multiplier of 12 would meet ends of justice.”
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 left leg amputation upto the knee portion, his left hand fractured, bent and swollen at the joint portion and also a shortage of the said hand, normal physical strength agility and his natural appearance permanently lossed, now he is categorised as an handicapped person and the pecuniary and non-pecuniary aspects have been covered. As such, this Court concurs with the findings of the Tribunal, there is no discrepancy in the award and decree. Hence, this Court is not willing to interfere with the quantum of compensation as awarded by the Tribunal. Therefore, this Civil Miscellaneous Appeal is dismissed.
16.On 23.12.2005, this Court directed the appellant/ respondent to deposit 50% of the award amount with accrued interest, into the credit of the M.C.O.P.No.474 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Sessions Judge, Fast Track Court-IV, Chennai. On such deposit being made, this Court permitted the claimant to withdraw 50% of the deposited amount with accrued interest and the remaining amount shall be deposited in the Indian Bank, High Court extension Counter, Chennai in fixed deposit initially for a period of three years.
17.Now, this Court hereby directed the appellant/ respondent to deposit the remaining compensation amount with accrued interest and costs as observed by the Tribunal, into the credit of the M.C.O.P.No.474 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Sessions Judge, Fast Track Court-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 entire compensation amount with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.474 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Sessions Judge, Fast Track Court-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 29.03.2005, made in M.C.O.P.No.474 of 2001, passed by the Motor Accident Claims Tribunal, Additional District-cum-Sessions Judge, Fast Track Court-IV, Chennai is confirmed. Consequently, connected civil miscellaneous petition is closed. No costs.
08.10.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The learned Additional District-cum-Sessions Judge,
Motor Accident Claims Tribunal,
Fast Track Court-IV, Chennai.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.4207 of 2005
08.10.2010