The Managing Director Tamil Nadu State Transport Corporation Ltd., Salem Division-2, Bharathinagar, Dharmapuri v. H.Gajendra Rao

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.09.2010CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1781 of 2006andM.P.No.1 of 2006The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Salem Division-2, Bharathinagar,Dharmapuri .. Appellant/RespondentVsH.Gajendra Rao .. Respondent/Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree dated 21.06.2005, made in M.C.O.P.No.190of 2003, on the file of the Motor Accident Claims Tribunal, Sub-Court, Krishnagiri.For appellant : Mr.P.JagadeeswaranFor respondent : Mr.P.ManiJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellants/respondent against the Award and Decree dated 21.06.2005,made in M.C.O.P.No.190 of 2003, on the file of the Motor AccidentClaims Tribunal, Sub-Court, Krishnagiri, awarding a compensation ofRs.2,23,000/- together with 9% interest per annum, from the date offiling the claim petition till the date of payment of compensation.2.Aggrieved by that award and decree, the appellant/respondenthas filed the above appeal praying to scale down the compensationamount awarded by the Tribunal.3.The short facts of the case are as follows:On 24.10.2002, at about 10.45 a.m. when the petitioner wasproceeding in his TVS50 motorcycle bearing registration No.TN29 E5396towards Adhiyamankottai from Palayampudhur in Salem-DharmapuriNational Highways Road, nearing Savulurankotai, Kamaraj Nagar, the https://hcservices.ecourts.gov.in/hcservices/ driver of the respondent Corporation bus bearing registration No.TN29N1217, drove the bus in a rash and negligent manner with great speedand dashed against the petitioner from behind. As a result, thepetitioner fell down and sustained grievous injuries on his right armand right wrist and head injury and simple injuries on his rightshoulder and other part of the body. Immediately he was taken toGovernment Head Quarters Hospital, Dharmapuri and after gettinginitial treatment he got himself discharged from the said hospital.Further, he took treatment as inpatient in the St.John's MedicalCollege Hospital, Bangalore, where he got treatment for about 9 daysand thereafter he was discharged, he took treatment in privatehospitals. In spite of prolonged treatment taken by him, thefractured bones of the right arm and right wrist did not uniteproperly. Therefore, he is unable to do hard manual work or drivethe motorcycle or write any matter fluently. Due to the head injury,his remembering capacity is also affected and suffering fromneurological problems such as headache, giddiness etc., Therefore,he is disabled permanently. He was working as a Teacher inGovernment Higher Secondary School at Palayam Pudhur. On account ofthe permanent disability sustained by him, his future earning is alsoaffected. Further, the said accident had occurred only due to therash and negligent driving of the driver of the respondentCorporation bus. So that the respondent is liable to paycompensation. As such, he claimed a compensation of Rs.3,00,000/-with interest before the Tribunal.4.The respondent in their Counter has resisted the claimpetition, which reads as follows:"It is admitted that the accident took place on24.10.2002, at about 10.45 a.m. in Dharmapuri to Salem mainroad, near Sowlooran Kottai. But, the accident did nottaken place as alleged in the petition. On 24.10.2002, thedriver of the TNSTC bus bearing registration No.TN29 N1217,belonging to the respondent, drove the same slowly,cautiously, observing all the rules of the road, bysounding horn, keeping to the extreme left side of theroad, from Salem towards Hosur. At about 10.45 hours,while thus proceeding near Sowloorankottai, the petitionerwho was driving the TVS50 motorcycle bearing registrationNo.TN29 E5396 in a rash and reckless manner. Withoutobserving any rules of the road, without sounding the horn,without seeing the both side of the main road from thebranch road, came into the middle of the road and suddenlyhit the left side rear portion corner of the bus and causedthe accident. The accident had occurred only due to therash and negligent riding and without seeing both sides ofthe main road, while passing the main road by thepetitioner. There is no fault on the part of the driver ofthe said bus. Hence, this respondent is not liable to payany compensation to the petitioner.There are two vehicles involved in the accident. In https://hcservices.ecourts.gov.in/hcservices/ fact, the accident had occurred only due to thecontributory negligence and rash and reckless riding of thepetitioner, the owner and the insurer of the TVS50motorcycle bearing registration No.TN29 E5396 are necessaryparties to these proceedings. The petitioner has notimpleaded them as parties. Hence, this petition is bad fornon joinder of necessary parties.Without prejudice to the above contents, thisrespondent does not admit the age, occupation and income ofthe