Yarab Bhasha v. Tamil Nadu State Transport Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.3090 of 2007andM.P.No.1 of 2007The Managing DirectorTamil Nadu State Transport Corporation Ltd.,Dharmapuri.. Appellant/RespondentVsYarab Bhasha .. Respondent/PetitionerAppeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 30.03.2007, made inM.C.O.P.No.1216 of 2004, on the file of the Motor Vehicles AccidentClaims Tribunal and Chief Judicial Magistrate-I, at Krishnagiri.For appellant : Mrs.B.VijayalakshmiFor respondent : Mr.V.Kumaravelanfor M/s.U.KarunakaranJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/ respondent against the Award and Decree, dated 30.03.2007,made in M.C.O.P.No.1216 of 2004, on the file of the Motor VehiclesAccident Claims Tribunal and Chief Judicial Magistrate-I, atKrishnagiri, awarding a compensation of Rs.71,264/- with 7.5%interest from the date of filing the petition till the date ofpayment of compensation.2.Aggrieved by the said Order, the appellant/respondent, TamilNadu State Transport Corporation Ltd., has filed the above appealpraying to set aside the award and decree passed by the Tribunal.3.The short facts of the case are as follows:On 03.09.2003, at about 07.00 hrs, the petitioner was riding aTVS 50 bearing registration No.TCD2810, along with one Mubarak aspillion rider and was proceeding in Marasamudiram to Krishnagiri mainroad and when they were approaching V.Mahdepalli Junction road, atabout 17.00 hrs, the TNSTC Bus bearing registration No.TN29 N1113, https://hcservices.ecourts.gov.in/hcservices/ driven by its driver towards Krishnagiri side, in a rash andnegligent manner and without observing any rules of the road, withoutsounding horn, suddenly hit the said TVS50. Due to the impact, thepetitioner sustained grievous injuries and the pillion rider wasthrown out from the TVS50. Immediately, he was taken to GovernmentHospital and after first aid was given here, was referred to NMHANSHospital, Bangalore, where he was admitted as in-patient for a dayand then referred to Victoria Hospital, Bangalore, where he wasadmitted as in-patient from 04.09.2003 to 07.09.2003. Subsequently,he had taken periodical treatment and due to severe pain over hisoccipital region, he had taken treatment from Dr.Shankar, NeuroSurgeon, Dharmapuri and also taken treatment for Dr.Ashok Kumar,Ortho Specialist, Kaveripattinam.4.Due to the accident, the petitioner sustained grievousinjuries in occipital region and due to this he often gets head ache,giddiness, vomiting sensation and has loss of memory power. Hefrequently has fever and his fact has been disfigured. He is unableto do any work as before and has sustained mental agony and permanentdisability. The petitioner has spent more than Rs.70,000/- towardsmedical expenses.5.The petitioner was hale and healthy before the accident. Atthe time of the accident, he was aged about 24 years and was doingseasonal business in fruits, vegetables, mango etc., and was earningnot less than a sum of Rs.5,000/- per month. He is the onlybreadwinner of his family.6.As such, the petitioner has claimed a compensation ofRs.4,00,000/- from the respondent, who is the owner-cum-insurer ofthe bus, with interest at the rate of 12% per annum from the date ofpetition, till the date of payment of compensation, with costs.Under Section 166 of the Motor Vehicles Act. The Veppanapalli Policehas registered a Criminal Case as Crime No.141/2003, under Sections279 and 337 I.P.C.7.The respondent in his Counter has resisted the claim statingthat the bus driver drove the bus in carefully and slowly and keepingto the left. But, the petitioner proceeded in his TVS-50 from subwaytowards main road without observing the bus coming in the main road,and as the petitioner drove his TVS50 in a high speed and came to themain road, the petitioner hit the said TVS50 with the front bus bodyand fell down. Thus the accident was only due to rash and negligentdriving of the petitioner. The respondent has denied the permanentdisability, the occupation, income of the petitioner and period oftreatment. It was also contended that the petitioner had no validlicence to drive the TVS50. Further, the claim of the petitioner isexcessive and as such, the respondent has prayed for dismissal of thepetition with costs.8.Based on the above pleadings, the Tribunal framed two issuesfor consideration namely:(i)Who is responsible for the accident? https://hcservices.ecourts.gov.in/hcservices/ (ii)Is the petitioner entitled to receivecompensation? If so, what is the quantum of thecompensation?9.On the petitioner's side, two witnesses were examined and tendocuments were marked as Exs.A1 to A10. On the respondent's side,one witness was examined. No documents were marked. 