IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.08.2008 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.(NPD) No.463 of 2002 The Managing Director Tamil Nadu State Transport Corporation (VMP.DVN.1) Ltd. Villupuram ... Appellant Vs. 1. Gopalasamy 2. Collector of Cuddalore District Cuddalore 3. Superintendent of Police Villupuram ... Respondents Appeal under Section 173 of the Motor Vehicles Act against the Judgment and decree made in M.C.O.P.No.146 of 1992 dated 14.3.2001 on the file of the Motor Accidents Claims Tribunal, (Principal Sub Judge), Tindivanam For Appellant : Mrs.Geetha for Mr.R.Balakrishnan For Respondents : Mr.V.Srinivasan for R1 No appearance for R2 & 3 JUDGMENT Aggrieved against the award passed by the learned Principal Sub Judge, Tindivanam dated 14.3.2001, the Transport Corporation has preferred this appeal. 2. It is stated that on 4.11.1990, the claimant was travelling in the appellant Transport Corporation bus bearing Registration No.TN 31/N 0077 Route No.199. He was sitting on the last seat of the bus along with his friends K.C.Chinnappa Nainar and K.A.S.Arumugam. Violating the traffic Rules, the bus driver drove the bus in a rash and negligent manner. On the Chennai Highways after Tindivanam near Ongore Culvert, there is a small bridge, where the bus driver did dot slow down the bus and since the road was in a damaged condition, the bus was made to cross a pit and hence, due to the jerking, the claimant who was sitting in the bus was thrown by means of which, he received injuries, since he dashed on the top of the bus due to over jolting. The other four passengers received minor injuries. The bus was stopped and he was then admitted to Chengelpet Government Hospital. As asked by the Doctor, the bus driver lodged a complaint in the Chengelpet Police Station. The Conductor of the Bus and the driver admitted him in the hospital. It is evident from the hospital records that both of them signed in the hospital records. Though they promised to lodge a complaint with the police, they did not make any complaint. Only after the petitioner took steps through his advocate, the police initiated proceedings against the concerned persons. The claimant was admitted to Vijaya Hospital at Chennai. He earned Rs.15 Lakhs to Rs.20 Lakhs for the last two years. He is survived by two wives, one son and daughter. For a long time after the accident, he was unconscious. Due to the accident, his both legs and hands were paralysed. He also took treatment for the complications in his neck. Neurologists and Orthopaedic Suregeons are giving treatment to the claimant. He was bed ridden and he could not do any work without the help of others. He appointed a person to look after him for whom he is paying Rs.500 per month. He could not run the business after the accident. His son is visually challenged. Hence a sum of Rs.20 Lakhs was prayed for as compensation. However, it has been restricted to Rs.10 Lakhs. 3(i). In the counter filed by the Transport Corporation, it is stated that the claimant was sleeping at the time of the accident and as a result, he dashed his head at the back of his front seat. He was given first aid in the Chengelpet Government Hospital. The Government Doctor asked him to lay a complaint. During the enquiry before the Doctor, the claimant told that the incident took place due to his negligence, since he was sitting at the back seat and he was sleeping at the time of the incident and therefore he did not lay a complaint. In order to gain unlawful gain, the petition has been filed. 3(ii) On 20.10.1992, the Bus driver came to Olakur Police Station and described about the incident. It is false to say that the claimant was sitting in the back seat of the bus; that the Road was in a damaged condition and that due to jerking, he received injuries. It is incorrect to allege that the claimant and others sustained injuries. The treatment particulars and the features with regard to the income of the injured and the disability as pleaded in the petition are false. Only on 8.5.1992, after 18 months from the date of the incident, the complaint was lodged. The amount claimed is excessive. Therefore, dismissal of the petition was prayed for. 4. The learned counsel for the appellant would vehemently contend that since the complaint was lodged after a long period of 18 months, the allegations in the First Information Report could not be believed and the incident did not take place as narrated thereon. It is her further argument that even if the claimant was taking treatment for a long time, nothing prevented him to inform the police regarding the incident through the other persons. 5. The fact remains that immediately after the occurrence, the Conductor of the Corporation bus as well as the friend of the claimant took him to Chengelpet Government Hospital and he was immediately provided first aid which is evident from the wound certificate Ex.P.6. It further goes to show that on 4.11.1990, the Conductor of the Bus admitted the claimant into the Chengelpet Government Hospital and further reference is also available that the Conductor Number is 1335 (T.P.T.C) and he is working in the bus bearing No.TN 31 N 0077 Route No.199. He admitted the claimant in the hospital on 4.11.1990 at 9.45 p.m. The accident took place on the same day at 8.15 pm. The above said factual aspects would go a long way to show that immediately after the occurrence, the Conductor of the Bus admitted him in Chengepet Government Hospital and it is indisputable that the incident occurred in the appellant bus bearing Registration No.TN 31 N 0077 Route No.1999. No contra evidence is forthcoming. In these circumstances, even though the complaint came to be lodged at a later point of time, it would in no way affect the claim of the claimant. 