{"id":209611,"date":"2008-07-22T00:00:00","date_gmt":"2008-07-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/j-senthilkumar-vs-the-managing-director-on-22-july-2008"},"modified":"2018-07-28T10:37:49","modified_gmt":"2018-07-28T05:07:49","slug":"j-senthilkumar-vs-the-managing-director-on-22-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/j-senthilkumar-vs-the-managing-director-on-22-july-2008","title":{"rendered":"J.Senthilkumar vs The Managing Director on 22 July, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
J.Senthilkumar vs The Managing Director on 22 July, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 22\/07\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.VENUGOPAL\n\nC.M.A(MD).No.320 of 2004\n\nJ.Senthilkumar\t\t\t.. Appellant\/Petitioner\n\nVs\n\nThe Managing Director,\nTamil Nadu Transport Corporation,\nTirunelveli.\t\t\t.. Respondent\/Respondent\n\nPrayer\n\nAppeal filed under Section 173 of the Motor Vehicles Act, against the\naward dated 11.03.2004 passed in M.A.C.T.O.P.No.2 of 2000 by the Motor Accidents\nClaims Tribunal - Sub Judge, Tuticorin.\n\n!For Appellant\t... Mr.M.Ajmalkhan\n^For Respondents... Mr.D.Sivaraman for\n  \t\t    M\/s.Rajinish Pathiyil\n\n:JUDGMENT\n<\/pre>\n
\tChallenge in this Civil Miscellaneous Appeal is against the award dated
\n11.03.2004 passed in M.A.C.T.O.P.No.2 of 2000 by the Motor Accidents Claims
\nTribunal – Sub Judge, Tuticorin, granting a total compensation of Rs.44,237\/-
\n(Rupees Forty Four Thousand Two Hundred and Thirty Seven only) together with
\ninterest at 9% p.a., from the date of filing of the petition till date of
\npayment.\n<\/p>\n
\t2. The appellant\/claimant has filed the claim petition claiming a total
\ncompensation of Rs.3,82,400\/- (Rupees Three Lakhs Eighty Two Thousand and Four
\nHundred only) and restricting the same to a sum of Rs.2,00,000\/- (Rupees Two
\nLakhs only).\n<\/p>\n
\t3. Aggrieved against the award passed by the Tribunal, the
\nappellant\/claimant has projected this appeal.\n<\/p>\n
\t4. The short facts of the claim are as follows:\n<\/p>\n
\t(i) On 01.10.1998, the appellant\/claimant (the injured), his father and
\nhis friends were returning after attending ‘Dashra’ festival at Kulasekarapatnam
\nto Tiruchendur in a bus bearing Registration No.TN-72-N-0617, belonging to the
\nState Transport Corporation, driven by its driver Subburaj at about 22.30 hours
\nand the said bus was proceeding 2 furlongs south of ice factory of Kallamozhil
\non Kulasekarapatnam – Tiruchendur road from south to north in a rash and
\nnegligent manner.  The passengers including the appellant\/claimant asked the bus
\ndriver to drive in a safe condition, but the request proved in vain and he
\ndashed on the backside of an unknown lorry which was coming from north to south,
\ni.e from Tiruchendur to Kulasai and caused injuries to the appellant\/claimant
\nand some others.\n<\/p>\n
\t(ii) The appellant\/claimant sustained two fractures, one in his right
\nHumerus and another in right forearm I MCB and underwent operation for fixing
\nimplanted plates in his right arm which resulted in permanent disablement of his
\nright arm due to the dislocation of bones and affected his shoulder joint and
\nelbow joint.  The driver of the lorry did not stop his vehicle, but ran away
\nwith the lorry.  The appellant\/claimant sustained fractures and he was
\nimmediately referred to T.V.M.S.Hospital, Tirunelveli from Tiruchendur
\nGovernment Hospital and he was admitted on 02.10.1998 and remained as an
\ninpatient till 12.12.1998.  \tThe accident took place because of the negligent
\ndriving by the driver of the bus.  Hence, the restricted claim of Rs.2,00,000\/-
\n(Rupees Two Lakhs only) was made by the appellant\/claimant together with
\ninterest at 12% from the date of accident with costs.\n<\/p>\n
\t5. The respondent\/State Transport Corporation, took a plea that the
\nrespondent’s bus was driven by its driver in a careful manner and when the bus
\ncame near the ice factory at Kulasai, a lorry came in the opposite direction and
\nthe respondent’s driver kept left to allow the lorry to proceed, but the
