The above Civil Miscellaneous Appeal has been filed by the appellant/third respondent against the Award and Decree, dated 30.01.2004, made in M.A.C.T.O.P.No.1160 of 2001, on the file of the Motor Accidents Claims Tribunal (II Addl. Sub-Judge), Coimbatore, awarding a compensation of Rs.60,086/- with 9% interest per annum from the date of the petition to till the date of payment of the compensation.
2.Aggrieved by the above said award, the appellant/V.P.Munusamy Nadar, owner of the van bearing registration No.TN65 A8538 has preferred the above appeal to set aside the order.
3.The short facts of the case are as follows:
On 02.03.2001, the petitioner was a passenger in the van bearing registration No.TN65 A8538, proceeding from Coimbatore to Madurai and when the van was nearing Perumpallam on the Coimbatore to Dharapuram road, the bus bearing registration No.TN57 N0977, was coming from the opposite direction (Dharapuram to Coimbatore) with highspeed and in a rash and negligent manner dashed against the said van and in the result, the van was thrown out and damaged entirely. The driver of the van sustained serious fatal injuries and died on the spot and two other passengers also died on the spot. The driver of the van had driven the van with due care and following road rules and regulations and only the driver of the bus was solely responsible for the accident. The Kondadam Police has registered a case against the driver of the bus/first respondent in Crime No.46/2001 under
Sections 279,337 and
304(A) of I.P.C.
4.The petitioner sustained severe injuries on the head, right hand, right leg, right knee and lost two teeth and sustained fracture in the Nasal bone of mouth and multiple confusion. Initially, the petitioner has been admitted in the Government Hospital at Dharapuram and after that he had been admitted in Sri Ramakrishna Hospital, Coimbatore and is still getting treatment. Due to the accident, he could not use his hands and legs normally and freely and he could not sit, stand and walk. Due to the head injury and fracture in the nose and mouth, his fact has become disfigured and his health has also been affected. The petitioner, who is a Textile Machine Service Engineer engaged in erection and servicing, is not able to attend to his work and has become permanently disabled.
5.Hence, the petitioner, who was earning a sum of Rs.15,000/- per month, has claimed a compensation of Rs.3,15,500/- but restricted it to Rs.2,00,000/- with interest and costs against the respondents namely driver of the bus, owner of the bus, owner of the van and the insurer of the said van.
6.The fourth respondent/The New India Assurance Company Ltd., has resisted the claim, in its Counter stating that the fourth respondent is an unnecessary party to the proceedings. Even, as per the petitioners version, the driver of the van bearing registration No.TN65 A8538 was driving the van with due car and following road rules and regulations and it was only the driver of the bus, who was solely responsible for the accident. Further, the Kondadam Police have also registered a case only against the driver of the bus/first respondent, bearing registration No.TN57 N0977, under
sections 279,337 and
304(A) of I.P.C as Crime No.46/2001. Therefore, it has been submitted that this respondent is not a necessary party and deserves to be exonerated. Further, the age, occupation, income and nature of injuries and disability have to be proved by the petitioner. Further, the claim of the petitioner is excessive.
7.The second respondent/Tamil Nadu State Transport Corporation Ltd., in its Counter, which the first respondent is in consonance with, has resisted the claim stating that the first respondent, the driver of the bus bus bearing registration No.TN57 N0977 had taken the bus at 6.50 a.m. from Madurai and was proceeding towards Coimbatore, observing all the traffic rules and regulations. At about 9.30 a.m. when it was approaching the Kangampalayam Branch road on the Dharapuram road, the van bearing registration No.TN65 A8538, driven with highspeed and in a negligent manner by its driver, dashed against the said bus, driven by the first respondent. On seeing, the van being driver in a zig zag manner by its driver, the first respondent stopped his bus on the left side of the road. But, as the van driver was not able to control his vehicle, the van dashed against the bus. Due to this, passengers in the bus also sustained injuries. As the accident had been caused only by the negligence of the van driver, the second respondent is not liable to pay any compensation to the petitioner. Further, the age, occupation, income of the petitioner was not admitted. As such, the second respondent had prayed for dismissal of the claim petition.
