IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 10 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.2724 of 2010 & M.P.No.1 of 2010 The Managing Director, Tamil Nadu State Transport Corporation Limited, Periyamilagupari, Trichy. ... Appellant / Respondent Versus Sakthivel ... Respondent / Petitioner Prayer: The above appeal is filed under Section 173 of the Motor Vehicle Act, 1988 against the award made in M.C.O.P.No.394 of 2007, dated 03.09.2009 on the file of the Motor Vehicles Accident Claims Tribunal (Additional Sub Judge), Virudhachalam. For Appellant : Mrs.B.Vijayalakshmi For Respondent : Mr.S.Senthilnathan - - - J U D G M E N T The above appeal has been filed by the appellant / the Tamil Nadu State Transport Corporation Limited against the judgment and decree made in M.C.O.P.No.394 of 2007, dated 03.09.2009 on the file of the Motor Vehicles Accident Claims Tribunal, Additional Sub Judge, Virudhachalam. 2.The short facts of the case are as follows:- On 08.10.2007, when the petitioner was riding the motorcycle bearing Registration No.TCO-8613, with one Shakthivel as the pillion rider and were proceeding to Trichy and when the motorcycle was at Trichy Tollgate-Y-Cross road junction, the first respondent's bus bearing Registration No.TN-45-N-1913, driven by its driver at a high speed and in a rash and negligent manner, dashed against the said motorcycle and caused the accident. As a result of the accident, both the rider and pillion rider sustained grievous injuries. They were admitted in the ABC https://hcservices.ecourts.gov.in/hcservices/ Hospital at Trichy and received treatment here as inpatients. Hence, the petitioner has claimed a compensation of Rs.2,00,000/- from the respondent, the Tamilnadu State Transport Corporation, Trichy. 3.The respondent, in his counter has resisted the claim and denied the averments in the claim regarding manner of accident, age, income and injuries sustained by petitioner. It was stated that on 08.10.2007 at about 7.00 pm., when the respondent's bus was proceeding on Thuraiyoor to Trichy road and when the bus was near Tollgate-Y-Cross road junction, the petitioner suddenly rode his motorcycle across the road, without seeing the bus and dashed his motorcycle against the bus. Hence, the accident had occurred only due to negligence of the rider of the said motorcycle. It was also stated that as the insurer of the said motorcycle had not been added as a necessary party, it renders the claim not maintainable. It was stated that the claim was excessive. 4.On the averments of both the parties, the Tribunal had framed three issues for consideration, namely; “(i)Was the driver of the first respondent's bus responsible for the accident? (ii)Is the respondent liable to pay compensation to the petitioner? (iii)To what relief is the petitioner entitled to get?” 5.The pillion rider of the said motorcycle who had been injured in the accident had also filed a claim in M.C.O.P.No.397 of 2007. Hence, the Memo for a joint trial of both the cases was admitted and common evidence recorded. The petitioner in M.C.O.P.No.397 of 2007 was examined as PW1 and the petitioner in M.C.O.P.No.394 of 2007 was examined as PW2 and thirty one documents were marked as exhibits. On the respondent side one witness was examined as RW1 and no documents were marked. Both PW1 and PW2 had adduced evidence which were in consonance with the version of accident as mentioned in the claim. It is seen that PW2 had registered a complaint, regarding the accident, at Trichy Police Station and based on this complaint, a criminal case in Crime No.158 of 2007 had been registered against the driver of the respondent bus. The driver of the respondent bus was examined as RW1. RW1 adduced evidence that when the bus was proceeding on the Chennai-Trichy main road and when it was near Trichy Tollgate-Y- Cross road junction, the motorcycle bearing Registration No.TCO- 8613, ridden in a rash and negligent manner by its rider, had hit against the side of the bus, wherein the diesel tank had been damaged and consequently both the rider and pillion rider of the motorcycle had fallen down. It is seen from a scrutiny of Ex.P2, the Motor Vehicle Inspector's Report that the right side front bumper of the bus had been bent in the said accident. Hence, the Tribunal considering that the evidence of RW1 was not in https://hcservices.ecourts.gov.in/hcservices/ consonance with that of the report in Ex.P2 were not inclined to accept the contentions of RW1 regarding the manner of accident. Considering that the said motorcycle had also been damaged, the