The Branch Manager Tamil Nadu State Transport Corporation Ltd., Kumbakonam Division-IV Thirumaiyam Road, Pudukottai v. C.Pushpa

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.382 of 2008The Branch ManagerTamil Nadu State Transport Corporation Ltd.,Kumbakonam Division-IVThirumaiyam Road,Pudukottai. ..Appellant/RespondentVsC.Pushpa ..Respondent/PetitionerAppeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 09.08.2007, made inM.C.O.P.No.333 of 2006, on the file of the Motor Vehicles AccidentClaims Tribunal and Small Causes Court, at Chennai.For Appellant : Mrs.B.VijayalakshmiFor Respondent : Mr.Francis C.D. Cruz for Mr.P.B.RamanujamJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/respondent against the Award and Decree, dated 09.08.2007,made in M.C.O.P.No.333 of 2006, on the file of the Motor VehiclesAccident Claims Tribunal and Small Causes Court, at Chennai, awardinga compensation of Rs.11,84,296/- with 7.5% interest from the date offiling the petition till the date of payment of the compensation.2.Aggrieved by the said Order, the appellant/respondent, TheBranch Manager, Tamil Nadu State Transport Corporation Ltd.,Pudukottai, has filed the above appeal to set aside the award anddecree.3.The short facts of the case are as follows:The petitioner was aged about 45 years and was working as aCommercial Assistant in Systems Engineering and was earning a sum ofRs.3,000/- per month. On 16.09.2005, when the petitioner was https://hcservices.ecourts.gov.in/hcservices/ travelling as a passenger in the respondent Transport Corporation busbearing registration No.TN55 N0242, from Thirumayam to Chennai fromsouth to north direction and at about 5.30 a.m., when the bus wasnearing Kowlambakkam Village road junction, on GST Road, the busdriver drove the bus in a rash and negligent manner and dashedagainst the lorry bearing registration No.TNR 4186, which was alsoproceeding in front of the bus in the same direction, resulting thegrievous injuries to the passengers including the petitioner. Thepetitioner sustained crush injury of both lower climbs, fracture ofboth bones in left leg, inferior public rami fracture withdislocation of pelvis and compound grade-III comminuted both boneright leg. Immediately, after the accident, the petitioner wasadmitted in Government Hospital, Chengelpet, and later shifted toVijaya Health Centre, Chennai and discharged on 31.10.2005.4.Regarding the accident, a case in FIR No.359/2005 wasregistered with Padalam Police Station and investigated. Theaccident occurred solely due to the rash and negligent driving of therespondent Transport Corporation bus driver. Due to the injuriessustained by the petitioner, the petitioner has suffered loss ofincome, loss of earning power, medical expenses, transport expenses,extra-nourishment charges, pain and suffering, disability etc., Thepetitioner has claimed a sum of Rs.22,38,844/- as compensation forthe injuries sustained by her under Section 166 of Motor VehiclesAct, 1988.5.The respondent, in his Counter resisted the claim and hasdenied the manner of accident as alleged in the claim. He has statedthat on 16.09.2005, the respondent's bus was plying from Pudukottaito Chennai. When the bus was proceeding along GST road near Padalamat 5.30 a.m. along the right track, the lorry bearing registrationNo.TNR 4186, was proceeding along the left side track. At that time,the lorry came to the right side track in order to over take avehicle proceeding ahead of it. As the lorry could not overtake thevehicle, the lorry driver abruptly braked and stopped the vehiclewithout caring for other vehicles proceeding on the road. On seeingit, the respondent driver stopped the bus but in spite of it, the bushad dashed against the lorry and so the impugned accident happened.Thus, the driver of the lorry bearing registration No.TNR 4186 wassolely responsible for the accident. The claim petition is also badfor non-joinder of the necessary parties. Further, the amountclaimed under various heads are excessive and so the respondent hasprayed for dismissal of the petition.6.The Motor Accident Claims Tribunal framed two issues for theconsideration namely:(i)Whether the accident occurred due to therash and negligent driving of the driver of thebus bearing registration No.TN55 N0242 or the https://hcservices.ecourts.gov.in/hcservices/ contributory negligence on the part of thedriver of the lorry bearing registration No.TNR4186?