IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3136 of 2009 Managing Director Tamil Nadu State Transport Corporation Ltd., Coimbatore Division I, Coimbatore. .. Appellant/2nd Respondent Vs 1.Thangaraj 2.P.Gunavel .. Respondents/Petitioner & 1st Respondent (R2 – Given-up) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 23.04.2007, made in M.C.O.P.No.114 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet. For appellant : Mr.S.S.Swaminathan For respondents : Mr.K.Kalyanasundaram J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 23.04.2007, made in M.C.O.P.No.114 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, awarding a compensation of Rs.90,000/- 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/second 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 is a building Contractor and construction worker by profession and earning independently. On 19.02.2006, at about 07.00 p.m. when he was travelling in his TVS50 motorcycle bearing registration No.TN41 E0055 from Udumalpet to Dhali, on the https://hcservices.ecourts.gov.in/hcservices/ Dhali road, in north to south direction, and when he was nearing the Union Office Bus stop, opposite to Balaji Mess, the bus bearing registration No.TN38 N0128, belonging to the second respondent and driven by the first respondent at a high speed and in a rash and negligent manner dashed against the back side of the moped. Due to the sudden impact, the petitioner was thrown away from his moped and he sustained grievious injuries all over his body. 4.Immediately, he was rushed to Udumalpet Government Hospital and was given first aid. However, as the injuries were grievious in nature, he was taken to Coimbatore Rex Hospitals for better treatment. The middle three fingers in the right hand of the petitioner were fractured. Multiple operations were conducted on the three fingers of the petitioner's right hand and steel rods were fixed. Prior to the accident, the petitioner was earning a sum of Rs.10,000/- per month in his contract business but after the accident, he has become permanently disabled and he has lost his earning capacity. 5.As such, the petitioner has claimed a compensation of Rs.5,00,000/- from the first respondent, who is the driver of the said bus and the second respondent, the owner of the bus, under Section 166 of the Motor Vehicles Act, 1988. 6.Regarding the said accident, a criminal case has been filed at the Udumalpet Police Station in Crime No.117/2006. 7.The second respondent, in his counter, has resisted the claim stating that as the insurer of the motorcycle has not been included as a party in the claim, it renders the petition not maintainable. The second respondent has also stated that the first respondent had not driven the bus at a high speed and in a rash and negligent manner as alleged in the claim and that he cannot be held responsible for the cause of the accident. It has also been contended that the injuries sustained by the petitioner is simple in nature and as such, the petitioner is not entitled to get compensation as claimed by him. The second respondent has also submitted that the claim is excessive and has to be dismissed. 8.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Did the first respondent drive the bus at a high speed and in a rash and negligent manner and was he the caused for the accident? (ii)Is the petitioner entitled to get compensation from the respondents? If so, what is the quantum of compensation, which he is entitled to get? https://hcservices.ecourts.gov.in/hcservices/ 9.On the petitioner's side, the petitioner was examined as PW1 and Dr.Annadurai was examined as PW2 and nine documents were marked as Exs.P1 to P9. On the respondents' side, the first respondent was examined as RW1 and no documents were marked. 10.It has been stated by the petitioner that on 19.02.2006, at about 07.00 p.m. in the evening, when the petitioner was travelling in his TVS motorcycle bearing registration No.TN41 E0055, on the Udumalpet – Dhali road, at a slow speed and adhering to the traffic rules and regulations and when he was nearing the Union Office bus stop, the respondent's bus bearing registration No.TN38 N0128, driven at a high speed and in a rash and negligent manner had hit the petitioner's motorcycle from behind and caused the accident. The petitioner has marked Ex.P1, the FIR and Ex.P2 is the Motor Vehicle Inspector's Report and Ex.P4, the Charge Sheet. 