Tribunal held that the accident had been caused by the rash and negligent driving of the driver of the respondent's bus. It is evident from a scrutiny of Exs.P16 to P21 that the petitioner had been admitted in ABC Hospital, Trichy and had received treatment for injuries sustained in the accident. It is evident from the CT Scan taken here (Ex.P21) that the petitioner had sustained fracture on his right shoulder bone. PW3, the doctor who had examined the petitioner, adduced evidence that due to the accident, the movements of the petitioner's right shoulder has been reduced; that the right shoulder bone had been reduced in length by 1½” and said that the petitioner sustained 45% disability on this count. Though the petitioner had claimed he was a teacher at Tittakudi Matriculation School and earning a sum of Rs.10,000/- per month, no income proof had been produced to back this claim. Hence, the Tribunal held that the nominal monthly income of the petitioner is Rs.3,000/- per month only. Based on the oral and documentary evidence, the Tribunal granted Rs.1,45,117/- as compensation 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. The breakup of compensation is as follows:- Loss of earning capacity due to disability of 45% (For 1%-Rs.2,000/-) .. Rs.90,000/- Loss of income for three months i.e., medical treatment period (Rs.3,000/- x 4) .. Rs. 9,000/- For pain and suffering .. Rs.15,000/- For attendant charges .. Rs. 3,000/- For medical expenses .. Rs.25,117/- For transport expenses .. Rs. 3,000/- 6.Aggrieved by the said award passed by the Tribunal, the Managing Director, Tamil Nadu State Transport Corporation Limited has filed the present appeal to set-aside the award passed. 7.The learned counsel for the appellant argued that the tribunal failed to consider that the claimant had also been rash and negligent and hence contributory negligence should have been taken as a factor while awarding compensation. It was also pointed out that the award of Rs.9,000/- given as compensation for loss of income for three months was erroneous as this loss had not been proved. It was also pointed out that the Tribunal had awarded a https://hcservices.ecourts.gov.in/hcservices/ sum of Rs.90,000/- for 45% disability. The learned counsel further argued that the doctor's assessment of disability at 45% was on the higher side. The award of Rs.15,000/- granted under the head of 'pain and suffering' was also on the higher side. 8.The learned counsel for the claimant argued that the Tribunal had not considered compensation under the head of 'nutrition'. Besides the Tribunal had not granted an adequate compensation under the heads of transport and attender charges. The claimant had sustained 45% disability and his age was 29 years. As such, the Tribunal had awarded a sum of Rs.90,000/- under the head of 'disability'. The claimant had spent more than Rs.25,000/- towards medical expenses. 9.In view of the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the claimant had sustained 45% disability, for which, the Tribunal had awarded a sum of Rs.90,000/-. Besides the Tribunal had awarded Rs.25,117/- towards medical expenses and in support of this, medical bills, Exs.23 and 24 were marked. The rest of the compensation awarded by the Tribunal under the other heads viz., pain and suffering, attender charges and transport are reasonable. Therefore, this Court is not inclined to interfere with the impugned award of the learned Motor Accident Claims Tribunal. Hence, this Court confirms the said award. As such, this Court directs the appellant / State Transport Corporation to comply with the Tribunal's award within a period of six weeks from the date of receipt of this order by depositing the entire amount including interest and costs. After such deposit is made, it is open to the claimant to withdraw the entire compensation amount with accrued interest and costs lying in the credit of M.C.O.P.No.394 of 2007 on the file of the Motor Vehicles Accident Claims Tribunal, Additional Sub Judge, Virudhachalam, after filing a Memo along with this order. 10.Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal on the file of Additional Sub Judge, Virudhachalam made in M.C.O.P.No.394 of 2007, dated 03.09.2009 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. r n s Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal, (Additional Sub Judge), Virudhachalam. + 1 cc to Mrs. B. Vijayalakshmi, Advocate SR No.33175 + 1 cc to Mr. S. Senthilnathan, Advocate SR No.33432 UG(CO) SR/19.8.2011 ORDER MADE IN C.M.A.No.2724 of 2010 https://hcservices.ecourts.gov.in/hcservices/