8.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident caused by the negligence of the first respondent? Or was the accident caused by the negligence of the van driver?
(ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation and who is liable to pay compensation?
9.On the petitioner's side, the petitioner Mr.Senthil Kumar was examined as PW1, Sankari as PW2 and Shanmugaraj as PW3. Further, 15 documents were marked as Exs.P1 to P15. On the respondents' side, one Sankaradas was examined as RW1, one Soundiraraj as RW2, one Palanisamy as RW3 and one Viswanathan as RW4 and three documents were marked as Exs.R1 to R3. On the petitioners side, it has been contended that the petitioner, while he was travelling in the van bearing registration No.TN65 A8538, from Coimbatore to Madurai, on the Dharapuram road and when it was nearing Perumpallam, the first respondent, had driven the bus bearing registration No.TN57 N0977 with highspeed and in a negligent manner had dashed against the van and caused the accident. To substantiate this, a complaint has been registered against the driver of the said bus at the Police Station marked as Ex.P1. Further, both the vehicles involved in the accident had been certified mechanically fit by the Motor Vehicle Inspector and this report has been marked as Exs.P2 and P3. The rough sketch of the accident was marked as Ex.P4 and the final report of the Police had been marked as Ex.P5. Based on the above documentary evidence it has been submitted that the accident was caused by the first respondent.
10.It has been contended by the first and second respondents that the accident did not occur due to the negligence of the first respondent and that it had been caused by the negligent driving of the deceased driver of the said van, and that only he had driven the van in a zig zag manner and dashed against the bus. The bus driver, on seeing the negligent driving of the van by its driver had stopped the bus on the left side of the road and in spite of the van driver had dashed the van against the bus. On the first and second respondents' side, it was further submitted that the Police had filed a Final Report of the said accident and in that the accident has been said to be caused by the negligence of the van driver and as the van driver had died in the accident, the final report prepared by the Police has mentioned that the charge had abated. As such, the first and second respondents had contended that the accident has been caused only due to the negligence of the van driver. Further, it was submitted that the first respondent, on seeing the oncoming van, had stopped the bus before the bridge and the van had crossed the bridge and rammed against the stationery bus.
11.It has been contended by the fourth respondent that the accident had not occurred due to the negligence of the van driver and it was only the negligence of the first respondent, driver of the bus, which had caused the accident. The Police had also registered an F.I.R. as against the driver of the bus only and hence only the first respondent should be held negligent for causing the accident.
12.The fact that the van and the bus had colluded with one another, the fact that the van driver and two other passengers in the van had deed and some passengers in the bus were injured in the said accident has not opposed by the first, second and fourth respondents. Further, the RW4, in his evidence has submitted that there was a bridge in front of the moving bus and the driver on seeing it had switched on headlights and tried to cross the bridge but the van driver did not notice the bus and dashed the van against the bus. Even, the RW1, in his evidence has said that the accident was caused only by the driver of the van.
13.On a scrutiny of Ex.P1, the FIR, it is evident that the report has been registered only against the first respondent. But, on going through Ex.R5, it has been held that the accident has been caused only by the van driver and that because the van driver had died, the charge against him had abated. But, there are no documentary regarding witnesses examined and on what evidence, the Police had come to the above conclusion. The Police had filed the report against the first respondent. But, the Tribunal was at a loss to understand, how the Police could have filed another FIR as against the driver of the van and not sent the same to the Court and how they could have concluded that it was the van driver, who had caused the accident. No evidence has been led by the respondents to present this detail with clarity.
