IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.8.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI Civil Miscellaneous Appeal Nos.819 and 820 of 2007 and M.P.Nos.1178 and 1179 of 2007 1. The Deputy Conservator of Forests Social Foresty Department Bijapur – 586 101 2. The Director Karnataka Govt. Insurance Department Bangalore-1 .... Appellants in both the appeals/ Respondents Vs Ashok Parasuraman .... Respondent in C.M.A.No.819/2007/ Petitioner Peruma .... Respondent in C.M.A.No.820/2007/ 2nd Petitioner Civil Miscellaneous Appeals filed against the award made in M.C.O.P.Nos.597 of 1997 and 605 of 1999 dated 6.2.2002 on the file of the Motor Accident Claims Tribunal, (First Additional District Judge), Dharmapuri Disrict and Krishnagiri For Appellant : Mrs.Bhavani Subbarayan Spl.Govt.Pleader (CS) For Respondents : Mr.U. Karunakaran COMMON JUDGMENT G.M. AKBAR ALI, J., Both the appeals arise out of a common award of compensation passed by the Motor Accidents Claims Tribunal (I Additional District Judge, Krishnagiri) in MCOP No.597 and 605 of 1999. 2. The petitioner in MCOP NO.597 of 1999 was the injured and the petitioners in MCOP No.605 of 1999 are the parents of the deceased namely Durai. They have filed the claim petitions individually for the injury caused to the former and for the death https://hcservices.ecourts.gov.in/hcservices/ of the son of the latter in a road accident dated 24.2.1997. The petitioner in MCOP No. 597 of 1999, namely Mr.Ashok Parasuraman and the deceased Durai were studying in a private Medical College at Bijapur, Karnataka State and on the fateful day around 4.45 p.m, Ashok Prarsuraman was driving a motor cycle bearing Registration NO.KA 28H 2258 and Durai was travelling as a pillion rider in the road leading to Athani. When they reached the Government Hospital, the vehicle belong to the appellant bearing Registration NO.KA 28 G 109, Forest Department Jeep, driven by its driver in a rash and negligent manner dashed against the motor cycle. Durai sustained fatal injuries and died on the spot and Ashok Parasuraman sustained grievous injuries and a fracture in the spinal cord. 3. Ashok Parasuraman was treated in the Government Hospital, Bijapur and later at Ramachandra Medical College Hospital, Madras and continued to get treatment at Thiruvannamalai, where he belongs to. He had filed the petition for compensation claiming a sum of Rs.3,00,000/- for the disabilities caused to him in the said accident. 4. The parents of the deceased Durai filed a similar petition for compensation claiming a sum of Rs.25,00,000/- stating that the deceased was 23 years of age and he was a Medical College student and the petitioners have lost their only hope. 5. The 2nd respondent, being the insurer of the vehicle which belonged to the 1st respondent, resisted the claim. According to the respondents, the driver of the motor cycle lost his control and applied sudden break and the motor cycle had fallen down and was dragged towards the jeep. Seeing this mishap, the driver of the jeep had applied the break and brought the jeep to a hault and the motor cycle came and hit against the jeep. It was contended that the driver of the motorcycle alone was negligent and there was no fault on the part of the driver of the jeep. The claims by both the claimants under various heads were also denied. 6. On the basis of the rival claims and allegations, the learned Additional District Judge enquired the matter and on the basis of the evidence of the petitioner in MCOP No.597 of 1999 and on the evidence of the jeep driver, would conclude that the accident was due to the rash and negligent driving of the driver of the jeep and fastened the liability on the respondents. 7. While calculating the compensation for the injuries sustained by the petitioner in MCOP No.597 of 1997 the Tribunal had awarded a sum of Rs.2,58,780/- with 9% interest under the following heads: Transportation .... Rs. 19,145.00 Medical expenses .... Rs. 39,635.00 Pain and suffering .... Rs. 20,000.00 Permanent disability .... Rs. 1,80,000.00 https://hcservices.ecourts.gov.in/hcservices/ In respect of the fatal case in MCOP No.605 of 1999 the Tribunal has awarded a total compensation of Rs.12,80,000/- with 9% interest under the following heads. Towards loss of income .... Rs.7,80,000.00 Donation and final year college fees .... Rs.5,00,000.00 8. Aggrieved by both, liability and the quantum, the appellants have preferred the present appeal. Since the liability is challenged it has become necessary to find out the negligent aspect of the accident. 9. Mrs.Bhavani Subbarayan, learned Special Government Pleader (C.S) would submit that the rider of the motor cycle, without following the traffic rules, had overtaken a stationary bus, and caused the accident. The learned counsel pointed out that this fact was also considered by the Tribunal but had commented that the accident could have been averted had the Jeep Driver stopped the vehicle. According to the learned counsel, the Tribunal having found that the rider of motorcycle overtook the stationary bus and dashed against the jeep, ought not to have fastened the negligence on the driver of the jeep. 10. To prove the negligence, the injured claimant (petitioner in MCOP No.597 of 1997) has examined himself as P.W.1. He would state that he was proceeding towards Athani and on nearing the Government Hospital, he noticed the