IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.785 of 2008 The Managing Director Tamil Nadu State Transport Corporation Ltd., Salem Division-I Dharmapuri .. Appellant/Respondent Vs P.Jayakumar .. Respondent/Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 12.03.2007, made in M.C.O.P.No.225 of 2006, on the file of the Motor Accident Claims Tribunal and Chief Judicial Magistrate Court No.I, Krishnagiri at Dharmapuri. For appellant : Mrs.B.Vijayalakshmi For respondent : Mr.V.Kumaravelan for Mr.U.Karunakaran 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 12.03.2007, made in M.C.O.P.No.225 of 2006, on the file of the Motor Accident Claims Tribunal and Chief Judicial Magistrate Court No.I, Krishnagiri, awarding a compensation of Rs.1,03,990/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/respondent 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, P.Jayakumar was aged about 32 years and was working as Field Assistant in Filaria and Malaria Clinic at Government Hospital, Tiruppattur. 4.On 26.05.2005, the petitioner boarded a TNSTC Bus bearing registration No.TN29 N1280 at Tiruppattur to go to Krishnagiri. While the said bus was proceeding on the Tiruppattur to Krishnagiri road, at about 8.30 p.m., the driver of the bus drove the bus in a https://hcservices.ecourts.gov.in/hcservices/ rash and negligent manner and at high speed, suddenly hit the left side parapet wall of the bridge situated on the west of the Thoppalagoundanoor Junction road and then dashed against a parked vehicle. Due to the impact, the petitioner, who was travelling as a passenger in the said bus, sustained grievous injuries over the left middle finger, right thumb, left side chest, fourth toe of right foot, left knee and the nerves of his right hand thumb was crushed. The accident had occurred only due to the rash and negligent driving of the driver of the said bus. 5.The injured petitioner was admitted in the Government Hospital at Tiruppattur on 27.05.2005 and was treated as an inpatient for two days ie.27.05.2005 and 28.05.2005. Thereafter, he took treatment in the Padma Poly Clinic at Krishnagiri, as inpatient for three days from 06.06.2005 to 08.06.2005 and underwent plastic surgery and FPL was done for the crush injury of his right hand thumb. During this period, he has spent Rs.10,000/- towards medical expenses; Rs.3,000/- towards transportation and Rs.10,000/- towards extra nourishment. 6.Due to the accident, he is unable to lift or carry any objects with his right hand, often gets pain in the chest and has difficulty in breathing. He is also unable to do any hard work as before. As such, the respondent, being the owner-cum-insurer of the said bus is liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.1,50,000/- from the respondent together with interest at the rate of 12% per annum from the date of filing the petition till the date of payment of compensation, under Section 166 of the Motor Vehicles Act, 1988. 7.Regarding the said accident, a criminal case has been registered by the Kandhili Police Station against the driver of the said bus, in Crime No.316/2005 under Sections 279 and 337 of I.P.C. 8.The respondent, in his counter, has resisted the claim denying the averments in the claim regarding the age, occupation and income of the petitioner. The manner of the accident, as alleged in the claim,has also been denied by the respondent. It has been stated that the bus driver drove the bus slowly and cautiously and kept the bus on the left side of the road, but as one cow had suddenly crossed the road, the driver of the bus in order to avoid dashing against the cow, had tried to reduce the speed of the bus and stop the bus, but in spite of this, the accident had occurred. It has also been contended that the petitioner should prove that he had travelled in the said bus. The respondent has also not admitted the claim of the petitioner as regards permanent disability, pain and suffering, loss of future earning power, mental agony, future medical expenses, extra nourishment and has therefore submitted that the claim is excessive and has to be dismissed with costs. 9.The Motor Accident Claims Tribunal framed two issues for the consideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i) Who is responsible for the accident? (ii) Is the petitioner entitled to get compensation as claimed in his claim petition? If so, what is the quantum of compensation, which he is entitled to get? 10.On the petitioner's side, three witnesses were examined as PW1 to PW3 and six documents were marked as Exs.P1 to P6. On the respondent's side no witness was examined and no documents were marked. 