The Managing DirectorTamilNadu State Transport Corporation Ltd.,Villupuram Division IVillupuram-605 602 v. Edwin Lionel & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.12.2009CORAMTHE HONOURABLE MR. JUSTICE V. PERIYAKARUPPIAHC.M.A.Nos.2911 and 2912 of 2004The Managing DirectorTamilNadu State Transport Corporation Ltd.,Villupuram Division IVillupuram-605 602. ..Appellant in both the appealsvs.1.Edwin Lionel ..Respondent in C.M.A.No.2911/20042.Angel @ Angeline Gnanamani ..Respondent in C.M.A.No.2912/2004Prayer in C.M.A.2911/2004:Civil Miscellaneous Appeal filed underSection 173 of Motor Vehicles Act, 1988, against the Award dated27.02.2004 made in M.C.O.P.No.168 of 2002 on the file of MotorAccidents Claim Tribunal (Sub Court), Mathuranthagam, ChengalpattuDistrict.Prayer in C.M.A.2912/2004:Civil Miscellaneous Appeal filed underSection 173 of Motor Vehicles Act, 1988, against the Award dated27.02.2004 made in M.C.O.P.No.169 of 2002 on the file of MotorAccidents Claim Tribunal (Sub Court), Mathuranthagam, ChengalpattuDistrict.For Appellant : Mr.S.Sankaran for M/s. Rajnish Pathiyil For Respondents : Mr.Nagu ShahCOMMON JUDGMENT These two appeals are directed against the common judgmentand award passed by the lower court made in M.C.O.P.Nos.168 and169/2002 respectively dated 27.02.2004. The appellants in both theappeals are the respondent before the lower court. The claimantsbefore the lower court are the respondents in these appeals. https://hcservices.ecourts.gov.in/hcservices/

2. C.M.A.No.2911/2004: The case of the claimant before the lowercourt in brief would be as follows:(a) On 26.06.1998, at about 04.45 p.m while the injured EdwinLionel was returning with his daughter Anjaline Gnanamani in hismotor cycle bearing No. TN-02-2994 by following all the rules oftraffic strictly on the extreme left side of the G.S.T. Road fromnorth to south at the place of occurrence, the respondent's busdriver driving the bus TN.32-N-1113 in a rash and negligent mannerwithout following rules of traffic dashed against the motor cycle andthe petitioner from the behind. Consequently, the injured and hisdaughter were thrown out from the motor cycle and fell down and thereby caused grievous injuries and other injuries to the petitioner andhis daughter. The accident took place solely due to the rash andnegligent driving of the bus by the driver.(b) The injured petitioner and his daughter were immediatelytaken to Mathuranthagam Government hospital and thereafter, they weretaken to Tamil Nadu Hospital, Cheran Nagar, Chennai 601 302, forfurther treatment.(c) The petitioner is an advocate practicing in Civil andCriminal cases in Mathuranthagam and Chengalpattu courts. He ispracticing for the past 20 years. The petitioner is the sole breadwinner of his family. The petitioner is not able to attend the courtfor nearly six months due to the accident. The petitioner is also putto great pain and mental agony. The petitioner is permanentlydisabled to do his usual work due to fractures caused to him in theaccident. The petitioner claims a sum of Rs.2,00,000/- for thedamages to which the respondent is liable to pay the same.3. The contentions raised by the respondent in his counterfiled before the lower court would be as follows:(a) The respondent submits that age, occupation, monthlyincome, the nature of the alleged injuries sustained by thepetitioner, the period of treatment, medical expenditures, and thedisability are not admitted by the respondent and the petitioner isput to strict proof of the same.(b) The respondent submits that the petitioner has notsustained any disability at all and therefore the particulars ofclaim mentioned by the petitioner is made without any basis. Therespondent further submits that the petitioner had no valid drivinglicense to drive the motor cycle. The petitioner is put to strictproof of it. The manner of the accident alleged by the petitioner isnot correct. (c) On 26.06.1998, the respondent's bus bearing RegistrationNo. TN-32-N-1113, on the route No.122, was on its trip from Chennai https://hcservices.ecourts.gov.in/hcservices/ to Tiruvannamalai. The driver started its trip from Chennai at about14.50 hours. At about 17.40 hrs when the bus was proceeding nearMathuranthagam veterinary hospital, the respondent's bus drivernoticed a lorry was parked on the left side of the road, and next toit a cyclist was proceeding in the same direction. At that time, thepetitioner motor cyclist was also proceeding towards south in a motorcycle with pillion rider next to the cyclist. On seeing this, therespondent's bus driver slowed down the bus, sounded horn and overtook the motor cycle. While so, the petitioner who was driving themotor cycle negligently, lost his balance, collided with the cyclist,and fell down.