IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2177 of 2007 and M.P.No.1 of 2007 The Managing Director The Metropolitan Transport Corporation Ltd., Chennai. ..Appellant/Respondent Vs N.Srinivasan ..Respondent/Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree Order dated 25.01.2007, made in M.C.O.P.No.1467 of 2004, on the file of the Motor Accidents Claims Tribunal, II Judge, Court of Small Causes, Chennai. For Appellant : Mr.A.Muthuraman For Respondent : No appearance J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/The Managing Director, The Metropolitan Transport Corporation Ltd., Chennai, against the Award and Decree Order dated 25.01.2007, made in M.C.O.P.No.1467 of 2004, on the file of the Motor Accidents Claims Tribunal, II Judge, Small Causes Court, Chennai, awarding a compensation of Rs.1,29,670/- with 7.5% interest per annum, from the date of filing the petition to till the date of deposit of compensation. 2.Aggrieved by the above award, the appellant/respondent, The Managing Director, The Metropolitan Transport Corporation Ltd., Chennai, has filed the above appeal praying to set aside the Order. 3.The short facts of the case are as follows: On 07.10.2003, at 6.05 p.m. while the petitioner was cycling from west to east in the N.S.C.Road, Parrys, the MTC bus bearing https://hcservices.ecourts.gov.in/hcservices/ registration No.TN01 N1895, driven by its driver in a rash and negligent manner came from west and hit the petitioner from behind and thereby caused grievous injuries to the petitioner. Since the accident occurred only due to the rash and negligent driving of the bus, the respondent, being the owner of the bus is vicariously and statutorily liable to pay the compensation claimed by the petitioner with cost and interest. As a result of the accident, he sustained fracture of left leg, fracture of left hand and multiple injuries all over his body. He was admitted in the Government Stanley Medical College Hospital, Chennai-1 and was an in-patient at this hospital from 07.10.2003. The petitioner, aged about 38 years, was a stonecutter in M.S.Constructions, Chennai-83 and was earning a sum of Rs.5,000/- per month. Due to the accident, he is unable to move and unable to do work. The petitioner has therefore claimed a compensation of Rs.6,00,000/-. 4.A criminal case has been registered by the Inspector of Police, J2-Elephant Gate Police Station, as Crime No.238/C2/2003, regarding the accident. 5.The respondent in his counter has resisted the claim stating that on 07.10.2003, the respondent's corporation bus on Route No.56G, bearing registration No.TN01 N1895 was operated from High Court to Odien Mani. At about 18.05 hrs, when the bus was slowly proceeding near T.N.S.C.Bank at Parrys Corner, the petitioner, who was riding a cycle with a pillion rider, lost his balance and grazed against the body of the bus and fell down and so had sustained injuries in his leg. He was taken to Government Stanley Hospital and admitted for treatment. The accident happened only due to the negligent riding of the cycle by the petitioner. 6.Further, the income of the petitioner, nature of the injuries, period of treatment and medical expenses, alleged to have been incurred by the petitioner were not admitted. The compensation claimed is also excessive, without any basis. It was prayed that the claim petition should be dismissed. 7.The Motor Accident Claims Tribunal framed three issues for consideration namely: (i) Was the accident caused due to the rash and negligent driving of the bus driver of the respondent's bus? (ii) Was the accident caused due to the loss of balance of petitioner, while driving his cycle and consequent dashing of his cycle against the respondent's bus? https://hcservices.ecourts.gov.in/hcservices/ (iii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation? 8.On the petitioner's side, the petitioner himself was examined as PW1 and one Dr.Thiagarajan was examined as PW2 and 11 documents were marked as Exs.P1 to P11. On the respondent's side, the conductor of the respondent's bus was examined as RW1 and the Investigating Officer of the respondent Corporation, one Mr.Muthuvel was examined as RW2 and one document was marked as Ex.R1. 