11.The petitioner was examined as PW1. The PW2, in his evidence, has stated that on 26.05.2005, at about 8.30 p.m. when he was travelling on the respondent's bus from Tiruppattur towards Krishnagiri, the driver of the respondent's bus had driven the bus at a high speed and in a rash and negligent manner and dashed against the parapet wall of a bridge situated on the west of the Thoppalakoundanoor Junction road and had then stopped the bus by applying sudden brakes, and that due to this the back tyre of the bus had been cut apart and consequently the bus had stopped. He had deposed that due to the accident he had sustained severe injuries. Another passenger of the said bus was examined as PW2. The evidence given by the PW2 was in consonance with that given by the PW1. In support of his evidence, the PW1 had marked Exs.P1, the FIR. On scrutiny of the Ex.P1, it is seen that a case has been filed against the driver of the bus. 12.The respondent's side has not refuted the evidence of the PW1 and the documentary Ex.P1 by letting in contra evidence and through examination of witnesses. As such, the Tribunal on scrutiny of the FIR and the evidence given by the PW2, held that the accident had been caused due to the rash and negligent manner of driving by the driver of the respondent's bus and accordingly held that the respondent is liable to pay compensation to the petitioner. 13.The PW1 has stated that due to the accident, he had sustained injuries in the middle finger of his left hand, left chest and left knee and that he had taken treatment at Tiruppattur Government Hospital as inpatient for two days and had subsequently taken treatment at a private hospital too. On scrutiny of Ex.P2, the Wound Certificate issued at the hospital, it is seen that the petitioner had only sustained simple injuries in the said accident. The Dr.S.S.Ravi Kumar, who had assessed the disability of the petitioner was examined as PW3. The PW3, in his evidence, has deposed that he had carried out a medical examination of the petitioner on 01.12.2007 and had found that the petitioner had undergone surgery in his right thumb and wrist; that the petitioner is unable to bend his right thumb as the muscles rendering these movements have lost their functional property. As such, the PW3 had deposed that the https://hcservices.ecourts.gov.in/hcservices/ petitioner has sustained 30% disability on this count and in support of his evidence had marked Ex.P5, the Disability Certificate. 14.Though the petitioner has stated that he was working in Vector Control and Giyankole University, Hosur, as a Field Assistent in Filaria and Malaria Clinic and earning a sum of Rs.5,511/- per month, he has not established his occupation and income through documentary evidence. As such, the Tribunal held that the petitioner's notional salary could be taken as Rs.3,000/- per month only and computed his annual income as Rs.36,000/-. Adopting a multiplier of 17, as was relevant to the age of the petitioner ie.32 years, at the time of accident, under the modified rules of the Motor Vehicles Act, the Tribunal assessed the total future income, which could be earned by the petitioner as Rs.36,000/- X 17 = Rs.6,12,000/-. The Tribunal, on considering that the disability percentage assessed by the Doctor, PW3 was on the higher side, held that the disability of the petitioner could be taken only as 15%. Accordingly, the Tribunal assessed the loss of income of the petitioner due to disability as Rs.6,12,000/- X 15/100 = Rs.91,800/- and accordingly awarded a sum of Rs.91,800/- as compensation to the petitioner under the head of loss of earning capacity due to disability. The Tribunal further awarded a sum of Rs.3,000/- as compensation under the head of pain and suffering; Rs.3,000/- under the head of nutrition; Rs.200/- under the head of damage to clothes and articles; Rs.4,990/- under the head of medical expenses as per Ex.P3, the medical receipts; Rs.1,000/- under the head of transport expenses. In total, the Tribunal awarded a sum of Rs.1,03,990/- as compensation to the petitioner and directed the respondent to deposit the above said award 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, with costs, into the credit of the M.C.O.P.No.225 of 2006, on the file of the Motor Accident Claims Tribunal and Chief Judicial Magistrate Court No.I, Krishnagiri, within a period of two months from the date of their Order. After such deposit was made, the award amount, with accrued interest, was to 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 six months, directly from the bank. The Advocate fees was fixed at Rs.5,079/- and the respondent was directed to pay the cost of Rs.5,502.50 to the petitioner. 