The Managing Director Tamil Nadu State Transport Corporation Ltd., Villupuram v. V.Thirumurugan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04.03.2010CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1291 of 2007andM.P.No.2 of 2007The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Villupuram.. Appellant/RespondentVsV.Thirumurugan .. Respondent/PetitionerAppeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 31.08.2006, made inM.C.O.P.No.197 of 2005, on the file of the Motor Accident ClaimsTribunal, Chief Judicial Magistrate Court, Cuddalore.For appellant : Mr.P.G.PadmanabhanFor respondent : No appearance J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/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 AccidentClaims Tribunal, Chief Judicial Magistrate Court, Cuddalore, awardinga compensation of Rs.58,000/- with 7.5% interest per annum, from thedate of filing petition till the date of payment of compensation.2.Aggrieved by the said Award and Decree, theappellant/respondent has filed the above appeal praying to set asidethe 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 wasriding his scooter at the extreme left side of the road atChokkankollai, the respondent's bus bearing registration No.TN32N0841, came at a very high speed and driven in a rash and negligentmanner by its driver, hit behind the scooter of the petitioner andcaused the accident. https://hcservices.ecourts.gov.in/hcservices/

4.Due to the accident, the petitioner was thrown out of thescooter and sustained grievious injuries and multiple fractures allover his body and head. He was immediately taken to GovernmentHospital, Chidambaram and was admitted there as an inpatient. Theaccident occurred only due to the rash and negligent driving by thedriver of the respondent's bus bearing registration No.TN32 N0841.5.The petitioner was hale and healthy at the time of accidentand was aged only 27 years and was earning a monthly income ofRs.7,500/- as a Tinker. Due to the accident, he has sustaineddisability and not able to work and earn as he used to do before theaccident.6.The respondent, being the owner of the State TransportCorporation bus, is liable to pay compensation. The petitioner hasclaimed a compensation of Rs.5,00,000/- from the respondent, togetherwith interest at the rate of 18% per annum from the date of accidenttill the date of payment of compensation, under Section 166(1) of theMotor Vehicles Act.7.Regarding the said accident, a criminal case has been filed atthe Bhuvanagiri Police Station, in Crime No.285/2004.8.The respondent, in his counter, has denied the averments inthe claim as regards the age, income and occupation of thepetitioner, manner of the accident, nature of alleged injuriessustained by the petitioner, the period of treatment, medicalexpenditure and the disability. The respondent has submitted that on02.10.2004, at about 13.45 hrs. the respondent's driver was drivingthe bus bearing registration No.TN32 N0841 from Kurinjipadi toChidambaram and was crossing Chokkankollai bridge, where paddy strawwas spread-up on the bridge, for drying. At that time, a scooter, onwhich three persons were travelling, skidded due to the straw spreadout 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 thebus and overturned. Out of the three persons, who were travelling onthe scooter, one died on the way to hospital and another personabsconded. The third person was admitted in the Government Hospitalby the driver of the respondent's bus. But, the respondent hasstated that in the FIR, it has been shown that only two persons hadtravelled in the scooter. The respondent has contended that as theaccident had occurred solely due to the negligent driving of thescooter bearing registration No.TN07 C6949, he cannot be held liableto pay compensation to the petitioner. It was also contended thatthe petitioner has to prove that the driver of the scooter had avalid driving licence at the time of accident and has also pointedout that the petition is bad for non-joinder of necessary parties inthe case ie.the owner and insurance company of the scooter bearingregistration No.TN07 C6949. The respondent has further submittedthat the claim is excessive and has to be dismissed with costs. https://hcservices.ecourts.gov.in/hcservices/