(ii)Whether the petitioner is entitled to claimcompensation from the respondent? If so, what isthe reasonable amount that can be awarded ascompensation?7.The claimant, C.Pushpa, who travelled as a passenger in theGovernment Transport bus, was examined as PW1. In her chief-examination, she adduced that she was seated on the second seatadjacent to the window; that the bus driver was driving the vehicleat a high speed, and had dashed against the lorry, which was goingahead of the bus. But, in her cross-examination, she admitted thatonly after hearing a sound, she realised that the accident hadoccurred. She had further stated that she came to know from theco-passengers that the fault was on the bus driver. In support ofher claim, she had examined three witnesses as PW1 to PW3 includingherself and marked 30 documents as Exs.P1 to P30. The Head Constableattached to the Padalam Police Station was examined as PW3 andthrough him the Charge Sheet laid against the bus driver has beenmarked as Ex.P28 and the Alteration Report as Ex.P29. Ex.P1 is theFIR, registered on the complaint given by one Amalasavier, thebrother of one of the passenger, who succumbed to the injuries in theaccident. It is averred in the FIR that when the bus was proceedingnear Kowlambakkam, it had dashed against the lorry, which was goingahead of it and according to the said averment, the entire negligencewas on the bus driver. Ex.P2 is the Rough Sketch, where the accidentis shown on the left side of the GST Road ie. on the western end ofthe said road. As per the Charge Sheet, Ex.P28, the lorry driver hasbeen found to be at fault for having driven the vehicle in anegligent manner and dashed against the bus, which was going ahead ofit in the right direction.8.The bus driver has been examined as RW1 and he has stated inhis evidence that at the place of accident, he was going on the righttrack and the lorry was going ahead of the bus on the left track.The lorry driver without giving any signal, suddenly came to theright track and on seeing it, even after applying brake, the busdriver could not stop the bus and it had dashed against the lorry.According to him, the left front portion of the bus hit against theright side of the lorry. His evidence clearly indicated that theaccident occurred on the right track of the road, whereas Ex.P2 isotherwise. In Ex.P2, Site Plan, the place of the accident is shownon the left track, which is in consonance with the evidence of theclaimant that the bus, while overtaking the lorry, dashed against thelorry on its right side with its left front portion. Though the PW1has not seen the accident, the evidence placed on record clearlyestablished that it is the negligence of the bus driver, which caused https://hcservices.ecourts.gov.in/hcservices/ the accident. It is pertinent to point that the claimant has provedthe accident though she has not deposed how it happened to establishthe negligence on the part of the bus driver.9.This hardship is sought to be avoided by applying theprinciple of res ipsa loquitor in this case. There is a duty cast onthe bus driver to exercise to reasonable care to avoid such an act,which can be reasonable foreseen as likely to happen. Assuming thatthe lorry driver had come in the path of the bus suddenly without anysignal, even then if the bus, which was going on the back had leftsufficient space between the bus and the lorry, the bus would nothave dashed against the lorry, causing the grave accident. But, inthis case, the manner in which the accident had taken place clearlyestablished that the bus driver was driving the vehicle at a highspeed and that is why he was unable to control the vehicle. Further,it is seen that since, the bus was keeping too close to the rear sideof the lorry ahead, it had failed to pull up in time and had hitbehind the lorry. Hence, considering the above aspects, the Tribunalcame to a conclusion that the entire negligence was on the part ofthe bus driver and that no contributory negligence could beattributed to the lorry driver.10.The petitioner has sustained severe injuries on both herlimbs and according to her, she was taken away from the bus onlyafter removing the front seat. Immediately after the accident, shewas taken to Government Hospital, Chingelpet and later shifted toVijaya Health Centre on the same day. To prove that she was apassenger in the said bus, copy of reservation ticket is filed asEx.P3. While she was taken to Vijaya Health Centre, Chennai, itcrush injury on her right leg exposing fractured bones and muscleswith skin loss, lacerated wound on the left leg exposing muscles andbones with fracture and hip injury. In Ex.P5, Discharge Summary, thesame injuries are noted with another injury of interior dislocationof pelvis. She was admitted on 16.09.2005 and discharged on31.10.2005. Four surgeries have been performed on different datesie. 