in C.M.A(MD)No.1437 of 2007 Iliyas ...1st Respondent in C.M.A(MD)No.1438 of 2007
2.The Managing Director, Tamil Nadu State Transport Corporation Ltd., Kumbakonam Division ? III, Karaikudi.
...2ndRespondent/1st Respondent in both appeals COMMON PRAYER:- Civil Miscellaneous Appeals have been filed under
Section 173 of the Motor Vehicles Act, 1988, against the award dated 31.01.2007, made in M.C.O.P.Nos.276 and 277 of 2004, on the file of the Motor Accident Claims Tribunal cum Principal District Court, Ramanathapuram.
The Civil Miscellaneous Appeals have been filed against the award dated 31.01.2007, made in M.C.O.P.Nos.276 and 277 of 2004, on the file of the Motor Accident Claims Tribunal cum Principal District Court, Ramanathapuram.
2. The brief facts of the case are as follows:
It is a case of the claimants that the accident causing injuries to them took place on 30.05.2004 at 11.45 p.m. when the injured claimants were travelling in a Tata Sumo car bearing Registration No.TN-58A-6262 belonging to the second respondent and insured with the third respondent, near Thelichathanallore Ayyanar Kovil on Madurai to Ramanathapuram Main Road, the driver of the first respondent State Transport Corporation bus bearing Registration No.TN-63N-0660, drove the vehicle in a rash and negligent manner and dashed against the Tata Sumo Car. As a result of which, the claimants have sustained several grievous injuries all over the body. Immediately after the accident, the claimants were taken to Paramakudi Government Hospital and subsequently, took treatment at various hospitals. Hence, the claimants have filed petitions in M.C.O.P.No.276 and 277 of 2004 on the file of the Motor Accident Claims Tribunal cum Principal District Court, Ramanathapuram, seeking compensation of Rs.3,00,000/- and Rs.8,00,000/- respectively for the injuries they have sustained, due to the accident.
3. The second appellant/third respondent has filed a counter affidavit stated that this petition is not maintainable both in law and on facts. In fact, this accident had occurred only due to the rash and negligent driving of the first respondent's driver alone who drove the bus bearing the Registration No.TN-63-N-0660 in a terrific speed, without observing the rules and regulations of the road, suddenly crossed the centre-line of the road and dashed against the second respondent's car which came in the opposite direction. The police has registered the case against the first respondent's Bus driver alone. The third respondent is not liable to pay any compensation to the petitioner herein. The petitioner has to prove all these averments through proper documentary evidence. The injuries sustained by the petitioner are minor in nature. The claim for compensation of Rs.3,00,000/- and Rs.8,00,000/- are grossly exaggerated and untenable.
4.Before the Tribunal, joint trial was conducted and on the side of the claimants, three witnesses viz., P.W.1 to P.W.3 were examined and twenty eight documents viz., Exs.P.1 to P.28 were marked and three documents were marked through P.W.3 - Doctor and on the side of the respondents two witnesses viz., R.W.1 and R.W.2 were examined and one document viz., Ex.R.1 was marked.
5.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the learned counsels and also appreciating the evidence on record, has found that only due to the rash and negligent driving of both the offending vehicles, the accident had occurred and fixed the contributory negligence at 80% on the Insurance Company and 20% on the Tamil Nadu State Transport Corporation accordingly directed them to pay the compensation award amount at 80% and 20% respectively.
6. Against which, the present appeals have been filed by the owner and insurer of the Tata Sumo Car, challenging the lability and quantum.
7.The appellants have filed Civil Miscellaneous Appeal raising various grounds that the lower Court has failed to note that instead of fixing the entire lability on the part of the second respondent TNSTC Bus, the lower Court has fixed the negligence on both drivers in the ratio of 20:80 (i.e.,) 20% on the part of the TNSTC Bus driver (2nd respondent herein) and 80% on the part of the TATA Sumo Car driver (i.e., 1st appellant herein). He further submitted that the lower Court has failed to note in the another case in the same accident in M.C.O.P.No.26 of 2005, before the Motor Accident Claims Tribunal, (Subordinate Court), Ramanathapuram clearly hold that the negligence on the part of the TNSTC Bus driver was the cause of the accident. Hence, TNSTC alone is liable to pay the compensation and the appellants 1 and 2 are entitled to be exonerated. He furthermore submitted that the lower Court has failed to note that mere fracture of bones and its reunion will not amount to permanent total disablement or permanent partial, disablement unless the doctor has examined the claimant and assessed the percentage of disability after performing the scientific tests.
8.The learned Counsel for the respondent Transport Corporation would submit that based on the oral and documentary evidences, the Tribunal has correctly come to a conclusion and awarded just and reasonable compensation and hence, the award passed by the Tribunal deserves no interference by this Court and hence, this appeal has to be dismissed.
