IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2787 of 2007 The New India Assurance Company Ltd., rep.by its Dy.Manager .. Appellant/3rd Respondent Motor Third party Cell, Chennai Vs 1.K.Ethiraj .. Respondent/Plaintif 2.Cholamandalam Investment Finance Company Ltd., Chennai-1. 3.Amutha Construction, Chennai-15. .. Respondents/Second and first Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 01.11.2004, made in M.C.O.P.No.956 of 1999, on the file of the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai. For appellant : Mr.P.Kandasamy For respondents : Mr.V.P.Rajendran, for R1 Mr.N.Vijayaraghavan, for R2 No appearance-R3 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/third respondent against the Award and Decree, dated 01.11.2004, made in M.C.O.P.No.956 of 1999, on the file of the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai, awarding a compensation of Rs.2,43,480/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/third respondent, the New India Assurance Company 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 22.03.1998, at about 11 a.m. while the petitioner was driving the bus bearing registration No.TML 1709, from Parrys to Villivakkam and when the bus was near Villivakkam Railway Gate at 200 feet road, https://hcservices.ecourts.gov.in/hcservices/ near Rajamangalam Police Station, the petitioner was waiting for turning the bus to the right side, a lorry bearing registration No.TN03 H1705 coming along side on the right side of the bus overtook the bus and caused damage to the bus. As a result of this, rash and negligent driving of the driver of the said lorry, the petitioner sustained multiple bone fractures and injuries and was initially admitted at the Kilpauk Government Medical College and Hospital, Chennai-10 and subsequently was given medical treatment at Dr.Ambedkar Transport Corporation Health Centre. He had taken medical treatment at these hospitals from 22.03.1998 to 24.04.1998. As a result of the accident, the petitioner is unable to drive the vehicle and is also unable to walk. As the first and second respondents are the owners of the lorry bearing registration No.TN03 H1705 and as the said lorry has been insured with the third respondent, at the time of the accident, all the respondents are liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.3,00,000/- from the respondents with interest and costs under Section 166(A) of Motor Vehicle Act. 4.The second respondent, in his Counter has resisted the claim and has not admitted the averments in the claim regarding date and time and place of the accident, age of the petitioner, income and occupation. Further, the manner of the accident as alleged in the claim was refuted and it was stated that it was only due to the negligence of the petitioner that the accident happened. It has been submitted that as the said lorry has been insured with the third respondent, only the third respondent is to be held liable to pay the compensation. As such, the second respondent has prayed for dismissal of the claim as against him. 5.The third respondent, in his Counter has resisted the claim and has also not admitted the averments in the claim petition regarding, age, income and occupation of the petitioner, date, time and place of the accident and has submitted that the petitioner should prove the above and establish his claim. Further, the third respondent has denied the manner of the accident as alleged in the claim petition. It was submitted that the driver of the said lorry had driven the lorry at a moderate speed and has observed all the traffic rules and regulations but the driver of the bus had driven the bus in a negligent manner and this had resulted in the accident. Further, it was submitted that the petitioner has to prove the nature of injuries sustained by him through documentary evidence to establish his claim. It was also submitted that as the accident happened due to the negligence of the driver of the bus, the third respondent cannot be held liable to pay compensation to the petitioner. 6.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the accident caused due to the negligent and rash driving of the driver of the first and second respondents Lorry? https://hcservices.ecourts.gov.in/hcservices/ (ii) Is the petitioner entitled to receive compensation? If so, what is the quantum of compensation, which he is entitled to? 7.On the petitioner's side, two witnesses were examined as PW1 and PW2 and 12 documents were marked as Exs.P1 to P12. On the respondents side, no witnesses were examined and no documents were marked. 