IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.09.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1781 of 2006 and M.P.No.1 of 2006 The Managing Director Tamil Nadu State Transport Corporation Ltd., Salem Division-2, Bharathinagar, Dharmapuri .. Appellant/Respondent Vs H.Gajendra Rao .. Respondent/Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree dated 21.06.2005, made in M.C.O.P.No.190 of 2003, on the file of the Motor Accident Claims Tribunal, Sub- Court, Krishnagiri. For appellant : Mr.P.Jagadeeswaran For respondent : Mr.P.Mani J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/respondent against the Award and Decree dated 21.06.2005, made in M.C.O.P.No.190 of 2003, on the file of the Motor Accident Claims Tribunal, Sub-Court, Krishnagiri, awarding a compensation of Rs.2,23,000/- together with 9% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2.Aggrieved by that award and decree, the appellant/respondent has filed the above appeal praying to scale down the compensation amount awarded by the Tribunal. 3.The short facts of the case are as follows: On 24.10.2002, at about 10.45 a.m. when the petitioner was proceeding in his TVS50 motorcycle bearing registration No.TN29 E5396 towards Adhiyamankottai from Palayampudhur in Salem-Dharmapuri National Highways Road, nearing Savulurankotai, Kamaraj Nagar, the https://hcservices.ecourts.gov.in/hcservices/ driver of the respondent Corporation bus bearing registration No.TN29 N1217, drove the bus in a rash and negligent manner with great speed and dashed against the petitioner from behind. As a result, the petitioner fell down and sustained grievous injuries on his right arm and right wrist and head injury and simple injuries on his right shoulder and other part of the body. Immediately he was taken to Government Head Quarters Hospital, Dharmapuri and after getting initial treatment he got himself discharged from the said hospital. Further, he took treatment as inpatient in the St.John's Medical College Hospital, Bangalore, where he got treatment for about 9 days and thereafter he was discharged, he took treatment in private hospitals. In spite of prolonged treatment taken by him, the fractured bones of the right arm and right wrist did not unite properly. Therefore, he is unable to do hard manual work or drive the motorcycle or write any matter fluently. Due to the head injury, his remembering capacity is also affected and suffering from neurological problems such as headache, giddiness etc., Therefore, he is disabled permanently. He was working as a Teacher in Government Higher Secondary School at Palayam Pudhur. On account of the permanent disability sustained by him, his future earning is also affected. Further, the said accident had occurred only due to the rash and negligent driving of the driver of the respondent Corporation bus. So that the respondent is liable to pay compensation. As such, he claimed a compensation of Rs.3,00,000/- with interest before the Tribunal. 4.The respondent in their Counter has resisted the claim petition, which reads as follows: "It is admitted that the accident took place on 24.10.2002, at about 10.45 a.m. in Dharmapuri to Salem main road, near Sowlooran Kottai. But, the accident did not taken place as alleged in the petition. On 24.10.2002, the driver of the TNSTC bus bearing registration No.TN29 N1217, belonging to the respondent, drove the same slowly, cautiously, observing all the rules of the road, by sounding horn, keeping to the extreme left side of the road, from Salem towards Hosur. At about 10.45 hours, while thus proceeding near Sowloorankottai, the petitioner who was driving the TVS50 motorcycle bearing registration No.TN29 E5396 in a rash and reckless manner. Without observing any rules of the road, without sounding the horn, without seeing the both side of the main road from the branch road, came into the middle of the road and suddenly hit the left side rear portion corner of the bus and caused the accident. The accident had occurred only due to the rash and negligent riding and without seeing both sides of the main road, while passing the main road by the petitioner. There is no fault on the part of the driver of the said bus. Hence, this respondent is not liable to pay any compensation to the petitioner. There are two vehicles involved in the accident. In https://hcservices.ecourts.gov.in/hcservices/ fact, the accident had occurred only due to the contributory negligence and rash and reckless riding of the petitioner, the owner and the insurer of the TVS50 motorcycle bearing registration No.TN29 E5396 are necessary parties to these proceedings. The petitioner has not impleaded them as parties. Hence, this petition is bad for non joinder of necessary parties. Without prejudice to the above