14.Further, on examination of Ex.P2 and P3, it is evident that the two vehicles involved in the accident were mechanically found fit. In spite of this, the accident could not be asserted. Even, if the first respondent driver had stopped his bus on the left side of the road, as alleged by him, then the van, on dashing against the bus would not have turned turtle. But, on seeing Ex.R2, it is clear that the van had turned turtle and the bus had remained stationery. Further, the RW1, in his evidence had stated that the van had dashed against the bridge. But, on seeing Ex.R2, it is clear that there is no evidence of any cracks on the bridge, which would have been caused it the van had dashed against the bridge. As such, there is no evidence to suggest that the accident had been caused by the driver of the van or by the driver of the bus. As such, the Tribunal came to the conclusion that the accident had been caused by the negligence of both the drivers of the van and the bus. As such, all the respondents were held jointly and severally liable to pay the compensation to the petitioner.
15.The Tribunal, on consideration of the fact that the petitioner was not the driver of the van or the bus and considering the fact that he was only a passenger in the van, concluded that he is eligible to get compensation.
16.In the PW1's evidence, it has been submitted that in the accident, he has sustained injuries in his head, nose, mouth, right hand, right leg, and that four of his teeth had been broken and that he had taken treatment as inpatient in Ramakrishna Hospital, Coimbatore. On examination of Ex.P6, it is evident that the petitioner had sustained both simple and grievous injuries. On examination of the Ex.P7, it is clear that the petitioner had undergone treatment at Ramakrishna Hospital from 02.03.2001 to 06.03.2001. Further, on scrutiny of Ex.P8, it is evidence that the petitioner had taken treatment at the Ortho Hospital. Further from the Ex.P9, it has been established that the petitioner had spent a sum of Rs.4,586/- towards medical expenses. From an examination of the Ex.P11, it is established that the petitioner was getting a monthly salary of Rs.11,250/-.
17.Further, PW3, the Doctor, in his evidence, had stated that on examination of the petitioner, he had found that the movements of the petitioner's right knee has been reduced and that the extent of permanent disability on this count is fixed at 5% and as the strength of his right knee had also been reduced, 3% permanent disability on this count had been fixed. Further, for the fractures of bones in right had, 9% disability was fixed and 4% permanent disability was arrived at for fractures sustained in his nose. Due to loss of four teeth 8% disability was fixed and in total 28% permanent disability was said to have been sustained by the petitioner in the accident. Accordingly, the doctor had marked this as Ex.P14, the Disability Certificate. As such, considering the evidence adduced by PW1 and PW2 and on scrutiny of the Exs.P14, P6, P7, P8 and P9, the Tribunal decided that the petitioner had suffered 28% permanent disability in the said accident. So, the Tribunal decided to award compensation to the petitioner for permanent disability, pain and suffering, transport expenses, medical expenses and nutrition, but decided not to grant compensation as asked by the petitioner, under the head of loss of income, as there was no documentary evidence to prove the same. As such, the Tribunal granted a sum of Rs.28,000/- for permanent disability; a sum of Rs.20,000/- for pain and suffering; a sum of Rs.4,586/- for medical expenses; a sum of Rs.1,500/- for nutrition; a sum of Rs.1,000/- for transport expenses and Rs.5,000/- only for loss of income and in total, the Tribunal granted a compensation of Rs.60,086/- to the petitioner.
18.The Tribunal directed the respondents jointly and severally, to pay the above said compensation with interest at the rate of 9% per annum from the date of filing the petitioner to till the date of payment of the compensation, within a period of two months from the date of its Order and that the above said award with interest had to be deposited in a Nationalised Bank for three years and permitted the petitioner to withdraw the interest on such deposit made once in six months. The Advocate fees was fixed as per law.
19.The learned counsel appearing for the appellant has argued in his appeal that even as per the evidence of the PW1, it was only the rash and negligent driving of the bus bearing registration No.TN57 N0977, which had caused the fatal accident, killing the van driver and causing grievous injuries to the other occupants of the van. Further, the fact that the learned Tribunal, having observed that no documents were produced before it to know how the Police had come to the conclusion that the deceased driver of the van was negligent and closed criminal case as abated and further disbelieving the evidence of RW1, the driver of the bus regarding the manner of the accident, has erroneously held that both the drivers of the vehicles were negligent and fixed the liability on the respondents jointly and severally. As such, the learned counsel for the appellant has prayed for setting aside the Order of the Tribunal.