9.The Motor Accident Claims Tribunal framed two issues for theconsideration namely:(i)Was the accident caused due to the rash andnegligent manner of driving by the driver of therespondent's bus bearing registration No.TN32N0841? (ii)Is the petitioner entitled to receivecompensation? If so, what is the quantum ofcompensation, which he is entitled to get?10.On the petitioner's side, two witnesses were examined as PW1and PW2 and six documents were marked as Exs.P1 to P6. On therespondent's side no witnesses were examined and no documents weremarked.11.The petitioner was examined as PW1. The PW1, in hisevidence, adduced that on 02.10.2004, at about 2.15 p.m. in theafternoon, while he was riding his scooter on the extreme left sideof the Chokkankollai road, the respondent's bus bearing registrationNo.TN32 N0841, coming from behind the scooter and driven at a highspeed and in a rash and negligent manner by its driver, withoutadhering to traffic rules and regulations, dashed against the scooterand caused the accident. It is seen that the petitioner had giventhe complaint to the police regarding the accident, while he wastaking treatment at the Government Hospital, Chidambaram and that theFIR had been registered on the basis of this complaint. On scrutinyof the Ex.P1, the copy of the FIR, it is seen that a criminal casehad been registered as against the driver of the respondent's bus atBhuvanagiri Police Station in Crime No.285/2004. The evidence of thePW1 regarding the accident was found to be in consonance with that ofthe statements in the FIR and also with the averments in hispetition. The copy of the Motor Vehicle Inspector's Report of thesaid bus bearing registration No.TN32 N0841 was marked as Ex.P2. Itis seen from the Ex.P2, that the accident had not been caused due tomechanical faults in the said bus.12.Though the respondent had contended in his counter, that thedriver of the respondent's bus had not driven the bus at a high speedand in a rash and negligent manner and that he had not caused theaccident. They had also contended that the accident had been causedonly due to the negligence of the petitioner. But, the Tribunal onconsidering that the respondent had not examined the driver of thesaid bus as a necessary witness to establish their contentions andalso on considering the evidence of the PW2 and scrutiny of exhibitsmarked as P1 and P2 held that the driver of the respondent's busbearing registration No.TN32 N0841 had driven the said bus at a highspeed and in a rash and negligent manner and caused the accident.13.It is seen that the injured petitioner had been initiallygiven first aid at Government Hospital, Chidambaram and later on https://hcservices.ecourts.gov.in/hcservices/ admitted at Government Head Quarters Hospital at Cuddalore. Thepetitioner had been treated as an inpatient at the Government HeadQuarters Hospital at Cuddalore, from 04.10.2004 to 07.10.2004 and insupport of this the medical admission chit issued at the hospital hasbeen marked as Ex.P4. Ex.P3 is the report issued by the Doctor, whohad given the report after inspection of the X'ray taken in the rightchest of the petitioner. It is seen from the report that the thirdbone in the petitioner's hip had been fractured.14.Dr.R.Venugopal, who had examined the petitioner to assess thedisability was examined as PW2. The PW2, in his evidence, has statedthat he had carried out medical examination of the petitioner on24.07.2006 and taken X'ray of the chest of the petitioner, which hasbeen marked as Ex.P5. He has stated that on inspection of the X'raystaken, he had seen that the third fractured hip bone of thepetitioner had joined in an improper manner and due to this thepetitioner experiences frequent pain in his chest, pain anddifficulty in breathing and also difficulties in doing his normal dayto day work. The PW2 had therefore certified that the petitioner hadsustained permanent disability of 20% taking into consideration allthe difficulties experienced by the petitioner in doing his work andhas marked Ex.P6, the Disability Certificate.15.The nature of injuries sustained by the petitioner is evidentafter scrutiny of Exs.P3 and P6. As such, the Tribunal awarded acompensation of Rs.10,000/- to the petitioner under the head of painand 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 ofaccident. He had stated that he was working as a Tinker and earninga sum of Rs.7,500/- per month. But, no documentary evidence had beenlet in by the petitioner's side to prove this contention. As such,the Tribunal fixed the notional income of the petitioner asRs.3,000/- per month, after considering that the petitioner was agedabout 27 years and he could have got employment as a daily labourerand earned a sum of Rs.100/- per day. The Tribunal, on consideringthat the petitioner could not have got employment for one month afterthe accident, due to the fracture in the third