contents, this respondent does not admit the age, occupation and income of the petitioner. The petitioner has not produced any documentary evidence to prove the same. Further, the claims made in Column No.11(a) of the petition are all imaginary and fanciful. This respondent does not admit any one of them. The petitioner is put to strict proof of the same. The alleged injuries sustained by the petitioner are all simple in nature, there are no grievous injuries or permanent disablement are caused to the petitioner. Further, this respondent does not admit past and future medical expenses of the petitioner. The other allegations made in the petition are all categorically denied by this respondent. The accident had occurred only due to the contributory negligence and rash and reckless riding of the petitioner on his TVS50 motorcycle bearing registration No.TN29 E5396, this respondent is not liable to pay any compensation to the petitioner. At any rate, the compensation claimed is very high, excessive, exorbitant and exaggerated. This respondent reserves its right to file any additional counter at a later stage as and when the new facts come to light. This respondent submitted that in case of award passed as per the recent judgment of the Supreme Court, this respondent is liable to pay the interest only at the rate of 9% per annum." 5.The learned Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the said accident? (ii) Whether the petitioner is entitled for compensation?, If so what is the quantum of compensation? 6.On the petitioner's side, the petitioner was examined as PW1 and one Dr.Ashok Kumar was examined as PW2 and eight documents were marked as Exs.P1 to P8 namely Ex.P1-Xerox copy of the FIR, Ex.P2- Wound Certificate, Ex.P3-Case Summary and Discharge Summary, Ex.P4- Medical Bills, Ex.P5-Case Summary and Discharge Summary, Ex.P6-Salary Certificate, Ex.P7-Permanent Disability Certificate, Ex.P8-X-ray. On the respondent's side, one Sundar Ram, the driver of the bus, was examined as RW1 and and no documents were marked. https://hcservices.ecourts.gov.in/hcservices/ 7.PW1 had adduced evidence stating that on 24.10.2002, at about 10.45 a.m. when he was proceeding in his TVS50 motorcycle bearing registration No.TN29 E5396 towards Adhiyamankottai from Palayampudhur in Salem-Dharmapuri National Highways Road, nearing Savulurankotai, Kamaraj Nagar. At that point of time, the respondent Corporation bus bearing registration No.TN29 N1217, driven by its driver, in a rash and negligent manner with great speed and dashed against him from behind. As a result, he fell down and sustained grievous injuries on his right arm and right wrist and head injury and simple injuries on his right shoulder and other part of the body. Regarding the said accident, a criminal case was registered by the Adhiyamankottai Police Station, in Crime No.864/2002, under Sections 279, 337 and 338 of I.P.C The FIR was marked as Ex.P1. After considering the evidence of the PW1 and Ex.P1-FIR, the Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving by the driver of the respondent Corporation bus. As such, the respondent Corporation is liable to pay compensation to the petitioner. Further, the PW1 had adduced evidence stating that in the said accident he sustained bone fracture injuries on his right hand, right hand joint, fore head and rear side of the body. Further, he adduced evidence stating that he was working as a Teacher and he was earning a sum of Rs.16,992/- as monthly salary. After the said accident he is unable to do his normal work. PW2, Dr.Ashok Kumar, in his evidence stating that in the said accident the claimant sustained grievous bone fracture injuries on his right hand joint and on his fore head. After examining the claimant, he assessed the disability at 50%. 8.After considering the evidence of PW1 and PW2, documents, which were marked as exhibits, nature of injuries and mode of treatment, the Tribunal awarded the compensation as follows: i. Rs.1,00,000/- under the head of grievous injuries, ii.Rs.10,000/- under the head of nutrition, iii.Rs.3,000/- under the head of damage to clothes, iv.Rs.10,000/- under the head of transport expenses, v. Rs.25,000/- under the head of medical expenses, vi.Rs.10,000/- under the head of future medical expenses, vii.Rs.25,000/- under the head of pain and suffering, viii.Rs.25,000/- under the head of permanent disability, ix.Rs.15,000/- under the head of future loss of earning capacity, In total, the Tribunal awarded a sum of Rs.2,23,000/- as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the respondent to deposit the compensation amount of Rs.2,23,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of two months from the date of its Order. In turn, https://hcservices.ecourts.gov.in/hcservices/ the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period of three years. After such deposit being made, the claimant was permitted to withdraw the interest, once in six months, accordingly ordered. 