IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.11.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1797 of 2007 and M.P.No.1 of 2007 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore Division-II, Chennimalai Road, Erode .. Appellant/ Respondent Vs Vasudevan .. Respondent / Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgement and Decree, dated 22.01.2007, made in M.A.C.T.O.P.No.590 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Tract Court No.5), Coimbatore sitting at Tiruppur. For appellant : Mr.C.Prabhakaran for M/s.N.Anand For respondent : Mr.S.S.Swaminathan J U D G M E N T The above civil miscellaneous appeal has been filed by the appellant/respondent against the Judgement and Decree dated dated 22.01.2007, made in M.A.C.T.O.P.No.590 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Court (Fast Tract Court No.5), Coimbatore sitting at Tiruppur, awarding a compensation of Rs.9,73,800/- with 7.5% interest from the date of the petition till the date of payment of the compensation. 2.Aggrieved by the above said award, the appellant/the Managing Director, Tamilnadu State Transport Corporation Ltd., Coimbatore Division-II, Erode, has preferred the above appeal contending that the manner of the accident, occupation of the https://hcservices.ecourts.gov.in/hcservices/ claimant, medical expenses incurred by the claimant and the nature of the injuries sustained by the claimant and the income of the claimant are not admitted. Further, it has been submitted that the accident took place only due to the carelessness and negligence of the rider of the two wheeler. The appellant in his version about the manner of the accident has stated that the driver of the appellant's bus was forced to turn the bus in the right side and stopped the bus in order to avoid a pedestrian, who came in front of the bus. But, at that time, the two wheeler rider, who was riding the two wheeler and on the opposite direction dashed against the stationary bus and so the accident had occurred. Further, no Police Officer was examined to prove the negligence on the part of the appellant's driver and conductor. Further, the multiplier adopted by the Tribunal and the monthly income of the claimant fixed by the Tribunal were erroneous. Further, the award granted under various heads are without any basis and as such the total award of Rs.9,73,800/- awarded by the Tribunal together with interest at 7.5% are excessive and needs re-consideration. 3.The short facts of the case are as follows: On 13.06.2005, at about 21.45 hours, the petitioner was travelling in the two wheeler, as pillion rider. At that time, the bus bearing registration No.TN 33 N 1676 came in a rash and negligent manner and dashed against the petitioner, and he was thrown away and so he sustained grievous injuries. The petitioner was initially taken to Kumaran Hospital, Tiruppur and subsequently the petitioner has been undergoing treatment in K.G.Hospital, Coimbatore. The accident was caused due to the rash and negligent driving of the bus in the course of the employment under the respondent. Hence, the respondent is liable to compensate the petitioner. 4.The petitioner is aged about 33 years old. He was working as a Production Manager and was earning Rs.7,500/- per month. Due to the accident, he sustained fractures in the left hand, left leg, hip, head and multiple abrasions all over the body. Due to the accident he cannot go to work for atleast six months. So, the loss of income for the said period will be Rs.15,000/-. The petitioner has spent Rs.10,00,000/- for treatment. The petitioner has sustained pain and suffering for which he has claimed Rs.50,000/- as compensation. The petitioner has claimed Rs.15,000/- for transportation to hospital and Rs.15,000/- for extra nourishment. The petitioner has claimed Rs.1,00,000/- for permanent disability suffered in accident and Rs.12,75,000/- for loss of earning power. In total, the petitioner has claimed Rs.25,00,000/- as compensation, under Section 166 of the Motor Vehicles Act. 5.A criminal case in Crime No.217 of 2005 has been registered about the said accident at the Avinashipalayam Police Station. https://hcservices.ecourts.gov.in/hcservices/ 6.The respondent in his counter has denied all the allegations made in the claim regarding name, age, occupation, date of accident, manner of accident, place, nature of injuries, period of treatment, loss of earnings, loss of earning power and permanent disability. Further, the claim petition is bereft of details as it does not mention the place, two wheeler number and mode of accident. The respondent has further submitted that on 13.06.2006, the bus bearing registration No.TN 33 N 1676 was proceeding from Tiruppur to Madurai and at about 21.45 hours when the bus was nearing Avinashipalayam, the driver of the bus was proceeding slowly and cautiously keeping to his left. At that time, a pedestrian suddenly