\nrespondent’s driver stopped the bus, hearing the loud noise of the passengers
\ninside the bus and came to know that the passengers sitting in 4th and 5th rows
\nnear window were injured in their right hands and they were immediately taken to
\nTiruchendur Government Hospital for treatment and that the lorry which injured
\nthe appellant\/claimant fled away without stopping and after slightly hitting the
\nbus and hence, the accident took place due to the rash and negligent driving of
\nthe lorry by its driver and the driver of the respondent’s bus was included in
\nthe F.I.R on the belated complaint of the appellant’s father just to help the
\nappellant\/claimant in his claim and in any event, the compensation claim of
\nRs.2,00,000\/- (Rupees Two Lakhs only) was too high and that the
\nappellant\/claimant was not entitled to such amount.\n<\/p>\n
\t6. On the side of the appellant\/claimant before the Tribunal, witnesses,
\nP.W.1 to P.W.3 were examined and Exs.P.1 to P.10 were marked and on the side of
\nthe respondent, witness R.W.1, the bus driver, was examined and no documents
\nwere marked.\n<\/p>\n
\t7. After contest, on an appreciation of oral and documentary evidence, the
\nTribunal has awarded a total compensation of Rs.44,237\/- (Rupees Forty Four
\nThousand Two Hundred and Thirty Seven only) along with interest at 9% from the
\ndate of filing of the petition till date of payment.  The Tribunal has fixed the
\nlawyer’s fee at Rs.1,500\/- (Rupees One Thousand and Five Hundred only).\n<\/p>\n
\t8. To prove negligence, the appellant\/claimant’s father, Jayapal, has been
\nexamined as P.W.1 besides examination of P.W.3, Senthilkumar, the
\nappellant\/claimant before the Tribunal.  P.W.1 Jeyapal, in his evidence has
\ndeposed that he along with P.W.3 Senthilkumar, travelled in the bus bearing
\nRegistration No.TN-72-N-0617 on 01.10.1998 belonging to the respondent State
\nTransport Corporation from Kulasekarapatnam to Tiruchendur and at that time, a
\nlorry came in the opposite direction and because of the negligence of their bus
\ndriver, the back portion of the bus dashed against the lorry’s back portion, as
\na result of which, his son, the appellant\/claimant P.W.2 sustained fracture in
\nhis right forearm, two fractures in the back arm and immediately, the
\nappellant\/claimant was admitted into Tiruchendur Government Hospital and
\nthereafter, in T.V.M.S.Hospital, Tirunelveli, a surgery was performed on the
\nappellant\/claimant and a plate was also fixed and later, the fixed plate was
\nremoved as per Ex.P.5 and that the lorry fled away from the scene and therefore,
\nhe was not aware of the Registration Number of the lorry and further, four or
\nfive persons sustained injuries in the accident and his son, the
\nappellant\/claimant suffered a serious injury.\n<\/p>\n
\t9. P.W.2, the appellant\/claimant, Senthilkumar, in his evidence has
\ncategorically stated that their bus driver did not notice the lorry which was
\ncoming in the opposite direction and when the bus came near the lorry, the
\ndriver of the bus turned towards left, as a result of which the lorry came in
\nthe opposite direction dashed against the back portion of their bus and some co-
\npassengers who travelled in the bus sustained injuries and his right hand was
\nfractured and the backside glass of the bus was damaged and that their bus
\ndriver was responsible for causing the accident and the lorry which came in the
\nopposite side did not stop and fled away from the scene of occurrence and
\ntherefore, the same was not identified and that he was admitted as an inpatient
\nin T.V.M.S.Hospital, Tirunelveli, from 02.10.1998 to 12.12.1998.\n<\/p>\n
\t10. R.W.1, Subburaj, the driver of the bus (who drove the offending
\nvehicle bearing Registration No.TN-72-N-0617, on 01.10.1998 from
\nKulasekarapatnam to Tiruchendur) in his evidence, has deposed that when the bus
\ncame near ice factory, a lorry in the opposite direction came in front of him
\nand after seeing the lorry, he drove his vehicle on the left side and at that
\ntime, the lorry dashed against the back portion of the bus, as a result of
\nwhich, the passengers of the bus sustained injuries in hand and he immediately,
