The Managing Director Tamil Nadu State Transport Corporation Ltd., Vellore v. Aarimuthu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.2862 of 2009andM.P.No.1 of 2009The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Vellore.. Appellant/RespondentVsAarimuthu.. Respondent/PetitionerAppeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree Order dated 06.01.2009, made inM.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents ClaimsTribunal, Sub-Court, Cheyyar.For appellant : Mr.C.Prabhakaran for M/s.N.AnandJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/Respondent, against the Award and Decree Order dated06.01.2009, made in M.A.C.T.O.P.No.234 of 2005, on the file of theMotor Accidents Claims Tribunal, Sub-Court, Cheyyar, awarding acompensation of Rs.72,556/-, with 7.5% interest per annum, from thedate of filing petition to till the date of payment.2.The contentions raised by the learned counsel appearing forthe appellant are that the negligence has been fixed wrongly asagainst the appellant bus driver, that the injuries suffered by theclaimant are not of a serious nature and further claims under variousheads are excessive in nature.3.The short facts of the case are as follows:It is a case of injury. In this case, the accident happened on24.08.2004, at about 11 a.m. near Keiayyampettai Vinayagar Temple, onthe Arani to Polur Road. It is stated that the injured claimant, a https://hcservices.ecourts.gov.in/hcservices/ Milk Vendor, aged about 30 years, was about to take his parked cycle,parked near a Tea stall near Keiayyampettai Vinayagar Temple, when hewas hit by the bus, bearing registration No.TN23 N0784, belonging tothe appellant. In the said accident, the claimant sustained injurieson the back of his body, leftside of chest, head and hands. He wasinitially admitted in the Government General Hospital, Arani, on24.08.2004 and had subsequently taken treatment at CMC Hospital,Vellore. The injured claimant has claimed a compensation ofRs.5,00,000/-.4.The appellant-Transport Corporation resisted the claim in hisCounter. It is stated that when the bus driver had stopped his busat the Ayyampettai Bus stand at 11.25 a.m. to enable the passengersto alight and board the bus, a person was trying to cross the road toboard the bus. On seeing an Auto carrying goods, coming from Aranitowards Kalambur, in a zig-zag manner towards him, on the road, thesaid person, in order to avoid being hit by the Auto had dashedagainst the front Bumper on the right side of the bus andconsequently had fallen down. It is further stated that the busdriver, on humanitarian grounds had taken the injured person toHospital for treatment. As such, the appellant's bus driver is notin any way responsible for the accident. Further, all the avermentsin the claim petition regarding manner of the accident, nature of theinjuries, medical treatment, age, income and occupation of theclaimant were not admitted. It is further stated that the claim isexcessive and the interest is also on higher side.5.The Motor Accident Claims Tribunal framed two issues forconsideration namely:(i)Who is responsible for the accident?(ii)Is the respondent liable to pay compensationto the petitioner? If so, what is the quantum of compensation?6.On the petitioner's side, two witnesses were examined as PW1and PW2 and ten documents were marked as Exs.P1 to P10. On therespondent's side, one witness was examined as RW1. No documentswere marked.7.PW1, the petitioner himself was examined and he has adducedevidence that on 24.08.2004, at 11 a.m. when he was crossing theArani-Seyyar Road, near Keiayyampettai Vinayagar Temple to take hiscycle, which was parked in a Tea Stall, there, the bus bearingregistration No.TN23 N0784, coming from Aathuvambadi towards Arani,on the said road, driven negligently and with highspeed by thedriver, hit him and as such, the accident was caused only due to thenegligence of the driver. But, on the respondent's side, it has beenstated that the accident was caused by the negligence of thepetitioner. To prove this point, RW1, the conductor of the bus wasexamined. The RW1, in his evidence has stated that the bus was on https://hcservices.ecourts.gov.in/hcservices/ its way from Aathuvambadi to Arani and that on nearing Ayyampettai heflew the whistle and the bus came to a halt. At that time, thepetitioner alighted from a luggage Auto and ran across the road toboard the bus and in his hurry has dashed against the bus and felldown. But, on subsequent cross-examination, it has been stated bythe RW1, that as the bus was being taken forward, the accident hadhappened and that he had not witnessed the accident and that he hascome to know about the accident only from the others, who had toldhim that the petitioner had crossed the