The Managing Director v. Raji @ G.Mannar Mannan

IN THE HIGH COURT OF JUDICATURE OF MADRASDATED: 29 .01.2007CORAM:THE HON’BLE MR. JUSTICE S. MANIKUMARC.M.A.NO.302 OF 2001The Managing Director,Metropolitan Transport Corporation Ltd.,Ayyanavaram, Chennai-600 023.… Appellant/Respondent(Formerly known as Dr. Ambedkar Transport Corporation Ltd.,)Vs.1.Raji @ G.Mannar Mannan... Respondent/Petitioner 2.P.Patturaji3.The Branch Manager,United India Insurance Co. Ltd.,Chennai-1. R2 given up Exparte in Lower Court … Respondent/ Respondent The Civil Miscellaneous Appeal is filed under Section 173 ofthe Motor Vehicles Act against the award & Decree dated 09.05.2001made in M.C.O.P.No.5 of 2000 on the file of the Motor AccidentClaims Tribunal, (Additional District Judge), Nagapattinam.For Appellant : Mr.S.RamachandranFor 1st Respondent : Mr.M.Jayapal RajaFor 3rd Respondent: Mr.T.D.VasuJUDGMENT Aggrieved by an order dated 09.05.2001 passed in M.C.O.P.No.5of 2000 on the file of the Motor Accident Claims Tribunal,(Additional District Judge), Nagapattinam, the TransportCorporation has preferred this appeal. https://hcservices.ecourts.gov.in/hcservices/

2.Brief facts leading to the appeal are as follows: On11.08.1998 at 7.00 p.m., when the first respondent/claimant alongwith his relative by name Josi was travelling in an Auto-Rickshawbearing Registration No.TN.49-04-E-0226, owned by the secondrespondent and insured with the third respondent, the bus owned bythe appellant-Transport Corporation came from the oppositedirection in a rash and negligent manner and dashed against thesaid Auto-rickshaw. The first respondent/claimant sustained injuryin the spinal cord and fracture in both legs in the accident. Acase in Cr.NO.561 of 1998 was registered against the driver of thebus in Manali Police Station.3.The appellant-Transport Corporation admitted theaccident, but contended that the accident did not occur due to thenegligence on the part of the driver of the bus. They furthercontended that when the bus was proceeding in Thiruvotriyur highroad near Rajesh Engineering Company, an Auto-rickshaw bearingRegistration NO.TN04-E-0226 came in the opposite direction at ahigh speed and dashed against the front right side of the bus.They submitted that since the accident occurred only due to thenegligence of the driver of the Auto-rickshaw, they are not liableto pay compensation. 4.Before the Tribunal, the first respondent/claimantexamined himself as PW.1 and PW.2 is the Doctor, who examined therespondent/claimant with reference to medical records. PW.3 is theemployer of the first respondent/claimant and one Thiru.Rasel Rajwas examined as PW.4. Exs.P1 to P40 were marked on behalf of thefirst respondent/claimant. On behalf of the appellant-TransportCorporation, the driver of the bus was examined as RW.1 and roughsketch was marked as Ex.B1.5.The Tribunal, on evaluation of pleadings and evidence,found that the driver of the appellant-Transport Corporation buswas responsible for the accident and awarded compensation ofRs.9,91,768/- with interest at the rate of 12% per annum from thedate of claim till the date of realization.6.Heard, Mr.S.Ramachandran, learned counsel for theappellant, Mr.M.Jayapal Raja, learned counsel for the firstrespondent and Mr.T.D.Vasu, learned counsel for the thirdrespondent.7.Learned counsel for the appellant submitted that theTribunal has failed to appreciate the evidence of RW.1, driver ofthe bus. It erred in relying on Ex.P1, First Information Report,in the absence of examination of the complainant. He furthersubmitted that the negligence of driver of the Auto-rickshaw has https://hcservices.ecourts.gov.in/hcservices/ contributed to the accident as he came from the opposite directionat high speed and dashed on the front side of the bus.8.PW.1 claimant has deposed that on 11.08.1998 at about7.00 p.m., when he was traveling in an Auto-rickshaw, after Vaikadubridge in the Thiruvottiyur-Ponneri High Road, the bus owned by theappellant-Transport Corporation came from the opposite direction,dashed against the Auto-rickshaw. Ex.P1 is the copy of the FirstInformation Report and Ex.P5 is the charge sheet filed against thedriver of the bus. PW.1, claimant has denied specifically thesuggestion that there was negligence on the part of the Auto-rickshaw driver.9.In Ex.P1, First Information Report, the Auto-rickshawdriver/complainant stated that on 11.08.1998 about 7.00 p.m., thefirst