IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.04.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2864 of 2007 and M.P.No.1 of 2007 & Cross.Objn.No.87 of 2009 The Managing Director Tamil Nadu State Transport Corporation Ltd., No.12, Ramakrishna Road, Salem .. Appellant/Cross Objector Vs K.Rathinam .. Respondent /Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 29.05.2007, made in M.C.O.P.No.240 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Salem. For appellant : Mrs.B.Vijayalakshmi For respondent : Mr.T.Murugamanickam J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 29.05.2007, made in M.C.O.P.No.240 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Salem, awarding a compensation of Rs.1,03,355/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/respondent, The Managing Director Tamil Nadu State Transport Corporation Ltd., Salem 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: The petitioner has been working as a conductor in the respondent Corporation from 1987. While so, on 14.04.1991, when he was working as a conductor in the respondent's bus bearing registration No.TML7409, and when it was proceeding on the Mettur to Paramathy Vellore route and when it was proceeding on the Tiruchengode to https://hcservices.ecourts.gov.in/hcservices/ Vellore main road and nearing Goundipalayam, the driver of the bus drove the bus in a rash and negligent manner, lost control and dashed the bus against a water pipe. Due to this, the bus turned turtle and fell into a 10 Feet deep pit. Because of this impact, the petitioner and seventeen other passengers in the bus sustained injuries and were taken to G.H.Thiruchengode and admitted there. After taking first aid, the petitioner went to his native place of Mettur, for taking better treatment and took treatment at S.K.Hospital, Mettur from 16.04.1991 to 25.04.1991 as an inpatient. 4.Due to the said accident, the petitioner had sustained vestibular dysfunction, which is not a curable one and hence the petitioner has been forced to take medicines regularly to control the disease and hence he is not able to lead a normal life. 5.At the time of the said accident, the petitioner was drawing a monthly salary of Rs.6,750/- from the respondent's Corporation. As the accident had been caused only by the high speed, rash and negligent manner of driving of the driver of the respondent's Corporation. Hence, the respondent Corporation is liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.4,00,000/- together with interest and costs from the respondent, under Section 163(A) of the Motor Vehicles Act. 6.Regarding the said accident, a criminal case has been registered at the Nallur Police Station in Crime No.107 of 1991, as against the driver of the respondent's bus under Sections 279, 337 and 338 of I.P.C. 7.The respondent in his counter statement has resisted the claim denying the averments in the claim regarding his age, income and occupation and has also submitted that the injuries sustained by the petitioner were not caused as a result of the said accident. The respondent has also queried as to why the petitioner had kept quiet for over 15 years since the accident to make the claim. The respondent has also denied the averments in the claim regarding the manner of the accident. It was stated that the accident, which took place on 14.04.1991 was a very minor incident, where the bus fell into a pit. In the said incident, the conductor, who was in the bus was treated as out patient and was discharged as he did not suffer any injuries. 8.As such, the respondent has submitted that the claim made by the petitioner is an after thought and has been filed after 15 years with intention to make a wrongful gain. As such, the respondent has prayed for dismissal of the petition with costs. 9.The Motor Accident Claims Tribunal framed three issues for the consideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i) Was the accident caused due to the respondent's bus bearing registration No.TML7409 at a high speed and in a rash and negligent manner by its driver? (ii)Is the respondent liable to pay compensation to the petitioner? (iii)What is the quantum of compensation, which the petitioner is entitled to get? 10.On the petitioner's side two witnesses were examined as PW1 and PW2 and sixteen documents were marked as Exs.P1 to P16. On the respondent's side one witness was examined as RW1 and no documents were marked. 11.The petitioner was examined as PW1. The PW1 in his evidence has stated that on 14.04.2001 while he was working as a conductor in the respondent's bus bearing registration No.TML7409 and when the bus was proceeding on the Mettur to Paramathi Vellore route, the driver of the bus had driven the bus at a high speed and in a rash and negligent manner and dashed the bus against a water pipe, lost control and hence the bus had fallen into a 10 feet deep pit. He had stated that due to the impact, himself and the other passengers, who were travelled in the bus had sustained injuries. In support of his contention, he marked Ex.P1, the copy of the FIR. On scrutiny of the Ex.P1, it is seen that one Karunanidhi had given a complaint regarding the said accident to the Police and that a criminal case has been registered in Crime No.107 of 1991. It has been stated in the complaint that the said Karunanidhi