9. Heard the learned counsel appearing on both sides and perused the materials available on record.
10.From the evidence of P.W.2-claimant in M.C.O.P.No.276 of 2004, it is seen that the State Transport Corporation Bus bearing Registration No.TN63N- 0660 came in the opposite side in a rash and negligent manner and hit against the Tata Sumo Car and due to which, he sustained injuries. In his evidence, he further deposed that oblique fracture involving the posterior wall of the glenoid fossa on left side with extension in to the condylar process and neck regions of the left hemi-mandible, his face appearance was changed. Six teeth were fell down from his mouth jacket, hence he is unable to take food as before; He is unable to move his mouth jaws; Due to the above said injuries he is unable to work as before; These injuries have become permanent disability. From the evidence of and P.W.1-claimant in M.C.O.P.No277 of 2004, it is seen that the State Transport Corporation Bus bearing Registration No.TN63N-0660 came in the opposite side in a rash and negligent manner and hit against the Tata Sumo Car and due to which, he had sustained injuries. In his evidence, he had further deposed that he is unable to inhale through nose; Acute pain occurs on his nose even now; His right eye sight was fully damaged; His face appearance was changed; He is unable to move his jaws; He is unable to take food; Hence he is unable to work as before; These injuries have become permanent disability.
11.It is seen from the evidence that the age of the claimants were 25 and 28 respectively and they were working as Security Guards in Foreign Country. From out of their occupation each of them earned Rs.14,000/- per month. Due to the injuries sustained by them in the accident, they were bed- ridden and unable to work as before. The claimants have estimated their loss of income to Rs.25,000/- till filing of claim petitions. They have spent Rs.10,000/- for Transport to Hospital, Rs.25,000/- for extra nourishment, Rs.25,000/- for 2 attendants during treatment, Rs.3,00,000/- for medicine and medical treatment, Rs.1,00,000/- for future medical expenses and Rs.20,000/- towards physiotherapy charges. They have estimated the compensation for pain and suffering at Rs.2,00,000/-, for continuing permanent disability at Rs.4,00,000/- and for loss of earning power at Rs.10,00,000/-. In toto, the loss and expenses incurred by each of the petitioners, on account of the accident is Rs.21,05,000/-. Any how, the petitioners restrict their claims to Rs.3,00,000/- and Rs.8,00,000/- respectively.
12.From the evidence produced by both parties, for the injuries sustained by the claimant in M.C.O.P.No.276 of 2004 the Tribunal has awarded a sum of Rs.25,000/- for permanent disability; since no evidence was produced for the medical treatments, based on the medical bills, the Tribunal has awarded a sum of Rs.15,000/- for medical expenses. The Tribunal has awarded a sum of Rs.1,000/- for nourishment. Rs.5,000/- for pain and sufferings, a sum of Rs.2,000/-, for transportation. In total, the Tribunal has awarded a sum of Rs.48,000/- to the claimant in M.C.O.P.No.276 of 2004, and this Court confirms the same.
13.For the injuries sustained by the claimant in M.C.O.P.No.277 of 2004, the Tribunal has awarded a sum of Rs.50,000/- for permanent disability, a sum of Rs.15,000/- for pain and sufferings and a sum of Rs.5,000/- for nourishment, Rs.5,000/- for transportation and Rs.1,00,000/- for future medical expenses and Rs.2,000/- per month for loss of income and in total, the Tribunal has awarded a sum of Rs.1,77,000/- to the claimant in M.C.O.P.No.277 of 2004 and this Court confirms the same.
14.This Court confirms the contributory negligence but fixed the same at 65% on the Insurance Company and 35% on the Tamil Nadu State Transport Corporation and accordingly, directed them to pay the compensation amount of a sum of Rs.48,000/- in M.C.O.P.No.276 of 2004 and Rs.1,77,000/- in M.C.O.P.No.277 of 2004 to the claimants.
15. In the result, these Civil Miscellaneous Appeals are partly allowed by confirming the award of Rs.48,000/- and Rs.1,77,000/-, passed in M.C.O.P.No.276 and 277 of 2004 respectively by the Motor Accident Claims Tribunal cum Principal District Court, Ramanathapuram, on 31.01.2007. The Insurance Company and State Transport Corporation are directed to deposit 65% and 35% of the award amounts with accrued interests and costs in both the cases within a period of eight weeks from the date of receipt of a copy of this order, if not already deposited, and on such deposit being made, the claimants in both the cases are permitted to withdraw their respective award amount with accrued interest and cost, without filing any petition before the Tribunal. No Costs. Consequently, connected Miscellaneous Petitions are closed.
To
1.The Motor Accident Claims Tribunal cum Principal District Court, Ramanathapuram.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court,Madurai.
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