\nstopped his vehicle, but he could not see the Registration Number of the lorry
\nand that he immediately admitted the appellant\/claimant into Government
\nHospital, Tiruchendur and on the basis of the complaint given by the
\nappellant\/claimant’s father, the police lodged the F.I.R as against him.\n<\/p>\n
\t11. In Ex.P.1, certified copy of F.I.R, the informant is one Jayapal, who
\nis P.W.1, the father of the appellant\/claimant.  The accused’s name is Subburaj,
\nR.W.1, the driver of the bus bearing Registration No.TN-72-N-0617.  On the basis
\nof the complaint of P.W.1, Jayapal, Kulasekarapatnam Police have registered a
\ncriminal case in Cr.No.443 of 1998 under Sections 279, 338, 201, 217, 506(i)
\nI.P.C.\n<\/p>\n
\t12. In Ex.P.2, the Motor Vehicles Inspector’s report, dated 03.12.1998, in
\nrespect of the offending vehicle bearing Registration No.TN-72-N-0617, the Motor
\nVehicles Inspector has opined that ‘this accident was not due to any mechanical
\ndefect of this vehicle.’.\n<\/p>\n
\t13. In Ex.P.6, the attested copy of the Accident Register, in respect of
\nthe appellant\/injured, it is mentioned that ‘alleged to have been involved in a
\nroad traffic accident at about 10.15 p.m, on 01.10.1998 nearer to Kallamozhi
\nKulasai to Tiruchendur road and that the injuries sustained by the
\nappellant\/claimant are mentioned as follows:\n<\/p>\n
\t“(1) Lacerated injury right elbow 3 X 2 X 1 cm bleeding present.
\n\t(2) Abrasions right elbow just distal to first injury 2 X 1 X r cm
\nbleeding present.\n<\/p>\n
\t(3) Abrasion right index finger 1 X r X r cm, bleeding present.”
\nand that the opinion given by the Doctor is that the injury is simple in nature.\n<\/p>\n
\t14. As far as the present case is concerned, the evidence of P.W.1 Jayapal
\nand P.W.3 Senthilkumar, in regard to the manner and mode of happening of the
\noccurrence are cogent, coherent and convincing and therefore, this Court accepts
\nthe same.   Per contra, even though R.W.1, the bus driver of the offending
\nvehicle, in his evidence has stated that the lorry dashed against the back
\nportion of the bus etc., the same is unbelievable and interested one and
\ntherefore, this Court rejects the same.  In view of the clear cut and
\nunimpeachable evidence of P.W.1, Jayapal and P.W.3, Senthilkumar, in regard to
\nthe manner and happening of the occurrence and taking note of the vital fact
\nthat the appellant\/claimant has sustained injury in the accident, this Court
\nafter bearing in mind the surrounding facts and circumstances of the case, comes
\nto the conclusion that the accident has taken place because of the negligent
\ndriving of the bus belonging to the respondent State Transport Corporation
\nbearing Registration No.TN-72-N-0617 by its driver R.W.1, Subburaj and that he
\nis solely responsible for causing the accident and the point is answered
\naccordingly.\n<\/p>\n
\t15. Coming next to the quantum of compensation to be awarded, it is
\nsignificant to point out that the Tribunal has awarded a sum of Rs.1,000\/-
\ntowards transport expenses as against a claim of Rs.2,000\/-.  Towards medical
\nexpenses, as per Ex.P.5, the Tribunal has awarded a sum of Rs.24,237\/- as
\nagainst a claim of Rs.30,000\/-.  Towards pain and sufferings, it has granted a
\nsum of Rs.4,000\/- as against the claim of Rs.25,000\/-.  For partial permanent
\ndisability of 25% as per Ex.P.8, the Tribunal has granted a sum of Rs.10,000\/-
\nthough the claimant has claimed a sum of Rs.2,16,000\/- in this regard.  Towards
\nloss of earning capacity, the Tribunal has awarded a sum of Rs.5,000\/- as
\nagainst the claim of Rs.86,400\/-.  In all, the Tribunal has awarded a sum of
\nRs.44,237\/- (Rupees Forty Four Thousand Two Hundred and Thirty Seven only) as
\ntotal compensation along with interest at 9% p.a  from the date of filing of the
\npetition till date of payment.\n<\/p>\n
\t16. According to the learned Counsel for the appellant\/claimant, the
\nTribunal has erred in awarding a meagre sum of Rs.44,237\/- as against the
\nreasonable claim of Rs.2,00,000\/-, when that too, the appellant\/claimant has