respondent/claimant along with his relative Josi travelled inhis auto-rickshaw from Thiruvottiyur bus stand to Manali. AfterVaikadu Bridge, the appellant-Transport Corporation's bus came fromthe opposite side in a rash and negligent manner and dashed againstthe auto-rickshaw. The first respondent/claimant sustainedinjuries in the accident.10.RW.1, the driver of the bus, has deposed that he startedthe bus from Meenjur about 6.30 p.m and while he was proceedingtowards High Court, near Vaikadu Rajesh Engineering Company, thesecond respondent's autorickshaw came from the opposite directionat a high speed. He stopped the bus on seeing the speeding Auto-rickshaw, but the Auto-rickshaw dashed against the bus. He furtherdeposed that the driver of the Auto-rickshaw alone was responsiblefor the accident. During cross-examination, he deposed that beforethe place of occurrence, there was a bus stop and when he startedthe bus from the bus stop, the Auto-rickshaw came in the oppositedirection and dashed against the bus. But no trip sheet producedto prove that there was a bus stop near the place of accident.Ex.B1, Rough sketch marked by the appellant-Transport Corporation,does not indicate that there was a bus stop near the place ofaccident. Whereas, it is clear from Ex.P5, Rough plan attached toCharge sheet that while the Auto-rickshaw was passing through thebridge, the bus came from the opposite direction and dashed againstthe auto in the middle of the road. 11.The oral testimony of the respondent/claimant iscorroborated by Ex.P1, First Information Report and Ex.P5, Chargesheet filed against the driver of the bus. The Tribunal hasproperly evaluated the evidence let in by both parties and foundthat the driver of the bus alone was responsible for the accident.It is settled law that in Claims cases, the Tribunal has toconsider the preponderance of possibility with regard to the mannerof accident and strict proof of evidence is not required for https://hcservices.ecourts.gov.in/hcservices/ determining negligence. In the instant case, the finding of theTribunal as regards negligence cannot be termed as perverse anddoes not warrant interference. Therefore, it is confirmed.12.Learned counsel for the appellant submitted that thecompensation awarded by the Tribunal is excessive. He furthersubmitted that the permanent disability assessed by the Doctor at100% is on the higher side. He also submitted that the Tribunalhas erred in awarding Rs.4,50,000/- towards loss of earningcapacity, without deducting 1/3rd towards personal expenses. 13.Placing reliance on the decision of the Full Bench ofthis Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs.Ahmed Thambi and others [2006 (4) CTC 433], learned counsel for theappellant submitted that the Tribunal has awarded compensation forpermanent disability and also for loss of earning capacity.Therefore, the compensation for permanent disability is liable tobe deducted. He further submitted that the compensation ofRs.3,96,738/- for medical expenses is excessive and in particular,the amount of Rs.8,500/- granted for medical expenses as per Ex.P11is liable to be deducted.14.PW.1, claimant has deposed that in the accident, hesustained injury in the spinal cord and thigh. He was treated asinpatient in the Government Hospital, Chennai between 11.08.1998and 14.08.1998. Thereafter, he was treated as inpatient in GuestHospital, Poonamalle from 14.08.1998 to 25.08.1998. In Ex.P6,Discharge summary, the diagnosis was mentioned as "burst fracture,with total paraplegia, fracture of 9th and 10th ribs in the leftside, bilateral hemothorax right and left". He was also treated asinpatient in Miot Hospital and a surgery was performed to fixthe plates and screws to fuse the bones. He further deposed thathe underwent further treatment in some other hospitals, but noevidence was produced to substantiate the same.15.PW.2, Doctor who examined the first respondent/claimanton 21.08.2000 with reference to medical records, deposed that therespondent/claimant sustained fracture on the Thoracic bone (10thand 11th) and injury on the spinal cord. He further deposed that 9thand 10th ribs on the left side and 7 to 10 ribs on the right sidewere also fractured. PW.1, claimant has deposed that during theperiod of trial, he was treated as out-patient. He has nosensation below the chest and he is not able to stand or walk, notable to do any work without the assistance of