The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree Order dated 05.09.2003, made in M.C.O.P.No.3521 of 2001, on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai, awarding a compensation of Rs.2,55,000/- with 9% interest per annum, from the date of filing the petition to till the date of deposit of compensation.
2.Aggrieved by the above award, the appellant/respondent, Metropolitan Transport Corporation Ltd., has filed the above appeal praying to set aside the Order.
3.The short facts of the case are as follows:
on 22.03.2001, at about 16.00 hrs, the petitioner, aged about 12 years, waiting at the Maduravoyal bus stop. At that time, MTC, bearing registration No.TN01 N2679, Route No.50, stopped at the bus stand. After some passengers got down from the bus, the petitioner tried to board the bus through front entrance. But, before he could board the bus, the Conductor suddenly flew the whistle and the driver suddenly and rashly started the bus. In the process, the petitioner lost his grip and fell down and the rear left wheel of the bus ran over the petitioner's right leg and thereby caused the grievous accident. The petitioner sustained fracture of Femur right, Dislocation of Pelvis and sustained abdominal injury and urithiral injury besides multiple injuries all over his body. The petitioner was admitted in Government K.M.C.Hospital, Chennai-10 and took treatment from 22.03.2001 to 08.05.2001 as in-patient and has been continuously taking treatment as out-patient. As a result of the said accident, he is not able to work and walk as before.
4.As the accident had been caused only due to the rash and negligent act of the MTC bus crew, the respondent being the owner of the Corporation is vicariously liable to pay compensation to the petitioner with interest and cost. The petitioner has claimed a total compensation of Rs.3,25,000/- with interest under
Sections 166 and
142 of the Motor Vehicles Act and rules.
5.The Madurovoyal Police Station, Maduravoyal, Chengai East District, has registered a Criminal Case regarding the accident as Crime No.288/001.
6.The respondent, in his Counter has resisted the claim stating that on 22.03.2001, the bus belonging to the respondent Corporation in Route No.50, night halt/A service, bearing registration No.TN01 N2679 was on its trip from Thiruverkkadu to Boradway. At about 16.15 hrs, when the bus was nearing Maduravoyal bus stop, a minor passenger, the petitioner herein, attempted to board the bus through the front footboard before the bus stopped. So, he lost his grip and balance, fell down and sustained injuries. Therefore, the minor petitioner himself invited the accident and he himself is responsible for the accident. There was no negligence on the part of the driver of the respondent Corporation bus. Hence, the respondent Corporation is not liable to pay any compensation to the petitioner.
7.Further, the age, occupation and income of the petitioner, nature of the injuries sustained by him and the period of treatment were not admitted. Further, the amount claimed is excessive and should be rejected. Further, the petitioner has to prove that he sustained permanent disability in the road accident, in terms of
Section 142 of the Motor Vehicles Act, by positive documentary evidence. Hence, the respondent prayed for dismissal of claim petition.
8.The Motor Accident Claims Tribunal framed two issues for consideration namely:
(i) Who was responsible for the accident?
(ii) Is the petitioner entitled to receive compensation? If so, what is the quantum of the compensation?
9.On the petitioner's side, two witnesses were examined and seven documents were marked as Exs.P1 to P7. On the respondent's side, two witnesses were examined and one document was marked as Ex.R1.
10.The minor petitioner's mother was examined as PW1. She had adduced evidence that on 22.03.2001, her son was standing at the Maduravoyal bus stop. When he tried to board, the bus bearing registration No.TN01 N2679, Route No.50, the Conductor flew the whistle and the driver started the bus rashly before her son could board the bus and hence he had slipped and sustained injuries. She had further marked Ex.P4 as the First Information Report. From the respondent's side, the driver of the bus was examined as RW1. In his evidence, he had stated that on 22.03.2001, at about 3.55 p.m. the bus was moving slowly near the Maduravoyal Market bus stand, due to heavy traffic on the road and then passengers and school students ran and boarded the bus and after boarding of the passengers, due to heavy traffic, he had driven the bus slowly. At that time, some passengers shouted at him and before he could get down and see what had happened, the passengers had assaulted him. A criminal case was registered against him, and it came for hearing on 19.06.2003 and was adjourned. He marked Ex.R1, the Accident Report.
11.RW2, Conductor of the bus, in his evidence had adduced that due to heavy traffic on the road, the bus had been stopped near the place of the accident. At that time, the passengers and school students came running and boarded the bus. After this, when the bus was proceeding slowly, due to commotion from the passengers, the bus was stopped. On getting down and after inspection, it was found that a student had been injured under the back tyre of the bus. When, he tried to take the injured boy in an Auto, the passengers assaulted him and subsequently he had reported about the accident to Maduravoyal Police Station and that he had given his statement about the accident to his owner and that this had been marked as R1. Further, in his evidence, he had stated that it was the carelessness of the passengers that had caused the accident.
