IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3104 of 2007 and M.P.No.3 of 2007 and Cross.Objn.No.9 of 2008 The Managing Director Tamil Nadu State Transport Corporation (Villupuram Circle-2) Vellore .. Appellant in Appeal and Respondent in Cross - Objection (Respondent) Vs S.Sankar .. Respondent in Appeal and Cross Objector in Cross Objection (Petitioner) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 12.02.2007, made in M.C.O.P.No.107 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore. For appellant : Mr.V.Ramesh For respondent : Mr.V.Jaganathan 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 12.02.2007, made in M.C.O.P.No.107 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, awarding a compensation of Rs.1,43,556/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the said Award and Decree, the appellant/respondent, The Tamil Nadu State Transport Corporation, Vellore, has filed the above appeal praying to set aside the said award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 07.12.2004, at about 3.30 p.m. the petitioner was riding in a two wheeler 'Suzuki Samurai' bearing registration No.AP03 D4183, along with his wife as the pillion rider, from Chittoor to Vellore and when the vehicle was in Katpadi, on the Vallimalai Junction road, the passenger bus belonging to the respondent bearing registration No.TN23 N1318, coming from south to north, driven by its driver in a rash and negligent manner hit against the the said two wheeler. In the result, the petitioner sustained grievous injuries ie.the right jaw bone of the petitioner was fractured, his teeth in the upper portion of jaw were broken and bones were fractured in the left, right hands and right leg of the petitioner. Then, the petitioner was immediately shifted to Government Medical College Hospital, Vellore, for treatment and hospitalised. 4.Regarding the said accident, Katpadi Police registered a criminal case in Crime No.774 of 2004 under Sections 279 and 338 of I.P.C. As such, the petitioner has claimed a compensation of Rs.4,00,000/- with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation and costs from the respondent, who is the owner of the said bus involved in the accident, under Section 166 of the Motor Vehicles Act. 5.The respondent, in his Counter has resisted the claim denying the manner of accident as alleged in the claim petition. The respondent has stated that on 07.12.2004, the driver of the respondent Corporation was driving the bus bearing registration No.TN23 N1318 from Bagayam to Katpadi and that when the driver of the bus was trying to turn the bus at the Junction of Katpadi – Vallimalai Road, the driver of the bus saw a two wheeler coming in the opposite direction, driven by its rider in a rash and negligent manner and at a high speed and going on the Vellore route. On seeing this, the driver of the bus, stopped the bus but in spite of this the rider of the two wheeler dashed his vehicle on the left front portion of the bus and hence had caused the accident. It has also been submitted that the petitioner has to prove the nature of injuries sustained by him, his medical treatment and expenses incurred, through documentary evidence to establish his claim. 6.It has also been submitted that the non-inclusion of the owner and insurer of the two wheeler bearing registration No.AP03 D4183, involved in the accident, renders the claim not maintainable and as such the petition has to be dismissed. Further, it has been https://hcservices.ecourts.gov.in/hcservices/ submitted that the claim is excessive. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whose negligence had caused the accident? (ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, which he is entitled to get? 8.The petitioner was examined as PW1. The PW1 in his evidence has deposed that he was working at Durga Sweet Stall, Chittoor and that on 07.12.2004, at 3.30 p.m, while he was riding the two wheeler bearing registration No.AP03 D4183, with his wife as pillion rider, from north to south and when they were nearing the Vallimalai Junction, the passenger bus bearing registration No.TN23 N1318, driven by its driver in a rash and negligent manner and at a high speed, came in the opposite direction and dashed against their vehicle. He has deposed that due to the accident, he and his wife had sustained severe grievous injuries and that they were initially admitted at Vellore Government Medical College Hospital and subsequently had been admitted at C.M.C.Hospital, Vellore. He had further stated in his evidence that due to the accident, he had sustained severe injury in his jaw and that surgical operation was done to set this right and had further stated that he had also sustained fractures of the bone in his right leg and that he has been treated, as inpatient, for 13 days in the hospital. In support of his evidence, the petitioner has marked Ex.P1-FIR; Ex.P2-Discharge Summary issued by C.M.C.Hospita, wherein it has been stated that he was admitted on 09.12.2004 and discharged on 22.12.2004; Ex.P3, the estimate slip given by the Dentist, wherein it has been mentioned that the estimate for medical treatment to set right his teeth was Rs.2,000/-; Ex.P4-the Medical Bills; Ex.P5-the Discharge Summary; Ex.P6-Disability Certificate and Ex.P7-X'rays. 9.On the respondent side, the conductor of the bus was examined as RW1. He has deposed in his evidence, that he was standing on the foot board in the front side of the bus and that he was not award of the circumstances under which the driver of the bus had caused the accident. As such, the Tribunal, on considering evidence of RW1, held that the accident had happened due to the negligence of the bus driver. 