The above Civil Miscellaneous Appeal has been filed by the appellant/respondent, against the Award and Decree, dated 10.11.2003, made in M.C.O.P.No.455 of 2002, on the file of the Motor Accident Tribunal (Sub Court), Krishnagiri, awarding a compensation of Rs.3,82,000/- with 9% interest from the date of filing the petition till the date of payment of the compensation.
2.Aggrieved by the said Order, the respondent/Tamil Nadu State Transport Corporation, Vellore has filed the above appeal praying to set aside the Order.
3.The short facts of case are as follows:
On 04.06.2001, the minor petitioner was travelling as a passenger in the Corporation Bus bearing registration No.TN23 N 1054, from Tirupathur to Chennai. At that time, at about 10 a.m. when the bus was going on the Thamal Bye Pass Road, Three Kilometers West of Baluchettichathiram Police Station, the Driver of the bus drove the same in a rash and negligent manner and at a highspeed, without adhering to the rules of the road and without sounding horn. A Bullock Cart was going ahead, while the driver of the bus was trying to overtake the said Bullock Cart, a Tempo was coming from the opposite side of the road. Even then, the Driver of the bus did not slowdown the speed of the Bus. The minor petitioner was sitting on the right side of the bus on window side. While overtaking the Bullock Cart, the driver of the bus has not given any signal or horn sound. But, the Tempo Driver stopped his vehicle. At that time, while the bus was overtaking the Bullock Cart, the rightside of the bus brushed against the Tempo. Due to this, the minor petitioner, who was sitting near the window sustained grievous injuries. He sustained injuries to his right frontal bone, right eye, bone etc., If the driver had stopped the Bus or avoided overtaking the Bullock Cart, the accident would not have occurred. The accident had occurred only due to the rash and negligent driving of the driver of the Corporation Bus ie. the Driver of the bus has not maintained the distance between the bus and the Tempo and drove the same very closely and caused the accident.
4.Immediately after the accident, the minor petitioner was taken to the Primary Health Centre at Baluchettichattiram and after he was given first aid, was taken to the Government Hospital at Kanchipuram. Thereafter, he was admitted in Government Ophthalmic Hospital at Chennai and later at General Hospital, Chennai. After discharge, he is taking periodical treatment from Dr.Ashok Kumar, Kaveripattinam and Dr.V.Umapathi, Krishnagiri. Due to the accident, the petitioner is not able to do his work as before. His hearing power is reduced to a great extent. His right eye vision has also been affected very much. His face has become disfigured. He gets headache often. The next friend of the minor petitioner, his mother, spent about Rs.30,000/- for his treatment and further he requires atleast Rs.30,000/- for his medical expenses. Moreover, he spent about Rs.10,000/- for transport and Rs.15,000/- for extra nourishment. She is put to great mental shock and agony. The future of the petitioner is completely shattered into pieces.
5.The minor petitioner was doing Coolie work and earning not less than Rs.2000/- per month and contributing the said earnings for the maintenance of the family. After the accident, the next friend has been put to great difficulty to give timely treatment and for maintaining the family. He was the breadwinner of the family.
6.The driver of the Bus registration No.TN 23 N1054 had caused the accident. Hence, the respondent, as owner-cum-insurer is solely and vicariously liable to pay the compensation to the petitioner as claimed. As such, the petitioner has claimed a compensation of Rs.7,00,000/- together with interest at the rate of 12% per annum from the date of the petition till the realisation, with costs.
7.The Baluchettichathiram Police Station, Kancheepuram, has registered a criminal case of the said accident in Crime No.233/2001, under
Sections 279 and
339 of I.P.C.
8.The respondent/Tamil Nadu State Transport Corporation Ltd., Rangapuram, Vellore-9, in its Counter has resisted the claim stating that the age, income and occupation of the petitioner are not admitted. Further, the period of treatment and disability sustained by the petitioner was also not admitted.
