The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 30.03.2007, made in M.C.O.P.No.47 of 2006, on the file of the Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam, awarding a compensation of Rs.1,11,700/- with 7.5% interest per annum from the date of the petition to till the date of deposit of the compensation.
2.Aggrieved by the above said award, the appellant/Tamilnadu State Transport Corporation Ltd., has preferred the above appeal to set aside the order.
3.The short facts of the case are as follows:
On 06.02.2006, at about 22.30 hrs, the petitioner, who is a coolie, aged about 18 years, proceeding by walk at Tholar Kaikatti Bus stop. While so, the respondent's bus bearing registration No.TN32 N2226, driven in a rash and negligent manner dashed against the petitioner. As a result of the accident, the petitioner sustained the following grievous injuries as also bone fracture over head.
i)Front temporal parietal EDH conservative,
ii)Frontal bone fracture (Temporo parietal bone),
iii)Frequently, becoming unconscious and head ache,
iv)Injury over head and scalp,
v)Injury over mid brain and
vi)Injury over both knee,
4.Initially, he was treated at Government Hospital, Vriddhachalam and referred to Government Head Quarters Hospital, Cuddallore and again referred to Government General Hospital, Chennai. For the above said injuries, disability, pain and suffering, treatment expenses, nourishment, loss of income, loss of consciousness and mental absence, the petitioner has claimed a compensation of Rs.2,00,000/- against the respondent under
Section 166(1) of Motor Vehicles Act.
5.The respondent is the owner of the bus and the Transport Corporation is vicariously liable to pay the compensation.
6.The Pennadam Police Station, Cuddalore District registred a criminal case of the said accident in Crime No.14/2006.
7.The respondent/Tamil Nadu State Transport Corporation Ltd., in its Counter has resisted the claim stating that the driver of the respondent drove the vehicle with due care and caution and observing traffic rules and that he was not rash and negligent. The driver of the respondent's bus bearing registration No.TN32 N2226 had driven in a careful and diligent manner on the left side of the road with normal speed from Tittagudi to Chennai. On 07.02.2006, at 10.30 p.m. while the bus was going near Tholarkaikatti, the driver noticed the petitioner, who got down from the moving town bus on route No.T4 coming in the opposite direction and crossed the road from rightside to the leftside all of a sudden without minding the oncoming vehicles. On seeing him, the driver of this respondent immediately applied brake and stopped the bus to avoid accident. But, in spite of the best efforts taken by the driver, the petitioner by himself touched the bus on its front right corner by his own fault. Thus, the accident occurred only due to the carelessness and negligent act of the petitioner. The respondent further does not admit the age, occupation and monthly income and the nature of the alleged injuries sustained by the petitioner, the period of treatment, medical expenditure and percentage of disability suffered. Further, the amount claimed by the petitioner is excessive and disproportionate to the loss caused due to the accident and injuries. Further, the double compensation claimed by the petitioner under both the heads of permanent disability and loss of earning capacity is not admissible. Further, the amount claimed for permanent disability, Transport, extra nourishment and damages to clothing were also not admitted.
8.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Whether the driver of the respondent Corporation bus was responsible for the accident? Is the respondent liable to pay compensation?
(ii) What is the quantum of compensation, which the petitioner is eligible to get?
9.On the petitioner's side, two witnesses were examined as PW1 and PW2 and nine documents were marked as Exs.P1 to P9. On the respondent's side one witness was examined as RW1 and no documents were marked.
10.The petitioner, on being examined as PW1 has stated that on 06.02.2006, at about 10.30 p.m. while he was walking near the Tholarkaikatti bus stop, the respondent's bus had dashed against him and that he had sustained injuries. He had marked Ex.P1, the FIR and Ex.P2, the Motor Vehicle Inspector's Report. Further, the petitioner himself has given the complaint to the police and then FIR had been registered. The driver of the respondent's bus has stated in his evidence as R1, that he had lodged a complaint with the police regarding the accident. But, no evidence has been furnished regarding this to prove that a complaint had been given and an FIR was registered by the Police. Further, the Police, on investigation of the complaint given by PW1 has found that there had been fault only on the side of the driver of the respondent-Corporation and filed a Charge Sheet as against the driver of the respondent-Corporation. The Charge Sheet has been marked as Ex.P6. Further, on examination of P2, the Motor Vehicle Inspector's Report, it was established that the accident had not occurred due to any mechanical defects of the respondent's bus. Hence, the Tribunal, on hearing evidence of PW1 and on scrutiny of Exs.P1, P2 and P6 came to the conclusion that the accident had been caused only by the driver of the respondent-Corporation's bus bearing registration No.TN32 N2226. Accordingly, the respondent being owner of the said bus was held liable to pay the compensation to the petitioner.