had travelled as a passenger in the said bus and that as a result of the said accident himself and seventeen others in the bus had sustained injuries in the accident, which had been caused by the rash and negligent manner of driving by the driver of the bus, due to which the driver had dashed the bus against a water pipe, lost control and resultantly the bus had deviated from its path and had fallen into a pit. It is also seen that the injured persons had initially been given first aid at Nallur Primary Health Centre. From a scrutiny of the Ex.P2, the Motor Vehicle Inspector's Report of the said bus, it is seen that the accident had not been caused due to any mechanical defects in the said bus. It is evident from a reading of Ex.P4, the Charge Sheet, that the Nallur Police after investigation of the criminal case had held that the accident had been caused only by the fault of the driver. On the respondent's side, no witness was examined to prove their contention that the accident did not happen due to any negligence on the part of the driver of the said bus. It is also seen from a reading of the counter given by the respondent that he had only denied that the respondent's bus had been involved in the said accident and that the respondent's bus had been involved in the said accident and that the petitioner had been an employee working under them as a conductor, but had not denied the occurrence of the https://hcservices.ecourts.gov.in/hcservices/ accident. As such, the Tribunal on considering evidence of the PW1 as well as the documentary exhibits marked as P1, P2 and P4 held that the accident had been caused only by the rash and negligent manner of driving by the driver of the respondent's bus bearing registration No.TML7409. 12.Ex.P7 is the letter sent by the respondent to the petitioner for the purpose of investigating the manner of accident. Hence, the Tribunal, on scrutiny of Ex.P7, held that the respondent's bus had been involved in the said accident and hence held that the respondent is liable to pay compensation to the petitioner. 13.The respondent has also not denied that the petitioner had been employed as a conductor and was working under him. One Barathulla, Senior Assistant in the respondent Corporation, was examined as RW1. The RW1, in his evidence, has deposed that the petitioner had received his salary from the respondent Corporation from the month of April 1991 to 2007. As such, the Tribunal held that the petitioner had been employed as a conductor in the respondent's Corporation. It is seen that after the said accident the petitioner had initially taken first aid at Thiruchengode Government Hospital and had subsequently taken treatment at S.K.Hospital, Mettur. On a scrutiny of the Ex.P4, the copy of the Accident Register, it is seen that the petitioner had sustained a coagulated blood injury on his left hip. It is seen that on scrutiny of Exs.P7 to P16, that the petitioner had taken treatment at the S.K.Hospital, Mettur. The Doctor, who had assessed the disability of the petitioner was examined as PW2. The PW2 has given the Medical Certificate marked as Ex.P9, wherein it has been stated that the petitioner had taken treatment at S.K.Hospital, Mettur from 16.04.1991 to 30.04.1991. In this case, he had also stated about the nature of injuries sustained by the petitioner in the accident, as well as his opinion on the injuries sustained. The Doctor has certified that the petitioner had sustained a nervous disorder in the said accident and that he had also sustained injury in his left head of size 2 X3" and had stated that both the above said injuries are grievous in nature. 14.On scrutiny of Ex.P12, it is seen that the petitioner had taken treatment at Rasi Hospital, Erode. On an scrutiny of Ex.P14, it is seen that the petitioner had taken treatment at Perunthurai Medical College Hospital. Ex.P15 is the X'ray. The medical expenses incurred by the petitioner and the cost towards X'ray photo taken while the petitioner had taken treatment at Perunthurai Medical College Hospital has been marked as Ex.P16, the series of Medical Bills, totalling a sum of Rs.2,505/-. As such, the Tribunal on considering all the documentary evidence were of the opinion that the petitioner had sustained a head injury in the accident and that he had taken treatment for this, continuously at two hospitals. https://hcservices.ecourts.gov.in/hcservices/ 15.On the respondent's side, it has been stated that the petitioner had been paid his salary even during the period when he had taken treatment for the injury and in support of their contentions, the RW1 had been examined. The RW1, in his evidence has stated that the petitioner had received salary, as an employee, continuously for the period extending from 1991 to April, 2007 and in support of his evidence, he had marked Ex.R1, the copy of the Pay Roll Register. It has also been stated on the respondent's side that as per Ex.P3, the copy of the Accident Register, the petitioner has sustained only minor injuries and that he had not taken treatment at any hospital and that he had been working as a conductor under them continuously, without any break in his service, and that this is the reason why the petitioner had been paid his full salary during the period from 1991 to 2007. It was further stated by the respondent's side that