12.The Tribunal, on inspection of Ex.P5, the F.I.R. found that the FIR has been registered on the date of the accident itself and it was registered against the driver of the said bus. In the FIR, it has been stated that the driver of the bus, had started the bus even before ascertaining whether all the passengers were board the bus, especially considering that there were a lot of passengers in that area, and that this had been the cause for the accident. Though, it has been stated by the respondents that they had registered a complaint at the Police Station, regarding the accident and had stated that it was Ex.R2, they have not produced this before the Tribunal. The Tribunal decided that the driver and conductor of the said bus were not even aware of how the accident had occurred, on scrutinising their evidence. Further, the Tribunal considered that it is the responsibility of the driver and conductor to be extra careful, especially when students are boarding the bus. As such, the document Ex.R1, advanced as evidence from the respondent's side to prove that the driver of the bus had not been negligent was not considered sufficient by the Tribunal. Hence, the Tribunal held that the driver and conductor of the bus were negligent and hence decided that their employer, the respondent herein is liable to pay compensation to the petitioner.
13.PW1, has adduced in her evidence, that her son had sustained fracture of neck of femur right, hip bone and that he had sustained injuries on his stomach. Further, she had given evidence that he had taken treatment at Kilpauk Medical College Hospital and that the Discharge Summary of the petitioner in that Hospital has been marked as Ex.P1. Subsequently, the petitioner had taken treatment at Star Bone Hospital from 13.03.2000 to 20.03.2000 as in-patient and that the Discharge Summary of that Hospital has been marked for treatment, the Medical Bills totalling a sum of Rs.9,034.97/- were marked as Ex.P3.
14.The Doctor, who had treated the petitioner, was examined as PW2 and he had stated that the petitioner had sustained fracture in the right hip bone above the thigh bone and that he was operated and screws were fixed at this place and that the bone here and had been shortened by 1" and so the height of the right leg has been reduced by 1" and as such, the petitioner had sustained 40% disability. Further, due to rupture in the tube of the small intestine, he was surgically operated to correct this but, this was of no use and as such, the petitioner is not able to control passing of urine and fixed the disability on this court as 40%. As such, the petitioner has sustained 80% disability and accordingly had awarded Disability Certificate to this effect and marked this as Ex.P6 and Ex.P7 as X-Rays. Further, from examining the Exs.P2 and P3, it is evident that the petitioner had sustained injuries of neck of temur and putric symphysis diastasis. Though, the petitioner has claimed a sum of Rs.3,000/- for Transport expenses and a sum of Rs.3,000/- for Nutrition, no documents have been produced to prove the same. In spite of this, there are documentary evidence to prove that the petitioner had received medical treatment for two years. Considering this, the Tribunal awarded a sum of Rs.2,000/- for Transport expenses and a sum of Rs.2,000/- for nutrition. For damages to clothes, a sum of Rs.300/- was granted. For medical expenses incurred as per Ex.P4, an award of Rs.9,000/- was granted. The petitioner had asked a sum of Rs.20,000/- in his claim towards attendant charges. Though, there is no clear proof for this, the Tribunal considering that an attendant would have been staying with the petitioner during his period of treatment, granted an award of Rs.15,000/-. For mental agony suffered by the petitioner, a sum of Rs.5,000/- was awarded. For loss of marital life, an award of Rs.30,000/- had been claimed. But, the Tribunal taking into consideration the rupture in the pelvis as adduced by the Doctor in his evidence, granted a sum of Rs.10,000/- as award. For pain and suffering, considering the nature of injuries sustained by the petitioner, the Tribunal granted a sum of Rs.10,000/-. Further, the petitioner had claimed a sum of Rs.1,75,000/- for loss of income due to the partial permanent disability. The Tribunal, considering that the injured petitioner was a school going student and was not earning anything, as per
Section 163(A), Schedule-2 of the Motor Vehicles Act, fixed a nominal income of Rs.15,000/- per annum, as the petitioner's earning for calculating the loss of income due to disability. The Tribunal considering that the age of the petitioner's mother was 35 years at the time of the accident, took a multiplier of 16 for assessing loss of income.
15.The respondent's counsel had argued that the assessment of disability at 80% was on the higher side and in support of this, they had pointed out a citation of a Judgement made in 1999(8) SC Page 408. But, the learned counsel for the respondent had cited a Judgement made in 1999 SC Page 2261, wherein the manner of the accident, the petitioner's age and facts and circumstances of the case had to be taken into account for awarding compensation. Further, the PW1 has stated in her evidence, that the school education of her son, the petitioner, has been affected.
