The Managing Director The Metropolitan Transport Corporation Ltd., Chennai v. N.Srinivasan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.2177 of 2007andM.P.No.1 of 2007The Managing DirectorThe Metropolitan Transport Corporation Ltd.,Chennai. ..Appellant/RespondentVsN.Srinivasan ..Respondent/PetitionerAppeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree Order dated 25.01.2007, made inM.C.O.P.No.1467 of 2004, on the file of the Motor Accidents ClaimsTribunal, II Judge, Court of Small Causes, Chennai.For Appellant : Mr.A.MuthuramanFor Respondent : No appearanceJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/The Managing Director, The Metropolitan TransportCorporation Ltd., Chennai, against the Award and Decree Order dated25.01.2007, made in M.C.O.P.No.1467 of 2004, on the file of the MotorAccidents Claims Tribunal, II Judge, Small Causes Court, Chennai,awarding a compensation of Rs.1,29,670/- with 7.5% interest perannum, from the date of filing the petition to till the date ofdeposit of compensation.2.Aggrieved by the above award, the appellant/respondent, TheManaging Director, The Metropolitan Transport Corporation Ltd.,Chennai, has filed the above appeal praying to set aside the Order.3.The short facts of the case are as follows:On 07.10.2003, at 6.05 p.m. while the petitioner was cyclingfrom west to east in the N.S.C.Road, Parrys, the MTC bus bearing https://hcservices.ecourts.gov.in/hcservices/ registration No.TN01 N1895, driven by its driver in a rash andnegligent manner came from west and hit the petitioner from behindand thereby caused grievous injuries to the petitioner. Since theaccident occurred only due to the rash and negligent driving of thebus, the respondent, being the owner of the bus is vicariously andstatutorily liable to pay the compensation claimed by the petitionerwith cost and interest. As a result of the accident, he sustainedfracture of left leg, fracture of left hand and multiple injuries allover his body. He was admitted in the Government Stanley MedicalCollege Hospital, Chennai-1 and was an in-patient at this hospitalfrom 07.10.2003. The petitioner, aged about 38 years, was astonecutter in M.S.Constructions, Chennai-83 and was earning a sum ofRs.5,000/- per month. Due to the accident, he is unable to move andunable to do work. The petitioner has therefore claimed acompensation of Rs.6,00,000/-.4.A criminal case has been registered by the Inspector ofPolice, J2-Elephant Gate Police Station, as Crime No.238/C2/2003,regarding the accident.5.The respondent in his counter has resisted the claim statingthat on 07.10.2003, the respondent's corporation bus on Route No.56G,bearing registration No.TN01 N1895 was operated from High Court toOdien Mani. At about 18.05 hrs, when the bus was slowly proceedingnear T.N.S.C.Bank at Parrys Corner, the petitioner, who was riding acycle with a pillion rider, lost his balance and grazed against thebody of the bus and fell down and so had sustained injuries in hisleg. He was taken to Government Stanley Hospital and admitted fortreatment. The accident happened only due to the negligent riding ofthe cycle by the petitioner.6.Further, the income of the petitioner, nature of the injuries,period of treatment and medical expenses, alleged to have beenincurred by the petitioner were not admitted. The compensationclaimed is also excessive, without any basis. It was prayed that theclaim petition should be dismissed.7.The Motor Accident Claims Tribunal framed three issues forconsideration namely:(i)Was the accident caused due to the rash andnegligent driving of the bus driver of therespondent's bus?(ii)Was the accident caused due to the loss ofbalance of petitioner, while driving his cycleand consequent dashing of his cycle against therespondent's bus? https://hcservices.ecourts.gov.in/hcservices/ (iii) Is the petitioner entitled to getcompensation? If so, what is the quantum ofcompensation?8.On the petitioner's side, the petitioner himself was examinedas PW1 and one Dr.Thiagarajan was examined as PW2 and 11 documentswere marked as Exs.P1 to P11. On the respondent's side, the conductorof the respondent's bus was examined as RW1 and the InvestigatingOfficer of the respondent Corporation, one Mr.Muthuvel was examinedas RW2 and one document was marked as Ex.R1.9.The petitioner, on being examined as PW1 has reiterated thestatements made in his claim petition and adduced evidence that theaccident was caused by the rash driving of the driver of the bus andthat the bus had come from behind and dashed against