The above civil miscellaneous appeal has been filed by the appellant/first respondent/State Transport Corporation against the judgment and decree in MCOP NO.174 of 1994 on the file of Motor Accidents Claims Tribunal cum Subordinate Court, Tindivinam, dated 13.08.2003 awarding a total compensation of Rs.1,31,683/- together with interest at the rate of 9% per annum from the date of filing the claim petition till date of payment of compensation.
2. Aggrieved against the award passed by the Motor Accident Claims Tribunal, Principal Subordinate Court, Tindivinam, the appellant/State Transport Corporation has preferred this appeal.
3. The short facts of the case are as follows;-
On 02.121993, at about 03.40 p.m., the petitioner was travelling in Thiruvalluvar Transport Corporation Limited bus bearing registration No.TN-32-N--0589 from Tindivanam to Madras. At that time, a bus of the Thanthai Periyar Corporation bearing registration No.TN-32-N-0303 was coming up in the opposite direction from Madras to Tindivanam. Both vehicles collided with each other near Melpattai Village on the GST Road. The accident happened due to the rash and negligent driving of the drivers of both the buses. In the said accident, the petitioner sustained injuries namely 1)lacerated injury on his right leg, 2) Type III compound fractures in both bones of right leg 3) deep lacerated wounds, 3 in numbers, below left knee, for which depriment and external fixation and plastic surgery was done. He was admitted at Jipmer Hospital, Pondicherry as inpatient for 40 days. The doctor advised the petitioner to undergo another operation.
The petitioner, as a Manager, Hi-damp industrial mountings Company was earning Rs.3,500/- per month. Due to this accident he his unable to carry out the same work. Further, he was aged about 25 years at the time of accident, and he is a body builder. He won several prizes in competitions.
Regarding this accident, the Olakkoor Police Station registered a criminal case in Cr.No.425 of 1993, on an alleged offence under
Sections 279 and
337 of I.P.C. In the said accident, both the drivers of the vehicles are liable vigorously to pay compensation to the petitioner, and the petitioner has claimed a compensation of Rs.1,25,000/-.
4. The first respondent/Thiruvalluvar Transport Corporation Limited has filed their counter statement stating that the first respondent's bus was driven by its driver slowly, carefully and observing all traffic rules. While so, the second respondent/Thanthai Periyar Corporation's bus driver had driven the bus in a rash and negligent manner without following traffic rules and dashed against the first respondent's bus. As such, the second respondent i.e. TPC Limited bus driver was alone responsible for the accident. Further, the respondent denied the age, monthly salary, occupation of the petitioner. The first respondent has also denied the injuries and disabilities caused to the petitioner. The first respondent has also submitted that the compensation claimed was on the higher side.
5. The second respondent/TPC limited filed their counter statement and denied the petitioner's claim stating that the second respondent's bus, route NO.87A, from Chennai to Pondicherry, was proceeding on its route, when the State Transport Corporation Bus, driven by its driver in a rash and negligent manner, had dashed against the second respondent bus. Further, the second respondent had denied the age, income and occupation of the claimant.
6. On the side of the respondent/claimant, two witnesses were examined namely PW1, the claimant herein and PW2, one Doctor K.Ramanujam. On the side of the claimant, 13 exhibits were marked as Ex.P1 to Ex.P13. On the side of the respondent, one Palaniappan was examined as RW1 and a document was marked as Ex.R1, ie. Connected case judgment in claim petition No.104 of 1995.
7. The learned Tribunal framed three issues namely 1) Who is responsible for the said accident 2) Among the respondent, who is liable to pay compensation to the claimant? and 3) What is the quantum of compensation?
8. RW1, in his evidence has submitted that on 01.12.1993, at about 08.30 p.m., he was travelling in the bus bearing route Dindigul to Chennai as its conductor and that at 11.30 p.m., the bus was stopped due to malfunctioning. Subsequently, the passengers in the said bus were accommodated in an alternate bus and that repair work was subsequently carried out on the bus and that the bus was only taken at 11.30 a.m the next day and the bus was nearing Olakkoor, at Melpatti junction, a lorry came from the southern direction at a high speed. Behind the lorry, the Thanthai Periyar Corporation bus also coming from Southern direction tried to over take the lorry, dashed against the said Tiruvalluvar Transport Corporation bus. But, a criminal case has only been registered against the driver of the Tiruvalluvar Transport Corporation Bus.
9. The claimant has stated in his evidence that on 02.12.2003, when he was travelleing in the State Transport Corporation Bus to go to Chennai, the Thanghai Periyar Transport bus coming from Chennai to Tindivanam dashed against it and that this was caused due to negligence of both the drivers.
10. The learned Tribunal, after considering the claimant's evidence and first respondent's evidence and first information report and vehicle inspectors report as also Ex.R1, had come to a conclusion that the accident happened due to the negligence of the driver of the first respondent bus i.e. Tiruvallur Transport Corporation bus. As such, the first respondent is liable to pay compensation to the claimant. The claimant stated in his evidence that he was aged 25 years at the time of accident that he was employed at Hi-damp Industrial Mountings Company at Bombay and that he was getting a salary of Rs.3,500/- per month. Further, he had claimed Rs.2,00,000/- as compensation.