9.Further, the manner of the accident, as alleged in the claim was not admitted. The respondent has stated that the driver of the Corporation Bus drove the bus slowly, keeping to the rules of the road. At that time, the Tempo bearing registration No.TN 23/407 was coming in the opposite side, with Iron Rod load and while passing the Corporation Bus, a point of the Iron Rod hit on the petitioner. As such, the accident occurred due to the carelessness of the petitioner and the carelessness on part of the driver of the Tempo and not due to any act of the Corporation Bus Driver. The Baluchetti Police have also registered a case in Crime No.233/2001 against the driver of the Tempo only. But, the petitioner has mistakenly filed this claim petition against this respondent. The owner and insurer of the Tempo bearing registration No.TN23/407 is to be impleaded as parties to the petition. Without impleading them, the petition is liable to be dismissed. It was further submitted that for fixing the compensation amount, the contributory negligence has to be taken into the account.
10.Further, the claim of the petitioner is ex-orbitant and exaggerated. As such, the respondent has prayed for dismissal of the petition.
11.The Motor Accident Claims Tribunal framed three issues for consideration namely
(i) Who is responsible for the accident?
(ii) Is the petitioner entitled to receive compensation?
(iii)To what relief is the petitioner entitled to?
12.On the petitioner's side, three witnesses were examined. Six documents were marked as Exs.P1 to P6. On the respondent's side one witness was examined. The mother of the petitioner was examined as PW1. The PW1, in her evidence has stated that on 04.06.2001, when her son was travelling as a passenger in the respondent's bus from Tirupathur to Chennai, near Thamal Bye-pass Road, at three Kilometers from West of Police Station, the Bus driver, driving the bus in a rash and negligent manner, overtook a Bullock Cart and grazed against the rightside of a Tempo coming from opposite direction. In the result, the petitioner sustained fracture injuries on his bone in nose, forehead and head and also sustained injuries on other parts of his body. She has also stated in her evidence that the accident occurred due to the negligence of the bus driver. But, the bus driver had given a false complaint to the Police against the driver of the Tempo and the petitioner. She had further marked Ex.P1, the FIR, the Wound Certificate issued by Kancheepuram Hospital as Ex.P2, the Certificate issued by Chennai Hospital regarding eye injury as Ex.P3. Further she had marked Ex.P4, the copy of Discharge Summary of Chennai Hospital and the Discharge Summary and receipts issued by Tirupathur Medical Hospital Ex.P5 and Ex.P6 respectively.
13.The minor petitioner, was examined as PW2 and in his evidence, he has stated that while he was travelling as a passenger in the said bus, near Balachettichattiram, the bus tried to overtake a Bullock Cart and while doing so grazed against the rightside of the Tempo and as he was sitting on the 5th row behind the driver's seat, he sustained injuries and has further stated that the complaint made by the bus driver against the Tempo driver was false.
14.RW1, the driver of the bus, in his evidence has stated that on seeing the Tempo driver coming in a Zig Zag manner in front of the bus, he had stopped the bus but as the minor petitioner had poked his head outside of the window of the bus, he had sustained injuries and has further stated that the Tempo driver had not stopped his vehicle and had fled away. Further, it was submitted that he admitted the minor petitioner in the Primary Health Centre at Balachettychattiram for treatment and had also lodged a complaint with the Police regarding the said accident.
