Metropolitan Transport Corporation Ltd v. Senthilkumar...

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.02.2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.No.407 of 2003andC.M.P.No.3510 of 2003The Managing DirectorMetropolitan Transport Corporation LtdPallavan House, Mount RoadChennai 600 002...Appellant/ Respondent (Formerly known as "PallavanTransport Corporation Ltd.,Chennai 2)Vs.Senthilkumar...Respondent/ Petitioner This civil miscellaneous appeal has been filed under Section173 of the Motor Vehicles Act, 1988 to set aside the award passedby the Motor Accidents Claims Tribunal (V Judge, Court of SmallCauses), Chennai in M.C.O.P.No.2529/2000 dated 02.05.2002.For Appellant: Mr.A.BabuFor Respondents: Mr.Ravichandran for Mr.A.Shanmugaraj J U D G M E N TIn M.C.O.P.No.2529 of 2000, the following are alleged.2. On 26.03.1995 at about 14.45 hours this petitioner and oneAshok were travelling by Yamaha motorbike bearing Regn.No.TN-04 A-2486 from Guindy to Tambaram and near DCM Toyota show room, a busbelonging to the respondent Corporation bearing Regn.No.TML 1659came from the same direction at a high speed, driven by its driverin a rash and negligent manner, lost its control and hit theYamaha motorbike, as a result of which the petitioner sustainedgrievous and multiple injuries over the body. Ashok was drivingthe motorbike and the petitioner was sitting as pillion rider.The said Ashok died in the accident. For the personal injuriessustained by this petitioner a sum of Rs.5,60,000/- is claimed ascompensation. https://hcservices.ecourts.gov.in/hcservices/

2. In the counter filed by the respondent TransportCorporation, it is alleged that there was no rash or negligentdriving by the driver of the respondent bus, when the bus wasproceeding according to the traffic rules from Periyar Bridge toTambaram. When the bus was going slowly on its proper side, themotorcyclist came in a negligent manner, hit against anothermotorcycle, fell down near the bus and thereby the accident tookplace. The petitioner was guilty of contributory negligence. Thepetition is bad for non-joinder of the owner of the motorcycle andits insurer. Age, occupation and monthly income of thepetitioner, nature of injuries, period of treatment and place oftreatment alleged in the petition are denied. The petitioner didnot suffer any disability. It is not admitted that themotorcyclist was having a valid driving licence at the time of theaccident. The amount claimed is excessive and unsustainable,hence the petition has to be dismissed.3. Parents of Ashok filed another claim petition inM.C.O.P.No.2530/2000 on the file of the same Tribunal and a commonaward came to be passed. In M.C.O.P.No.2529/2000 filed by thisclaimant, a sum of Rs.5,75,000/- was awarded, while Rs.2,64,000/-has been awarded as compensation to the parents of the deceasedAshok in M.C.O.P.No.2530/2000. The appellant herein has carriedthe matter in appeal as far as the award passed inM.C.O.P.No.2529/2000 is concerned.4. The learned counsel for the appellant Mr.A.Babu would drawattention of this court to various portions of oral evidence asregards the accident and tried to convince the court that thedriver was not at fault. The learned Tribunal judge has anchoredliability upon the driver of the bus. P.W.1, the claimant wouldsay that the bus came in a rash manner. R.W.1, the driver of thebus would state that the motorcycle was driven by its riderclandestinely and on seeing the same he stopped the bus. However,the persons travelling on the bike fell down and the injured wereremoved to Chrompet Hospital. R.W.2, Transport Inspector in theTransport Corporation says that two motorcycles were driven as ifthey participated in a race and one of the motorcyclist lostbalance and dashed against other motorcycle by means of which thepersons and the bikes fell down and hence the motorcyclist wasresponsible for the accident.5. The Tribunal Judge has analysed the oral evidence onrecord and observed that remarkable inconsistencies are foundbetween the oral testimonies of R.W.1 and R.W.2 and hence theirevidence could not be believed. This court does not find anyinfirmity in the said observation. The operative portions of theoral evidence of both the witnesses are contra to each other.While R.W.1 says that he heard the friction caused by the hit ofthe motorcycle on the body of the bus, R.W.2 stated that twomotorcycles involved in the accident and the same took place dueto the dashing of one motorbike with another. Hence the findingas regards fixing up of responsibility of causing accident as https://hcservices.ecourts.gov.in/hcservices/ found by the Tribunal has to be confirmed and it is accordinglyconfirmed.6. As for the quantum of compensation arrived at by theTribunal, the appellant is much aggrieved. 7. The learned counsel for the appellant would submit thatthe compensation awarded does not reflect the nature of theinjuries and that it is excessive. The injuries sustained by theclaimant could be visualised from the oral evidence of the doctorsP.W.4 and P.W.5. P.W.4, doctor would say that in the spinal chordC6, C7 nerves got damaged and hence the left hand of the claimantwas paralysed, that he could not do any work with his left handand he has to wear collar in his neck, that the left clavicle bonefractured and hence he could not lie down on the ground, that dueto the constriction of muscles, he could not utilise his righthand to do any work and that he is suffering from the permanentdisability to the tune of 95%. 8. P.W.5, doctor says that the claimant's left side jaw gotfractured resulting in disfiguration of his face, that he lost twoteeth and he is unable to chew the food properly and he assessedhis permanent disability at 35%.9. The petitioner was aged about 26 years at the time ofaccident. The Tribunal has awarded the compensation ofRs.5,75,000/- under following various heads:- Rs.Pain and suffering:40,000/-Transport expenses:10,000/-Extra nourishment:10,000/-Permanent disability:90,000/-Medical Expenses:70,000/-Mental agony:25,000/-Loss of earning power: 3,30,000/-On the basis of the oral evidence, the Tribunal has fixedRs.3,400/- as his monthly income and applied multiplier 20considering the permanent disability at 130% and reached a totalcompensation of Rs.7,20,000/-, however it was restricted toRs.3,30,000/- as claimed in the claim petition.10. The learned counsel for the respondent Mr.Ravichandranfor Mr.A.Shanmugaraj would submit that even though no crossobjections are filed on behalf of the respondent, if the court isjustified in its view to award a larger sum, it can be awarded.For this proposition he placed reliance upon a judgment of aDivision Bench of this Court in 2000(1) CTC 10 in The DistrictCollector, Pudukottai and another Vs. Tmt.Neela Bai and twoothers. https://hcservices.ecourts.gov.in/hcservices/