the Doctor, who had assessed the disability of the petitioner had fabricated the nature of injuries sustained by the petitioner. It is an established practice in transport organisation that the employees working here are entitled to medical leave, casual leave and earned leave and that when the employee avails the above leave, his salary would not be deducted, during such period. It is further seen on scrutiny of Ex.P5, dated 01.05.1991 that the petitioner had given a letter to the respondent Corporation requesting for special medical leave for disability sustained by him. The respondent in their reply marked as Ex.P6 has stated that special leave can be given to the employees only, if they had taken treatment at Government Hospitals and they have further asked the petitioner to furnish relevant particulars in support of this . From this, the Tribunal concluded that the petitioner had taken treatment at hospital during the relevant period of accident ie.01.05.1991. It is also evident that the petitioner had not taken any leave under loss of pay basis while he took treatment at hospital. As such, the Tribunal were of the opinion that the petitioner had received his full salary, during the period of treatment without any deductions, as the petitioner had only availed his medical leave during such period of treatment. As such, the Tribunal held that the evidence of the RW1 and Ex.R1 produced on the respondent's side only goes to prove that the full salary of the petitioner had been paid to him even during his period of treatment and that the above evidence and documentary exhibits did not cast any light as to whether the petitioner had availed of earned leave during such period of treatment. As such, the Tribunal held that the petitioner had been injured in the accident, which occurred on 14.04.1991 and that he taken treatment for injuries sustained in the accident at S.K.Hospital and Perunthurai Hospital. It has been argued by the learned counsel for the respondent that the Doctor had fraudulently favoured the petitioner in his assessment of disability as the medical certificates issued by him, had not been given in his letter paid, as was the normal process, but on the contrary had been typed. The Tribunal, were however, not inclined to accept this argument of the respondent. They were of the view that there was no enmity existing between the respondent and the Government Doctor, who was examined as PW2. The Tribunal was also of the view that the Doctor https://hcservices.ecourts.gov.in/hcservices/ PW2 had only medically treated the petitioner and that he was not related to the petitioner and as such were of the opinion that there was no need for the Doctor to come to the Court and give evidence, which he was not in agreement with. 16.One Dr.Subramanian, who had assessed the disability of the petitioner was examined as PW2. The PW2, in his evidence deposed that he had medically examined the petitioner after the accident and had issued the Wound Certificate marked as Ex.P8, the Ex.P9, the Discharge Summary and that he had received a sum of Rs.35,850/- from the petitioner for medical treatment given to the petitioner, while he was in hospital against his medical bill marked as Ex.P10. He had further stated that he had once again examined the petitioner after treatment and had assessed his disability, which had been marked as Ex.p11. On a scrutiny of Ex.P11, it is seen that the petitioner due to the injuries sustained by him in the back of his head, experiences giddiness and other related problems on this count and had sustained a disability of 40%. 17.It has been argued by the respondent's side that the petitioner had filed the claim petition only in the year 2005 for an accident, which had taken place on 14.04.1991 and that the petitioner had also filed a claim petition seeking compensation for an accident which had happened in the year 2000 and had also received a sum of Rs.50,000/- towards the claim. It was argued by the respondent's side that the above compensation of Rs.50,000/- paid to the petitioner was inclusive of compensation for the injuries sustained by him in the year 1991. But, on the petitioner's side, it has been argued that the petitioner had received a compensation only for injuries caused in the accident in the year 2000 and that he had not received any compensation for the head injury and disability sustained by him in the accident, which occurred in the year 1991. The Tribunal scrutinised all the documents marked on the petitioner's side and also considered the evidence of the PW1, wherein he had stated that he had not filed the claim petition till the year 2005 as he was hoping that the respondent would pay him the compensation directly. The Tribunal after scrutiny of Ex.P11, the Disability Certificate awarded a compensation of Rs.40,000/- to the petitioner under the head of partial permanent disability. The Tribunal further granted an award of Rs.10,000/- under the head of pain and suffering; Rs.5,000/- under the head of nutrition; Rs.5,000/- under the head of transport expenses; Rs.5,000/- under the head of attendant charges; Rs.35,850/- under the head of medical expenses as per Ex.P10 and Rs.2,505/- for expenses towards taking X'ray as per Ex.P10. In total, the Tribunal awarded a sum of Rs.1,03,355/- as compensation to the petitioner and directed the respondent to deposit the said award amount together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, into the credit of the M.C.O.P.No.240 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Salem, with costs, within a period of 30 days from the date of its order. After such deposit was made into Court, the award was to https://hcservices.ecourts.gov.in/hcservices/ be invested in a nationalised bank, as fixed deposit, for a period of three years and the petitioner was permitted to receive the interest on such deposit once in three months. The petitioner was directed to pay the Court fee due on the award amount within a period of 10 days from the date of its Order. The Advocate fee was fixed at Rs.5,070/-. 