15.But, the Tribunal held that it is the responsibility of the driver and conductor of the bus to watch and instruct the passengers in the bus and ensure that they follow the safety precautions and that in the present case they have been negligent and irresponsible as even after they had noticed the minor petitioner poking his head outside of the window had failed to instruct him. Though, it has been alleged by the driver of the bus that he had stopped the bus on seeing the erratic driving of the Tempo driver, the other witnesses on the petitioner's side had adduced evidence, which is contrary to this. The Tribunal further held that even though the bus driver had given the complaint to the Police, it has not lent evidence to the version of the accident. Though, it has been alleged by the driver of the bus that the accident had occurred because the petitioner had kept his head outside of the window, the fact that there are no wound injuries on the left side of his head and all the injuries sustained by the petitioner was only on the right side of his head, does not lend any evidence to the driver's statement. As such, the Tribunal held that the accident was not due to any error committed by the Tempo driver. Further, it was contended on the petitioner's side that it was not necessary for them to prove that the accident was caused by the negligence and carelessness of the driver of the bus. It was further argued that the bus driver has to be held negligent and the respondent is liable to pay compensation to the petitioner. To support of this line of argument, a legal ruling in 2002(3) TSE made by the Hon'ble Kolkatta High Court, in its Judgement under
Section 163A of the Motor Vehicles Act was cited by the petitioner's side. Further, the Tribunal held that it is not necessary to consider against whom the FIR had been registered. Further, the evidence adduced by PW2 has not been rebutted by the respondent's side. As such, the Tribunal held that it was only the negligence of the driver of the bus and the highspeed at which he had driven it, which had caused the accident.
16.On an examination of the Ex.P2, the Wound Certificate, it is clear that the petitioner had sustained three injuries out of which two are grievous in nature and one is a simple injury. PW3, the Doctor in his evidence has stated that he had examined the petitioner and deduced that the petitioner had sustained a deep injury on his head, that the skull has been fractured; that due to the compression of his brain, a surgery had been done; that the petitioner's front head and nose were distorted and that he had lost his right eyesight. Further, the petitioner had lost sense of smell in his nose and that there is no sensation in the petitioner's head. Further, PW3 has stated that all these were as a result of the damage to the brain of the petitioner. He had also stated that due to his, the petitioner is prone to tits. Taking all this into consideration, PW3 has adduced in his evidence that the petitioner had sustained 70% of disability and marked Ex.P6, the Disability Certificate issued by him. As such, the Tribunal, on considering evidence of PW2, PW3 and scrutiny of Exs.P2, P3, P4 and P6 concluded that the petitioner had sustained grievous injury resulting in disability. Though the petitioner had stated in his claim that he was earning Rs.2,000/- per month, there has been no documentary evidence furnished to prove the same. But, the Tribunal held that the petitioner's future prospects had been affected and that he would not be able to move socially with persons of his age. As such, the Tribunal awarded a sum of Rs.2,00,000/- towards disability and loss of future earnings and also granted a sum of Rs.1,00,000/- for continuing pain and suffering of the petitioner. Considering the fact that the petitioner was even then taking treatment and unable to get over the pain and suffering incurred due to the accident. Further, for pain and suffering of the petitioner, the Tribunal granted a sum of Rs.50,000/- and for nutrition a sum of Rs.5,000/- was granted. For transport expenses incurred for coming to Chennai from Kancheepuram for medical treatment, a sum of Rs.10,000/- was granted and for medical expenses, a sum of Rs.7,000/- was granted. For inability to participate in competitive events at School, considering that the petitioner may have won prizes in such events, the Tribunal granted a sum of Rs.10,000/- and so, in total, the Tribunal granted an award of Rs.3,82,000/- and directed the respondent to pay the said award together with 9% interest per annum, on the award amount, from the date of filing the petition till the date of payment of the compensation, lying into the credit of M.C.O.P.No.455 of 2002, on the file of the Motor Accident Claims Tribunal (Sub Court), Krishnagiri. Further, it directed that the said award, after deposit in the Court, has to be deposited in a Nationalised Bank till the petitioner becomes a major and also permitted the petitioner to receive interest from such deposit, once in six months. The Court directed the respondent to deposit the award within a period of two months from the date of its Order and also directed the petitioner to pay Court fees for the award granted within a period of two months. The Advocate fees was fixed as Rs.10,640/-.
17.The learned counsel appearing for the appellant has argued in his appeal that the Tribunal erred in holding that the driver of the appellant's bus was rash and negligent and was responsible for the accident. Further, the award granted by the Tribunal under various heads are erroneous and highly excessive and arbitrary. As such, the learned counsel appearing for the appellant has prayed for setting aside the order of the Tribunal.