the cycle riddenby him. The RW1, conductor of the bus in his evidence has adducedthat the petitioner, who was riding a cycle with a pillion rider, infront of the bus, suddenly lost his balance and came in the path ofthe bus and so the accident happened. But, RW2, the InvestigatingOfficer of the respondent Corporation has adduced evidence that twocyclists were riding on their cycles in front of the bus and that oneof the cyclist was the petitioner herein and as they had grazedagainst each other, they had dashed against the bus and so theaccident had occurred. In the respondent's Counter, it has beenstated that the accident happened because the petitioner, who wasriding a cycle with a pillion rider lost his balance and grazedagainst the side of the bus. As such, the Tribunal concluded that atevery stage of the Trial, there has been contradictory evidenceadvanced by the respondent's side as to the manner of the accidentand hence, the Tribunal decided that their version of the accidentcould not be taken as true. Further, the Tribunal was of the viewthat the conductor of the bus would have been busy issuing tickets topassengers at the time of the accident. As such, it would not havebeen possible for the conductor to ascertain that how and in whatcircumstances the accident happened? As such, the Tribunal held thatonly the driver of the bus could be considered, to be a competentperson to give evidence regarding the above accident. But, for thereasons best known to the respondent, the bus driver has not beenexamined by the respondent. Further, though the PW2, theInvestigating Officer of the respondent Corporation has adducedevidence, about the manner of the accident, he has not supported hisversion on the strength of the witnesses and so without any basis.10.Further, though the RW2 has stated that he has conductedinvestigation and examined version of the accident from witnesses, hehas not produced the witnesses or his Investigation Report before theTribunal. As such, the Tribunal could not accept only the oralevidence of the RW2, to come to a conclusion on the manner of theaccident. Further, no evidence was produced and no witnesses wereexamined by the respondent's side to establish their version of the https://hcservices.ecourts.gov.in/hcservices/ accident. But, the Tribunal, on considering the evidence given bythe PW1, and considering that his version was clear and unambiguous,was of the view that the bus driver, if he had driven the bus at amoderate speed, especially considering that the place, where theaccident occurred was a congested area and also a place where therewas heavy traffic, could have prevented the accident and not dashedagainst the cyclist from behind. As such, the Tribunal held that itwas the rash and negligent driving of the bus driver, which hadcaused the accident.11.Further, the Tribunal also held that even in the FIR markedas Ex.P6, the criminal case has been filed only as against the busdriver of the respondent's bus. Further, after scrutiny of this, aswell as the Rough Sketch of the accident, marked as Ex.P7, theTribunal held that the petitioner's contentions regarding the mannerof accident was accurate. Further, even in the final report filed bythe Police, after investigation, as marked as Ex.P8, the Charge Sheethas been filed only as against the driver of the bus. As such, theTribunal on considering evidence of the PW1, and Exs.P6 to P8 andalso circumstances of the case as the accident had happened in anarea where there was heavy traffic, held that the accident was causedonly by the negligence of the bus driver of the respondent and notdue to the negligence of the petitioner.12.The petitioner has stated in his petition that due to theaccident, wherein the tyres of the bus had run over his left leg, hehad sustained severe injuries and that he had taken treatmentinitially at Government Stanley Hospital for two months as in-patientand subsequently, as the wound had not healed, had taken treatment atRani Medical Hospital as in-patient, and that due to the severeinjuries sustained by him in his leg knee joint, he has permanentdisability and that he was not able to continue doing his work as astonecutter and so has claimed a compensation of Rs.6,00,000/-.13.From an examination of Ex.P5, the Discharge Summary given byGovernment Stanley Hospital, it is evident that the petitioner hadtaken treatment, as in-patient, in the Hospital from 07.10.2003 to23.11.2003 and that he had sustained severe fractures in his leg kneejoint in the accident. Further, on