20.The learned counsel appearing for the respondents submitted that the Motor Accident Claims Tribunal after recording evidence of the PW1 and the scrutiny of the Exs.P1 and P5, namely FIR, Motor Vehicles Inspector's Report for bus and Motor Vehicle Inspector's Report for bus, Rough Sketch and Final Report has come to a conclusion that the accident had been caused due to the negligence of both the drivers of the van and the bus. Further, the learned counsel appearing for the respondents submitted that four teeth of the claimant was broken in the accident and he sustained injuries on the head, nose, mouth, right hand, right let etc., for which he had underwent treatment initially as in-patient and later on as out patient. The learned counsel further pointed out that one Doctor, Shanmugaraj, examined the claimant and issued Disability Certificate stating that the claimant had sustained 28% Disability in total for all the injuries. In support of this, he had also adduced evidence before the Tribunal. Hence, the Tribunal's finding on the quantum and negligence is perfectly correct.
21.For the foregoing reasons and the consideration of facts and circumstances of the case, arguments advanced by the learned counsels for their respective parties, the Court is of the view that the Tribunal framed two issues regarding negligence and quantum. The issues regarding negligence was well considered on the basis of the FIR, Sketch, Motor Vehicle Inspector's Report and then the Tribunal had determined that both the drivers of the van and the bus had been responsible for the said accident. As such, the respondents are liable to pay the compensation. This Court is unable to find any discrepancy on the finding of the Tribunal, regarding negligence. Regarding the quantum of the compensation, which had been arrived after taking into account the petitioner's evidence, PW3-the Doctor's evidence; PW6-The Wound Certificate and PW7-Discharge Summary issued by the Hospital and PW14-Disability Certificate issued by the PW3, the Tribunal had awarded a sum of Rs.28,000/- for 28% disability, Rs.20,000/- for pain and suffering and for nutrition, transport and medical expenses they had awarded a sum of Rs.1,500/-, Rs.1,000/- and Rs.4,568/- respectively. The award granted under the said heads are reasonable. For pain and suffering, as the claimant has suffered five injuries, an award of Rs.20,000/- fixed in this aspect is reasonable.
22.Hence, the Motor Accidents Claims Tribunal (II Addl. Sub-Judge), Coimbatore, had awarded a compensation of Rs.60,086/- with interest at the rate of 9% per annum, from the date of filing the petition to till the date of payment, which is equitable, fair and prudent too, payable by the State Transport Corporation and the appellant herein equally.
23.Accordingly, the award passed by the Tribunal is confirmed by this Court. The appellant, the owner of the vehicle should deposit 50% of the compensation amount together with interest at the rate of 9% per annum from the date of filing of the petition to till the date of payment into the credit of the M.A.C.T.O.P.No.1160 of 2001, on the file of the Motor Accidents Claims Tribunal (II Addl. Sub-Judge), Coimbatore. If, the appellant has already deposited any compensation amount, it can be deducted from the said award passed against him and remit the balance amount within a period of six weeks from the date of receipt of this Order.
24.It is open to the respondent/claimant to receive the entire compensation amount, lying into the credit of M.A.C.T.O.P.No.1160 of 2001, on the file of the Motor Accidents Claims Tribunal (II Addl. Sub-Judge), Coimbatore, by filing necessary payment out application in accordance with law.
25.In the result, the Civil Miscellaneous Appeal is dismissed and consequently, the award passed in M.A.C.T.O.P.No.1160 of 2001, on the file of the Motor Accidents Claims Tribunal (II Addl. Sub-Judge), Coimbatore, is confirmed. No costs.
krk To
1.Motor Accidents Claims Tribunal (II Addl. Sub-Judge), Coimbatore.
2. The Section Officer, VR Section, High Court, Madras