stationary bus and slowly overtook the bus and at that time the jeep belonging to the Forest Department, driven in a rash and negligent manner by its driver, came on the opposite side and dashed against the motorcycle. On the other hand, the jeep driver, ( R.W.1) would state that the motorcycle rider was trying to overtake a moving police van and lost his control and fell down. The driver would further state that on seeing this mishap, he had stopped the vehicle and the dragged motorcycle came and hit the jeep. 11. The evidence of the jeep driver that he had applied break and brought the vehicle to a grinding halt is unbelievable for the simple reason that there was a collision between the two vehicles. The claimant in MCOP No.597 of 1997 would categorically state that he was crossing a stationary bus and at that time the jeep came on the opposite side dashed against him. On the contrary, the version of the jeep driver is that the motorcycle was trying to overtake a police van and in that process, the driver lost his control and fell down. A complaint was given against the Jeep driver and he has been charge sheeted. If the version of the jeep driver is true, a criminal case would not have bben filed against him. In our considered view, there is no fault on the part of the rider of the motorcycle in trying to overtake the stationary bus, but, on the contrary, the fault will be on the jeep driver who has failed to be careful while passing through a stationed vehicle, particularly, a passenger bus, as there are chances that pedestrians or any other vehicle may try to cross behind the https://hcservices.ecourts.gov.in/hcservices/ stationed vehicle. Therefore, the Tribunal is right in holding that the accident had occurred only due to the rash and negligent driving of the jeep by its driver. 12. As far as the quantum is concerned, for the injury sustained by the claimant in MCOP No.597/1997, the Tribunal had assessed the disability at 60% and has granted a compensation of Rs.1,80,000/-. However, the Tribunal ought to have calculated Rs.2000/-per percentage of disability. Therefore, the compensation for the disability would be, 60% x Rs.2000 = Rs.1,20,000/- . Considering the nature of injuries sustained and the period of treatment undergone by the injured/claimant, we have no hesitation to hold that the amount of Rs.39,635/- awarded by the Tribunal towards medical expenses is fair and accordingly, the same is maintained and upheld. Under the head 'pain and suffering' the Tribunal granted Rs.20,000/-, which in our considered view is very low and hence the same is enhanced to Rs.30000/- . Considering the nature of injuries, Rs.10,000/- is granted for amenities. Therefore the compensation awarded by the Tribunal is re-calculated as under: Transportation .... Rs. 19,779.00 Medical expenses .... Rs. 39,635.00 Pain and suffering .... Rs. 30,000.00 Permanent disability.... Rs. 1,20,000.00 Amenities .... Rs. 10,000.00 ______________ Total Rs.2,19,414.00 ______________ 13. For the fatal case, in MCOP.No.605 of 1999, the Tribunal had taken into account the future monthly income of the deceased as Rs.10000/-p.m. It has calculated the yearly future income of the deceased as Rs.1,20,000/- and taking into account the age of the 2nd claimant, the mother of the deceased, the Tribunal has correctly applied the multiplier of 13 . Under the head 'loss of income', the calculation would be, Rs.1,20,000 x 13 = Rs.15,60,000/. Deducting 1/3rd towards the personal expenses, a sum of Rs.5,20,000/-, the balance would be Rs.10,40,000/-. 14. However, the Tribunal had committed a calculation error and awarded only a sum of Rs.7,80,000/-as loss of income to the claimant. In addition, a sum of Rs.5,00,000/- was also granted towards the educational expenses. But, no proof has been submitted on the part of the claimants to substantiate this claim. Therefore, we are not able to appreciate this part of the Award of the Tribunal. For all the above discussions, the amount awarded by the Tribunal is recalculated as under: Loss of income to the claimant ... Rs.10,40,000 For love and affection ... 10,000 Funeral Expenses .... 5,000 Transportation .... 5,000 Total compensation ... Rs.10,60,000 https://hcservices.ecourts.gov.in/hcservices/ 15. In the result, CMA 819 of 2007 is partly allowed and the award amount is reduced to Rs.2,19,414.00 and CMA 820 of 2007 is also partly allowed and the award amount is reduced to Rs.10,60,000.00. No costs. 16 . It is submitted that the appellants have deposited the entire sum of Rs.2,19,414/- in respect of C.M.A.No.819 of 2007. If the claimant has not withdrawn the said amount, he is permitted to withdraw the entire amount. In C.M.A.No.820 of 2007 the appelants have deposited a sum of RS.8,57,578/-. The appellants are directed to deposit the balance compensation amount with subsequent interest at 9%. p.a. within eight weeks from the date of receipt of a copy of this judgment. If the claimant has not withdrawn the said amount, she is permitted to withdraw the entire amount. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sr To 1.Motor Accident Claims Tribunal, (Additional District Judge), Dharmapuri Disrict and Krishnagiri. 2.The Section Officer, V.R.Section, High Court, Madras 1 cc to Government Pleader, Sr.No.59181 Common Judgment in C.M.A.Nos.819 and 820 of 2007 KJI {CO} TP/1.10.2010. https://hcservices.ecourts.gov.in/hcservices/