11. On examination of Ex.P3, which was the medical report issued by Tindivanam hospital, it had been certified that the petitioner had suffered two fractures in his right leg and that he was advised to go to Jipmer hospital for further treatment. On examination of Ex.P4, medical report issued by Jipmer hospital, it had been given that the petitioner was admitted on 02.12.2003 as inpatient and that he was discharged on 14.01.1994. It was proved that the petitioner had sustained two fractures on his right leg and that he was in the said hospital for more than 40 days as inpatient.
12. On examination of Ex.P5, the salary certificate, was also stated in the above said report, that the claimant was on leave from 01.11.1993 for attending his sister's wedding. Ex.P6 are the photos of petitioner during the time of his participation in body building selection test. Ex.P7 to Ex.P9 are certificates establishing that the petitioner has acquired proficiency various levels in body building.
13. Further Ex.P12 are the medical bills. The total expenses involved for medical treatment was Rs.11,683/-. It was rounded to Rs.11,683/- by the Tribunal. Further for considering extent of injury, PW2, in his evidence has stated that on 03.12.1993, due to the accident, the petitioners skin in the sole of his right leg was torn, and that a skin was grafted on this portion and stitched, and further a bone was taken from another portion of his body and fixed inside his leg and hence taking the above factors into account, his disability was fixed as 45% and the doctor was accordingly given his certificate which is Ex.P14. Further, on his cross examination, the doctor has submitted that the bone which was surgically fixed in the leg of the petitioner has not joined correctly with the associated bone structure.
14. This conclusion of the doctor regarding disability was also confirmed by the Tribunal after considering that the Petitioner was also a body builder as proved in other exhibits and that he had suffered two fractures and hence he may have difficulty in participating in future body building competitions and hence an amount of Rs.90,000/- was granted by the Court under the loss of income on account of disability. For nutrition Rs.10,000/- was granted and for medical expenses, Rs.11,683/- was awarded as per medical bills in Ex.P12 and a total compensation of Rs.1,31,683/- was awarded as compensation to claimant and was payable by the respondent/Tiruvalluar Transport Corporation with interest at the rate of 9%. Further the Tribunal directed that half the amount should be deposited for three years and that the petitioner can receive interest from such deposit once in six months. Further the petitioner was permitted to receive the other half of the amount after the period of appeal. Further, the Tribunal allowed the petitioner to receive excess court Fees paid for award amount and that he can receive advocate fee of Rs.5,600/- by cheque from the respondent.
15. The learned counsel for the appellant has disputed the award for which he raised the grounds in his appeal that the Tribunal ought to have fixed contributory negligence towards second respondent also. The driver of the second respondent vehicle was not examined. PW2 doctor's evidence cannot be taken into consideration for awarding compensation since he did not treat the petitioner. The Tribunal also did not decide properly on the age and disability of the petitioner. The award of Rs.90,000/- given by the Tribunal is not justifiable. Rs.20,000/- for pain and suffering and Rs.10,000 for nutrition which was granted by the Tribunal is also not proper.
16. For the foregoing reasons and on consideration of the facts and circumstance, the Court is of the opinion that the Tribunal's award of Rs.90,000/- on the head of disability is correct, since the claimant was in the hospital for a period of 45 days and that during this time, he had undergone surgery and a steel pate had also been fixed in his leg. After one month, this had been re-operated and again re-fixed. Further, it has been proved that he was a body builder. So, because of this disability, he may find it extremely difficult to participate in competitive events. As such the Court confirms the award granted by the Tribunal. Taking into account, the nature of his injuries as well as mental stress caused to petitioner and duration of treatment, the award of Rs.20,000/- and Rs.10,000/- granted for pain and suffering and nutrition respectively, by the Tribunal is fair and justified. Further, Rs.11,683/- has been granted by Tribunal on the basis of Medical bills. So, this Court could not find any discrepancy in the award granted by the Motor Accident Claims Tribunal/Sub Court, Tindivanam in MCOP No.174 of 1994 dated 13.08.2003 together with interest at the rate of 9% per annum from the date of filing of petition till date of payment of compensation payable by the appellant/Thiruvalluvar Transport Corporation.
17. The above appeal came before this Court on 08.04.2005. The Court directed the appellant to deposit the entire balance compensation amount including interest and cost into the credit of MCOP NO.174 of 1994 on the file of Motor Accidents Claims Tribunal/Subordinate Court, Tindivanam.
18. The accident happened in the year 1993. So it is open to the respondent/claimant to receive the balance amount lying to the credit of MCOP No.174 of 1994 on the file of Motor Accident Claims Tribunal/Subordinate Court, Tindivanam by filing necessary payment out application in accordance with law.
19. In the result, the civil miscellaneous appeal is dismissed and the award passed by the Motor Accident Claims Tribunal/Subordinate Court, Tindivanam in MCOP No.174 of 1994 is confirmed. The parties are directed to bear their own cost in this appeal.
JIKR To The Subordinate Court Motor Accidents Claims Tribunal Tindivanam