9.The petitioner, on being examined as PW1 has reiterated the statements made in his claim petition and adduced evidence that the accident was caused by the rash driving of the driver of the bus and that the bus had come from behind and dashed against the cycle ridden by him. The RW1, conductor of the bus in his evidence has adduced that the petitioner, who was riding a cycle with a pillion rider, in front of the bus, suddenly lost his balance and came in the path of the bus and so the accident happened. But, RW2, the Investigating Officer of the respondent Corporation has adduced evidence that two cyclists were riding on their cycles in front of the bus and that one of the cyclist was the petitioner herein and as they had grazed against each other, they had dashed against the bus and so the accident had occurred. In the respondent's Counter, it has been stated that the accident happened because the petitioner, who was riding a cycle with a pillion rider lost his balance and grazed against the side of the bus. As such, the Tribunal concluded that at every stage of the Trial, there has been contradictory evidence advanced by the respondent's side as to the manner of the accident and hence, the Tribunal decided that their version of the accident could not be taken as true. Further, the Tribunal was of the view that the conductor of the bus would have been busy issuing tickets to passengers at the time of the accident. As such, it would not have been possible for the conductor to ascertain that how and in what circumstances the accident happened? As such, the Tribunal held that only the driver of the bus could be considered, to be a competent person to give evidence regarding the above accident. But, for the reasons best known to the respondent, the bus driver has not been examined by the respondent. Further, though the PW2, the Investigating Officer of the respondent Corporation has adduced evidence, about the manner of the accident, he has not supported his version on the strength of the witnesses and so without any basis. 10.Further, though the RW2 has stated that he has conducted investigation and examined version of the accident from witnesses, he has not produced the witnesses or his Investigation Report before the Tribunal. As such, the Tribunal could not accept only the oral evidence of the RW2, to come to a conclusion on the manner of the accident. Further, no evidence was produced and no witnesses were examined by the respondent's side to establish their version of the https://hcservices.ecourts.gov.in/hcservices/ accident. But, the Tribunal, on considering the evidence given by the PW1, and considering that his version was clear and unambiguous, was of the view that the bus driver, if he had driven the bus at a moderate speed, especially considering that the place, where the accident occurred was a congested area and also a place where there was heavy traffic, could have prevented the accident and not dashed against the cyclist from behind. As such, the Tribunal held that it was the rash and negligent driving of the bus driver, which had caused the accident. 11.Further, the Tribunal also held that even in the FIR marked as Ex.P6, the criminal case has been filed only as against the bus driver of the respondent's bus. Further, after scrutiny of this, as well as the Rough Sketch of the accident, marked as Ex.P7, the Tribunal held that the petitioner's contentions regarding the manner of accident was accurate. Further, even in the final report filed by the Police, after investigation, as marked as Ex.P8, the Charge Sheet has been filed only as against the driver of the bus. As such, the Tribunal on considering evidence of the PW1, and Exs.P6 to P8 and also circumstances of the case as the accident had happened in an area where there was heavy traffic, held that the accident was caused only by the negligence of the bus driver of the respondent and not due to the negligence of the petitioner. 12.The petitioner has stated in his petition that due to the accident, wherein the tyres of the bus had run over his left leg, he had sustained severe injuries and that he had taken treatment initially at Government Stanley Hospital for two months as in-patient and subsequently, as the wound had not healed, had taken treatment at Rani Medical Hospital as in-patient, and that due to the severe injuries sustained by him in his leg knee joint, he has permanent disability and that he was not able to continue doing his work as a stonecutter and so has claimed a compensation of Rs.6,00,000/-. 