6. As far as the liability fastened on the bus Driver is concerned, the fact is that the claimant was travelling in a Bus and he was in the bus at the time of the incident. So the res ispa loquitor applies. Only if the bus was driven in such a way leading to jerking of the bus to make the inmates sustained injury, the incident as narrated could have happened. In this context, there is no impediment for this Court to fix the liability on the driver of the appellant bus. There is no infirmity in the finding received by the Tribunal in this regard. 7. As regards the quantum of compensation, the learned counsel for the appellant would draw the attention of this Court to the various portions in the award passed by the Tribunal to arrive at the monthly income of the injured. It is stated that the claimant was a dealer in Texmo motors, having his business at Panrutti and that he has been earning a sum of Rs. 15 Lakhs to Rs.25 Lakhs per year and for the month he was getting a sum not less than Rs.50,000/- as net profit. He has employed 4 or 5 persons in his shop. Ex.A.15 to 17 are the assessment orders pertaining to the years 1988-89, 1989-90 and 1990-91. For the year ending on 31.3.1988, he has sold texmo motors to the value of Rs.65,01,523/- and the value of the goods remaining at the end of the financial year was Rs.1,59,154.30, which is shown by Ex.A.15. For the year ending 31.3.1989, he has sold the motors to the value of Rs.79,93,349/-. In the said order, it is also mentioned that the motors to the value of Rs.2,46,425/- were remaining. For the year ending 31.3.1990, for a sum of Rs.87,18,929/- he has dealt with the motors, leaving the rest of the motors in the shop to the value of Rs.5,53,725/-. For the years 1988-89, 1989-90 and 1990-91, he had paid Rs.11,150/-, Rs.9,250/- and Rs.7,850/- respectively as income tax. By production of the above said documents, it has been clearly established that the claimant was running the business in a profitable manner and that he was earning sizable income through his business. 8. Taking note of the above said aspects and the financial background of the claimant, the Tribunal assessed the income of the claimant at Rs.50,000/- per month and on the basis of which, a sum of Rs.6,25,000/- has been awarded under the head of loss of income 9. From 5.11.1990 till 13.12.1990, the claimant was taking treatment with Orthopaedic Doctor Mohan Doss in Chennai, as found from Medical Certificate Ex.P.8. He has also taken treatment in Appollo hospital, Balaji Hospital and Vijaya Hospital. Neurologist Dr.Venugopal /P.W.4, who gave permanent disability certificate Ex.P.20, said that four bones in the neck got damaged and consequently both hands and both legs were paralysed and the upper portion of femur bone fractured for which the claimant had undergone surgeries. On examination by PW.4, the claimant was found with less capacity in his muscle in his hands and legs that he could not walk on his own accord and he is using crutches, that he could not lift even a small thing and that the portion below the chest was senseless, that his right leg was shortened by one inch and he could not squat on the floor and that he is suffering from permanent disability to the tune of 50%. 10. Another Doctor P.w.3, Neurologist by name Velumani who examined the claimant has deposed that the muscles in hands and legs of the claimant got restricted by means of which the hands were senseless, that due to the above said complications, he could not stand, walk or to attend to his works as per his will, that since there was impact on the spinal cord, his legs and hands were paralysed and that he is suffering from permanent disability at 75%. He is 58 years, as per the medical records. 11. The learned counsel for the appellant would comment upon this observation by saying that even though the gross sale value of the motors might fetch hefty sum, the commission obtained by the claimant thereon may be very less and that the Tribunal could not have assessed that the monthly income of the injured at Rs.50,000/- per month. This contention cannot be accepted for the reason that even though the claimant was getting commission from the sale proceeds, in my opinion, it might have brought about a considerable amount to him, as profit. Further, even though the Tribunal has assessed Rs.50,000/- as monthly income, it has not made any calculation to arrive at a lumpsum of Rs.6,25,000/- towards loss of income. It is pertinent to state that the Tribunal has not awarded any amount of compensation towards pain and suffering, extra nourishment, transport expenses, permanent disability nor future loss of income. In the view of this Court, in the circumstances available in this case, granting lumpsum of Rs.6,25,000/- towards loss of income is not improper. In fine, it is confirmed by this Court. 12. The Tribunal has awarded a sum of Rs.60,000/- for the expenses towards attendants, which is reasonable. The Tribunal allowed a sum of Rs.1.25 Lakhs for medical expenses, which is borne out by the claimant. In all, Rs.8,10,000/- has been granted by the Tribunal, which in the opinion of this Court is correct. Therefore, the order of the Tribunal does not call for any interference. 13. The appeal is devoid of merits and the same is dismissed. No costs. 28.08.2008 Index: Yes Internet: Yes ajr To 1. Motor Accidents Claims Tribunal, (Principal Sub Judge), Tindivanam 2. Collector of Cuddalore District Cuddalore 3. Superintendent of Police Villupuram 4. The Section Officer, VR Section, High Court, Madras. S.PALANIVELU, J. ajr C.M.A.(NPD)No.463 of 2002 28.08.2008