scrutiny of the Ex.P1, DischargeSummary given by Rani Medical Hospital, it was confirmed that thepetitioner had sustained severe injuries in his leg knee joint.Further, in this Discharge Summary, it has been stated that thepetitioner had taken treatment for these injuries from 02.02.2004 to17.02.2004.14.Further, the Doctor, who examined the petitioner, wasexamined as PW2. The PW2, in his evidence, has stated that due tothe accident, the bone in the left knee joint of the petitioner hasbeen fractured and that after treatment, the bones have joinedimproperly; that there was a loss of muscles in this area and that https://hcservices.ecourts.gov.in/hcservices/ the muscles have had been removed and a skin grafting surgicaloperation had been carried out in this portion; further, thepetitioner has lot his thumb in the left leg; that the petitioner hasnot been able to move his left knee joint and that he would be ableto move only with the help of a crutch. The PW2, has thereforecertified that the disability sustained by the petitioner in theaccident was 50% and in support of this, he has marked the DisabilityCertificate as Ex.P10 and also marked X'Rays as Ex.P11. As such, theTribunal taking into account petitioner's evidence and inspection ofExs.P1 and P5 and the evidence of Doctor PW2 and the DisabilityCertificate issued by him as per Exs.P10 and P11, held that thepetitioner had sustained a permanent disability of 40% and awarded acompensation of Rs.40,000/- for permanent disability.15.Further, pain and suffering, the Tribunal awarded a sum ofRs.15,000/-. For nutrition, a sum of Rs.5,000/- was awarded.Further, considering that the petitioner had taken treatment atGovernment Stanley Hospital and a private hospital, continuously, fora period of five months, the Tribunal granted an award of Rs.10,000/-towards attender charges. For transport expenses, a sum ofRs.2,000/- was awarded. Further, the Tribunal on inspection ofEx.P2, the medical expenses incurred by the petitioner during theperiod of treatment at Rani Medical Hospital, the Tribunal granted anaward of Rs.7,670/- towards these expenses. But, on scrutiny ofEx.P3, the Medical Bills produced by the petitioner as expenses inthe Rani Medical Hospital, it was found that in some bills the nameof the petitioner, was not present and in some other bills, the nameof the Doctor, who had prescribed the medicines were not found.Hence, the Tribunal did not consider the full claim of Rs.11,877.02made by the petitioner and granted an award of Rs.10,000/- onlytowards these expenses. Further, considering that during the periodof treatment of five months in Hospital, as in-patient, thepetitioner would have incurred loss of earnings, the Tribunal granteda sum of Rs.15,000/-. Though, the petitioner has stated in hisevidence that he was earning Rs.200/- per day as a stonecutter andthat after the accident, he was not able to do his work, no evidencehas been advanced on the petitioner's side to prove that he wasearning Rs.200/- per day. Further, the Tribunal was of the opinionthat after medical treatment his left leg knee joint has improved inmovement. Further, the Tribunal scrutinised Ex.R1, filed by therespondent's side, wherein it has been stated that the petitioner haslost the thumb in his left leg prior to the accident, in some otheraccident. This statement was not refused by the petitioner's side.As such, the Tribunal did not accept that the disability as projectedin his left leg and disability as per Ex.P9, X'rays were caused onlyin the said accident.16.As such, the disability suffered by the petitioner in thesaid accident could not be assessed accurately to compute loss ofearnings and loss of earning capacity. However, the Tribunal on https://hcservices.ecourts.gov.in/hcservices/ considering the age, his occupation, nature of injuries, the impactof these injuries on his mental strength, and the impact that thishad on his family, granted an award of Rs.25,000/- towards mentalagony. In total, the Tribunal awarded a sum of Rs.1,29,760 anddirected the respondent to deposit the compensation with interest atthe rate of 7.5% per annum from the date of filing the petition totill the date of payment of compensation, within a period of eightweeks from its Order and that once the deposit was made, it has to beinvested in a Nationalised Bank as fixed deposit for three years.The excess Court fees paid by the petitioner if any, has to bereturned to him. The Advocate fees was fixed at as Rs.5,595/-.17.The learned counsel appearing for the appellant