(d) The respondent's driver was in no way responsible for theaccident. The accident took place only due to the rash and negligentdriving of the petitioner. Therefore, the petitioner cannot claim anycompensation for his negligent act. The respondent is an unnecessaryparty to the proceedings. Hence the petition has to be dismissed 'inlimini'. In any event the compensation claimed is highly excessive.The respondent prays that this petition may be dismissed with costs.4. C.M.A.No.2912/2004: The case of the claimant before thelower court in brief would be as follows:(a) On 26.06.1998, at about 04.45 p.m while the injuredpetitioner Angel was traveling with her father Edwin Lionel, in hismotor cycle bearing No. TN-02-2994 which was driven by her father onthe extreme left side of the G.S.T. Road from North to South at theplace of occurrence the respondent's bus driver driven the busTN-32-N-1113 in a rash and negligent manner without following rulesof traffic dashed against the motor cycle and the petitioner from thebehind. Consequently the injured petitioner and his father werethrown out from the motor cycle and fell down and there by causedgrievous injuries and other injuries to them.(b) The injured petitioner and her father were immediatelytaken to Mathuranthagam Government hospital and there after they weretaken to Tamil Nadu Hospital, Cheran Nagar, Chennai 601 302, forfurther treatment.(c) The petitioner submit that minor Angel is a 8th standardstudent at the time of accident. The minor petitioner was put intoshock, pain and mental agony due to the accident. The minorpetitioner is not able to move her right hand freely, and move freelyand she is not able to breath freely. She is permanently disabled toattend her routine due to the fractures sustained in the accident.The petitioner estimates the damages at Rs.3,00,000/- to which therespondent is liable to pay the same.5. The contentions raised by the respondent in his counterfiled before the lower court would be as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) The respondent submits that age, the nature of the allegedinjuries sustained by the petitioner, the period of treatment,medical expenditures, and the disability are not admitted by therespondent and the petitioner is put to strict proof of the same.(b) The respondent submits that the petitioner has notsustained any disability at all not the particulars of claimmentioned by the petitioner are true.(c) On 26.06.1998, the respondent's bus bearing RegistrationNo.TN-32-N-1113, on the route No.122, was on its trip from Chennai toTiruvannamalai. The driver started its trip from Chennai at about14.50 hours. At about 17.40 hrs, when the bus was proceeding nearMathuranthagam veterinary hospital, the respondent's bus drivernoticed a lorry was parked on the left side of the road, and next toit a cyclist was proceeding in the same direction. At that time, thepetitioner and her father motor cyclist were also proceeding towardssouth in a motor cycle where the petitioner was a pillion rider nextto the cyclist. On seeing this, the respondent's bus driver sloweddown the bus, gave horn and over took the motor cycle. Whileso, thepetitioner's father who was driving the motor cycle negligently, losthis balance, collided with the cyclist, and fell down.(d) The respondent's driver was in no way responsible for thealleged accident. This accident took place only due to the rash andnegligent driving of the vehicle by petitioner's father. Therefore,the petitioner cannot claim any compensation for the negligent act.The respondent is an unnecessary party to the proceedings. Hence thepetition has to be dismissed 'in limini'. In any even thecompensation claimed is exorbitant and highly excessive. The respondent prays that this petition may be dismissed withcosts.6. The lower court had clubbed both M.C.O.P.Nos.168 and 169 of2002 and had recorded common evidence.7. Accordingly, P.W.1 to P.W.3 were examined and Ex.P.1 toEx.P.20 were admitted on the side of the claimants. R.W.1 wasexamined and no documents were produced on the side of therespondent. Lower court had appraised the evidence adduced on eitherside and had awarded a sum of Rs.1,85,000/- with 9% interest from thedate of petition till the date of realisation in favour of theclaimant in M.C.O.P.No.168/2002, with proportionate costs.8. The claimant in M.C.O.P.No.169/2002 was awarded a sum ofRs.2,50,000/- with interest at 9% p.a from the date of petition tillthe date of realisation with proportionate costs. https://hcservices.ecourts.gov.in/hcservices/