13.From an examination of Ex.P5, the Discharge Summary given by Government Stanley Hospital, it is evident that the petitioner had taken treatment, as in-patient, in the Hospital from 07.10.2003 to 23.11.2003 and that he had sustained severe fractures in his leg knee joint in the accident. Further, on scrutiny of the Ex.P1, Discharge Summary given by Rani Medical Hospital, it was confirmed that the petitioner had sustained severe injuries in his leg knee joint. Further, in this Discharge Summary, it has been stated that the petitioner had taken treatment for these injuries from 02.02.2004 to 17.02.2004. 14.Further, the Doctor, who examined the petitioner, was examined as PW2. The PW2, in his evidence, has stated that due to the accident, the bone in the left knee joint of the petitioner has been fractured and that after treatment, the bones have joined improperly; that there was a loss of muscles in this area and that https://hcservices.ecourts.gov.in/hcservices/ the muscles have had been removed and a skin grafting surgical operation had been carried out in this portion; further, the petitioner has lot his thumb in the left leg; that the petitioner has not been able to move his left knee joint and that he would be able to move only with the help of a crutch. The PW2, has therefore certified that the disability sustained by the petitioner in the accident was 50% and in support of this, he has marked the Disability Certificate as Ex.P10 and also marked X'Rays as Ex.P11. As such, the Tribunal taking into account petitioner's evidence and inspection of Exs.P1 and P5 and the evidence of Doctor PW2 and the Disability Certificate issued by him as per Exs.P10 and P11, held that the petitioner had sustained a permanent disability of 40% and awarded a compensation of Rs.40,000/- for permanent disability. 15.Further, pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. For nutrition, a sum of Rs.5,000/- was awarded. Further, considering that the petitioner had taken treatment at Government Stanley Hospital and a private hospital, continuously, for a period of five months, the Tribunal granted an award of Rs.10,000/- towards attender charges. For transport expenses, a sum of Rs.2,000/- was awarded. Further, the Tribunal on inspection of Ex.P2, the medical expenses incurred by the petitioner during the period of treatment at Rani Medical Hospital, the Tribunal granted an award of Rs.7,670/- towards these expenses. But, on scrutiny of Ex.P3, the Medical Bills produced by the petitioner as expenses in the Rani Medical Hospital, it was found that in some bills the name of the petitioner, was not present and in some other bills, the name of the Doctor, who had prescribed the medicines were not found. Hence, the Tribunal did not consider the full claim of Rs.11,877.02 made by the petitioner and granted an award of Rs.10,000/- only towards these expenses. Further, considering that during the period of treatment of five months in Hospital, as in-patient, the petitioner would have incurred loss of earnings, the Tribunal granted a sum of Rs.15,000/-. Though, the petitioner has stated in his evidence that he was earning Rs.200/- per day as a stonecutter and that after the accident, he was not able to do his work, no evidence has been advanced on the petitioner's side to prove that he was earning Rs.200/- per day. Further, the Tribunal was of the opinion that after medical treatment his left leg knee joint has improved in movement. Further, the Tribunal scrutinised Ex.R1, filed by the respondent's side, wherein it has been stated that the petitioner has lost the thumb in his left leg prior to the accident, in some other accident. This statement was not refused by the petitioner's side. As such, the Tribunal did not accept that the disability as projected in his left leg and disability as per Ex.P9, X'rays were caused only in the said accident. 16.As such, the disability suffered by the petitioner in the said accident could not be assessed accurately to compute loss of earnings and loss of earning capacity. However, the Tribunal on https://hcservices.ecourts.gov.in/hcservices/ considering the age, his occupation, nature of injuries, the impact of these injuries on his mental strength, and the impact that this had on his family, granted an award of Rs.25,000/- towards mental agony. In total, the Tribunal awarded a sum of Rs.1,29,760 and directed the respondent to deposit the compensation with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment of compensation, within a period of eight weeks from its Order and that once the deposit was made, it has to be invested in a Nationalised Bank as fixed deposit for three years. The excess Court fees paid by the petitioner if any, has to be returned to him. The Advocate fees was fixed at as Rs.5,595/-. 