8.The petitioner was examined as PW1 before the Tribunal. The PW1, in his evidence has stated that he was a driver in the Metropolitan Transport Corporation, Chennai, Division-II, Ayanavaram Depot and that he was earning a sum of Rs.5,269/- per month. He has deposed in his evidence that on 22.03.1998, at about 11 a.m., he had driven the metropolitan transport bus bearing registration No.TML 1709 from Parrys to Villivakkam Railway Gate on the 200 feet road and nearing Rajamangalam Police Station and when he was waiting to turn the bus on the left side, the lorry bearing registration No.TN03 H1705, driven by its driver at a high speed and in a rash and negligent manner, overtook the bus on the right side and in the result dashed against the front portion of the bus and as a result he had sustained fracture of bones in his leg and has claimed compensation from the respondents. The first respondent did not give Counter or enter appearance and was set exparte. Both the second and third respondents have denied the manner of the accident as stated by the petitioner and they have stated that it was the negligent and rash driving of the bus driver, which had resulted in the accident and as such have contended that they cannot be held liable to pay compensation to the petitioner. 9.The petitioner, PW1, has deposed in his evidence that as a result of the accident, the driver's seat in the bus had been broken and that four of his hip bones had been fractured and glass shards had pierced his forehead and heel. He had further stated in his evidence that he had taken first aid at KMC Hospital. In support of his evidence, he had marked Ex.P1, the copy of complaint given by him to the Police; Ex.P2, the FIR; Ex.P3, the Rough Sketch; Ex.P4, the Accident Register; Ex.P5, the Medical Bills given at Puthur Hospital; Ex.P6, the Medical Bills given by Dr.Subramania Raja; Ex.P7, the Medical Bills given by Ayesha Hospital; Ex.P8, the Medical Bills given by Metropolitan Transport Corporation Hospital; Ex.P9, the Medical Bills; Ex.P10, the Bill issued by District Collector, showing that Rs.95/- has been paid as compensation; Ex.P11, the Disability Certificate and Ex.P12, the X'rays series. He has further stated that because of the accident, he is unable to walk or do any work and is unable to drive vehicle and has further stated that he has four daughters. On scrutiny of evidence of PW1 and on examination of documentary evidence furnished as Exs.P1 to P12, the Tribunal was of the opinion that the petitioner has proved his claim that the accident was caused only due to rash and negligent driving by the driver of the lorry belonging to the first and second respondents. Further, the Tribunal, on scrutiny of Exhibits marked by the petitioner, was of the view that the lorry driver had valid licence to drive the lorry and that it had the necessary R.C and F.C. https://hcservices.ecourts.gov.in/hcservices/ Certificates and that it had been insured with the third respondent, at the time of the accident. As such, the Tribunal held that the accident had been caused by the rash and negligent driving by the driver of the lorry and as the said lorry was owned by the first and second respondents and as it was insured with the third respondents, all the three respondents were liable to pay compensation to the petitioner. 10.The Tribunal on scrutiny of Exs.P1 to P12 and evidence given by PW1, took the age of the petitioner as 57 years. As he was working in the Metropolitan Transport Corporation, as a driver, his salary was taken as Rs.5,269/- per month. The petitioner has stated in his evidence that due to the accident, he had sustained four bone fractures in his left hip and also sustained injuries on his forehead and heel due to piercing of glass pieces into them. He had further stated that he had taken treatment at KMC Hospital and that after the accident, he has not been able to work as a driver and walk as before and that he also has four daughters. In support of his evidence, he has marked Exs.P1 to P10. The Doctor, who had issued the Disability Certificate to the petitioner was examined as PW2. The PW2, in his evidence had stated that he had examined the petitioner on 12.09.2004 and stated that the petitioner's age was 59 years and had found that four of the bones in his right hip ie.Bones 3, 4, 5 and 6 had been fractured and that after the accident it had not joined properly and so the petitioner experiences pain during deep intake of breath and exhalation and so he cannot do hard labour and had assessed the disability on this count as 25%. Further, he has stated that due to the improper joining of bone, which had been fractured in his right shoulder and as the