others. Both hislegs have shrunk and that there is reduction of right leg to anextent of 5 cms and he is not able to move without a wheel chair.He could not sit for a long time and requires attendants even to goto the Toilet. He has further deposed that he is unable to pass https://hcservices.ecourts.gov.in/hcservices/ urine in the normal way and using tube to pass. His marriageprospects is affected.16.P.W.2, Doctor has deposed that there is mal-union offractured ribs and due to the injury in the spinal cord, there isno sensation below the hip and both the legs were not in use. Hefurther deposed that the first respondent/claimant is having onlytouching sensation below hip and he needs assistance for his day-to-day work. Exs.A35 and A36 are X-ray series. Exs.P32 to P34,C.T. Scan reports were produced by the respondent/claimant. Infine, he deposed that there is no possibility of the firstrespondent/claimant to stand or walk in future. He assessed thedisability at 100% and issued Ex.P35, Disability Certificate.17.The first respondent/claimant claimed that he was agedabout 21 years and working as a Technical Manager in a PrivateCompany, earning Rs.8,000/- per month. PW.3, employer of the firstrespondent/claimant, produced Ex.P37, Salary certificate tosubstantiate the claim. Further, he also produced vouchers for themonths from May 1998 to August 1998. The Tribunal, on the basis ofthe Salary certificate and oral evidence of PW.2, rightly concludedthat the first respondent/claimant has become permanently disabledand has lost his earning capacity. 18.There is no dispute with regard to the age of the firstrespondent/claimant. In so far as, monthly income of the firstrespondent/claimant is concerned, PW.3 has produced vouchers forthe months from May'1998 to August' 1998 and Ex.P37, Salarycertificate. Nowhere, it is mentioned in Exs.P37 to P40, that thefirst respondent/claimant was working as a Technical Manager. TheTribunal rejected those documents filed in support of his claimregarding income. However, accepted Ex.P33, National TradeCertificate issued by Ramajayathammal Memorial ITI, Mannargudi tothe first respondent/claimant for the Trade "Mechanic Diesel" inthe year 1991. The Tribunal, considering the Trade Certificateissued in the year 1991, determined the monthly income of the firstrespondent/claimant at Rs.2,500/-. Following the decisions inGeneral Manager, Kerala State Transport Corporation v. SoosammaThomas [1994 ACJ 1] and U.P.State Transport Corporation and othersv. Trilok Chandra and others [1996 ACJ 831], the Tribunal rightlyapplied the multiplier of '15' multiplier and awarded compensationof Rs.4,50,000/- for loss of earning capacity. The application of'15' as multiplier has not been questioned.19.The Supreme Court in a catena of decisions has held thatthe Second Schedule to Section 163-A of the Motor Vehicles Act,1988 can be taken as guidance and not mere ready reckoner forcomputing compensation. The schedule provided under the Act is a https://hcservices.ecourts.gov.in/hcservices/ ready reckoner for granting compensation to the third parties orlegal representatives of the deceased. In so far as computation ofcompensation for non-fatal cases is concerned, apart from loss offuture income, the injured is entitled to other pecuniary and non-pecuniary loss.20.Clause 5 of the Schedule deals with the compensation inrespect of disability in non-fatal accident. Followingcompensation shall be payable in case of disability to the victimin non-fatal accidents: "loss of income, if any, for the actual period of disablement,not exceeding 52 weeks. Plus either of the following (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have beenpayable in the case of permanent total disablement as specified under item (a) above."21.Though the Second Schedule to Section 163-A does notcontemplate 1/3 deduction towards personal expenses, whilecomputing compensation for loss of earning capacity. The SupremeCourt in New India Assurance Co. Ltd., vs. Charlie and another,reported in 2005 (10) SCC 720, held that, the principle applicableto victim of fatal accident to be applied to a case where there is100% disability due to injuries. The Apex Court held that that thegeneral principle is that the actual pecuniary loss can beascertained only by balancing on the one hand, the loss to theclaimant of the future pecuniary benefit and on the other, anypecuniary advantage which from whatever