\nsuffered a permanent disability of 25% and therefore, prays before this Court
\nfor enhancement of compensation and to allow the appeal consequently, to prevent
\nmiscarriage of justice.\n<\/p>\n
\t17. The learned Counsel for the appellant\/claimant cites the decision in
\nUnited India Insurance Company Limited v. R.Chinnaraj and others<\/a> (2008 (1) TN
\nMAC 8), wherein this Court held that ‘taking into consideration the nature of
\nthe injuries and disability certificates, an award of Rs.2,000\/- per percentage
\nof disability would be proper and reasonable.’.\n<\/p>\n
\t18. At this juncture, this Court points out that in the decision, Kapil
\nKumar v. Kudrat Ali and others<\/a> (2002 ACJ 852), wherein it is inter alia observed
\nas follows:\n<\/p>\n
\t“According to P.W.5, an orthopaedic expert, appellant’s right hand became
\nirregular in shape and its movement became restrained and he cannot lift heavy
\narticles with the right hand.  The normal movement will be painful.  However,
\nthe disability sustained was assessed at 20 per cent.  As rightly observed by
\nthe High Court, the loss of earning capacity on account of permanent partial
\ndisability suffered by the appellant cannot be calculated in terms of percentage
\nonly.  It will have serious repercussions on his studies and prospects of
\nearning.  He will have to face other handicaps on life. Though the High Court
\ndid realise the need to enhance the compensation, we feel that the extent of
\nenhancement is still inadequate.  The increase of Rs.5,000 is only marginal.
\nTaking, inter alia, the Table in the Second Schedule as guiding factor, we are
\nof the view that the compensation on account of disability incurred by the
\nappellant should be enhanced by Rs.20,000 more; that means, he will get
\nRs.40,000 instead of Rs.20,000 awarded by the High Court under the first head.
\nIn respect of other items, the award as modified by the High Court remains
\nundisturbed.  In all, the appellant shall get Rs.50,000.  This amount should
\ncarry interest at the rate and from the period specified by the High Court.  The
\nother directions in the award of the Tribunal shall stand.”.\n<\/p>\n
\t19. P.W.2, Dr.Pavalan, in his evidence has stated that he is serving as
\nDoctor in the Tuticorin Medical College Hospital in Orthopaedic Department and
\nhe examined the appellant\/claimant on 20.10.2003 and that the appellant\/claimant
\ninformed him that he sustained injury in the accident that took place on
\n01.10.1998 and that the appellant\/claimant was given treatment in different
\nnursing homes and that the appellant\/claimant’s right hand was malunited then
\nand that the appellant\/claimant found difficulty in using the right shoulder
\nportion and right hand portion and that the appellant\/claimant was having pain
\nand on examination, he found that in the appellant\/claimant’s right shoulder
\nportion, there were scars for the injuries sustained and that the movements of
\nthe appellant\/claimant’s right hand were restricted and that the
\nappellant\/claimant’s partial permanent disability was assessed at 25% as per
\nEx.P.8 disability certificate given by him and that the appellant\/claimant was
\nnot treated by him and that the fracture in the right hand of the appellant was
\nunited.\n<\/p>\n
\t20. Even though Ex.P.6, copy of the accident register shows that the
\nappellant\/claimant had suffered simple injury and that the appellant was not
\nwilling to get himself admitted into the Hospital, a perusal of Ex.P.8
\ndisability certificate, issued by Dr.Pavalan, P.W.2, indicates that the
\nappellant\/claimant had suffered a permanent disability of 25% and therefore,
\nthis Court awards a sum of Rs.43,750\/- (Rupees Forty Three Thousand Seven
\nHundred and Fifty only) {Rs.1,750\/- X 25 = Rs.43,750\/-} [calculating at the rate
\nof Rs.1,750\/- for 1% disability] towards the disability sustained by the
\nappellant\/claimant.\n<\/p>\n
\t21. For pain and sufferings, this Court grants a sum of Rs.5,000\/-.
\nTowards transport charges, this Court awards a sum of Rs.1,000\/- and this Court
\nhas not interfered with the amount awarded under this head by the Tribunal.