11.On the respondents' side, it has been stated that no accident has taken place involving the said bus and that the FIR is a fabricated report and a false one. It has also been stated by the respondent that the FIR has been filed after a delay; that the passengers, who had travelled in the bus on the alleged date of accident had given letters stating that no accident had taken place on that day involving the said bus. 12.The first respondent, the driver of the bus, during his evidence as RW1 and deposed that when he was driving the bus over the bridge situated on the north of the Union Office and driving the bus towards south, he had seen the petitioner coming behind the bus, in his moped, when he had overtook a parked mini door auto bearing registration No.TN7 W7864, which had been parked ahead of the bus, the driver of the moped, which had been coming behind the bus, had dashed the motorcycle against the parked mini door auto and had fallen down. He had deposed that he had witnessed the accident after he had stopped the bus at the Union Office bus stop, to facilitate passengers to board the bus. Further, he had deposed that the passer-by, who were near the place of occurrence of the accident had also stated that the motorcycle had not grazed against the bus. RW1 has further deposed that after he had completed the trip and gone to the bus stand, the Udumalpet Police had questioned him as to why he had driven away the bus after grazing against the motorcycle. The RW1 has stated in his evidence that the accident had been caused only due to the fault of the petitioner. 13.The petitioner, during his examination as PW1 had deposed that the left side of the bus, which had been coming behind him, had hit against him and caused the accident. The RW1 during his cross-examination has stated that he used to give his report to his supervisor if any accident had been caused and has stated that in the instant case as he had not given any such report to his supervisor as the bus driven by him had not been involved in the said accident. https://hcservices.ecourts.gov.in/hcservices/ 14.It has been stated by the petitioner in his petition and also in his evidence that the bus had come from behind his moped and dashed against it. On the respondents side, it had been stated that after the bus overtook a parked minidoor auto, the petitioner had dashed his motorcycle against the parked minidoor auto. The Tribunal were of the opinion that the first respondent could not have seen the accident, which had occurred behind the bus after he had overtook the parked minidoor auto. As such, the Tribunal, on considering the evidence of the PW1 and after scrutiny of Exs.P1, P2 and P4, held that the accident had been caused only due to the negligent of the first respondent and hence held that the respondents are liable to pay compensation to the petitioner. 15.On the petitioner's side, it has been stated that the petitioner sustained severe injuries in the said accident and that he was initially given first aid at Udumalpet Government Hospital, Coimbatore, as inpatient from 09.02.2006 to 21.02.2006. It has been stated that due to the injuries sustained by the petitioner in the accident, he is not able to bend his fingers and lift heavy weights and that he would also not be able to drive vehicles. In support of their contention, Ex.P3, Wound Certificate issued by Government Hospital had been marked. 16.The Doctor, who had assessed the disability of the petitioner, was examined as PW2. The PW2, in his evidence deposed that on 20.02.2006, he had carried out a medical examination on the petitioner and had found that the petitioner's right hand's grasping ability has been reduced; that the petitioner would not be in a position to use the tools, which are used in construction work and that he would not be in a position to work for long periods of time; that the petitioner has lost the sensitivity in the middle three fingers of his right hand and that the fractured bones in these three fingers have joined in an improper manner. He had deposed that due to the said injuries, the petitioner has sustained 9% disability. 17.The Tribunal, on considering the evidence of the PW1 and PW2 and on scrutiny of the documents marked as Exs.P3, P5 and P9 held that the petitioner had sustained 9% permanent disability in the accident and awarded a compensation of Rs.25,000/- to the petitioner under the head of permanent disability. 18.The Tribunal, after scrutiny of medical prescription marked as Exs.P6 and P7 and on scrutiny of medical expenses marked as Ex.P8, granted an award of Rs.15,000/- to the petitioner for medical bills. 19.On the petitioner's side, it has been stated that the petitioner was employed as a building contractor and a construction worker and was earning a sum of Rs.10,000/- per month. It has been contended that as the petitioner has lost grasping ability of his https://hcservices.ecourts.gov.in/hcservices/ right hand, he would not be able to do construction work and hence he has incurred a permanent loss of income during his future life. The Tribunal, on considering that the petitioner has sustained 9% disability, as assessed by PW2, held that he had sustained a loss of income of Rs.300/- every month on this count, adopted a multiplier of 11 and was relevant to the age of the petitioner's age of 50 years and assessed his total future loss of income due to disability as Rs.300/- X 12 X 11 = Rs.39,600/- and granted an award of Rs.39,600 to the petitioner under the head of loss of future income due to disability. 