9.Aggrieved by that award and decree, the appellant/respondent has filed the above appeal praying to scale down the compensation amount awarded by the Tribunal. 10.The learned counsel appearing for the appellant argued that the compensation amount awarded by the Tribunal is on higher side. Under the head of future medical expenses, the Tribunal awarded a sum of Rs.10,000/-, for which there is no proof from the PW2 and under the head of pain and suffering the Tribunal awarded a sum of Rs.25,000/-, which is also on higher side. Further, the learned counsel argued that Tribunal awarded a sum of Rs.15,000/- under the head of future loss of earning capacity, which is not pertinent to the present case. Further, Rs.10,000/- under the head of nutrition and Rs.10,000/- under the head of transport expenses are also on higher side. Therefore, he prays to scale down the compensation amount awarded by the Tribunal. 11.The learned counsel appearing for the respondent argued that the claimant is a Teacher. After the said accident, he is unable to do his normal avocation as Teacher. During the treatment period, he was not awarded any amount for loss of earning. Further, the learned counsel argued that after considering the nature of injuries and mode of treatment, the Tribunal awarded Rs.10,000/- under the head of nutrition and Rs.10,000/- under the head of transport expenses, which are all fair and reasonable. Further, the claimant sustained bone fracture on his right hand joint. As such, the PW2 assessed the disability as 50%. After considering the nature of injuries and mode of treatment, the Tribunal awarded a sum of Rs.25,000/- under the head of pain and suffering, which is also fair and reasonable. 12.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the award passed by the Tribunal is on higher side. Hence, this Court decided to scale down the compensation amount as follows: i. This Court awards a sum of Rs.1,00,000/- under the head of loss of income for 50% disability, ii.The Tribunal awarded a sum of Rs.10,000/- under the head of nutrition, this Court awards a sum of Rs.5,000/- under the same head, iii.The Tribunal awarded a sum of Rs.3,000/- under the head of damage to clothes, this Court confirms the same as it is pertinent, https://hcservices.ecourts.gov.in/hcservices/ iv.The Tribunal awarded a sum of Rs.10,000/- under the head of transport expenses, this Court awards a sum of Rs.5,000/- under the same head, v. The Tribunal awarded a sum of Rs.25,000/- under the head of medical expenses, this Court awards a sum of Rs.15,000/- under the same head, vi.The Tribunal awarded a sum of Rs.25,000/- under the head of pain and suffering, this Court awards a sum of Rs.15,000/- under the same head, vii.Further, this Court awards a sum of Rs.7,000/- under the head of loss of earning during the medical treatment period, In total, this Court awards a sum of Rs.1,50,000/- as compensation to the claimant. The Tribunal fixed the rate of interest at 9% per annum, this Court confirms the same, which is fair and equitable. 13.On 27.06.2006, this Court imposed a condition on the appellant to deposit a sum of Rs.1,00,000/- with accrued interest, lying into the credit of M.C.O.P.No.190 of 2003, on the file of the Motor Accident Claims Tribunal, Sub-Court, Krishnagiri. Now, this Court directs the appellant to deposit the remaining compensation amount, with accrued interest thereon, within a period of six weeks from the date of receipt of a copy of this order, into the credit of M.C.O.P.No.190 of 2003, on the file of the Motor Accident Claims Tribunal, Sub-Court, Krishnagiri. 14.As the accident had happened in the year 2002, this Court permits the claimant to withdraw the compensation amount, with accrued interest thereon, lying in the credit of the into the credit of M.C.O.P.No.190 of 2003, on the file of the Motor Accident Claims Tribunal, Sub-Court, Krishnagiri, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals, if any. 15.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree dated 21.06.2005, in M.C.O.P.No.190 of 2003, passed by the Motor Accident Claims Tribunal, Sub-Court, Krishnagiri, is modified. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Asst. Registrar / True Copy / Sub Asst. Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Judge, Motor Accident Claims Tribunal, Krishnagiri. 2. The Section Officer, VR Section, High Court, Madras. +1 cc to Mr.P.Mani, Advocate S.R.67696 +1 cc to Mr.P.Jagadeeswaran, Advocate S.R.67260 C.M.A.No.1781 of 2006 VD(CO) JK 25.11.10 https://hcservices.ecourts.gov.in/hcservices/