\nTowards medical expenses, this Court grants a sum of Rs.24,237\/- as per Ex.P.5,
\nmedical bills, and has not interfered with the amount awarded by the Tribunal in
\nthis regard.  In view of the disability sustained by the appellant\/claimant and
\nthe disability of 25% suffered by him, this Court grants a sum of Rs.2,000\/-,
\ntowards loss of happiness and as a Global compensation.\n<\/p>\n
\t22. Thus, in all, the appellant\/claimant is entitled to a total
\ncompensation of Rs.76,000\/- (Rs.43,750\/- + Rs.5,000\/- + Rs.1,000\/- + Rs.24,237\/-
\n+ Rs.2,000\/- = Rs.75,987\/-) as a rounded off figure, together with interest at
\n9% p.a from the date of filing of the petition till date of payment, payable by
\nthe respondent State Transport Corporation and therefore, this Court opines that
\na sum of Rs.44,237\/- (Rupees Forty Four Thousand Two Hundred and Thirty Seven
\nonly) awarded by the Tribunal as compensation to the appellant\/claimant is an
\ninadequate one considering the facts and circumstances of the present case.\n<\/p>\n
\t23. This Court determines the lawyer’s fee at Rs.3,500\/- and the
\nrespondent State Transport Corporation is directed to pay the balance amount of
\nRs.2,000\/- (Rs.3,500\/- – Rs.1,500\/- = Rs.2,000\/-) to the appellant\/claimant
\nsince the Tribunal has awarded a sum of Rs.1,500\/- as lawyer’s fee for the
\ncompensation of Rs.44,237\/- (Rupees Forty Four Thousand Two Hundred and Thirty
\nSeven only).\n<\/p>\n
\t24. In the light of the above discussions and on consideration of material
\nevidence on record and taking note of the attendant circumstances of the case,
\nthis Court comes to the inevitable conclusion that the award of Rs.44,237\/-
\n(Rupees Forty Four Thousand Two Hundred and Thirty Seven only) determined by the
\nTribunal is an inadequate one and instead, this Court awards a sum of
\nRs.76,000\/- (Rupees Seventy Six Thousand only) together with interest at 9% p.a
\nfrom the date of filing of the petition till date of payment with proportionate
\ncosts, which is reasonable, fair and equitable too, payable by the respondent
\nState Transport Corporation.\n<\/p>\n
\t25. Already, the Tribunal has awarded a sum of Rs.44,237\/- (Rupees Forty
\nFour Thousand Two Hundred and Thirty Seven only) together with interest at 9%
\np.a from the date of filing of the petition till date of payment along with
\nproportionate costs.  Hence, the balance sum of Rs.31,763\/- (Rupees Thirty One
\nThousand Seven Hundred and Sixty Three only) together with interest at 9% p.a
\nfrom the date of filing of the petition till date of payment with proportionate
\ncosts, is directed to be paid by the respondent State Transport Corporation, to
\nthe credit of M.A.C.T.O.P.No.2 of 2000 on the file of the Motor Accidents Claims
\nTribunal – Sub Judge, Tuticorin, within a period of two months from the date of
\nreceipt of a copy of this order.\n<\/p>\n
\t26. On such deposit, the appellant\/claimant is entitled to withdraw the
\nsame from the Tribunal by filing necessary payment out application in accordance
\nwith Civil Rules of Practice.  The Tribunal is directed to ensure that the
\npayment of proper Court fee is paid by the appellant\/claimant before disbursing
\nthe award amount.\n<\/p>\n
\t27. In the result, the Civil Miscellaneous Appeal is allowed in above
\nterms.  Resultantly, the award dated 11.03.2004 passed in M.A.C.T.O.P.No.2 of
\n2000 by the Motor Accidents Claims Tribunal – Sub Judge, Tuticorin, is modified,
\nto the extent indicated above.  Bearing in mind the facts and circumstances of
\nthe case, there shall be no order as to costs.\n<\/p>\n
rsb<\/p>\n
To
\nThe Motor Accidents Claims Tribunal –\n<\/p>\n
Sub Judge, Tuticorin.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court J.Senthilkumar vs The Managing Director on 22 July, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22\/07\/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A(MD).No.320 of 2004 J.Senthilkumar .. Appellant\/Petitioner Vs The Managing Director, Tamil Nadu Transport Corporation, Tirunelveli. .. Respondent\/Respondent Prayer Appeal filed under Section 173 of the Motor Vehicles Act, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-209611","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nJ.Senthilkumar vs The Managing Director on 22 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/j-senthilkumar-vs-the-managing-director-on-22-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"J.Senthilkumar vs The Managing Director on 22 July, 2008 - 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