18.The learned counsel appearing for the appellant submitted that the award passed by the Tribunal are not proportionate to the injuries caused to the petitioner. Further, the learned counsel for the appellant submitted that Rs.1,00,000/- was awarded for pain and suffering and again another award of Rs.50,000/- was granted under the head of pain and suffering. The Tribunal had also erred in granting an award of Rs.10,000/- to the claimant for inability to participate in sporting competitions.
19.The learned counsel appearing for the respondent argued that the award granted by the learned Tribunal is fair and equitable. The claimant sustained grievous injuries in his skull. The skull has also been fractured and the brain was compressed. Hence, the claimant underwent surgery. He has lost his version in right eye due to the injury and there is no sensation on his head region and lost his sense of smell in the nose. Due to his brain injury, he frequently suffers from fits. In total, his physical condition has been thrown into disarray. Further, the claimant was a Coolie. After accident, as his physical condition has deteriorated, he is not able to do coolie work. Lifelong, he has to depend upon the help of others.
20.For the foregoing reasons and on consideration of the facts and circumstances of the case and arguments of the learned counsel on either side, the Court is of the view that the learned Tribunal finding on negligence is based on solid facts as per Ex.P1, FIR and evidence of the claimants. This Court accepts this evidence and hence confirms the findings on negligence by the Tribunal. Regarding quantum of the compensation, the Tribunal awarded a sum of Rs.2,00,000/- for loss of earning and distress suffered, due to skull fracture and loss of vision of his right eye. He has also lost sensation in the head region. So, the quantum of award granted under the head of loss of earning is affirmed. For continuing pain and suffering and disability, the Tribunal had awarded a sum of Rs.1,00,000/-, which is also fair and confirmed. But, the Tribunal had once again awarded a sum of Rs.50,000/- under the same head is redundant and has to be set aside and accordingly this Court sets aside the above awards of Rs.50,000/- granted.
21.A sum of Rs.10,000/-, which been granted by the Tribunal as compensation for inability to participate in sporting activities is erroneous and this Court sets aside the same. However, considering the nature of injuries, Rs.7,000/- was awarded by the Tribunal for medical expenses. The Court is of the view that the grant of medical expenses has to be increased and accordingly enhances this from Rs.7,000/- to Rs.17,000/-
22.In total, the respondent/claimant is entitled to get a sum of Rs.3,32,000/- together with interest at the rate of 9% per annum from the date of filing the petition to till the date of payment. This Court has already directed the appellant Corporation to deposit the entire compensation together with interest and costs to the credit of M.C.O.P.No.455 of 2002, dated 10.11.2003, passed in C.M.P.No.1355 of 2005. The award passed by the Motor Accident Claims Tribunal, Additional Sub-Judge, Krishnagiri in M.C.O.P.No.455 of 2002, dated 10.11.2003 is excessive and instead this Court awards a sum of Rs.3,32,000/- together with interest at the rate of 9% per annum from the date of filing of the petition till the date of payment, which is equitable, fair and prudent too, payable by the appellant/State Transport Corporation.
23.It is the open to the respondent/claimant to receive the balance amount lying to the credit of M.C.O.P.No.455 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Krishnagiri, by filing necessary payment out application in accordance with law. Likewise, liberty is given to the appellant/State Transport Corporation to receive the balance amount from the Tribunal in the manner known to law.
24.In the result, this Civil Miscellaneous Appeal is allowed in the above terms and consequently the award passed by the Motor Accident Claims Tribunal, Additional Sub-Judge, Krishnagiri in M.C.O.P.No.455 of 2002, dated 10.11.2003 is modified. Accordingly, connected miscellaneous petition is also closed. No costs.
27.11.2009 Index: Yes/No Internet: Yes/No krk To
1.Motor Accident Tribunal (Sub Court), Krishnagiri.
2.The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-deliver Order in C.M.A.No.269 of 2005 27.11.2009