muscles around it had hardened, he would not be in a position to lift his right arm and work and due to this he would also find it difficult to lift heavy weights and assessed the disability on this count as 30%. In total, the Doctor had assessed the total disability sustained by the petitioner, in the accident as 55% and in support of this had marked as Ex.P11-Disability Certificate issued by him and Ex.P12-X'rays. 11.The respondents had contended that the disability assessed by the Doctor was excessive and the Tribunal also after considering oral and documentary evidence were inclined to accept this contention of the respondents and granted a sum of Rs.1,00,000/- to the petitioner under the head of permanent disability and a sum of Rs.75,000/- under the head of loss of earning capacity. Further, the Tribunal granted an award of Rs.2,000/- for transportation expenses to hospital and Rs.500/- for damage to clothes. On scrutiny of Ex.P9-Medicall Bills, the Tribunal granted an award of Rs.40,980/- towards medical expenses. The Tribunal also granted an award of Rs.5,000/- under the head of pain and suffering and in total, the Tribunal awarded a sum of Rs.2,23,480/- as compensation to the petitioner together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation and directed the first, second and third respondents to jointly and severally deposit the award with interest together with costs, into the credit of the M.C.O.P.No.956 of 1999, on the file of the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai, within a https://hcservices.ecourts.gov.in/hcservices/ period of one month, from the date of its Order. Further, after such deposit was made, it was to be invested in a nationalised bank, as fixed deposit, for a period of three years and the petitioner was permitted to receive interest on such deposit once in three months. The Advocate fees was fixed at Rs.5,000/-. 12.The learned counsel for the appellant has contended in his appeal that the learned Tribunal Judge had erred in fixing the negligence on the part of the lorry driver bearing registration No.TN03 H1705, without considering the diversion taken by the claimant/driver of the bus bearing registration No.TML 1709, on the disputed spot. 13.It has been contended that the award granted by the Tribunal is excessive considering that the injuries sustained by the petitioner has been officially described in the Police records as simple in nature. 14.Further, it has been contended that the claimant, in his evidence, had only spoken about the fracture in a leg and had not spoken about any other fractures in his body particularly that about the fracture of back portion of the right side shoulder and hence the learned Judge has failed to reject the new claim of shoulder fracture and the Disability Certificate issued in this regard at a later stage is only to grab higher compensation from the public institution like the appellant herein. 15.It has been further been contended that the learned Tribunal Judge had erred in accepting the Disability Certificate by Doctor on 12.09.2004 for ribs bone fracture sustained by the petitioner after six years from the date of accident. Further it has been contended that as the petitioner was 57 years at the time of the accident, he had only one year service as the retirement age of a Government employee was 58 years. As such, the award of Rs.75,000/- granted by the Tribunal under the head of loss of earning capacity is erroneous, as the same cannot be calculated without any acceptable or positive evidence produced by the claimant. 16.As such, the learned counsel for the appellant has submitted that the award granted is excessive and without merits and has prayed for dismissal of the award and decree dated 01.11.2004, made in M.C.O.P.No.956 of 1999, on the file of the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai. 17.The learned counsel for the appellant, in support of his contentions, has cited a Judgment made in 2006 ACJ 2703, High Court of Madras, Cholan Roadways Corporation Ltd., Vs. Ahmed Thambi and Others, the relevant head notes of which are follows: "Quantum – Injury – Principles of assessment – Compensation for permanent disability and on account of loss of earning capacity – Compensation awarded should be adequate and reasonable taking into consideration the facts and circumstances, age of the https://hcservices.ecourts.gov.in/hcservices/ injured, his social and economic status, to achieve the statutory goal-When loss of earning capacity is compensated and also non-pecuniary losses under the heads (a) pain and suffering; (b)loss of amenities, (c) loss of expectation of