The appellant/Andhra Pradesh State Road Transport Corporation has challenged the award dated 30.09.2004, awarded in M.C.O.P.No.1840 of 2002, passed by the Motor Accidents Claims Tribunal (II Small Causes Judge), Chennai, awarding a total compensation of Rs.4,00,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment.
2. The Respondent/claimant has filed the claim petition claiming a total compensation of Rs.6,00,000. The Motor Accidents Claims Tribunal awarded Rs.4,00,000/- together with 9% interest per annum. Aggrieved by this award passed in M.C.O.P.No.1840 of 2002 dated 08.09.2004, the appellant/Andhra Pradesh State Road Transport Corporation has filed this appeal to set aside the impugned order.
3. The brief facts of the case are as follows;
On 08.02.2002, at about 10.00 hours the petitioner was waiting for a signal at Ega Theater junction and was proceeding from west to east in Periyar Salai. At that time, the bus bearing registration No. AP 10Z-9733 came from west to east direction with a high speed, and driven in a rash and negligent manner, dashed against the petitioner without following the signal. In the result, the petitioner sustained multiple fractures and bodily injuries. The driver of the bus is responsible for the accident. The bus is belongs to respondent/Andhra Pradesh State Road Transport Corporation. Hence, the respondent/Andhra Pradesh State Road Transport Corporation is vigorously and statutorily liable to pay compensation to the injured claimant with interest and cost.
4. The petitioner further stated that at the time of accident, he was 62 years old and had retired from Integral Coach factory as Mechanist. After retirement, the petitioner is doing Mechanist work in a private concern at Aminjikarai area and was earning about Rs.6,000/- per month. The injured took treatment, from the date of accident, at Government K.M.C. Hospital, Chennai as Out patient and also at Bone and Joint Clinic at Anna Nagar. Because of this accident, he was unable to walk and do the normal work. Hence, the petitioner has claimed compensation on various heads namely; For loss of earning Rs.30,000 For transport expenses Rs.2,000 Extra nourishment Rs.28,000 Damage to clothes & Articles Rs.3,000 Cost of Medicines purchased for treatment Rs.27,000 Pain and suffering & Loss of income to family members Rs.60,000 Additional Transport expenses Rs.25,000 Compensation for pain and suffering Rs.75,000 Compensation for disability Rs.1,50,000 Compensation for loss of earning power Rs.2,00,000 In total the compensation claimed was Rs.6,00,000/-.
5. The Appellant/Andhra Pradesh State Road Corporation has filed a counter statement wherein they have stated that the said bus bearing registration No.AP 10Z-9733 was proceeding from Puthur to Chennai. At about 10.00 hours, the transport bus driver stopped the bus at Ega theater traffic signal and after seeing the green signal, the driver of the vehicle moved the vehicle very slowly and at that time, the petitioner tried to cross the road in front of the bus and he dashed against the bus and sustained injuries. So, the accident has occurred only due to the negligence of the Cyclist i.e. the petitioner herein and so the respondent is not liable to pay the compensation. Further, the respondent does not admit the age, occupation, income of the petitioner. Further the respondent does not admit the injuries and damages which was claimed by the petitioner under column 11 and 11a of the claim petition. Further, the respondent stated that the claim is excessive and unreasonable. The petitioner has not given nay details about how the quantum of compensation has been arrived at and as such the respondent is not liable to pay any compensation.
6. The learned Tribunal framed two issues namely;
i) who is responsible for the said accident and if so, ii) What is the quantum of compensation to be awarded?
7. On the side of the respondent/claimant, three witnesses were examined namely PW1, the claimant, PW2, one Amuldas and PW3, one doctor Thyagarajan. PW2 narrated the incident as to how it happened. PW3, doctor was examined on 19.03.2003. At that time, the injured petitioner was 67 years and the petitioner was examined physically and doctor gave the disability certificate to the claimant. On the side of the claimants, 10 documents were marked namely i) O.P. Sheet, 2) Discharge Certificate, 3) Medical bill 4) retirement certificate, 5)F.I.R., 6) Sketch, 7) Charge sheet, 8) disability certificate, 9) X-ray and 10) present X-ray. On the side of the respondent, no witnesses were examined and no documents were marked supporting their case.