10.PW1, the petitioner, in his evidence has stated that on03.09.2003, while he was riding his TVS50 moped from Marasamudiram toKrishnagiri, the respondent's bus, driven rashly and negligently byits driver, had dashed against the petitioner's TVS50 and had causedthe accident. On scrutiny of Ex.A1-FIR, it is evident that themanner of the accident as alleged by the petitioner is in consonancewith the version in the FIR. 11.RW1, the driver of the bus, in his evidence has adduced thaton the date of the accident, he was driving the bus on the left sideof the road and nearing Dasarapalli, he was two persons coming in aTVS50, from a distance of 100 mtrs. and that they were riding theTVS50 at a high speed and in a rash manner. He had immediatelyapplied brakes and stopped the bus but the petitioner had dashed theTVS50 against the front bumper of the bus and so had caused theaccident. But, in support of this version, the driver of the bus,RW1, has not produced any documentary evidence. So, the Tribunalheld that the accident was caused by the rash and negligent drivingby the driver of the bus and held that the respondent/Tamil NaduState Transport Corporation is liable to pay compensation to thepetitioner.12.The petitioner has stated that due to the accident, he hadsustained injuries on his forehead, eyebrow, head, left shoulder, andall over his body and that he was taken for treatment initially toGovernment Hospital, Krishnagiri and subsequently taken treatment atNHMANS Hospital. After this, he has also taken treatment at VictoriaHospital. On a scrutiny of Exs.A2 and A3, which are the Certificateissued by NHMANS Hospital and Discharge Summary, the nature ofinjuries sustained by the petitioner is seen. PW2, one DoctorSankar, in his evidence has adduced that he had examined thepetitioner on 30.11.2006, and found that there was swelling in thepetitioner's brain. The petitioner had also complained of headache,giddiness, sleeplessness and loss of memory power and that he wasgetting fits. It was noticed by the Doctor on examination that theleft front portion of the petitioner's brain was black and had lostits activity and as such he certified that the petitioner hadsustained 15% disability and accordingly marked Ex.A7, the DisabilityCertificate. As such, the Tribunal on consideration of evidence ofPW1 and PW2 as well as Wound Certificate issued by the Hospital,opined that the petitioner had suffered grievous injuries and so isentitled to receive compensation. https://hcservices.ecourts.gov.in/hcservices/

13.Though, the petitioner had adduced in his evidence that hewas earning a monthly salary of Rs.5,000/- per month through sellingof Coconuts, fruits, he had not produced any documentary evidence toback this claim. As such, the Tribunal was of the view that theincome of the petitioner could be taken as Rs.2,500/- per month only.As such, his earnings per year was assessed as Rs.30,000/-. TheTribunal adopting a multiplier of 17, as per the Motor Vehicles Actrelevant to the age of the petitioner, who was 24 years at the timeof the accident. Further, the Tribunal was of the opinion that thedisability percentage assessed by the Doctor was on the higher side,took the disability sustained by the petitioner in the accident as12%. The Tribunal then computed the loss of future earnings of thepetitioner due to disability as Rs.30,000/- X 17 X 12/100 =Rs.61,200/-. For pain and suffering, the Tribunal awarded a sum ofRs.2,400/-; for nutrition, the Tribunal awarded a sum of Rs.2,400/-;for damages to clothes and articles, the Tribunal awarded a sum ofRs.200/-; for transport expenses, the Tribunal awarded a sum ofRs.1,500/- and for medical expenses, the Tribunal awarded a sum ofRs.1,964/-, as per Ex.A5. Onscrutiny of Ex.A9, the CT Scan billreceipts, the Tribunal awarded a sum of Rs.1,600/-. In total, theTribunal awarded a sum of Rs.71,264/- as compensation and directedthe respondent to deposit the said award with interest at the rate of7.5% from the date of filing the petition till the date of payment ofcompensation, into the credit of the M.C.O.P.No.1216 of 2004, on thefile of the Motor Vehicles Accident Claims Tribunal and ChiefJudicial Magistrate-I, at Krishnagiri, within a period of two months,from