10.It is evident from the evidence given by PW1 and the documentary evidence marked as exhibits that the petitioner's teeth had been broken due to the accident and that he had initially been treated at a Government Hospital and had subsequently been admitted at C.M.C.Hospital for further treatment. On a scrutiny of the https://hcservices.ecourts.gov.in/hcservices/ Discharge Summary, the Tribunal was of the view that the petitioner had taken treatment at C.M.C.Hospital, as inpatient, from 09.12.2004 to 22.12.2004. It was also evident from a reading of discharge summary given at the above said hospital that the petitioner was initially admitted for treatment in the surgical intensive care unit and that he was later on treated as an outpatient, for the injuries sustained by him. From a scrutiny of medical bills, the Tribunal held that the petitioner had sustained grievous injuries and hence awarded a compensation of Rs.20,000/- to the petitioner under the head of grievous injuries. The Tribunal, on scrutiny of exhibits marked for medical treatment and medical expenses, were of the view that the petitioner had incurred an expense of Rs.1,04,556/- towards medical expenses. Further, out of this amount, an amount of Rs.32,000/- has already been paid as advance by the petitioner and hence, the Tribunal awarded a compensation of Rs.72,556 (Rs.1,04,556/- – Rs.32,000/-) to the petitioner under the head of medical expenses. The Tribunal further granted an award of Rs.10,000/- to the petitioner under the head of expenses for attendants. The Tribunal further granted an award of Rs.5,000/- towards loss of income and Rs.1,000/- for transport expenses to the petitioner. The Doctor, who was examined as PW3 before the Tribunal, gave evidence regarding the disability sustained by the petitioner. The Doctor had assessed the disability suffered by the petitioner in the accident as 35% and had marked Exs.P6 and P7, in support of his evidence. Hence, the Tribunal, considering the disability sustained by the petitioner, awarded a compensation of Rs.25,000/- under the head of disability. In total, the Tribunal awarded a compensation of Rs.1,43,556/- to the petitioner and directed the respondent to pay 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, into the credit of the M.C.O.P.No.107 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, within a period of one month from the date of its Order. The Tribunal further directed that the above award, after deposit was made, was to be invested in a nationalised bank as fixed deposit for three years and the petitioner was permitted to withdraw interest on such deposit once in six months, directly from the bank. The Advocate fees was fixed at Rs.5,871/- and the respondent was directed to pay the cost of Rs.6,748.68 to the petitioner, which was inclusive of the Advocate fees. 11.The learned counsel for the appellant has contended in his appeal that the Tribunal had failed to note that the driver of the appellant Corporation was proceeding in his bus slowly and cautiously at the time of accident and that the accident took place only due to the rash and negligent driving of the respondent/petitioner. It was also contended that the award of Rs.1,43,556/- granted by the Tribunal as total compensation to the petitioner with interest at the rate of 7.5% per annum from the https://hcservices.ecourts.gov.in/hcservices/ date of petition till the date of payment, was excessive and was without any basis and material evidence on record. As such, it has been prayed by the learned counsel for the appellant to set aside the award and decree passed by the Tribunal. 12.The learned counsel for the respondent argued that the medical expenditure alone, for the claimant, amounted to as Rs.1,04,556/- and so the balance compensation amount awarded to the injured claimant was on the lower side. The claimant had sustained 35% disability due to the accident, as per Doctor's evidence. The claimant is an employee in a Sweet Stall and he is the only bread winner of his family. Due to the said accident, he is unable to resume his normal work, as usual. Further, the claimant had sustained fracture injuries in his right leg and both his hands. Further, the right jaw bone of the claimant was fractured and the teeth in his upper jaw were broken. Considering that the injuries sustained by him is grievous in nature and the fact that the claimant had been hospitalised for a period of 13 days in hospital, the award granted by the Tribunal, is on the lower side. 13.The learned counsel appearing for the