17.The learned counsel appearing for the appellant has argued in his appeal that the Tribunal had erred in fixing the negligence on the part of the appellant's driver even though the respondent, who was riding the bicycle along with his friend had lost his balance and fell down. Further, the learned Judge had erred in holding that the appellant was negligent on the basis of contradiction in his Counter and evidence instead of the respondent proving the negligence on the part of the appellant. 18.Further, the learned Judge erred in relying on the evidence of PW2, who assessed the disability of the petitioner as 50%, in spite of the fact that the injuries sustained by the petitioner is a non-schedule injury. Further all the award granted under various heads are erroneous and hence the learned counsel for the appellant has prayed for setting aside the Award and Decree Order dated 25.01.2007, made in M.C.O.P.No.1467 of 2004, on the file of the Motor Accidents Claims Tribunal, II Judge, Small Causes Court), Chennai. 19.The learned counsel appearing for the appellant strongly opposed that Rs.15,000/- awarded for loss of earning and Rs.25,000/- awarded for mental agony are not pertinent. 20.For the foregoing reasons and facts and circumstances of the case, findings of the Tribunal, argument advanced by the learned counsel appearing for the appellant, this Court is of the view that the award granted by the Tribunal is on the lowerside and has to be modified, by enhancing the compensation. For 50% disability, this Court awards a sum of Rs.1,00,000/-, considering that the claimant's bones had been broken in his left knee and the subsequent deformation of the bones, removal of muscles and skin grafting in the affected portion. For pain and suffering, the Tribunal had awarded a sum of Rs.15,000/-. This Court enhances the award under this head as Rs.25,000/-. The learned counsel appearing for the appellant had argued that the Tribunal's award of Rs.25,000/- granted for mental agony is not pertinent. This Court, considering that the claimant has taken treatment for the said fractures in two hospitals, as in- patient, for a considerable stretch of time is of the view that the claimant will have continued physical distress in his future life https://hcservices.ecourts.gov.in/hcservices/ also, the use of his legs is a crucial factor in the nature of his job as stonecutter. As such, the amount of Rs.25,000/- awarded towards mental agony could also be treated as one under physical distress suffered by the claimant. This Court confirms the award granted by the Tribunal under other heads as they are found to be reasonable and fair. 21.In total, the claimant is entitled to get a sum of Rs.2,04,670/- as compensation, together with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment of the compensation. The Court, therefore, grants the said award of Rs.2,04,670/- to the claimant as this is found to be equitable, fair and prudent too and payable by the appellant/State Transport Corporation. 22.This Court hereby directs the appellant/State Transport Corporation to pay a compensation of Rs.2,04,670/- together with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment, within a period of six weeks from the date of receipt of this Order into the credit of the M.C.O.P.No.1467 of 2004, on the file of the Motor Accidents Claims Tribunal, II Judge, Small Causes Court), Chennai. If, the award has already been deposited with the Tribunal, the same can be deducted from the award granted by this Court. 23.As the accident happened in the year2004, it is open to the respondent/claimant to withdraw the compensation amount lying to the credit of the M.C.O.P.No.1467 of 2004, on the file of the Motor Accidents Claims Tribunal, II Judge, Small Causes Court), Chennai, by filing necessary payment out application. 24.In the result, the above Civil Miscellaneous Appeal is dismissed and the award of the Tribunal has been modified in the above terms and the award has been enhanced from Rs.1,29,670/- to Rs.2,04,670/- together with interest at the rate of 7.5% per annum, from the date of claim petition to till the date of payment. Consequently, the connected miscellaneous petition is also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1. The II Judge, Small Causes Court, (Motor Accidents Claims Tribunal), Chennai. 2. The Section Officer, VR Section, High Court, Madras. + 1 c.c. to Mr. A. Muthuraman, Advocate. S.R.No.67378. C.M.A.No.2177 of 2007 JRG (CO) GSK 29.12.2009. https://hcservices.ecourts.gov.in/hcservices/