8. On an oral and documentary evidence of the claimants and on the basis of the counter statements filed by the respondent/Corporation, the Tribunal has awarded a total compensation of Rs.4,00,000/-. The learned Tribunal has examined the witnesses of the petitioner and also perused the documents produced by the claimant. The learned Tribunal gave several opportunities for cross-examination of petitioner by the respondent counsel, but the respondent counsel did not cross-examine the witnesses and they also did not furnish any documentary evidence and also no oral evidence was tendered. So, the learned Tribunal has come to the conclusion that the driver of the bus was responsible for the accident. Further, the claimant's evidence, regarding the quantum of compensation, was also not opposed by the respondent by way of cross-examination or production of supporting documents in support of their case. Hence, the tribunal awarded a compensation as per the following heads. For injuries sustained in accident Rs.25,000 For Transport charges Rs.2,000 For Nutrition Rs.3,000 For medical expenditure Rs.5,000 For Pain & Suffering to his family members Rs.40,000 For additional transport charges Rs.25,000 For future transporting charges to go out Rs.20,000 For pain & suffering Rs.30,000 For disability Rs.1,25,000 Loss of earning capacity Rs.1,50,000 Total Rs.4,00,000
9. Heard the learned counsel for the appellant as well as the learned counsel for the respondent.
10. The learned counsel for the respondent has cited a decision reported in 2007 (2) TNMAC 257 (R.Senthil Kumar v. P.Palaniswamy & Ors.) in support of his case, wherein this Court has held as follows; Injured/ Claimant sustained small abrasion/ contusion on left forearm, Head injury causing fissure fracture of left temporal bone and cerebral clot in lob of right temporal region- Treatment:Given first aid in Hospital at Dindigul: Treated as in-patient in Hospital at Madurai from 16.04.1993 to 03.05.1993: Treated by Neurologist in Chennai as out-patient without surgical intervention: Medical records to effect that mild mid line shift initially found in brain disappeared and brain function normal- Disability: PW2-Doctor after conducting clinical test without getting CT scan assessed disability caused by supposed cerebral damage at 25%: 15% disability for mild deafness caused in right ear:10% disability caused by weakness in left upper limb (loss of hand grip)- Total disability assessed by P.W.2 at 50% found to be on higher scale- Having regard to materials on record, held permanent disability can reasonably be fixed at 25%. Injured/claimant aged 18 years- Lump sum method of awarding compensation for permanent disability Age of injured plays important role awarding damages at fixed rate disregarding age of injured/claimant could result in injustice, as same amounts to treating unequals equally- Rate may range from Rs.1,000 to Rs.2,000 per 1% disability depending upon age of injured- Maximum rate applicable in case of youngsters- Minimum rate applicable in case of aged persons Applying such a test, held application of maximum rate viz., Rs.2,000 per 1% disability absolutely justifiable- Disability fixed at 25% in Appeal Lump sum amount awardable as compensation for permanent disability fixed at Rs.2,000X25 =Rs.50,000/-.
11. After going through the judgment and decree passed by the learned Motor Accidents Claims Tribunal in M.C.O.P.No.1840 0f 2002 and considering the documents filed by the claimants and statements of witnesses of petitioners side, including evidence of the doctor and the submissions of the learned counsel on either side, this Court modifies the quantum of compensation as under; For injuries sustained in accident Rs.25,000 Set aside as not pertinent For Transport charges Rs.2,000 accepted For Nutrition Rs.3,000 accepted For medical expenditure Rs.5,000 accepted For Pain & Suffering to his family members Rs.40,000 Set aside as not pertinent For additional transport charges Rs.25,000 Set aside as not pertinent For future transporting charges to go out Rs.20,000 Set aside as not pertinent For pain & suffering Rs.30,000 accepted For disability Rs.1,25,000 accepted Loss of earning capacity Rs.1,50,000 Modified to Rs.1,00,000 Total Rs.4,00,000 2,65,000
12. In total a sum of Rs.2,65,000/- (Rupees two lakhs sixty five thousand only) is awarded by this Court together with interest at the rate of 9% from the date of filing of the suit till date of payment. This Court hereby directs the appellant/Andhra Pradesh State Road Corporation to deposit the balance compensation to the credit of M.C.O.P.No.1840 of 2002 within six weeks from the date of receipt of this judgment. Since the claim petition was filed in the year 2002, it is open to the respondent/claimant to receive the balance amount lying in the credit of MCOP NO.1840 of 2002 on the file of the Motor Accidents Claims Tribunal/II Small Causes Court Judge, Chennai by filing necessary payment out application, in accordance with law. Resultantly, the civil miscellaneous appeal is allowed in part in the above terms and consequently, the award passed by the Motor Accidents Claims Tribunal, Chennai, in M.C.O.P.No.1840 of 2002 is modified. The Parties are directed to bear their own cost in this appeal.
14.09.2009 Index:Yes Internet:Yes JIKR C.S.KARNAN,J JIKR PRE DELIVERY JUDGMENT IN C.M.A.No.484 of 2005 14.09.2009