respondent/claimant, in support of his case, has cited the following Judgments made in 2008 ACJ 9, Supreme Court of India, Sunil Kumar Vs. Ram singh Gaud and others, the relevant head notes of which are as follows: "Quantum – Injury – Leg – Three fractures in leg including one at tibia – Injured aged 29, truck driver, drawing Rs.4,000 p.m. suffered 45 per cent permanent disability and would not be able to drive – Tribunal awarded Rs.45,000 for permanent disability, Rs.21,000 towards medical expenses, Rs.6,000 for physical pain and mental agony; total Rs.72,000 which was upheld by the High Court – Apex Court assessed loss of earning capacity at Rs.1,200 p.m., adopted multiplier of 18 and allowed Rs.2,59,200 for loss of earning capacity – Award of Rs.72,000 enhanced to Rs.3,31,200." 2008 (1) TN MAC 499, High Court of Madras, M.D., T.N.S.T.C. (Dn.-2) Ltd. v. J. Senthil Kumar, the relevant head notes of which are as follows: "MOTOR ACCIDENT CLAIM – Compensation – Quantum – Determination – Non-fatal Accident – Injured aged 41 7ears a Civil Engineer earning Rs.10,000 p.m. - Sustained multiple injuries all over body and abrasions on forehead, skull right side, left had, right foot and cheek right side – Disability:25% : Injured often getting headache and giddiness, unable to eat hard food, unable to sit, stand, bend, walk and ride any two wheeler : Unable to carry weight and do work as before – Injured claimed Rs.10,60,000 but restricted to Rs.9,00,000 before Tribunal – Tribunal awarded Rs.1,77,000 as total https://hcservices.ecourts.gov.in/hcservices/ compensation with 7% interest – Appeal against – Tribunal awarding Rs.50,000 against 25% Permanent Disability, held, proper – Rs.10,000 awarded towards Future Medical Expenses without any basis and justification, set aside – Further, Rs.25,000 awarded towards Pain and Suffering as also Rs.25,000 towards Mental Shock – Tribunal having already awarded Rs.25,000 towards Pain & Suffering, award of Rs.25,000 towards Mental Shock, not proper, set aside – Awards of Tribunal in other aspects confirmed – Rs.1,77,000 awarded by Tribunal, reduced to Rs.1,42,000 – Interest at 7.5% being reasonable confirmed." 14.Considering the facts and circumstances of the case and arguments advanced by the learned counsels of the parties concerned, this Court is of the view that the award passed by the Tribunal, ie a sum of Rs.1,43,556/- 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, in M.C.O.P.No.107 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, is fair and equitable. There is a minor discrepancy in the heads under, which the award has been granted and so the Court restructures the same as follows: 1. The Tribunal awarded a sum of Rs.20,000/- for grievous injuries, this Court awards the said amount under the head of pain and suffering. 2. For medical expenses, the Tribunal had awarded a sum of Rs.72,556/-, this Court confirms the award passed by the Tribunal under this head. 3. For attendant charges, the Tribunal awarded a sum of Rs.10,000/-, this Court modifies the above amount as Rs.5,000/-. 4. For nutrition, the Tribunal awarded a sum of Rs.10,000/-, this Court modifies the award granted under this head to Rs.5,000/-. 5. For loss of income, the Tribunal awarded a sum of Rs.5,000/-, this Court confirms the award granted under this head. 6. For transport expenses, the Tribunal awarded a sum of Rs.1,000/-, this Court confirms the award granted under this head. 7. For disability of 35% sustained by the claimant, the Tribunal awarded a sum of Rs.25,000/-, this Court grants an enhanced award of Rs.35,000/- under the said https://hcservices.ecourts.gov.in/hcservices/ head. In effect, this Court confirms the award of Rs.1,43,556/- passed by the Tribunal 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, as this found to be fair and equitable. 16.This Court imposed a condition, on the appellant/Tamil Nadu State Transport Corporation on 06.12.2007, to deposit the entire compensation amount, into the credit of the M.C.O.P.No.107 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore. Further, this Court permitted the claimant to withdraw 50% of the award amount with accrued interest from the amount lying in the credit of the M.C.O.P.No.107 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore. 17.As the accident happened in the year 2004, it is open to the claimant/respondent to withdraw the balance compensation amount, which is lying in the credit of the M.C.O.P.No.107 of 2005, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, after filing necessary payment out application, in accordance with law. 18.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore, in M.C.O.P.No.107 of 2005, is confirmed. Consequently, connected miscellaneous petition and cross objection are also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1.Motor Vehicles Accident Claims Tribunal, Chief Judicial Magistrate Court, Vellore. https://hcservices.ecourts.gov.in/hcservices/ 2. The Section Officer, VR Section, High Court, Madras. +1cc to Mr.V.Jaganathan, Advocate Sr 3687 BK(CO) km/3.2. C.M.A.No.3104 of 2007 https://hcservices.ecourts.gov.in/hcservices/