20.The Tribunal further granted a sum of Rs.5,400/- to the petitioner under the head of transport expenses and nutrition and also granted a sum of Rs.5,000/- to the petitioner under the head of pain and suffering. In total, the Tribunal granted a sum of Rs.90,000/- as compensation to the petitioner and directed the second respondent to deposit the award amount 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 and costs, into the credit of the M.C.O.P.No.114 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, within a period of four weeks from the date of its Order. The petitioner was directed to pay the Court fee due on the award amount. It was directed that a sum of Rs.45,000/- from and out of the total award amount with accrued interest and costs, 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 balance award amount. The respondent was directed to pay the cost of Rs.4,699/- to the petitioner and the Advocate fees was fixed at Rs.4,375/-. 21.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal had erred in coming to the conclusion that the driver of the appellant Corporation was alone rash and negligent thereby causing the accident. It has also been contended that the Tribunal erred in awarding a sum of Rs.25,000/- for disability as it is highly excessive especially, when the percentage of disability assessed was only 9%. It was also contended that the Tribunal ought not to have applied the multiplier method for arriving at the loss of earning in the case of injury especially when there was no evidence to substantiate the loss of earning capacity due to the injuries sustained; and it was also pointed out that the multiplier of 11 adopted by the Tribunal was on the higher side. 22.As such, the learned counsel appearing for the appellant has claimed that the award is excessive and not sustainable in law and has prayed to set aside the award and decree passed by the Tribunal. 23.The learned counsel appearing for the respondent argued that the claimant is a contractor and also doing construction work. In the said accident, his fingers have been fractured and as such https://hcservices.ecourts.gov.in/hcservices/ he is unable to do his work. The learned counsel further pointed out that immediately after the accident, the claimant was taken to the Government Hospital, Udumalpet, wherein he underwent preliminary treatment and thereafter he was taken to Rex Hospital, Coimbatore to get better treatment and he had been an in-patient at this Hospital for a period of 12 days. During the treatment period, the claimant spent a considerable amount of money for his treatment. In spite of this treatment, the sensitivity of the petitioner's middle fingers has not been restored. The Tribunal had considered all the facts and awarded the compensation. In the said award as there is no error, the Civil Miscellaneous Appeal is not maintainable. 24.Considering the facts and circumstances of the case and going through the findings of the Tribunal and scrutiny of the award granted under various heads and arguments advanced by the learned counsel on either sides, this Court is of the view that there is a discrepancy in the said award. As such, this Court decides to scale down the compensation awarded by the Tribunal as follows: 1.For 9% disability, the Tribunal awarded a sum of Rs.25,000/-. This Court modifies the award granted under this head to Rs.18,000/-. 2.For medical expenses, the Tribunal awarded a sum of Rs.15,000/-, on the strength of Exs.P6, P7 and P8. This Court confirms the same. 3.For loss of future income due to disability, the Tribunal awarded a sum of Rs.39,600/-. This Court set aside by this Court, as it is found reduntant. However, this Court considering that the claimant would have incurred loss of income during the period of treatment awards a sum of Rs.5,000/- under the head of loss of income. 4.For transport and nutrition expenses, the Tribunal awarded a sum of Rs.5,400/-. This Court awards a sum of Rs.3,000/- under the head of transport expenses and a sum of Rs.5,000/- under the head of nutrition, as compensation to the claimant. 5.For pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. This Court enhances the award granted under this head to Rs.10,000/-. In total, this Court awards a sum of Rs.56,000/- to the claimant as compensation, 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, the amount to be deposited into the https://hcservices.ecourts.gov.in/hcservices/ credit of the M.C.O.P.No.114 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, within a period of four weeks from the date of receipt of a copy of this Order, subject to deduction of earlier deposits made in the said claim case. 25.As the accident happened in the year 2006, it is open to the claimant to withdraw the compensation amount awarded by this Court, together with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.114 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, after filing necessary application, in accordance with law, subject to deduction of withdrawals made, if any. 26.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 23.04.2007, in M.C.O.P.No.114 of 2006, passed by the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs. krk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Motor Vehicles Accident Claims Tribunal, Subordinate Judge, Udumalpet. 2.The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. S.S. Swaminathan, Advocate SR No.15415 + 1 cc to Mr. K. Kalyanasundaram, Advocate SR No.15812 Order in C.M.A.No.3136 of 2009 KLT(CO) SR/19.3.2010 https://hcservices.ecourts.gov.in/hcservices/