the date of its Order. After such deposit has been made, theaward amount has to be invested in a Nationalised Bank for a periodof three years and the petitioner was permitted to withdraw intereston such deposit once in six months. The Advocate fees was fixed asRs.3,204/-.14.The learned counsel for the appellant in his appeal hasargued that the Tribunal failed to consider that the accidentoccurred only due to the negligence of the claimant, who was drivinghis TVS50 along with another friend and dashed against the bus fromthe side road and entered on the track of the bus. The Tribunalfailed to consider that there was only 12% disability suffered by theclaimant and hence applying multiplier is not proper. The Tribunalfailed to consider that no age and income proof were produced by theclaimant. Further, the Doctor, who had examined the petitioner hadalso not given any evidence as to the loss of future earning. Assuch, the award of Rs.71,264/- passed by the Tribunal is notsustainable.15.The learned counsel for the appellant further argued that theaccident happened on 03.09.2003, but the FIR was registered on29.11.2006, after a long delay, the accident case was registered. Assuch, the claim petition is not maintainable. Further, the quantumof compensation awarded by the Tribunal is excessive. There has beennegligence only on the part of the rider of the TVS50, who had riddenhis moped in a rash and negligent manner and dashed against the bus. https://hcservices.ecourts.gov.in/hcservices/

16.The learned counsel for the respondent argued that delayedfiling of FIR is not against law. The accident was an admitted fact.The claimant also had undergone preliminary treatment at KrishnagiriGovernment Hospital and subsequent treatment at NHMANS Hospital,Bangalore and another private hospital namely Victoria Hospital. Theclaimant had sustained bone fracture injuries, which are grievous innature. The award passed by the Tribunal is meagre. As such, theCivil Miscellaneous Appeal is not maintainable.17.After considering the facts and circumstances of the case,arguments advanced by the learned counsels on eitherside, this Courtis of the view that the Doctor had issued a Disability Certificatestating that the disability sustained by the petitioner in theaccident was 15%. In his evidence as PW2, he had adduced that onexamination of claimant, he had found swelling on the claimant'sbrain and that due to this complaint, the claimant suffers fromheadache, giddiness, fits and loss of memory power and in-activity onthe left frontal portion of brain. This Court considers that thenature of injuries sustained by the claimant, especially in thebrain, which is a vitally important organ in the human body, is agrievous one and as such the disability fixed by the Tribunal as 12%and multiplier method adopted by the Tribunal on the basis of thisand the income of Rs.2,500/- per month is fair and well-considered,considering the circumstances of the case. So, the award of theTribunal, a sum of Rs.71,264/- together with interest at the rate of7.5% per annum from the date of filing the petition till the date ofpayment, is confirmed by this Court, as it is found to be fair andequitable.18.At the time of admission, this Court imposed a condition on04.12.2007 to deposit the entire compensation award amount, into thecredit of the M.C.O.P.No.1216 of 2004, on the file of the MotorVehicles Accident Claims Tribunal and Chief Judicial Magistrate-I, atKrishnagiri.19.As the accident happened in the year 2003, it is open to therespondent/claimant to withdraw the entire compensation amount withaccrued interest and costs, lying in the credit of theM.C.O.P.No.1216 of 2004, on the file of the Motor Vehicles AccidentClaims Tribunal and Chief Judicial Magistrate-I, at Krishnagiri, byfiling necessary application in accordance with law.20.In the result, the Civil Miscellaneous Appeal is dismissedand the award and decree passed by the Motor Vehicles Accident ClaimsTribunal and Chief Judicial Magistrate-I, at Krishnagiri, inM.C.O.P.No.1216 of 2004, is confirmed. Consequently, connectedmiscellaneous petition is also closed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.krk https://hcservices.ecourts.gov.in/hcservices/ To1.Motor Vehicles Accident Claims Tribunal, Chief Judicial Magistrate-I, at Krishnagiri2. The Section Officer, VR Section, High Court, Madras.1 CC To Mrs.B.Vijayalakshmi, Advocate, SR.No.70513/09 Pre-deliver Order in C.M.A.No.3090 of 2007RB (CO)SS (19.01.2010)