16.09.2005, 27.09.2005, 10.10.2005 and 27.10.2005. Since herleft leg had grade III with compound communited segmental fracture,her left leg was amputated above the knee. External fixator wasfixed for the right leg under the wound depridement and transpositionflap with SSG and on 27.10.2005 pelvis external fixator had beenremoved. Again on 19.12.2005, she had been admitted in Vijaya HealthCentre and was discharged on 26.12.2005. Another, surgery wasperformed on her on 20.12.2005 to remove the external fixator andilizarov fixator from right leg. Thereafter, again on 20.02.2006,she had been admitted in the same hospital and was discharged on23.02.2006. On 22.02.2006, proximal corticotomy was done to her.Again in October 2006, she is said to have been admitted and rod wasremoved and artificial she was fixed to her on her right leg. It isalso seen that an artificial limb has been fixed for her left leg. https://hcservices.ecourts.gov.in/hcservices/

11.While, she was examined as PW1, she has stated that she isunable to walk and she should be lifted by two persons in order tostand even for few minutes. She has stated that she finds itdifficult to attend to her nature's call and hence she is using onlybedpan till date. The claimant was brought to the Court only in thewheel chair.12.Before accident, she is claimed to have worked as a Clerk inSystems Engineering and was drawing a sum of Rs.3,000/- per month.To prove her employment and salary, she had marked the letter givenby her employer as Ex.P25. The Chief Executive of the said companyhas given a letter stating that the claimant was working asCommercial Assistant and was drawing the consolidated salary ofRs.3,000/- per month till the date of accident. To show hereducational qualification, she has filed the Degree Certificate asEx.P24.13.Dr.Saichandran, who was examined as PW2 and who is anOrthopaedic Surgeon, has examined her and assessed her disability forthe amputation of left leg as 70% and for the disability caused forright leg, as the bones were not united, at 30%. Further, as therewas fracture in the pelvis and it had remained ununited, she isunable to stand or walk. Hence, for the disability caused due to thefracture of pelvis, he had assessed the disability of 25%. In total,she had given the disability sustained by the petitioner as 125%.That apart, Government Institute of Rehabilitation Medicine,K.K.Nagar, has issued the Disability Certificate marked as Ex.P23,stating that the petitioner has sustained 70% permanent physicalimpairment. The Doctor further stated that the petitioner hassuffered permanent and total disablement for her entire period oflife. She will not be able to walk or do any work, much less thehousehold work. According to the claimant, her husband, who isworking in a private company is rendering all services to her andalso for the household. She feels ashamed to go out as a lame personand lamented before this Court about her pitiable condition. She hasmarked Exs.P8 to P22, the Medical Bills, totalling Rs.5,39,295.80 asthe expenses incurred by her for medical treatment. The Tribunal, onscrutiny of bills and also considering that the respondent had notdisputed this, awarded a compensation of Rs.5,39,296/- under the headof medical expenses to the petitioner.14.The Tribunal, then on considering the salary of petitioner asRs.3,000/- per month and deducting a sum of Rs.1,000/- for personalexpenses took the monthly contribution by her to her family asRs.2,000/-. Her annual contribution was taken as Rs.24,000/- andtaking the age of the petitioner as between 40 to 45 years, as nodefinite material has been filed to prove her age, adopted amultiplier of 13 and calculated her loss of income during treatmentand loss of future earning power as Rs.3,25,000/-. She has statedbefore this Court that she is not able to have