has argued inhis appeal that the Tribunal had erred in fixing the negligence onthe part of the appellant's driver even though the respondent, whowas riding the bicycle along with his friend had lost his balance andfell down. Further, the learned Judge had erred in holding that theappellant was negligent on the basis of contradiction in his Counterand evidence instead of the respondent proving the negligence on thepart of the appellant.18.Further, the learned Judge erred in relying on the evidenceof PW2, who assessed the disability of the petitioner as 50%, inspite of the fact that the injuries sustained by the petitioner is anon-schedule injury. Further all the award granted under variousheads are erroneous and hence the learned counsel for the appellanthas prayed for setting aside the Award and Decree Order dated25.01.2007, made in M.C.O.P.No.1467 of 2004, on the file of the MotorAccidents Claims Tribunal, II Judge, Small Causes Court), Chennai.19.The learned counsel appearing for the appellant stronglyopposed that Rs.15,000/- awarded for loss of earning and Rs.25,000/-awarded for mental agony are not pertinent.20.For the foregoing reasons and facts and circumstances of thecase, findings of the Tribunal, argument advanced by the learnedcounsel appearing for the appellant, this Court is of the view thatthe award granted by the Tribunal is on the lowerside and has to bemodified, by enhancing the compensation. For 50% disability, thisCourt awards a sum of Rs.1,00,000/-, considering that the claimant'sbones had been broken in his left knee and the subsequent deformationof the bones, removal of muscles and skin grafting in the affectedportion. For pain and suffering, the Tribunal had awarded a sum ofRs.15,000/-. This Court enhances the award under this head asRs.25,000/-. The learned counsel appearing for the appellant hadargued that the Tribunal's award of Rs.25,000/- granted for mentalagony is not pertinent. This Court, considering that the claimanthas taken treatment for the said fractures in two hospitals, as in-patient, for a considerable stretch of time is of the view that theclaimant will have continued physical distress in his future life https://hcservices.ecourts.gov.in/hcservices/ also, the use of his legs is a crucial factor in the nature of hisjob as stonecutter. As such, the amount of Rs.25,000/- awardedtowards mental agony could also be treated as one under physicaldistress suffered by the claimant. This Court confirms the awardgranted by the Tribunal under other heads as they are found to bereasonable and fair.21.In total, the claimant is entitled to get a sum ofRs.2,04,670/- as compensation, together with interest at the rate of7.5% per annum from the date of filing the petition to till the dateof payment of the compensation. The Court, therefore, grants thesaid award of Rs.2,04,670/- to the claimant as this is found to beequitable, fair and prudent too and payable by the appellant/StateTransport Corporation.22.This Court hereby directs the appellant/State TransportCorporation to pay a compensation of Rs.2,04,670/- together withinterest at the rate of 7.5% per annum from the date of filing thepetition to till the date of payment, within a period of six weeksfrom the date of receipt of this Order into the credit of theM.C.O.P.No.1467 of 2004, on the file of the Motor Accidents ClaimsTribunal, II Judge, Small Causes Court), Chennai. If, the award hasalready been deposited with the Tribunal, the same can be deductedfrom the award granted by this Court.23.As the accident happened in the year2004, it is open to therespondent/claimant to withdraw the compensation amount lying to thecredit of the M.C.O.P.No.1467 of 2004, on the file of the MotorAccidents Claims Tribunal, II Judge, Small Causes Court), Chennai, byfiling necessary payment out application.24.In the result, the above Civil Miscellaneous Appeal isdismissed and the award of the Tribunal has been modified in theabove terms and the award has been enhanced from Rs.1,29,670/- toRs.2,04,670/- together with interest at the rate of 7.5% per annum,from the date of claim petition to till the date of payment.Consequently, the connected miscellaneous petition is also closed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkrk https://hcservices.ecourts.gov.in/hcservices/ To1. The II Judge, Small Causes Court, (Motor Accidents Claims Tribunal), Chennai.2. The Section Officer, VR Section, High Court, Madras.+ 1 c.c. to Mr. A. Muthuraman, Advocate. S.R.No.67378. C.M.A.No.2177 of 2007JRG (CO)GSK 29.12.2009.