9. Challenging the aforesaid decisions, the respondent/Transport Corporation before the lower court has preferred bothappeals.10. Heard Mr.S.Sankaran, learned counsel for theappellant/respondent and Mr.Nagu Shah, learned counsel for therespondents/claimants.11. For convenience, the ranks of parties before the lowercourt are maintained hereinafter.12. The learned counsel for the appellant(respondent/Transport Corporation) would submit in his argument thatthe Tribunal had miserably failed to consider the pleadings raised bythe respondent to appreciate the evidence of R.W.1 the driver of therespondent and had come to the conclusion fixing the responsibilitiesentirely on the respondent. He would further submit that the claimantin M.C.O.P.No.168/2002 who was riding the two wheeler and he wasresponsible for the cause of accident and therefore the liabilityshould be fixed against him also.13. He would categorically submit that the fixation of incomeof the claimant in M.C.O.P.No.168/2002 at Rs.10,000/- per month,without any production of any income tax return is not at allsustainable and the awarding of compensation for permanent disabilityat Rs.40,000/- on the basis of the permanent disability of theclaimant in M.C.O.P.No.168/2002 at 40% is also not sustainable. Hewould further submit that the compensation for loss of future incomeat Rs.50,000/- for the claimant in M.C.O.P.No.168/2002 was notsupported by any document. He would again submit in his argument thatthe lower court was wrong in awarding the compensation of Rs.50,000/-towards medical expenditure in M.C.O.P.No.168/2002, as it hasrejected his claim for Rs.1,11,684/-. He would further submit that atotal compensation of Rs.1,85,000/- awarded to the claimant inM.C.O.P.No.168/2002 is highly excessive and therefore it has toreduced. 14. He would further submit in his argument that the quantumof compensation as awarded at Rs.60,000/- towards permanentdisability said to have been caused for the claimant inM.C.O.P.No.169/2002 was too high and the evidence of P.W.3 Doctorshould not have been accepted, since he did not treat the claimant inM.C.O.P.No.169/2002. He would further submit that the percentage ofdisability awarded to the claimant in M.C.O.P.No.169/2002 is alsoexcessive. He would further submit that the compensation awarded atRs.50,000/- to her for pain and sufferings was without anydocumentary proof and therefore it is not sustainable.15. He would also submit that the compensation of Rs.50,000/-awarded towards future income was also not based upon any evidence https://hcservices.ecourts.gov.in/hcservices/ and the claimant in M.C.O.P.No.169/2002 was admittedly a minorstudent at the time of accident. He would also submit that themedical expenditure awarded at Rs.75,000/- is highly excessive andwithout any proof it has been ordered so. He would cumulativelysubmit in his argument that the award of total compensation ofRs.2,50,000/- in favour of the claimant in M.C.O.P.No.169/2002 withsubsequent interest is highly excessive and the evidence may properlybe appraised and the compensation awarded to the claimant may bereduced in accordance with law.16. The learned counsel for the respondent (claimant) wouldsubmit in his argument that the lower court was perfectly right inarriving to the conclusion of awarding compensation at Rs.1,85,000/-for the claimant in M.C.O.P.No.168/2002 and Rs.2,50,000/- for theclaimant in M.C.O.P.No.169/2002. 