11. Learned counsel for the respondent would garner supportfrom a decision of the Supreme Court in 2008 (1) T.A.C. 9 (S.C.)[Sunil Kumar v. Ram Singh Gaud and Others] for a proposition oflaw that in cases of permanent disabilities after deducting 1/3rdin the total loss of income, multiplier to be adopted is 18 as perSecond Schedule to Section 163-A of the Motor Vehicles Act. Theoperative portion in the Judgment is as follows:-"9. Taking into consideration the presentincome of the appellant as Rs.4,000/- per month,and the permanent disability of 45% suffered byhim, we are of the view that the capacity of theappellant to earn in future would be reduced byRs.1,800/- per month approximately. If 1/3rd isdeducted towards miscellaneous expenses, the lossof income comes to Rs.1200/- per month, in turn,comes to Rs.14,400/- per annum. Appellant was 29years of age at the time of accident. Taking themultiplier to be 18 (as per Second Scheduel toSection 163-A of the Act), the total loss of incomecomes to Rs.2,59,200/-"Their Lordships fixed Rs.1,800/- per month as loss of monthlyincome against the claim considering the oral evidence to theeffect that the injured was 29 years, earning about Rs.4,000/- permonth. Adverting to the facts of the present case, it is on recordthat the claimant has been earning a sum of Rs.3,400/- per month.For the purpose of granting compensation, this Court fixesRs.2,200/- as monthly loss of income and if 1/3rd in the saidamount is deducted, it is Rs.1470/- (rounded). Annual loss ofincome is Rs.17,640/-. Applying multiplier 18, the compensationis Rs.3,17,520/-. The Tribunal has fixed Rs.3,30,000/- as prayedin the claim petition even though in its opinion the compensationavailable was more. In view of this Court, it is appropriate togrant a sum of Rs.3,17,520/- instead of Rs.3,30,000/- as fixed bythe Tribunal. The Tribunal has disallowed a portion of the medicalexpenses, which appears to have been actually spent by theclaimant during his treatment. While Rs.86,000.57P was actuallyexpended for medical expenses, which are borne out by records, theTribunal has awarded only Rs.70,000/- as claimed in the petition.It is not proper. Disallowed portion should also be madeavailable to the claimant. Hence a sum of Rs.16,000/- has to begranted totalling Rs.86,000/- under the head medical expenses.Considering the gravity of the injuries, this Court feels itappropriate to grant a sum of Rs.15,000/- towards loss ofamenities. In all other aspects, the award of compensation undervarious heads is confirmed. In all, total compensation is arrivedat Rs.5,93,520/-(Rs.5,62,520/- + Rs.15,000/- + Rs.16,000/-). 12. In view of the above the Civil Miscellaneous Appeal isdismissed without costs. The respondent is entitled forRs.18,520/- as an additional award, which is payable by the https://hcservices.ecourts.gov.in/hcservices/ appellant along with interest at the rate of 6% (for the enhancedcompensation) from the date of claim petition till the date ofdeposit, within eight weeks from the date of this Order. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.asr/To1. The Motor Accidents Claims Tribunal (V Judge, Court of Small Causes), Chennai2. The RegistrarCourt of Small CausesMadrasCopy toThe Record KeeperVR SectionHigh Court, Madras-1041 cc to Mr.A. Shanmugaraj, Advocate, SR. 5484C.M.A.No.407 of 2003RSM (CO)kk 2/3