16.Hence, the Tribunal considering that the petitioner had suffered permanent disability, calculated the loss of income as Rs.15,000/- X 16 X 80/100 = Rs.1,92,000/- and awarded this amount as compensation under loss of income due to disability. For loss of earning capacity, a sum of Rs.50,000/- was claimed. But, the Tribunal considering that the petitioner was a minor at the time of the accident, awarded a sum of Rs.10,000/- only under this head. In total, the Tribunal awarded a sum of Rs.2,55,300 (inclusive of interim award) as total compensation to the petitioner and directed the respondent to deposit the above said award with interest at the rate of 9% from the date of filing of petition to till the date of deposit of award, within a period of eight weeks, into the credit of M.C.O.P.No.3521 of 2001, on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai.
17.The Tribunal considering that the petitioner was aminor at the time of the accident, directed that the above award has to be deposited in Indian Bank, High Court Campus, Chennai-104, as fixed deposit and permitted the mother of the petitioner to withdraw interest, on such deposit, once in three months, directly from the Bank. Further, Advocate fees was fixed as Rs.8,106/-.
18.The learned counsel appearing for the appellant has argued in his appeal that the Tribunal had erred in its finding that the driver of the appellant-Corporation was responsible for the accident. Further, the awards granted under the heads of attendant charges, pain and suffering, loss of marriage prospects, loss of earning power, loss of income due to permanent disability are erroneous and highly excessive.
19.The learned counsel appearing for the appellant further vehemently argued that a sum of Rs.10,000/- awarded for loss of future earnings is not pertinent. As such, the award granted under this head should be set aside.
20.The learned counsel appearing for the respondent submitted that the award passed by the Tribunal is fair. The claimant is a school going student at the time of the accident. Due to the accident, his right leg length has been shortened by 1". Further, the petitioner is unable to control passing of urine since, the urinary track has been damaged. Hence, the Tribunal's award of compensation should not be interfered with.
21.The learned counsel appearing for the respondent, in support of his case, has relied on a Judgement reported in 2008 ACJ 2674, Madras High Court, Metropolitan Transport Corporation Ltd., Vs. V.R.Gopal, wherein it is stated as follows:
"Quantum Injury Hip and kidney Fractures of bones in front side hip consequent to which urinary track was damaged and alternative urinary tube had to be fixed and a plate was fixed in right side hip Kidney is damaged leading to complication in excretory system and injured requires dilatation once every two weeks Injured was hospitalised for 90 days on two occasions and underwent 5 operations He suffered from 85 per cent disablement and got voluntary retirement 2 years before superannuation Tribunal awarded Rs.3,26,440 Appellate court allowed Rs.85,000 for disability and loss of earning capacity, Rs.1,87,440 for medical expenses, Rs.1,00,000 for pain and suffering, Rs.5,000 for transportation, Rs.10,000 for nourishment, Rs.75,000 for future medical expenses and Rs.50,000 for loss of amenities Award of Rs.3,26,440 enhanced to Rs.5,12,440."
22.For the foregoing reasons, facts and circumstances of the case and after hearing arguments advanced by the learned counsels for their respective parties and grounds of appeal, this Court is of the view that the award passed by the Tribunal is reasonable and fair and as such confirms the quantum of compensation granted by the Tribunal.
23.The Tribunal had awarded compensation as follows:
1.Transport expenses : Rs. 2,000/-
2.Nutrition : Rs. 2,000/-
24.This Court is of the view that the above award passed by the Tribunal are pertinent except for award granted under Item 10 ie.Loss of future earnings. The award granted under this head is not pertinent and the same may be treated as under the head of mental and physical distress faced by the petitioner in continuing his studies, resulting in decreased concentration level of the petitioner in his studies. Accordingly, the award passed by the Tribunal is confirmed.
25.This Court hereby directs the appellant/State Transport Corporation is to deposit the entire compensation amount ie.Rs.2,55,000/- together with interest at the rate of 9% per annum from the date of filing the petition to till the date of payment, into the credit of the M.C.O.P.No.3521 of 2001, on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai, after deducting any amount already deposited by the appellant, within a period of six weeks from the date of receipt of this Order.
26.As the accident happened in the year 2001, it is open to the respondent/claimant to withdraw the entire compensation amount, together with interest lying to the credit of the M.C.O.P.No.3521 of 2001, on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai, by filing necessary payment out application in accordance with law.
27.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai, in the M.C.O.P.No.3521 of 2001, dated 05.09.2003 is confirmed. Consequently, connected civil miscellaneous petition is also closed. No costs.
09.12.2009 Index: Yes/No Internet: Yes/No krk To
1.Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-deliver Order in C.M.A.No.85 of 2005 09.12.2009