18.Leanred counsel appearing for the appellant has contended in his appeal that the Tribunal failed to consider that the appellant Corporation bus driver had not been negligent and that he had not been negligent and that he had not caused the accident. It was also pointed out that the Tribunal wrongly entertained the claim petition, which was filed by the claimant after 15 years. The learned counsel had also contended that the disability of 40% assessed by the Doctor is not believable or reliable. It has also been contended that the award of Rs.35,850/- granted by the Tribunal for the medical bills is excessive. As such, it has been contended that the award of Rs.1,03,355/- granted by the Tribunal is not sustainable in law and has to be set aside. 19.Learned counsel appearing for the respondent argued that the injured claimant had undergone treatment at Thiruchengode Government Hospital, S.K.Hospital, Erode Rasipuram Hospital and Perunthurai Government Hospital. The learned counsel further argued that the accident was an admitted fact and the said case was registered at the Nallur Police Station in Crime No.107/1991 under Sections 279, 337 and 338 of I.P.C. The learned counsel further argued that the Tribunal awarded a sum of Rs.40,000/- on the strength of disability certificate issued by the competent Doctor and awarded a sum of Rs.35,850/- under the head of medical expenses, on the strength of Ex.P10, the Medical Bill series. The award granted under the other heads are all reasonable and pertinent. There is no error in the said award as it is a well considered one. At the time of accident, the claimant was aged about 44 years old and working as a conductor. The learned counsel in support of his contentions has cited a Judgment made in 1996 (II) CTC 143, Supreme Court of India, Dhannanal Vs. D.P.Vijayvargiya, the relevant head notes of which are as follows: "Motor Vehicles Act, 1988, Section 166(3) – Motor Vehicles (Amendment) Act, 1994 – Power of Motor Accidents Claims Tribunal to condone delay in filing claim petiton – Accident took place on 4.12.1990 – Sub Sec(3) of Section 166 prescribing Limitation omitted with effect from 14.11.1994 by amendment introduced by Motor Vehicles (Amendment) Act, 1994 – Disputes relating to Limitation pending consideration should be decided by applying Motor Vehicles (Amendment) Act, 1994. APPEAL ALLOWED." 20.Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal, arguments advanced by the learned counsel appearing on either side, this Court is of the view that the https://hcservices.ecourts.gov.in/hcservices/ petitioner had taken treatment at hospitals for about 10 days. Considering the nature of injuries, the Doctor assessed the disability of the petitioner as 40%, which this court considers excessive, considering the nature of injuries sustained by him. The Tribunal awarded a sum of Rs.40,000/- under the head of permanent disability. This Court reduces the award granted under this head to Rs.20,000/-. The Tribunal had awarded Rs.35,850/- and Rs.2,505/- under the head of medical expenses on the strength of Ex.P10, Medical bill series, Ex.P16, X'ray bills respectively. The award granted by the Tribunal under the other heads are pertinent. 21.In effect, this Court modifies the award from Rs.1,03,355 to Rs.83,355/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation as it is found to be equitable and fair. 22.On 07.11.2007, this Court imposed a condition on the appellant to deposit the entire compensation amount with interest and costs into the credit of the M.C.O.P.No.240 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Salem. 23.As the accident had happened in the year 1991, it is open to the claimant to withdraw the entire compensation amount, lying in the credit of the M.C.O.P.No.240 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Salem, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals if any. 24.In the result, the above Civil Miscellaneous is partly allowed and the Award and Decree, dated 29.05.2007, in M.C.O.P.No.240 of 2005, passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Salem, is modified. Consequently, connected miscellaneous petition and Cross Objection No.87 of 2009 are closed. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1.The Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Salem. 2.The Section Officer, VR Section, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 1 cc To Mrs.B.Vijayalakshmi, Advocate, SR.22255 1 cc To Mr.T.Murugamanikkam, Advocate, SR.22250 C.M.A.No.2864 of 2007 KSK(CO) sra 1/06/2010 https://hcservices.ecourts.gov.in/hcservices/