17. He would further submit in his argument that the judgmentof the criminal court would not in anyway bind the Tribunal forreaching a decision on the evidence available before it and thereforethe interested evidence of the driver would not in anyway disprovethe negligence in causing accident. The evidence of the claimantswould categorically go to show that the driver of the respondentalone was responsible for the cause of the accident.18. He would further submit that claimant inM.C.O.P.No.168/2002 was a practicing lawyer who was carrying hisdaughter from school to home after he attended the court and he wasobeying traffic rules and was riding on the two wheeler to theextreme left of the road where as the respondent's driver drove thevehicle in a rash and negligent manner and hit the two wheeler fromits behind and the happening itself would prove the negligence of thedriver of the respondent and therefore the respondent was rightlyfixed with the liability to pay the compensation to the claimants.19. He would further submit in his argument that the lowercourt had awarded the compensation for permanent disability in astringy manner and if the compensation has awarded as per the medicalopinion given by P.W.3, the entire compensation would have beenawarded to the claimants. However, the lower court had reduced thepercentage of disability, despite the evidence of P.W.3 and hadawarded less compensation. He would further submit that theexpenditure for treatment has been drastically reduced by the lowercourt even though the claimants have produced evidence in support oftheir claims. He would further submit that the claimants had spentconsiderable time for the treatment during the said period andtherefore there would be loss of income for the claimants. It hasalso been calculated by the lower court promptly and any variance inassessment of the same could have been adjusted with the compensationpayable on the other heads namely permanent disability. He wouldfurther submit that the compensation fixed by the lower court may be https://hcservices.ecourts.gov.in/hcservices/ confirmed even though the claimants are entitled to a highercompensation than that of the compensation awarded by the lowercourt. He would therefore request the court to reorganize thecompensation if needed and to confirm the judgment and award passedby the lower court.20. I have given anxious thoughts to the arguments advance oneither side.21. The accident had happened on 26.06.1998, when theclaimants in both the applications were riding on a two wheeler inthe G.S.T. Road, Mathuranthagam, from north to south. Therespondent's bus driven by its driver and he dashed the two wheelerof the claimant from its backside and thus the accident was caused.The nature of the happening of the accident as seen from thedocuments produced on either side, we could see that the saidhappening would itself speaks volume about the negligence of thedriver of the bus. Therefore, this court has no hesitation to cometo a conclusion that the accident had happened only due to the rashand negligent driving of the respondent/transport corporation bus.Therefore the liability fixed upon the respondent(appellant) isunassailable.22. As regards the quantum of compensation payable to theclaimant in M.C.O.P.No.168/2002, we could perceive from the documentthat the claimant was an advocate at the time of accident and he wasalso aged about 46 years. The accident happened on 26.06.1998 and atthat time he was actively practising law at that time and he wouldhave certainly earned a sum of Rs.10,000/- per month. Therefore, thefinding of the lower court that the claimant in M.C.O.P.No.168/2002would have earned a sum of Rs.10,000/- per month could be correct.Both the claimants have sustained injuries in the accident and wereadmitted in the Government hospital Mathuranthagam, thereafter onlythey were admitted in Tamilnadu hospital at Tambaram. The claimant inM.C.O.P.No.168/2002 was admitted in the said hospital from 26.06.1998to 03.07.1998 as an inpatient and thereafter he was admitted again on16.07.1998 as an inpatient for three more days and took treatment.Thereafter, he used to visit the physiotherapist for doing exerciseand also for getting training for proper breathing. It had also beenspoken in evidence that he had gone to Royapettah hospital for morethan 10 times for treatment purpose and he was not able to lift hishand as before and he would also not able to ride the motor cycle norable to attend court. 