11.Further, the PW1 has stated in his evidence that due to the accident, he had sustained fracture of his right shoulder bone and that he had sustained injuries on his head forehead, hands and legs. He had initially been admitted in Vridhachalam Government Hospital and then at Cuddalore Government Hospital and Chennai Government Hospital and taken treatment. He had further stated in his evidence, that due to the accident, he is having fits of unconsciousness and frequent headaches and had marked Ex.P3, the Wound Certificate, the Discharge Summary issued by Cuddalore Government Hospital as Ex.P4 and the Discharge Summary issued by Chennai Government Hospital as Ex.P5. From an examination of these documents, the Tribunal came to the conclusion that the petitioner had sustained grievous injuries on his head.
12.Dr.Rathinasami, who was examined as PW2 has stated in his evidence that he is a Professor in Medical College and that on 07.12.2006 he had examined the petitioner, and found that the petitioner had sustained a fracture of the bone on the back of his head and that there was a blood injury on the rightside of the brain and that the petitioner had pain in this spot. Further, the petitioner had difficulty in doing his work and getting sleep. He had further stated that the petitioner had difficulty in movement of his neck and that the petitioner has to continuously take pain killer tablets to assuage the pain and that the partial permanent disability suffered by the petitioner was 50% and accordingly marked Ex.P8, the Disability Certificate and Ex.P9, X'ray. Accordingly, the Tribunal held that the permanent disability sustained by the petitioner was 50% and awarded a compensation of Rs.50,000/- and a sum of Rs.25,000/- for the pain and suffering caused due to the disability. Further, the Tribunal granted a sum of Rs.10,000/- for attender charges for the petitioner in Hospital, a sum of Rs.10,000/- for nutrition and a sum of Rs.10,000/- for Transport expenses incurred due to the medical treatment at Vriddhachalam, Cuddalore and Chennai. For medical expenses, the Tribunal awarded a sum of Rs.700/- as per Ex.P7
13.Though, the petitioner had stated that he was earning a sum of Rs.5,000/- per month, it was found that the petitioner has admitted in evidence that he earning a sum of Rs.100/- per day only by cutting sugarcane. Though no documents had been marked to establish proof of income, the Tribunal on consideration of the petitioner's age, occupation held that the petitioner was earning a sum of Rs.2000/- per month. The Tribunal further held that due to the accident, the petitioner could not have done any work for three months after the accident and so awarded a sum of Rs.6,000/- as loss of income for three months. In total, the Tribunal granted a sum of Rs.1,11,700/- with interest at the rate of 7.5% per annum from the date of petition till the date of payment of the compensation and directed the respondent-Corporation to deposit the above award with interest into the credit of the M.C.O.P.No.47 of 2006, on the file of the Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam, within a period of two months of its Order. Further, from the award amount, the respondent was directed to pay Cheque for Rs.5,234/- as Advocate fees to the petitioner's lawyer. Further, the said award was to be deposited in a Nationalised Bank for a period of three years. Further, the excess Court fee paid by the petitioner was directed to be returned to him.
14.The learned counsel appearing for the appellant has argued in her appeal that the Tribunal had failed to consider that the claimant was crossing the road negligently. The Tribunal had erroneously accepted 50% disability and awarded a sum of Rs.50,000/-. Further, the Tribunal had erroneously awarded a sum of Rs.25,000/- for pain and suffering. The Tribunal failed to consider that there was no Wound Certificate, Medical Bills and Discharge Summary produced by the claimant. As such, the Award a sum of Rs.1,11,700/- granted by the Tribunal is erroneous. The learned counsel appearing for the appellant has therefore prayed for setting aside the Order.
15.Further, the learned counsel appearing for the appellant argued that the award granted for both loss of earning power in addition to permanent disability are not maintainable. Supporting this point, a case has been referred in C.M.A.No.1540 of 1996, National Insurance Company Ltd., Vs. Kalamohan and another. The same was not considered by the Motor Accident Claims Tribunal.
16.Further, the learned counsel appearing for the appellant submitted that the award granted towards transport, extra-nourishment and other expenses are not maintainable in law. This point has also been raised in the Counter statement before the Tribunal, but they have not considered this aspect. The rate of interest granted by the Tribunal has also been objected in the Counter Statement of respondent, but the Tribunal has failed to consider it.