road and dashed against thebus. As such, the Tribunal held that negligence could not be laiddown on the petitioner for the cause of the accident based on theevidence of RW1. The Tribunal then scrutinised as Ex.P1, the FIR.In the FIR, it has been stated that the complaint has been given bythe petitioner and it was further found that the version of theaccident given here was the same as that given in the evidenceadduced by the PW1 before the Tribunal. As such, the allegation ofthe respondent, that the petitioner had alighted from an Auto andrushed across the road to board the bus, was not accepted by theTribunal. Further, the Tribunal scrutinised Ex.P2, the Motor VehicleInspector's Report, wherein it had been stated that the accident hadnot occurred due to any mechanical defects in the bus and there hadbeen no damages caused to the bus. The Tribunal has held that it isthe responsibility of the driver of the bus to see whether any personin crossing the road, especially so, when this is in front of thebus. Considering that the accident happened on a highway, which wasstraight, the driver of the bus had ample opportunity to perceive,who is crossing the road in front of it. If, the respondent hadexamined the driver of the bus, then the truth regarding the mannerof accident could have been easily ascertained. The Tribunal furtherheld that the evidence adduced by the PW1 has been corroborated bystatements contained in Ex.P1 and there has been no rebuttal of theseby way of counter evidence on the respondent's side. As such, theTribunal held that the accident has been caused only by thenegligence of the respondent's bus driver.8.The bus owner is the respondent herein. As the Tribunal hadconcluded that the accident had occurred because of the negligence ofthe bus driver, the respondent was held liable to pay compensation tothe petitioner.9.The PW1 has adduced evidence that in the accident, his hipbone has been fractured and that he had taken initial treatment atGovernment Hospital, Arani and that subsequently he had takentreatment at CMC Hospital, Vellore. The Wound Certificate issued bythe Government Hospital, Arani was marked as Ex.P3. Further, theDoctor, who has issued the Wound Certificate has certified that thepetitioner had suffered three injuries; that bones from 2 to 7, onthe leftside of his hip had been fractured and that this was agrievous injury and that the other injuries sustained by thepetitioner was simple in nature. Ex.P4 is the Wound Certificateissued by C.M.C.Hospital, Vellore. Herein, it has been stated thatthe petitioner has sustained four injuries. Further, in the https://hcservices.ecourts.gov.in/hcservices/ Discharge Summary given by the Hospital, which is marked as Ex.P5, itis found that the petitioner has been admitted on 24.08.2004 anddischarged on 30.08.2004. The list of medical bills giving expensesincurred during treatment has been marked as Ex.P6. The Tribunalgranted a sum of Rs.11,556/- to the petitioner for the expensesincurred by the petitioner for medical treatment as per Ex.P6. But,the Tribunal, on scrutiny of Ex.P7, the transport expenses (by car)incurred by the petitioner, disallowed it as no details regarding thedistance that the car had travelled were not furnished and also theperson, who had billed the above was not examined. Further, thepetitioner has marked Ex.P8, the Salary Certificate issued by theChairman of the Union Panchayat Board, Kalambur. But, the Tribunalheld that the Chairman of the Panchayat Board was not examined toprove this and he also had no authority to give such Certificate andtherefore, Ex.P8 was not taken as permissible evidence by theTribunal.10.Further, on the petitioner's side, one Dr.Balakrishnan wasexamined as PW2. He adduced in his evidence that on 27.01.2008, hehad carried out an examination of the petitioner and had found thatthe petitioner had rigidity of movement in his left fore arm and leftshoulder and that he was not able to move his left fore arm above 90Degrees and also found that the petitioner would have difficulty inthat work, which involves his left hand and also he would havedifficulty in lifting heavy weights. As such, he had certified thatthe petitioner has sustained 25% disability and marked Ex.P9-theDisability Certificate and Ex.P10-the X'ray series. The PW2 was notcross-examined by the respondent's side and so, the Tribunal heldthat the evidence of the PW2 could be accepted and accordingly did so.11.Further, it has been certified by the Hospital that thepetitioner had sustained fractures of his bones 2 to 7 on his lefthip. But, the PW2, in his evidence has not given his opinion onthese injuries. It appeared to the Tribunal that the left hand ofthe petitioner has been affected only by the fractures sustained bythe