23. As regards the wound certificate produced by him in Ex.P.2is concerned, we could see that he has got three abrasions on rightshoulder, arm and back and two fractures on the right scapula and onthe right humerus. In the second fracture there was a dislocation onright shoulder joint and therefore, the said injury could beconsidered as two grievous injuries and the fracture on right scapula https://hcservices.ecourts.gov.in/hcservices/ would constitute another therefore the compensation for pain andsufferings to the claimant in M.C.O.P.No.168/2002 should have beenawarded for three grievous injuries and three simple injuries. Whenit is applied with the guidelines given under II schedule of MotorVehicle Act the compensation awardable would be Rs.18,000/- i.eRs.5,000/- per one grievous injury and Rs.1,000/- per one simpleinjury. The awarding of compensation at Rs.25,000/- on the categoryof pain and sufferings is not correct.24. As regards the permanent disability caused to the claimantin M.C.O.P.No.168/2002 is concerned, the relevant disabilitycertificate produced by P.W.3 would show that there was a disabilityof 45% sustained by him. The lower court had reduced 5% as a normalreduction for any permanent disability certificate awarded by theDoctor. The said reason furnished by the lower court is notsustainable. The disability caused on the right shoulder due to thefracture and the dislocation of the right shoulder. It is quitenatural that a disability of 45% could be awarded by the Doctor. Thesaid disability would seriously affect the profession of a lawyer whoused his right hand. However, it has not been spoken by theclaimant that he was completely prevented from going to the court dueto the said disability. 25. Therefore, it cannot be considered as a pecuniary loss butit can be calculated on non pecuniary loss for arriving to ajustifiable compensation. Accordingly if a sum of Rs.1,000/- isconsidered for 1% of disability it comes to Rs.45,000/- awardabletowards permanent disability. However, the disability caused to theclaimant would result in his total personal activities. For such lossof amenities and inconvenience, a sum of Rs.20,000/- could be awardedin favour of the claimant. The claimant had produced Ex.P.8, Ex.P.9and Ex.P.10 series being the bills for the expenditure and Ex.P.11was produced for the physiotherapy treatment. According to the billssubmitted by the claimant he had spent Rs.1,11,684/- for thetreatment undergone by the him. However, the lower court had reducedit to Rs.50,000/- for no reason. The said whole amount of medicalexpenditure is certainly payable to the claimant. Apart from that theclaimant is entitled for an expenditure incurred towards attendantsand also for extra nourishment. Considering the period of treatment,the claimant is found entitled to a sum of Rs.5000/- towardsattendants charges and Rs.10,000/- towards extra nourishment. Ifthese amounts added under various heads and are computed, it wouldarrive to Rs.2,09,684/-. However, the claimant had asked for a sum ofRs.2,00,000/- only. The lower court had awarded a sum ofRs.1,85,000/-, in favour of the claimant, against which he did notprefer any appeal nor any cross appeal in this appeal for enhancementof compensation. Therefore, this court is of the view that theawarding of compensation by the lower court to the claimant inM.C.O.P.No.168/2002 is far less and the claimant is entitled to thecompensation sought for by him in the petition. Since the claimant https://hcservices.ecourts.gov.in/hcservices/ had not preferred any appeal, this court cannot enhance the same but,to necessarily confirm the judgment and award passed by the lowercourt in M.C.O.P.No.168/2002.26. So far as the compensation fixed by the lower court inM.C.O.P.No.169/2002 is concerned the claimant is a minor at the timeof claim in M.C.O.P.No.169/2002 and also at the time of accident. Shewas a student of 8th standard and she also sustained serious injuriesin the said accident. Her wound certificate is produced as Ex.P.20.The said wound certificate would show that she sustained abrasionsover the right side of her chest and fractures of her ribs 2 to 5 onthe right side, the fracture of right scapula and the right immunothorax. The opinion given is grievous therefore we could see sixfractures and one abrasion. It is also been opined that the lungs ofthe claimant in M.C.O.P.No.169/2002 was also pierced due to thefracture of the rib bones. Therefore, the said fracture will also beconsidered as one of the grievous injuries. According to theguidelines laid down in II schedule of the Act a sum of Rs.5,000/-for grievous injury and Rs.1,000/- for simple injury has to beawarded. Thus a sum of Rs.36,000/- is awardable to the claimanttowards pain and sufferings. The award of compensation at Rs.50,000/-towards pain and suffering by the lower court is not correct. 