sexual relationship https://hcservices.ecourts.gov.in/hcservices/ with her husband. Considering the nature of her injuries and itsconsequences, definitely it will be difficult for her to have sexualrelationship with her husband. Hence, for loss of marital pleasure,the Tribunal awarded a sum of Rs.50,000/- to the petitioner.15.She has to depend on others for each and every work. She hasstated that she is not able to attend her calls of nature, unable tostand, walk and unable to do normal household works and hence theTribunal awarded her Rs.1,00,000/- towards loss of amenities. As shehas undergone more than six surgeries and as her left leg had beenamputated, the Tribunal granted her Rs.1,00,000/- towards pain andsuffering. Further, the Tribunal granted a sum of Rs.10,000/-towards transport expenses and Rs.10,000/- towards extra-nourishment.16.Further, the Tribunal on taking into account, that becauseboth her limbs had been disabled, she would not be able to do anywork including tending of her son, without outside support and takinginto account that even for household work and kitchen work, she hadto employ persons to do the work and considering the mental agonysuffered by her, granted an award of Rs.50,000/- towards mental agonyand hardship. In total, the Tribunal granted a sum of Rs.11,84,296/-as compensation to the petitioner and directed the respondent to payand deposit above said award amount with interest at the rate of 7.5%per annum from the date of filing of petition till the date ofdeposit, into the credit of the M.C.O.P.No.333 of 2006, on the fileof the Motor Vehicles Accident Claims Tribunal and Small CausesCourt, at Chennai, within a period of two months from the date of itsOrder. Further, the petitioner was permitted to withdraw 50% of theaward amount, after appeal time, and the remaining amount was to bedeposited in anyone of the Nationalised Banks for a period of threeyears as fixed deposit and the petitioner was permitted to receiveinterest on such deposit directly from the Bank. Court fee for theaward amount was fixed at Rs.11,215.45. Excess Court fee was to berefunded to the petitioner after appeal time. Advocate fees wasfixed at Rs.18,843/-.17.The learned counsel for the appellant has argued in hisappeal that the claimant herself has been awarded a sum ofRs.3,25,000/- for 70% disability, by the Tribunal, by adopting amultiplier of 13. Further, the award of Rs.1,00,000/- for pain andsuffering and an award of Rs.50,000/- for mental agony granted by theTribunal is erroneous as these come under a single head and so agrant under two heads is not proper. Further, it has been arguedthat as the owner and insurer of lorry were not impleaded, it rendersthe claim petition not maintainable. As such, the respondent hasargued that an award of Rs.11,84,296/- granted by the Tribunal is notsustainable and hence should be set aside. https://hcservices.ecourts.gov.in/hcservices/

18.The learned counsel for the respondent argued that theclaimant underwent four surgeries in the private hospital and her legwas also amputated and that she is walking with the support ofartificial limb. Her physical appearance has been disfigured and dueto this condition she is in a pitiable state. Further, the learnedcounsel for the respondent pointed out that the medical bills aloneamounted to about Rs.5,40,000/-. Due to this accident, for the restof her lift-time, she has been deprived of enjoyment of life. She isnot even able to attend to nature's call, without taking physicalhelp of others. The award passed by the Tribunal is legally, a wellconsidered one and fair.19.For the foregoing reasons, facts and circumstances of thecase, arguments advanced by the learned counsels on either side, thisCourt is of the view that as per Exs.P8 to P22, the medical bills,wherein the attenders salary, ambulance charges, cost of artificiallimbs, doctor's fees, dressing charges have all been mentioned, it isevident that the medical expenses claimed is fair and reasonable.For assessment of the rest of the claim, the Tribunal had taken hernet income as Rs.24,000/- per year and age of 44 and adopted amultiplier of 13 to assess compensation and awarded a sum ofRs.3,25,000/-. This Court, at this juncture, points out that theTribunal had originally fixed her income as Rs.3,000/- in therelevant period of accident ie.2005. But, the Tribunal haderroneously