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.1216 of 2004, on the file of the Motor Vehicles Accident Claims Tribunal and Chief Judicial Magistrate-I, at Krishnagiri, awarding a compensation of Rs.71,264/- with 7.5% interest from the date of filing the petition till the date of payment of compensation.
2.Aggrieved by the said Order, the appellant/respondent, Tamil Nadu State Transport Corporation Ltd., has filed the above appeal praying to set aside the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 03.09.2003, at about 07.00 hrs, the petitioner was riding a TVS 50 bearing registration No.TCD2810, along with one Mubarak as pillion rider and was proceeding in Marasamudiram to Krishnagiri main road and when they were approaching V.Mahdepalli Junction road, at about 17.00 hrs, the TNSTC Bus bearing registration No.TN29 N1113, driven by its driver towards Krishnagiri side, in a rash and negligent manner and without observing any rules of the road, without sounding horn, suddenly hit the said TVS50. Due to the impact, the petitioner sustained grievous injuries and the pillion rider was thrown out from the TVS50. Immediately, he was taken to Government Hospital and after first aid was given here, was referred to NMHANS Hospital, Bangalore, where he was admitted as in-patient for a day and then referred to Victoria Hospital, Bangalore, where he was admitted as in-patient from 04.09.2003 to 07.09.2003. Subsequently, he had taken periodical treatment and due to severe pain over his occipital region, he had taken treatment from Dr.Shankar, Neuro Surgeon, Dharmapuri and also taken treatment for Dr.Ashok Kumar, Ortho Specialist, Kaveripattinam.
4.Due to the accident, the petitioner sustained grievous injuries in occipital region and due to this he often gets head ache, giddiness, vomiting sensation and has loss of memory power. He frequently has fever and his fact has been disfigured. He is unable to do any work as before and has sustained mental agony and permanent disability. The petitioner has spent more than Rs.70,000/- towards medical expenses.
5.The petitioner was hale and healthy before the accident. At the time of the accident, he was aged about 24 years and was doing seasonal business in fruits, vegetables, mango etc., and was earning not less than a sum of Rs.5,000/- per month. He is the only breadwinner of his family.
6.As such, the petitioner has claimed a compensation of Rs.4,00,000/- from the respondent, who is the owner-cum-insurer of the bus, with interest at the rate of 12% per annum from the date of petition, till the date of payment of compensation, with costs. Under
Section 166 of the Motor Vehicles Act. The Veppanapalli Police has registered a Criminal Case as Crime No.141/2003, under
Sections 279 and
337 I.P.C.
7.The respondent in his Counter has resisted the claim stating that the bus driver drove the bus in carefully and slowly and keeping to the left. But, the petitioner proceeded in his TVS-50 from subway towards main road without observing the bus coming in the main road, and as the petitioner drove his TVS50 in a high speed and came to the main road, the petitioner hit the said TVS50 with the front bus body and fell down. Thus the accident was only due to rash and negligent driving of the petitioner. The respondent has denied the permanent disability, the occupation, income of the petitioner and period of treatment. It was also contended that the petitioner had no valid licence to drive the TVS50. Further, the claim of the petitioner is excessive and as such, the respondent has prayed for dismissal of the petition with costs.
8.Based on the above pleadings, the Tribunal framed two issues for consideration namely:
(i) Who is 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 ten documents were marked as Exs.A1 to A10. On the respondent's side, one witness was examined. No documents were marked.
10.PW1, the petitioner, in his evidence has stated that on 03.09.2003, while he was riding his TVS50 moped from Marasamudiram to Krishnagiri, the respondent's bus, driven rashly and negligently by its driver, had dashed against the petitioner's TVS50 and had caused the accident. On scrutiny of Ex.A1-FIR, it is evident that the manner of the accident as alleged by the petitioner is in consonance with the version in the FIR.
11.RW1, the driver of the bus, in his evidence has adduced that on the date of the accident, he was driving the bus on the left side of the road and nearing Dasarapalli, he was two persons coming in a TVS50, from a distance of 100 mtrs. and that they were riding the TVS50 at a high speed and in a rash manner. He had immediately applied brakes and stopped the bus but the petitioner had dashed the TVS50 against the front bumper of the bus and so had caused the accident. But, in support of this version, the driver of the bus, RW1, has not produced any documentary evidence. So, the Tribunal held that the accident was caused by the rash and negligent driving by the driver of the bus and held that the respondent/Tamil Nadu State Transport Corporation is liable to pay compensation to the petitioner.
12.The petitioner has stated that due to the accident, he had sustained injuries on his forehead, eyebrow, head, left shoulder, and all over his body and that he was taken for treatment initially to Government Hospital, Krishnagiri and subsequently taken treatment at NHMANS Hospital. After this, he has also taken treatment at Victoria Hospital. On a scrutiny of Exs.A2 and A3, which are the Certificate issued by NHMANS Hospital and Discharge Summary, the nature of injuries sustained by the petitioner is seen. PW2, one Doctor Sankar, in his evidence has adduced that he had examined the petitioner on 30.11.2006, and found that there was swelling in the petitioner's brain. The petitioner had also complained of headache, giddiness, sleeplessness and loss of memory power and that he was getting fits. It was noticed by the Doctor on examination that the left front portion of the petitioner's brain was black and had lost its activity and as such he certified that the petitioner had sustained 15% disability and accordingly marked Ex.A7, the Disability Certificate. As such, the Tribunal on consideration of evidence of PW1 and PW2 as well as Wound Certificate issued by the Hospital, opined that the petitioner had suffered grievous injuries and so is entitled to receive compensation.
