IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.607 of 2007 and M.P.No.1 of 2007 The Managing Director Tamil Nadu State Transport Corporation Division No.II Dharmapuri .. Appellant/Respondent Vs Muni Rathinam .. Respondent/Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 23.09.2005, made in M.C.O.P.No.363 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court of Dharmapuri at Krishnagiri. For appellant : Mrs.B.Vijayalakshmi For respondent : Mr.M.Selvam for Mrs.P.Malliga 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 23.09.2005, made in M.C.O.P.No.363 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court of Dharmapuri at Krishnagiri, awarding a compensation of Rs.2,10,000/- together with interest at the rate of 9% 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 Division No.II, Dharmapuri 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: https://hcservices.ecourts.gov.in/hcservices/ On 28.09.2002, at about 19.00 hours, the petitioner was proceeding on a TVS50 motorcycle on the Kadathur main road, opposite to Dr.Ramanathan Clinic. At that time, the respondent's Corporation bus bearing registration No.TN29 N 1113 was proceeding towards Dharmapuri on the Dharmapuri to Kadathur road. The driver of the bus had driven the bus in a rash and negligent manner and dashed against the petitioner. As a result of this, the petitioner fell on the floor and sustained fracture on his right knee, discolation of right hip joint and other injuries. Immediately after the said accident, the petitioner was rushed to Dharmapuri Government Hospital for treatment. From there, he was referred to St.John's Medical College, Hospital, Bangalore for better treatment. 4.At the time of the said accident, the petitioner was an agriculturist, milk vendor and having a poultry farm. As such, he was earning a sum of Rs.5,000/- per month. After the said accident, he is unable to perform his duty as he used to do prior to the said accident. The said accident case was registered by the Kadathur Police Station in Crime No.402/2002 under Sections 279 and 337 of I.P.C. Further, the petitioner submitted that the accident had happened only due to the rash and negligent driving of the driver of the bus. Hence, the respondent Corporation is liable to pay compensation of Rs.2,50,000/- to the claimant with interest at the rate of 12% per annum. 5.The respondent has filed a counter statement and denied the allegations made in the claim petition. The respondent categorically admitted that the accident took place on 28.09.2002 at 19.00 hours at Kadathur, opposite to one Dr.Ramanathan Clinic, in Kadathur to Dharmapuri road. But, the accident did not happen as alleged in the petition. On 28.09.2002, the driver of the bus was driving the bus cautiously and observing all the rules of the road and keeping to the extreme left side of the road. But, the petitioner proceeded in TVS50 motorcycle in the opposite direction, at a high speed in a rash and negligent manner and dashed against the bus. As such, the accident had happened. The respondent further submitted that due to the rash and negligent driving of the claimant the accident had happened. Considering the said accident, the claimant has contributed in the said accident as he had been negligent. Since two vehicles were involved in the said accident. The owner of the motorcycle and the insurer are necessary parties. But, they were not added as parties. Hence, this claim petition is not maintainable. The respondent further submitted that the petitioner has to prove his age, income and occupation and the claim amount of Rs.2,50,000/- with 12% interest per annum is excessive. Hence, the respondent prayed to dismiss the claim petition with costs. 6.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? https://hcservices.ecourts.gov.in/hcservices/ (ii) What is the quantum of compensation, which the petitioner is entitled to get? 7.On the petitioner's side two witnesses were examined as PW1 and PW2 and eight documents were marked as Exs.P1 to P8 namely Ex.P1-copy of the FIR; Ex.P2-copy of the Wound Certificate; Ex.P3- Wound Certificate; Ex.P4-Medical Bills; Ex.P5-Taxi receipts; Ex.P6- Permanent Disability Certificate; Ex.P7-X-ray and Ex.P8-Scan report. On the respondent's side one witness was examined as RW1 and no documents were marked. 8.The petitioner was examined as PW1. The PW1, in his evidence, stated that due to the said accident, he sustained permanent disability. He has marked Exs.P1 FIR and P2 Wound Certificate. On the side of the respondent, the driver of the bus was examined as RW1. In his evidence, he adduced evidence that the petitioner was proceeding on his motorcycle carrying a plastic Can and dashed against the respondent Corporation bus. As such, the accident had happened and only the petitioner is responsible for the said accident and that due to his negligence, the accident had happened. In any event, the respondent is not responsible for the said accident. The PW1 further adduced evidence that FIR was also registered against the driver of the bus for his negligent driving. After considering evidence of the PW1, RW1 and documentary evidence of the petitioner ie.Ex.P1 and P2, the Tribunal had come to the conclusion that the driver of the bus is responsible for the said accident. As such, the respondent Corporation is liable to pay compensation to the claimant. The PW1, further adduced evidence that due to the said accident, his right hip bone and middle bone of the hip were fractured and that he had also sustained injuries on the sole of his right leg and right hand fingers. 