15.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal failed to consider that the accident had occurred only due to the negligence of the driver of the stationed vehicle on the bridge. It has also been contended that the Tribunal failed to consider that no age and income proof was filed by the claimant and he has also not filed the accident register before the Tribunal. It was also pointed out the Tribunal failed to consider that the multiplier method cannot be applied for 15% disability. As such, the learned counsel appearing for the appellant has contended that the award of Rs.1,03,990/- granted by the Tribunal https://hcservices.ecourts.gov.in/hcservices/ is not sustainable in law and hence has prayed to set aside the award and decree passed by the Tribunal. 16.The learned counsel appearing for the respondent argued that the petitioner underwent surgery on his wrist and right hand thumb. After the surgery, he is unable to bend his thumb, and his thumb has also lost its sensitivity. At the time of accident, the petitioner was working in the Malaria Department of a Government Hospital. A competent Doctor had issued Certificate that the claimant had sustained 30% permanent disability. The Tribunal, after considering the nature of injuries and mode of treatment, age of claimant and occupation of the claimant had granted the award with interest. The award of the Tribunal has been given after well considering the evidence on record and as such the appeal is not maintainable. 17.Considering the facts and circumstances of the case and scrutiny of the findings of the Tribunal and after hearing the arguments advanced by the learned counsel appearing on either side, this Court is of the view that the Tribunal's award of compensation under the head of loss of income by adopting the multiplier method in assessment is erroneous, considering the nature of injuries. Hence, this Court awards the compensation as follows: 1.For disability and consequent loss of income, after scrutiny of Ex.P5, this Court awards a compensation of Rs.60,000/-. 2.For medical expenses, the Tribunal awarded a sum of Rs.4,990/-. This Court confirms the award granted under the said head. 3.For pain and suffering, the Tribunal awarded a sum of Rs.3,000/-. This Court enhances the award granted under this head to Rs.5,000/-. 4.For nutrition, the Tribunal awarded a sum of Rs.3,000/-. This Court confirms the award granted under this head. 5.For damage, the Tribunal awarded a sum of Rs.200/-. This Court confirms the award granted under this head. 6.For transport expenses, the Tribunal awarded a sum of Rs.1,000/-. This Court enhances the compensation granted under this head to Rs.2,000/-. In total, this Court awards a sum of Rs.75,190/- to the claimant 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 fair and equitable. https://hcservices.ecourts.gov.in/hcservices/ 18.On 22.02.2008, this Court imposed a condition on the appellant to deposit the entire compensation awarded by the Tribunal, into the credit of the M.C.O.P.No.225 of 2006, on the file of the Motor Accident Claims Tribunal and Chief Judicial Magistrate Court No.I, Krishnagiri. 19.It is open to the respondent/claimant to withdraw the compensation amount assessed by this Court ie.Rs.75,190/- with accrued interest at the rate of 7.5% per annum, lying in the credit of the M.C.O.P.No.225 of 2006, on the file of the Motor Accident Claims Tribunal and Chief Judicial Magistrate Court No.I, Krishnagiri, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals, if any. 20.The appellant is at liberty to withdraw the excess compensation amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.225 of 2006, on the file of the Motor Accident Claims Tribunal and Chief Judicial Magistrate Court No.I, Krishnagiri. 21.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 12.03.2007, in M.C.O.P.No.225 of 2006, passed by the Motor Accident Claims Tribunal and Chief Judicial Magistrate Court No.I, Krishnagiri, is modified. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To The Motor Vehicles Accident Claims Tribunal, Chief Judicial Magistrate Court No.I, Krishnagiri. 1 cc To Mrs.B.Vijayalakshmi, Advocate, SR.16660 C.M.A.No.785 of 2008 PUR(CO) sra 4/6/2010 https://hcservices.ecourts.gov.in/hcservices/