17.For the foregoing reasons, and consideration of the facts and circumstances of the case, discussion about the findings about negligence by the Tribunal and that when the claimant had been examined as PW1, he had deposed that on 06.02.2006, at 10.30 p.m., he was walking near Tholarkaikatti and the respondent-Corporation bus came from behind and dashed against him. Hence, an FIR also was registered as against the driver of the bus. The Motor Vehicle Inspector also had submitted his report and as per the report, there had been no mechanical faults in the bus. On the strength of the evidence of the PW1 and Ex.P1, First Information Report registered against the driver of the bus by the concerned Police Officer and the report of the Motor Vehicles Inspector, the Tribunal has come to a conclusion that the driver of the bus was the cause for the accident. This Court is unable to find any discrepancy in this finding of the Tribunal. Regarding the quantum of the compensation, PW1, claimant has narrated in his evidence that his right shoulder bone was fractured, and that he had sustained injuries in his head and middle of leg, injuries in hand and leg. Due to these injuries, he had preliminary treatment at Vriddhachalam Government Hospital and further treatment at Government Hospital, Cuddalore and Government Hospital, Chennai. To prove the nature of the injuries sustained by him and mode of treatment, he has marked Ex.P3, the Cuddalore Government Hospital's Wound Certificate, Ex.P4, the Accident Register,Ex.P5 the Medical Certificate issued by the Government Hospital, Chennai, Ex.P7- Hospital receipts. Following his evidence, PW2, one Dr.Rathnasamy, who was attached to the Government Tanjore Medical College Hospital, had examined the claimant and issued the Disability Certificate marked as Ex.P8, wherein it has been stated that the partial permanent disability suffered by the petitioner as 50%. The said Doctor also has given evidence stating that the claimants backside of the head had been fractured, his right side of Brain had a wound in it. The petitioner experienced pain in this area, even on touching it. He feels distress, while sleeping, and his neck movements also had been affected. Hence, he is taking medicines for his continuous problem. The Disability Certificate has been marked as Ex.P9. This Court is of the opinion that the claimant, a Coolie, who is involved in agricultural operations is aged only 18 years old. The claimant depends upon his physical strength to earn his livelihood. After sustaining such a kind of grievous injury in the said accident, he is unable to apply physical force in doing his daily work in agricultural fields. This Court also feels that the above injury sustained by the petitioner could also affect his marriage prospects. So, the quantum of compensation given by the Tribunal ie.Rs.1,11,700/- together with interest at the rate of 7.5% per annum is fair. The award given for 50% disability sustained by the petitioner by the Tribunal was a sum of Rs.50,000/- and the award for pain and suffering given by the Tribunal was Rs.25,000/-.
18.The Court on scrutiny of the heads under, which the award of Rs.50,000/- and Rs.25,000/- was given is of the opinion that the above said awards has been given for pecuniary and non-pecuniary damages suffered by the petitioner. Rs.50,000/- given by the Tribunal is for 50% disability relating to loss of earning power, which comes under pecuniary loss and a sum of Rs.25,000/- given for pain and suffering suffered by the petitioner during treatment is a non-pecuniary damages caused to the petitioner, due to the accident. So, both the awards have not been given under the same head as alleged by the learned counsel appearing for the appellant. But, there is a minor flaw in the award granted by the Tribunal under the above heads and so the award has been restructured, without modifying the total amount granted by the Tribunal as compensation:
1.For 50% disability, the Tribunal has awarded a sum of Rs.50,000/-. This Court modifies it to Rs.75,000/-, taking into account the nature of the injuries suffered by the petitioner.
2.For pain and suffering, the Tribunal has awarded a sum of Rs.25,000/-. This Court modifies it to Rs.15,000/-.
3.For attender charges, the Tribunal has awarded a sum of Rs.10,000/-. This Court modifies it to Rs.5,000/-.
4.For nutrition, the Tribunal has awarded a sum of Rs.10,000/-. This Court modifies it to Rs.5,000/-.
5.For transport, the Tribunal awarded a sum of Rs.10,000/-. This Court modifies it to Rs.5,000/-.
6.For medical expenses, the Tribunal granted a sum of Rs.700/-. This Court confirms the award under this head.
7.For loss of earning, the Tribunal had awarded a sum of Rs.6,000/-. This Court confirms the same.
In total, this Court confirms the award amount of Rs.1,11,700/- passed in M.C.O.P.No.47 of 2006, on the file of the Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam, dated 30.03.2007 is confirmed and the award is payable, along with 7.5% interest from the date of filing the petition to till the date of the payment of the compensation, by the appellant/State Transport Corporation.
19.At the time of filing the Civil Miscellaneous Appeal, the appellant/State Transport Corporation deposited an amount of Rs.25,000/- on 24.08.2009, into the credit of in M.C.O.P.No.47 of 2006, on the file of the Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam. This Court directs the appellant to deposit the balance compensation amount, with accrued interest at the rate of 7.5% per annum from the date of filing the petition to till the date of realisation of payment into the credit of in M.C.O.P.No.47 of 2006, on the file of the Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam, within a period of six weeks from the date of receipt of this Order.
20.It is open to the respondent/claimant to receive the entire compensation amount with accrued interest and costs, by filing necessary payment out application in accordance with law from the Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam, after such deposit made into the credit of M.C.O.P.No.47 of 2006.
21.In the result, the Civil Miscellaneous Appeal does not carry any merits for admission and hence dismissed, consequently, the award passed by in the M.C.O.P.No.47 of 2006, on the file of the Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam is confirmed. Accordingly, connected miscellaneous petition is also closed. No costs.
krk To
1.Motor Accidents Claims Tribunal and Principal Sub Judge, Virudhachalam.
2. The Section Officer, VR Section, High Court, Madras