9.One Dr.Thiruvengadam was examined as PW2. The PW2 had adduced evidence stating that in the said accident the PW1 sustained grievous injuries. As such, the claimant's hip movement has been reduced by 90 Degrees. The PW2 after examination of the claimant, assessed the disability and has stated that the claimant had sustained 40% disability in the said accident. The Tribunal, after considering the evidence of the PW1 and PW2 and on the strength of the other documents, supporting to the medical treatment, awarded a compensation as follows: 1.Rs.60,000/- under the head of injuries, 2.Rs.40,000/- under the head of pain and suffering, 3.Rs.50,000/- under the head of permanent disability, 4.Rs.30,000/- under the head of medical expenses, https://hcservices.ecourts.gov.in/hcservices/ 5.Rs.5,000/- under the head of nutrition, 6.Rs.5,000/- under the head of transport expenses, 7.Rs.20,000/- under the head of partial loss of income, In total, the Tribunal awarded a sum of Rs.2,10,000/- 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, into the credit of the M.C.O.P.No.363 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court of Dharmapuri at Krishnagiri. Further, the Tribunal directed the respondent Corporation to deposit the compensation amount as observed above, with accrued interest, within a period of two months from the date of its Order. In turn, the amount was to be deposited in any one of a nationalised bank for a period of three years, under a fixed deposit scheme and the petitioner was permitted to withdraw the interest once in six months. The Advocate fees was fixed at Rs.7,200/-. 10.Learned counsel appearing for the appellant submitted that under the head of 40% disability, the Tribunal awarded a sum of Rs.50,000/-, which is erroneous. The Tribunal has not properly considered the claimant's age, income and occupation and awarded a sum of Rs.2,10,000/- as compensation, which is on higher side. Further, it was contended that the Tribunal's award of the compensation under the heads namely transport, nutrition, medical expenses and partial loss of income are erroneous. The learned counsel further submitted that the PW2, Dr.Thiruvengadam's assessment of the percentage of the disability, is erroneous. Hence, the learned counsel has prayed before this Court to scale down the award amount, which was granted by the Tribunal. 11.Learned counsel appearing for the respondent argued that the claimant sustained grievous injuries. At the time of the said accident, the claimant was aged 25 years old. He was an agriculturist, milk vendor and having poultry farm. As such, he was earning a sum of Rs.5,000/-. After the said accident, he is unable to carry his profession as he used to do prior to the said accident. The learned counsel further pointed out that the accident had happened due to the rash and negligent driving of the driver of the bus, for which a criminal case was also registered by the Kadathur Police Station, in Crime No.402/2002, under Sections 279 and 337 of I.P.C. against the driver of the bus. The Tribunal properly considered the evidence of the both sides and had come to the conclusion stating that the accident had happened due to the rash and negligent driving of the driver of the bus. The Tribunal, after considering the evidence of the PW1 and PW2, medical records, which were marked by the PW1 before the Tribunal at the time of adjudication, awarded a compensation on various grounds, which are pertinent and reasonable and there is no error in the order passed https://hcservices.ecourts.gov.in/hcservices/ by the Tribunal. As such, the appeal is not maintainable and has prayed before this Court to dismiss the appeal. 12.Considering the facts and circumstances of the case and the arguments advanced by the learned counsel appearing on either side, this Court is of the view that the award amount granted under the head of grievous injuries and permanent disability, are not pertinent. Hence, this Court grants compensation as follows: 1.Under the head of permanent disability for 40%, which is assessed by the PW2, this Court grants a sum of Rs.80,000/-, 2.Under the head of medical expenses, the Tribunal awarded a sum of Rs.30,000/-. This Court confirms the same under the same head, 3.Under the head of transport expenses, the Tribunal awarded a sum of Rs.5,000/-. This Court confirms the same under the same head, 4.Under the head of nutrition, the Tribunal awarded a sum of Rs.5,000/-. This Court confirms the same under the same head, 5.Under the head of partial loss of income, the Tribunal awarded a sum of Rs.20,000/-. This Court confirms the same under the same head, 6.Under the head of pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. This Court reduces the award granted under this head to Rs.20,000/-, In total, this Court awards a sum of Rs.1,60,000/- as compensation to the claimant, 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. As observed above, this Court has scaled down the compensation from Rs.2,10,000/- to Rs.1,60,000/-, as it is found to be fair and equitable. 13.On 08.03.2007, this Court imposed a condition on the appellant to deposit a sum of Rs.1,25,000/-, into the credit of M.C.O.P.No.363 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court of Dharmapuri at Krishnagiri, within a period of four weeks from the date of its Order. After such deposit is being made, the claimant was permitted to withdraw a sum of Rs.1,00,000/- with accrued interest thereon. 14.Now, this Court hereby directs the appellant to deposit the balance compensation amount, together with interest thereon, into the credit of the M.C.O.P.No.363 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court of Dharmapuri at Krishnagiri, https://hcservices.ecourts.gov.in/hcservices/ within a period of four weeks from the date of receipt of a copy of this Order, subject to the deduction of earlier deposit. 15.After such deposit is made, the claimant is permitted to withdraw the balance compensation amount, together with interest thereon, lying in the credit of the M.C.O.P.No.363 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court of Dharmapuri at Krishnagiri, by making proper payment out application in accordance with law, subject to deduction of earlier withdrawals. 16.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 23.09.2005, in M.C.O.P.No.363 of 2003, passed by the Motor Accident Claims Tribunal, Sub Court of Dharmapuri at Krishnagiri, is modified. Consequently, connected miscellaneous petition is 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, Sub Court, Krishnagiri. 2. The Section Officer, VR Section, High Court, Madras. +1cc to Mr.M.Selvam, Advocate Sr 19600 +1cc to Mrs. B.Vijayalakshmi, Advocate Sr 19730 PUR(CO) km/31.5. C.M.A.No.607 of 2007 https://hcservices.ecourts.gov.in/hcservices/