13.Though, the petitioner had adduced in his evidence that he was earning a monthly salary of Rs.5,000/- per month through selling of Coconuts, fruits, he had not produced any documentary evidence to back this claim. As such, the Tribunal was of the view that the income of the petitioner could be taken as Rs.2,500/- per month only. As such, his earnings per year was assessed as Rs.30,000/-. The Tribunal adopting a multiplier of 17, as per the Motor Vehicles Act relevant to the age of the petitioner, who was 24 years at the time of the accident. Further, the Tribunal was of the opinion that the disability percentage assessed by the Doctor was on the higher side, took the disability sustained by the petitioner in the accident as 12%. The Tribunal then computed the loss of future earnings of the petitioner due to disability as Rs.30,000/- X 17 X 12/100 = Rs.61,200/-. For pain and suffering, the Tribunal awarded a sum of Rs.2,400/-; for nutrition, the Tribunal awarded a sum of Rs.2,400/-; for damages to clothes and articles, the Tribunal awarded a sum of Rs.200/-; for transport expenses, the Tribunal awarded a sum of Rs.1,500/- and for medical expenses, the Tribunal awarded a sum of Rs.1,964/-, as per Ex.A5. Onscrutiny of Ex.A9, the CT Scan bill receipts, the Tribunal awarded a sum of Rs.1,600/-. In total, the Tribunal awarded a sum of Rs.71,264/- as compensation and directed the respondent to deposit the said award with interest at the rate of 7.5% from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.1216 of 2004, on the file of the Motor Vehicles Accident Claims Tribunal and Chief Judicial Magistrate-I, at Krishnagiri, within a period of two months, from the date of its Order. After such deposit has been made, the award amount has to be invested in a Nationalised Bank for a period of three years and the petitioner was permitted to withdraw interest on such deposit once in six months. The Advocate fees was fixed as Rs.3,204/-.
14.The learned counsel for the appellant in his appeal has argued that the Tribunal failed to consider that the accident occurred only due to the negligence of the claimant, who was driving his TVS50 along with another friend and dashed against the bus from the side road and entered on the track of the bus. The Tribunal failed to consider that there was only 12% disability suffered by the claimant and hence applying multiplier is not proper. The Tribunal failed to consider that no age and income proof were produced by the claimant. Further, the Doctor, who had examined the petitioner had also not given any evidence as to the loss of future earning. As such, the award of Rs.71,264/- passed by the Tribunal is not sustainable.
15.The learned counsel for the appellant further argued that the accident happened on 03.09.2003, but the FIR was registered on 29.11.2006, after a long delay, the accident case was registered. As such, the claim petition is not maintainable. Further, the quantum of compensation awarded by the Tribunal is excessive. There has been negligence only on the part of the rider of the TVS50, who had ridden his moped in a rash and negligent manner and dashed against the bus.
16.The learned counsel for the respondent argued that delayed filing of FIR is not against law. The accident was an admitted fact. The claimant also had undergone preliminary treatment at Krishnagiri Government Hospital and subsequent treatment at NHMANS Hospital, Bangalore and another private hospital namely Victoria Hospital. The claimant had sustained bone fracture injuries, which are grievous in nature. The award passed by the Tribunal is meagre. As such, the Civil Miscellaneous Appeal is not maintainable.
17.After considering the facts and circumstances of the case, arguments advanced by the learned counsels on eitherside, this Court is of the view that the Doctor had issued a Disability Certificate stating that the disability sustained by the petitioner in the accident was 15%. In his evidence as PW2, he had adduced that on examination of claimant, he had found swelling on the claimant's brain and that due to this complaint, the claimant suffers from headache, giddiness, fits and loss of memory power and in-activity on the left frontal portion of brain. This Court considers that the nature of injuries sustained by the claimant, especially in the brain, which is a vitally important organ in the human body, is a grievous one and as such the disability fixed by the Tribunal as 12% and multiplier method adopted by the Tribunal on the basis of this and the income of Rs.2,500/- per month is fair and well-considered, considering the circumstances of the case. So, the award of the Tribunal, a sum of Rs.71,264/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, is confirmed by this Court, as it is found to be fair and equitable.
18.At the time of admission, this Court imposed a condition on 04.12.2007 to deposit the entire compensation award amount, into the credit of the M.C.O.P.No.1216 of 2004, on the file of the Motor Vehicles Accident Claims Tribunal and Chief Judicial Magistrate-I, at Krishnagiri.
19.As the accident happened in the year 2003, it is open to the respondent/claimant to withdraw the entire compensation amount with accrued interest and costs, lying in the credit of the M.C.O.P.No.1216 of 2004, on the file of the Motor Vehicles Accident Claims Tribunal and Chief Judicial Magistrate-I, at Krishnagiri, by filing necessary application in accordance with law.
20.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Vehicles Accident Claims Tribunal and Chief Judicial Magistrate-I, at Krishnagiri, in M.C.O.P.No.1216 of 2004, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs.
krk To
1.Motor Vehicles Accident Claims Tribunal, Chief Judicial Magistrate-I, at Krishnagiri
2. The Section Officer, VR Section, High Court, Madras