hip bone of thepetitioner in the accident, granted an award of Rs.3,000/- ascompensation to the petitioner under the head of loss of income.Further, the Tribunal on consideration of the disability of thepetitioner assessed as 20% as per Ex.P6 issued by the PW2, Doctor,awarded a compensation of Rs.40,000/-, under the head of loss ofearning capacity due to disability. In total, the Tribunal awarded asum of Rs.58,000/- as compensation to the petitioner.17.As the driver of the respondent's bus bearing registrationNo.TN32 N0841 has been found to be at fault in causing the saidaccident, the Tribunal held that the respondent is liable to pay thecompensation to the petitioner, awarded by them. https://hcservices.ecourts.gov.in/hcservices/

18.The Tribunal accordingly directed the respondent to depositthe award amount of Rs.58,000/- together with interest at the rate of7.5% per annum from the date of filing the petition till the date ofpayment of compensation, into the credit of the M.C.O.P.No.197 of2005, on the file of the Motor Accident Claims Tribunal, ChiefJudicial Magistrate Court, Cuddalore, within a period of one monthfrom the date of its Order. Further, after such deposit was made,the award amount, with accrued interest had to be deposited in anationalised or scheduled bank, as fixed deposit for a period ofthree years and the petitioner was permitted to receive interest onsuch deposit, once in six months, directly from the bank. The excessCourt fee paid by the petitioner was directed to be refunded to him,after deducing the Court fee due on the award amount and alsodeducting 5% towards cost.19.The Advocate fees was fixed at Rs.2,300/- and the respondentwas directed to pay the cost of Rs.2,482/- to the petitioner.20.The learned counsel appearing for the appellant has contendedin his appeal that the Tribunal had erred in awarding a sum ofRs.40,000/- towards disability and future loss of earning power as itis excessive. It was also contended that the monthly income ofRs.3,000/- fixed by the Tribunal as the notional income of theclaimant was excessive and was done without proper documentaryevidence. It has also been contended that the award of Rs.10,000/-granted by the Tribunal under the head of pain and suffering iserroneous, since the injured claimant had taken treatment in theGovernment Hospital, Cuddalore, only for three days ie.from04.10.2004 to 07.10.2004.21.The learned counsel appearing for the appellant has thereforecontended that the total award of Rs.58,000/- granted by the Tribunalis excessive and against the principles of law and has prayed to setaside the award and decree passed by the Tribunal.22.Considering the facts and circumstances of the case andarguments advanced by the learned counsel appearing for the appellantand after going through the findings of the Tribunal, this Court isof the view that as per the Doctor's evidence, the claimant hassustained 20% disability and that the third bone of the rib wasfractured. Further, he has taken treatment at two hospitals inCuddalore and Chidambaram. Considering that the claimant was agedabout 27 years and that he was working as a Tinker, the Court doesnot find any error in the assessment of quantum of compensationawarded by the Motor Accident Claims Tribunal, Chief JudicialMagistrate Court, Cuddalore, in M.C.O.P.No.197 of 2005, and as suchthis Court confirms the said award, as it is found to be fair andequitable.23.This Court imposed a condition on the appellant to depositthe entire compensation amount to the credit of the M.C.O.P.No.197 of https://hcservices.ecourts.gov.in/hcservices/ 2005, on the file of the Motor Accident Claims Tribunal, ChiefJudicial Magistrate Court, Cuddalore.24.As the accident happened in the year 2004, it is open to theclaimant to withdraw the entire compensation amount together withaccrued interest thereon, lying in the credit of the M.C.O.P.No.197of 2005, on the file of the Motor Accident Claims Tribunal, ChiefJudicial Magistrate Court, Cuddalore, after filing necessary paymentout application, in accordance with law, subject to deduction ofwithdrawals, if any.25.In the result, the above Civil Miscellaneous Appeal isdismissed and the Award and Decree, dated 31.08.2006, inM.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 isno order as to costs. Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar.krk To1. Motor Vehicles Accident Claims Tribunal, Chief Judicial Magistrate Court, Cuddalore.2. The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr.P.G.Padmanabhan, Advocate Sr 15062 order in C.M.A.No.1291 of 2007NM (CO)RH (23.3.10)