petitioner. The petitioner has not produced anydocumentary evidence to prove the same. Further, theclaims made in Column No.11(a) of the petition are allimaginary and fanciful. This respondent does not admit anyone of them. The petitioner is put to strict proof of thesame. The alleged injuries sustained by the petitioner areall simple in nature, there are no grievous injuries orpermanent disablement are caused to the petitioner.Further, this respondent does not admit past and futuremedical expenses of the petitioner. The other allegationsmade in the petition are all categorically denied by thisrespondent.The accident had occurred only due to the contributorynegligence and rash and reckless riding of the petitioneron his TVS50 motorcycle bearing registration No.TN29 E5396,this respondent is not liable to pay any compensation tothe petitioner. At any rate, the compensation claimed isvery high, excessive, exorbitant and exaggerated.This respondent reserves its right to file anyadditional counter at a later stage as and when the newfacts come to light.This respondent submitted that in case of award passedas per the recent judgment of the Supreme Court, thisrespondent is liable to pay the interest only at the rateof 9% per annum."5.The learned Motor Accident Claims Tribunal framed two issuesfor the consideration namely:(i)Who is responsible for the said accident? (ii)Whether the petitioner is entitled forcompensation?, If so what is the quantum ofcompensation?6.On the petitioner's side, the petitioner was examined as PW1and one Dr.Ashok Kumar was examined as PW2 and eight documents weremarked as Exs.P1 to P8 namely Ex.P1-Xerox copy of the FIR, Ex.P2-Wound Certificate, Ex.P3-Case Summary and Discharge Summary, Ex.P4-Medical Bills, Ex.P5-Case Summary and Discharge Summary, Ex.P6-SalaryCertificate, Ex.P7-Permanent Disability Certificate, Ex.P8-X-ray. Onthe respondent's side, one Sundar Ram, the driver of the bus, wasexamined as RW1 and and no documents were marked. https://hcservices.ecourts.gov.in/hcservices/

7.PW1 had adduced evidence stating that on 24.10.2002, at about10.45 a.m. when he was proceeding in his TVS50 motorcycle bearingregistration No.TN29 E5396 towards Adhiyamankottai from Palayampudhurin Salem-Dharmapuri National Highways Road, nearing Savulurankotai,Kamaraj Nagar. At that point of time, the respondent Corporation busbearing registration No.TN29 N1217, driven by its driver, in a rashand negligent manner with great speed and dashed against him frombehind. As a result, he fell down and sustained grievous injuries onhis right arm and right wrist and head injury and simple injuries onhis right shoulder and other part of the body. Regarding the saidaccident, a criminal case was registered by the AdhiyamankottaiPolice Station, in Crime No.864/2002, under Sections 279, 337 and 338of I.P.C The FIR was marked as Ex.P1. After considering theevidence of the PW1 and Ex.P1-FIR, the Tribunal had come to theconclusion that the accident had occurred only due to the rash andnegligent driving by the driver of the respondent Corporation bus.As such, the respondent Corporation is liable to pay compensation tothe petitioner. Further, the PW1 had adduced evidence stating thatin the said accident he sustained bone fracture injuries on his righthand, right hand joint, fore head and rear side of the body.Further, he adduced evidence stating that he was working as a Teacherand he was earning a sum of Rs.16,992/- as monthly salary. After thesaid accident he is unable to do his normal work. PW2, Dr.AshokKumar, in his evidence stating that in the said accident the claimantsustained grievous bone fracture injuries on his right hand joint andon his fore head. After examining the claimant, he assessed thedisability at 50%.8.After considering the evidence of PW1 and PW2, documents,which were marked as exhibits, nature of injuries and mode oftreatment, the Tribunal awarded the compensation as follows:i.Rs.1,00,000/- under the head of grievous injuries,ii.Rs.10,000/- under the head of nutrition,iii.Rs.3,000/- under the head of damage to clothes,iv.Rs.10,000/- under the head of transport expenses,v.Rs.25,000/- under the head of medical expenses,vi.Rs.10,000/- under the head of future medicalexpenses,vii.Rs.25,000/- under the head of pain andsuffering,viii.Rs.25,000/- under the head of permanentdisability,ix.Rs.15,000/- under the head of future loss ofearning capacity,In total, the Tribunal awarded a sum of Rs.2,23,000/- ascompensation to the petitioner, together with interest at the rate of9% per annum from the date of filing the claim petition till the dateof payment of compensation. Further, the Tribunal directed therespondent to deposit the compensation amount of Rs.2,23,000/-together with interest at the rate of 9% per annum from the date offiling the claim petition till the date of payment of compensation,within a period of two months from the date of its Order. In turn, https://hcservices.ecourts.gov.in/hcservices/ the said amount to be deposited, under a fixed deposit scheme, in anationalised bank for a period of three years. After such depositbeing made, the claimant was permitted to withdraw the interest, oncein six months, accordingly ordered.9.Aggrieved by that award and decree, the appellant/respondenthas filed the above appeal praying to scale down the compensationamount awarded by the Tribunal.10.The learned counsel appearing for the appellant argued thatthe compensation amount awarded by the Tribunal is on higher side.Under the head of future medical expenses, the Tribunal awarded a sumof Rs.10,000/-, for which there is no proof from the PW2 and underthe head of pain and suffering the Tribunal awarded a sum ofRs.25,000/-, which is also on higher side. Further, the learnedcounsel argued that Tribunal awarded a sum of Rs.15,000/- under thehead of future loss of earning capacity, which is not pertinent tothe present case. Further, Rs.10,000/- under the head of nutritionand Rs.10,000/- under the head of transport expenses are also onhigher side. Therefore, he prays to scale down the compensationamount awarded by the Tribunal.11.The learned counsel appearing for the respondent argued thatthe claimant is a Teacher. After the said accident, he is unable todo his normal avocation as Teacher. During the treatment period, hewas not awarded any amount for loss of earning. Further, the learnedcounsel argued that after considering the nature of injuries and modeof treatment, the Tribunal awarded Rs.10,000/- under the head ofnutrition and Rs.10,000/- under the head of transport expenses, whichare all fair and reasonable. Further, the claimant sustained bonefracture on his right hand joint. As such, the PW2 assessed thedisability as 50%. After considering the nature of injuries and modeof treatment, the Tribunal awarded a sum of Rs.25,000/- under thehead of pain and suffering, which is also fair and reasonable. 12.Considering the facts and circumstances of the case, thearguments advanced by the learned counsel appearing on either sideand the award and decree passed by the Tribunal, this Court is of theview that the award passed by the Tribunal is on higher side.Hence, this Court decided to scale down the compensation amount asfollows:i.This Court awards a sum of Rs.1,00,000/- underthe head of loss of income for 50% disability,ii.The Tribunal awarded a sum of Rs.10,000/- underthe head of nutrition, this Court awards a sum ofRs.5,000/- under the same head,iii.The Tribunal awarded a sum of Rs.3,000/- underthe head of damage to clothes, this Courtconfirms the same as it is pertinent, https://hcservices.ecourts.gov.in/hcservices/ iv.The Tribunal awarded a sum of Rs.10,000/- underthe head of transport expenses, this Court awardsa sum of Rs.5,000/- under the same head,v.The Tribunal awarded a sum of Rs.25,000/- underthe head of medical expenses, this Court awards asum of Rs.15,000/- under the same head,vi.The Tribunal awarded a sum of Rs.25,000/- underthe head of pain and suffering, this Courtawards a sum of Rs.15,000/- under the same head,vii.Further, this Court awards a sum of Rs.7,000/-under the head of loss of earning during themedical treatment period,In total, this Court awards a sum of Rs.1,50,000/- ascompensation to the claimant. The Tribunal fixed the rate ofinterest at 9% per annum, this Court confirms the same, which is fairand equitable.13.On 27.06.2006, this Court imposed a condition on theappellant to deposit a sum of Rs.1,00,000/- with accrued interest,lying into the credit of M.C.O.P.No.190 of 2003, on the file of theMotor Accident Claims Tribunal, Sub-Court, Krishnagiri. Now, thisCourt directs the appellant to deposit the remaining compensationamount, with accrued interest thereon, within a period of six weeksfrom the date of receipt of a copy of this order, into the credit ofM.C.O.P.No.190 of 2003, on the file of the Motor Accident ClaimsTribunal, Sub-Court, Krishnagiri.14.As the accident had happened in the year 2002, this Courtpermits the claimant to withdraw the compensation amount, withaccrued interest thereon, lying in the credit of the into the creditof M.C.O.P.No.190 of 2003, on the file of the Motor Accident ClaimsTribunal, Sub-Court, Krishnagiri, after filing necessary payment outapplication in accordance with law, subject to deduction ofwithdrawals, if any.15.In the result, this Civil Miscellaneous Appeal is partlyallowed and the Award and Decree dated 21.06.2005, in M.C.O.P.No.190of 2003, passed by the Motor Accident Claims Tribunal, Sub-Court,Krishnagiri, is modified. Consequently, connected miscellaneouspetition is closed. No costs.Sd/-Asst. Registrar/ True Copy /Sub Asst. Registrarkrk https://hcservices.ecourts.gov.in/hcservices/ To1. The Subordinate Judge, Motor Accident Claims Tribunal, Krishnagiri.2. The Section Officer, VR Section, High Court, Madras.+1 cc to Mr.P.Mani, Advocate S.R.67696+1 cc to Mr.P.Jagadeeswaran, Advocate S.R.67260 C.M.A.No.1781 of 2006VD(CO)JK 25.11.10