27. The claimant was admitted in Government hospitalMathuranthagam and thereafter transferred to Tamilnadu hospital atTambaram and she was admitted as inpatient from 26.06.1998 to19.07.1998 and thereafter once again she was admitted in the samehospital and underwent a surgery on her right shoulder. Thereafteralso she went to the said Tamilnadu hospital on 10 occasions forundergoing physiotherapy treatment and thereafter she took treatmentin Esther Jebarani hospital from 28.07.1998 to 30.08.1998 as an inpatient and she incurred expenditure for the said treatment taken byher. She had also spoken to the effect that she could not breath asbefore and she cannot lift any objects. She has produced Ex.P.15 ,Ex.P.17 and Ex.P.18 towards the medical expenditure sustained by herin Tamilnadu hospital and Esther Jebarani hospital Mathuranthagam.Those documents would show that she incurred a sum of Rs.1,89,294/-towards medical treatment. However, the lower court had awarded a sumof Rs.75,000/- without any basis. The claimant is entitled to thetotal sum of medical expenditure as produced through the documents.Apart from that the claimant also produced Ex.P.16 bunch of thereceipts given by the contract carriages for going over to Madras on16 occasions. The said amount of Rs.16,000/- incurred for transportto hospital was also not considered by the lower court. The claimantis entitled for those amounts also.28. As regards the permanent disability is concerned, P.W.3Doctor had given the certificate Ex.P.19 and thereby awarded 65% ofdisability for her. The lower court had reduced 5% for no reason andhad awarded a sum or Rs.60,000/- towards compensation for permanent https://hcservices.ecourts.gov.in/hcservices/ disability. The claimant before the lower court was a minor at thetime of accident and therefore the compensation for the disabilityshould have been considered by the lower court at Rs.2000/- per onepercent and if it had been calculated it should have beenRs.1,35,000/- for 65% of the permanent disability. Therefore, thedecision of the lower court that the claimant is entitled to onlyRs.60,000/- towards permanent disability is not correct. However, thelower court had awarded a sum of Rs.50,000/- towards loss of futureincome. The said amount should have been awarded for loss ofamenities and personal inconvenience caused to her. Therefore, thetotal amount of compensation payable to the claimant should have beenat Rs.4,21,294/- However the claimant asked for compensation ofRs.3,00,000/- to which the lower court had awarded a sum ofRs.2,50,000/-. The claimant has not preferred any appeal against thejudgment and award passed by the lower court nor any cross appealfixed in the appeal. Therefore, this court has no other option exceptto confirm the judgment of lower court awarding a sum ofRs.2,50,000/- only, in favour of the claimant. Therefore, the case ofthe appellant in both the appeals that the compensation awarded bythe lower court should have been reduced cannot be accepted.29. For the reasons held above the judgment and award passedby the lower court are confirmed and the appeals preferred by theappellant are liable to be dismissed. The parties are directed tobear their respective costs. 30. It was represented by the learned counsel for therespondent that they were permitted to withdraw 50% of the awardamount with accrued interest deposited before the lower court andaccordingly they had withdrawn. The remaining 50% of the amount wereordered to be deposited in reinvestment scheme and they may bepermitted to withdraw the said amount with accrued interest.31. Since the appeals preferred by the appellant aredismissed, there is no impediment for the claimants to withdraw thebalance 50% of the amount with accrued benefits. Sd/Asst.Registrar/true copy/Sub Asst.Registrarkpr https://hcservices.ecourts.gov.in/hcservices/ To1. The Motor Accidents Claim Tribunal (Sub Court), Mathuranthagam, Chengalpattu District. 2. The Section Officer, V.R. Section, High Court, Madras.+ 2 c.cs. to Mr. N. Nagusah, Advocate. S.R.No.71893 & 71894. C.M.A.Nos.2911 and 2912 of 2004KA (CO)GSK 09.03.2010.