The Managing Director,Tamil Nadu State Transport Corporation Ltd.,(Coimbatore Division),Chennimalai Road,Erode v. K. Vellaiyan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 2.2.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARC.M.A.No.166 of 2009andM.P.No.No.1 of 2009The Managing Director,Tamil Nadu State Transport Corporation Ltd.,(Coimbatore Division),Chennimalai Road,Erode.1. ... Appellant/2nd Respondent vs.1. K. Vellaiyan2. K. Kemburaj .. Respondents/Petitioner/ 1st respondent Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988 against the award and decree dated 31.3.2008passed in M.C.O.P.No.64 of 2007 on the file of the Motor AccidentsClaims Tribunal (Chief Judicial Magistrate), Erode.For appellant : Mr. B. VijayalakshmiFor Respondents : Mr. Nalliyappan – R1JUDGMENTThe Transport Corporation has filed this appeal challengingthe award dated 31.3.2008 passed in M.C.O.P.No.64 of 2007 on the fileof the Motor Accidents Claims Tribunal (Chief Judicial Magistrate),Erode.2. The first respondent/ claimant appeared throughcounsel. At the request of both sides, the appeal itself is taken upfor final disposal. https://hcservices.ecourts.gov.in/hcservices/

3. Brief facts of the case are as follows:-On 16.11.2006, the injured claimant Vellaiyan, a Kalasi(i.e.) load man, was riding a by-cycle at about 6.30 p.m. on the Karurto Coimbatore main road. He was hit by the transport Corporation bus.In that accident, he suffered grievous and simple injuries. He wasinitially treated at Dr. Sathiyamoorthy Clinic and given first aidand thereafter, he was taken to Government Hospital, Kangayam forfurther treatment. He was then taken to LKM Hospital, Erode. In thataccident, he suffered grievous injuries on his head, fracture of theright shoulder, injuries to hip region and fracture of fore fingerbesides, he suffered other injuries all over the body. He claimedcompensation in a sum of Rs.1,50,000/- stating that his income wasRs.200/- per day i.e. Rs.6,000/- p.m. 4. In support of the claim, the claimant was examined asP.W.1. One Vadivel was examined as P.W.2. Dr. Periasamy wasexamined as P.W.3. On behalf of the claimant Exs. A1 to A17 weremarked. The relevant documents are Ex.A5 to A17. On behalf of theappellant/ 2nd respondent before the Tribunal, driver of the bus wasexamined as R.W.1. No documentary evidence was let in on behalf ofthe appellant/ 2nd respondent before the Tribunal.5. The finding of negligence on the part of the driver ofthe transport Corporation bus and the liability fixed on the appellanttransport corporation to compensate the claimant is not disputed bythe learned counsel for the appellant and such finding is confirmed. 6. The main contention in appeal is on the quantum ofcompensation. As far as the injury and disability is concerned, theTribunal, based on various medical records which clearly reveal thatthe injury is to the right shoulder, fore finger and all other partsof the body including hip, held that the earning capacity of theinjured claimant a Kalasi has been affected. The Doctor, whoexamined the claimant based on the medical records opined that themovement of the right hand consequent to the fracture of the shoulderis very much affected and because of that, the claimant is unable tolift heavy object. In paragraph 12 of the award, the restrictions inmovement of the injured claimant has been discussed by the Tribunal.This is based on the evidence of the Doctor, P.W.3. The fact that theinjured claimant was working as a Kalasi near the bus stand and livingby daily income by manual labour which is supported by the evidenceof P.W.2., who is the president of the Union of workers engaged incarrying heavy goods on their back. He stated that the claimant wasearning Rs.2,00/- per day i.e. Rs.6,000/- p.m. The identity card ofthe claimant as a member of the association was also marked. The factthat the injured claimant was working as a Kalasi lifting heavy weightis not doubted by the Tribunal. On the other hand stating that therewas no concrete material to come to the conclusion as to the actual https://hcservices.ecourts.gov.in/hcservices/ income of the claimant per day, the Tribunal fixed the same asRs.3,000/- p.m. Since the disability has been assessed at 22% underEx.A15, the Tribunal, considering the restrictions in the movement ofthe shoulder and other parts of the body consequent to the injury andalso taking note of the nature of occupation of the injured claimant,felt that due to the disability, there will be reduction in theearning capacity. Considering the nature of employment, age andoccupation of the injured claimant, the Tribunal adopted 11 multiplierand granted a sum of Rs.87,120/- towards loss of pecuniary benefitsdue to the disability. The tribunal also granted compensation underconventional heads. In all, the Tribunal granted the following amountas compensation with interest at the rate of 7.5% p.a.Sl.No.HeadAmount grantedby the Tribunal1Loss of income due to disability Rs. 87,120/-2Medical expensesRs. 4,500/-3Pain and sufferingRs. 10,000/-4Extra nourishmentRs. 10,000/-5Transport expensesRs. 1,000/-TotalRs.1,12,620/-7. In appeal, it is contended that the Tribunal is notjustified in adopting 11 multiplier to the 55 years old injuredclaimant and therefore, the award has to be reduced.8. The following decisions will have to be kept in mindwhile fixing the income of the deceased:-(a) A Division Bench of this Court in B.Anandhi – vs. - Lathareported in 2002 ACJ 233(P.SATHASIVAM,J., as he then was) observedthat a coolie would earn Rs.100/- per day. In that case, theaccident happened in the year 1995. (b) The Apex Court in State of Haryana and another – vs. -Jasbir Kaur and others reported in 2004-1 Law Weekly, was of theview that an agriculturist would earn Rs.3,000/- per month. Inthat case, the accident happened in the year 1999. 9. In the above cited cases, the income of the deceasedwas taken at Rs.3,000/- per month for the year 1995 and 1999respectively, whereas in the present case, the accident happened inthe year 2006. Therefore, the income of the injured claimant shouldhave been fixed atleast Rs.4,000/- or Rs.4,500/-. He was working as aKalasi (load man) in Vellaiankoil bus stand. It is an importantbusiness town. Since the income has been drastically reduced whiledetermining the compensation, the marginally higher multiplier will https://hcservices.ecourts.gov.in/hcservices/ justify the total compensation. In this case, the Tribunal granted ameager amount of Rs.10,000/- alone towards pain and suffering to theclaimant, who has taken treatment in three hospitals and was out ofemployment for a quite period of time. No amount has been grantedfor loss of income during the period of treatment and for attendercharges. The amount of Rs.1,000/- granted for transport expenses isalso very meager. Hence, taking into account all these factors, thetotal compensation awarded by the Tribunal is justified and no goodground has been made out for reduction in the quantum of compensationas also the interest at the rate of 7.5% as the accident in the year2006 and the award was passed in 2007. 10. Finding no merits, the civil miscellaneous appeal isdismissed. No costs. Consequently, connected miscellaneous petitionis also dismissed.Learned counsel for the appellant seeks eight weeks time todeposit the award amount and the same is allowed. On such deposit,the claimant is entitled to withdraw the same, as per the order of theTribunal. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarraToThe Motor Accidents Claims Tribunal,(Chief Judicial Magistrate), Erode.+1cc to Mrs.B.Vijayalakshmi, Advocate Sr 4814+1cc to Mr.R.Nalliyappan, Advocate Sr 4750KSK(CO)km/3.3.CMA No. 166 of 2009