life, hardship, mental stress, etc.; and (d) loss of prospects of marriage, whether compensation for permanent disability need be separately assessed-Held: no. 18.The learned counsel for the respondent/claimant argued that the claimant was an employee of the Metropolitan Transport Corporation and was getting a monthly salary of Rs.5,268/-. Due to the above accident, he was not able to drive vehicle and has lost his job. Further, he has sustained multiple fracture injuries and four bones were fractured in his hip. Further, after the accident, he has respiratory problems and the fractured bones have also been deformed and as such he has difficulty in doing his routine work. He is the only breadwinner of his family and so he has to take care of the needs of his four daughters. Because of the accident, his normal life is totally affected. 19.Considering the facts and circumstances of the case, arguments advanced by the learned counsels on either sides, citations produced by the learned counsel for the appellant and perusal of all other documentary evidence, the Court is of the view that the Tribunal's conclusion as regards negligence of the lorry driver has been established after scrutiny of Exs.P2 and P3 ie.FIR and Rough Sketch besides evidence of PW1 and as such this Court confirms the Tribunals finding on negligence. 20.Regarind the quantum of compensation, the Tribunal had awarded a sum of Rs.1,00,0000/- for permanent disability for 55% disability and a sum of Rs.75,000/- for loss of earning capacity. On the other heads, the Tribunal had awarded a sum of Rs.40,980/- for medical expenses; a sum of Rs.500/- for damage to clothes; a sum of Rs.2,000/- for transport expenses and a sum of Rs.5,000/- for pain and suffering. In total, the Tribunal had granted a sum of Rs.2,23,480/- as compensation to the claimant with interest at the rate of 9% per annum. 21.This Court is of the view that the compensation given by the Tribunal under the head of loss of earning capacity is erroneous and as such the Court modifies the compensation granted by the Tribunal as follows: 1.For permanent disability of 55%, this Court awards a sum of Rs.1,10,000/- (taking into account Rs.2,000/- for 1% disability). 2.For pain and suffering, the four bone fractures sustained by the claimant, this Court awards a sum of Rs.20,000/- under the said head. 3.For nutrition, this Court grants an award of Rs.3,000/-. https://hcservices.ecourts.gov.in/hcservices/ 4.For transportation expenses, the Tribunal awarded a sum of Rs.2,000/- and for damage to clothes Rs.500/- was awarded and this Court confirms the award under the said heads. 5.For medical expenses, the Tribunal had awarded a sum of Rs.40,980, on the basis of Ex.P9, Medical Bills and this Court confirms the award under the said head. In total, this Court awards a sum of Rs.1,76,480/-, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment, which is found to be equitable and fair in the circumstances of the case. 22.Therefore, the award granted by the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai, in M.C.O.P.No.956 of 1999, has been scaled down from Rs.2,23,480/- to Rs.1,76,480/- and the rate of interest is the same as fixed by the Tribunal. 23.At the time of admission of this appeal, this Hon'ble Court directed the appellant/Insurance Company to deposit the entire award amount, into the credit of the M.C.O.P.No.956 of 1999, on the file of the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai. The same has been complied with by the appellant. Thereafter, the claimant was permitted to withdraw a sum of Rs.70,000/- with proportionate interest and costs. 24.As the accident happened in the year 1999, it is open to the claimant to withdraw the balance compensation amount, with accrued interest, lying in the credit of the M.C.O.P.No.956 of 1999, on the file of the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai, after filing necessary payment out application, in accordance with law. 25.In the result, the above Civil Miscellaneous Appeal is partly allowed and the award and decree passed by the Motor Accident Claims Tribunal, District Judge, III Fast Track Court, Chennai, in M.C.O.P.No.956 of 1999, is modified. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Registrar, City Civil Court, Chennai. 2. Motor Vehicles Accident Claims Tribunal, III Fast Track Court, Chennai. 3. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.M.B.Gopalan, Advocate, Sr.No.3146 1 cc to Mr.V.P.Rajendran, Advocate, Sr.No.2640 1 cc to Mr.P.Kandasamy, Advocate, Sr.No.2718 Order in C.M.A.No.2787 of 2007 KA {CO} TP/3.2.2010. https://hcservices.ecourts.gov.in/hcservices/