deducted 1/3rd share as personal expenses, which is notapplicable in the present case as in the said accident, thepetitioner had sustained permanent disability. Normally, suchdeductions are done only in fatal cases. Considering the aboveaspect, the loss of income of Rs.3,25,000/- arrived at by theTribunal, is reasonable.20.The Tribunal awarded a sum of Rs.50,000/- for loss of maritalpleasure and the reason assigned by the Tribunal is that she is notable to have sexual relationship with her husband. This Courttotally agrees on this count. In the human life cycle, sexualrelationship occurs only in the mid-portion of one's life and as suchits period is limited. The claimant is middle aged and so thequantum of compensation under this head is valid and pertinent.21.Considering the nature of injuries and her physicalcondition, the Tribunal awarded Rs.1,00,000/- towards loss ofamenities. As the injury is grievous and permanent in nature, theloss of amenities will prevail throughout her life and hence theaward of Rs.1,00,000 granted for loss of amenities, which isinclusive of attender charges, is appropriate and hence this Courtconfirms the same.22.Considering the period of treatment and repeated surgeriesdone on her leg on various occasions, due to the accident, it isobvious that the petitioner would have undergone pain and suffering https://hcservices.ecourts.gov.in/hcservices/ and as such the Court is not warranted to interfere in the awardgranted under the head of pain and suffering. Further, the Tribunalhad awarded Rs.10,000/- for nutrition and Rs.10,000/- for transport.As this is found reasonable, considering the period of treatment,this Court confirms the award under this head.23.Though an award of Rs.50,000/- has been granted forcompensation towards mental agony and pitiable condition, this Courtis of the view that an award should not be granted under this headbut that the same should only be treated as an award for futureattender charges. Considering the claimants evidence that she isusing only bed pan till date. So, this Court considers that thepetitioner has to necessarily take help of attendants for herrequirements.24.As such the quantum of compensation awarded by the Tribunalie. a sum of Rs.11,84,296/- together with interest at the rate of7.5% per annum from the date of filing the petition till the date ofpayment, in M.C.O.P.No.333 of 2006, on the file of the Motor VehiclesAccident Claims Tribunal and Small Causes Court, at Chennai, is fairand equitable and so this Court confirms the award.25.The learned counsel for the appellant has raised a point thatnegligence cannot be attributed as against the driver of the bus.This Court on perusal of the evidence on record, ie. FIR as well asevidence of claimant, this Court is of the view that the finding ofthe Tribunal on negligence aspect is correct and accordingly confirmsit.26.This Court directed the appellant/State Transport Corporationon 07.02.2008 to deposit a sum of Rs.9,00,000/- only into the creditof the M.C.O.P.No.333 of 2006, on the file of the Motor VehiclesAccident Claims Tribunal and Small Causes Court, at Chennai. Nowthis Court directs the appellant/Tamil Nadu State TransportCorporation to deposit the entire compensation amount together withinterest at the rate of 7.5% per annum from the date of filing thepetition till the date of payment, awarded by the Motor VehiclesAccident Claims Tribunal and Small Causes Court, at Chennai, inM.C.O.P.No.333 of 2006, after deducting earlier deposits made as perthis Hon'ble Court's Order dated 07.02.2008. It is open to theclaimant to withdraw the entire compensation amount, lying in thecredit of the M.C.O.P.No.333 of 2006, on the file of the MotorVehicles Accident Claims Tribunal and Small Causes Court, at Chennai,after filing necessary payment out application, in accordance withlaw. https://hcservices.ecourts.gov.in/hcservices/

27.In the result, the Civil Miscellaneous Appeal is dismissedand the award passed by the Motor Vehicles Accident Claims Tribunaland Small Causes Court, at Chennai, in M.C.O.P.No.333 of 2006, isconfirmed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkrkTo1. Motor Vehicles Accident Claims Tribunal, Small Causes Court, at Chennai.2. The Section Officer, VR Section, High Court, Madras.+ 1 c.c. to Mrs. B. Vijayalakshmi, Advocate. S.R.No.70543. C.M.A.No.382 of 2008BVN (CO)GSK 11.01.2010.