petitioner on his left hip. But, the PW2 has not adducedevidence as to whether the bones said to have been fractured havebeen set right or not. As such, the Tribunal awarded a sum ofRs.20,000/- for one grievous injury and a sum of Rs.3,000/- each forthe three simple injuries sustained by the petitioner. For pain andsuffering caused to the petitioner, the Tribunal granted a sum ofRs.5,000/-; for transport expenses, the Tribunal granted a sum ofRs.2,000/- ; for disability, the Tribunal granted a sum ofRs.25,000/- and for medical expenses, the Tribunal granted a sum ofRs.11,556/-. In total, the Tribunal granted a sum of Rs.72,556/- ascompensation to the petitioner and directed the respondent to paythis amount, with interest at the rate of 7.5% per annum, from thedate of filing the claim petition to till the date of payment of thecompensation, within a period of two months, into the credit of theM.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents ClaimsTribunal, Sub-Court, Cheyyar. The petitioner was permitted, aftersuch deposit was made, to withdraw 50% of the award amount with https://hcservices.ecourts.gov.in/hcservices/ interest immediately. The balance 50% of the award amount withinterest was to be deposited in a Nationalised Bank for a period oftwo years. The petitioner was also permitted to get refund of excessCourt fees paid by him. The respondent was directed to pay a sum ofRs.240.50 to the petitioner as costs.12.For the foregoing reasons, facts and circumstances of thecase, points raised by the learned counsel appearing for theappellant, the Court is of the view that regarding negligence, theTribunal has come to a conclusion on the basis of the PW1, claimant'sevidence and based on the FIR, registered against the driver of therespondent's bus. The Court is of the view that the findings of theTribunal on this aspect is correct.13.Regarding the quantum of compensation, the claimant hadinitially taken preliminary treatment at Government Hospital, Araniand for further treatment, he had taken treatment at CMC Hospital,Vellore for a week time. Regarding medical expenses, mode oftreatment, nature of injuries, disability, the claimant had markedEx.P9, the Disability Certificate, issued by one Dr.Balakrishnan.Exs.P2, P7 and P10 are the medical records, which discloses that theclaimant had sustained grievous injuries. The claimant sustainedfractures of the bones in the right side of the body, injuries onleft fore arm and left shoulder and as such, the claimant is unableto move his hand above 90 Degrees. For the said injuries, theTribunal awarded, a sum of Rs.20,000/- for one grievous injury, a sumof Rs.9,000/- for three simple injuries; a sum of Rs.5,000/- for painand suffering; a sum of Rs.2,000/- for transport expenses; a sum ofRs.25,000/- for disability of his physical condition and sum ofRs.11,000/- for medical expenses. In total, a sum of Rs.72,556/- wasawarded to the claimant together with interest at the rate of 7.5%per annum from the date of filing the petition to till the date ofpayment. As all the awards granted under the above mentioned headspassed in the M.A.C.T.O.P.No.234 of 2005, on the file of the MotorAccidents Claims Tribunal, Sub-Court, Cheyyar, is fair and notexcessive and as such, this Court confirms the same.14.The appellant/State Transport Corporation deposited a sum ofRs.25,000/- on 10.07.2009, into the credit of the M.A.C.T.O.P.No.234of 2005, on the file of the Motor Accidents Claims Tribunal, Cheyyar.Now, this Court directs the appellant to deposit the balancecompensation amount with accrued interest at the rate of 7.5% perannum from the date of filing the petition to till the date ofpayment, within a period of six weeks from the date of receipt of acopy of this Order, into the credit of the M.A.C.T.O.P.No.234 of2005, on the file of the Motor Accidents Claims Tribunal, Sub-Court,Cheyyar.15.As the accident happened in the year 2004, it is open to therespondent/claimant to withdraw the entire compensation amount, aftersuch deposit has been made, into the credit of the M.A.C.T.O.P.No.234of 2005, on the file of the Motor Accidents Claims Tribunal, Sub- https://hcservices.ecourts.gov.in/hcservices/ Court, Cheyyar, by filing necessary payment out application, inaccordance with law.16.In the result, the Civil Miscellaneous Appeal is dismissedand the Award and Decree Order dated 06.01.2009, made inM.A.C.T.O.P.No.234 of 2005, passed by the Motor Accidents ClaimsTribunal, Sub-Court, Cheyyar is confirmed. Consequently, connectedcivil miscellaneous petition is also closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkrkTo1. Motor Accidents Claims Tribunal, Sub-Court, Cheyyar.2. The Section Officer, VR Section, High Court, Madras. C.M.A.No.2862 of 2009KA(CO)sra 05.01.2010