source comes to them byreason of death, that is balance of loss and gain to a dependentby the death, must be asserted. Therefore, the Supreme Courtdeducted 1/3 towards personal expenses, while awarding compensationtowards loss of future income. The same method has also beenapplied by the Division Bench of this Court in United IndiaInsurance Ltd. vs. Veluchamy and another [2005 (1) CTC 38].Therefore, the same method has to be applied for the purpose ofcomputing compensation towards loss of future income. In theinstant case, the Tribunal has calculated the loss of future incomeas Rs.4,50,000/-, without deducting 1/3rd towards his personalexpenses. Applying the above principle laid down by the SupremeCourt as well as this Court, the compensation works toRs.3,00,000/- for loss of earning capacity. https://hcservices.ecourts.gov.in/hcservices/

21.The Full Bench of this Court in Cholan RoadwaysCorporation Ltd., Kumbakonnam vs. Ahmed Thambi and others [2006 (4)CTC 433], has held that when the loss of earning capacity iscompensated, the permanent disability need not be itemizedseparately. In the instant case, the first respondent/claimant iscompensated for the loss of earning capacity, apart from thedisability compensation. Following the Full Bench judgment, thedisability compensation of Rs.1 lakh is liable to be deducted fromthe total award. 22.There is categorical medical evidence that the firstrespondent/claimant has lost his amenities and that he is dependenton others. It is also evident that he has lost his marriageprospects completely and he has to be suitably compensated. Therespondent/claimant may have to undergo the mental agony,frustration, loss of happiness, etc., for the rest of his life.Considering all these factors, this Court deems it fit to awardcompensation of Rs.25,000/- for loss of amenities, Rs.15,000/- forloss of marriage prospects and Rs.20,000/- for mental agony,frustration, loss of happiness etc.23.Though a claim of Rs.28,000/- has been made forattendant's charges, the Tribunal has not awarded any compensationunder this head. The first respondent/claimant deposed that he isnot able to pass urine in the normal way and he is passing throughtube. PW.2 Doctor has deposed that there is no possibility for thefirst respondent/claimant to stand or walk in future. He needsassistance to do his day-to-day work and cannot move without wheelchair. He further deposed that there is no chance for the firstrespondent/claimant to get cured completely. Considering the abovecircumstances, certainly the first respondent/claimant requires theassistance from others. Therefore, it is appropriate to awardRs.20,000/- towards attendant's charges.24.It is evident from Ex.P11, medical bill that there is acalculation mistake. The expenses incurred is only Rs.850/-,whereas the Tribunal has awarded Rs.8,500/-. Therefore,Rs.7,650/- is liable to be deducted from the compensation awardedtowards medical expenses and the same is deducted. The award inrespect of other heads remain unaltered. The accident had occurredin the year 1998. Considering the nature of injuries, disabilitiessuffered by the first respondent/claimant, the interest rateremains unaltered. 25.In view of the above, the first respondent/claimant wouldbe entitled to compensation of Rs.8,14,118/- with interest at therate of 12% per annum from the date of claim till the date ofrealization. The apportionment of the award amount is given below: https://hcservices.ecourts.gov.in/hcservices/ Loss of earning capacity: Rs. 3,00,000/-Loss of amenities: Rs. 25,000/-Loss of marital prospects: Rs. 15,000/-Mental agony: Rs. 20,000/-Attendant's charge: Rs. 20,000/-Pain and suffering: Rs. 25,000/-Medical expenses: Rs. 3,89,118/-Transportation: Rs. 10,000/-Extra nourishment: Rs. 10,000/------------------- Rs.8,14,118/------------------- The Tribunal is directed to refund the balance amount withproportionate accrued interest to the appellant TransportCorporation within two months from the date of receipt of a copy ofthis order. In the result, the Civil Miscellaneous Appeal is partlyallowed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.skmTo1. The Motor Accident Claims Tribunal, (Additional District Judge), Nagapattinam. (With records if any)2. The Record keeper,VR Section,High Court, Madras.1 cc to Mr.V.s. Ramesh Kumar, Advocate, sr. 60691 cc to Mr.s. Ramachandran, Advocate, sr. 5197C.M.A.NO.302 OF 2001JE (CO)kk 21/2