crossed the main road without noticing the bus. The driver blew the horn and applied the headlight dipper. In spite of the same, the pedestrian came into the middle of the road. In order to avoid the accident, the driver swerved the bus to the right extreme and applied sudden brake and halted the bus. At that time, the motor cycle bearing registration No.TN 39 X 3277 came in the centre of the road, in the opposite direction at a high speed, lost control and dashed against the stopped bus resulting in the alleged accident. The respondent submits that the accident occurred only due to the rashness and negligence on the part of the pedestrian and the rider of the motorcycle bearing registration No.TN39 X 3277. Further, the allegation contained in the F.I.R. are all false and have been made only to prop up a false case. The non mentioning of the particulars such as two wheeler registration number, the name of the driver of the two wheeler, owner and insurer of the two wheeler makes the petition bad for non-joinder of necessary parties and so has prayed for dismissal of the petition. Further, the loss of earning power and the claim for permanent disability are one and the same. The petitioner cannot claim the same under various heads. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely (i) Who is responsible for the accident to be caused? (ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation? 8.On the petitioner's side, six witnesses were examined as PW1 to PW6 and 22 documents were marked as Exs.P1 to P22. On the respondent's side, one witness was examined as RW1 and no documents were marked. 9.The petitioner himself was examined as PW1 and he had marked a document ie.Ex.P1, the First Information Report. It has been mentioned in the report that the accident occurred on 13.06.2005, https://hcservices.ecourts.gov.in/hcservices/ at 21.45 hours; that the complaint had been lodged by one Deivasigamani, the brother-in-law of Kanakaraj, who was travelling in another motorcycle and who had died in the above accident; that based on this complaint, a criminal case was registered by the Avinasipalayam Police as Crime No.215/2005 against the driver of the bus bearing registration No.TN 33 N 1676. Further, another document was marked by the petitioner as Ex.P2, the Motor Vehicle Inspector's Report of the said bus. It has been stated in this report that the accident has not been caused due to any mechanical defects in the bus. Further, the driver of the bus was examined as RW1. RW1 in his evidence has adduced that he was driving the bus carefully on the left side of the road; that a passenger without noticing the bus was crossing the road, in front of the bus; that he had swerved the bus to the right side of the road and stopped it; in spite of this, a two wheeler, which was coming from opposite direction, ridden rashly and negligently by its rider had dashed against the bus and both the riders had fallen down; that the passenger, who had crossed the road also dashed himself against the stationery bus. 10.The Tribunal on a scrutiny of the evidence adduced by RW1 held that as the driver of the bus, RW1 had admitted in his evidence that he had driven the bus to the right side of the road, it is very obvious that the two wheeler, which had dashed against the bus, was ridden in the correct direction and as such held that the accident had occurred only because the bus had dashed against the two wheeler. Further, the pedestrian, who crossed the road also was not by the bus and died. 11.If the pedestrian, who had crossed the road had dashed himself against the stationary bus, he would not have died. But the Tribunal, considering that the said pedestrian had died in the accident. Concluded that he had been hit by the moving bus. On cross-examination of RW1, it has been admitted by him that he had not filed any complaint with the Police and that even in the F.I.R. the complaint has been registered as against him. Further, no witness was examined and no documentary evidence was produced by the respondent side to establish that the driver of the bus had not been rash and negligence in driving the bus. As such, the Tribunal held that the accident was caused only by the rash and negligent driving by the driver of the bus ie.RW1 bearing registration No.TN 33 N.1676. 12.The Tribunal, on inspecting Ex.P3, the Wound Certificate found that the petitioner had sustained fracture of bones in his left tore arm, left leg and also head injuries in the said accident. Further, on scrutiny of Ex.P4, the discharge summary issued by the Sri Kumaran Hospital, evident that the petitioner was admitted in the hospital on 16.06.2005 and remained there till 03.08.2005 as in patient. The medical expenses incurred by the https://hcservices.ecourts.gov.in/hcservices/ petitioner has been marked in Ex.P5 the medical bills. Further, the Salary Certificate given by A.K.R.Textiles, wherein the petition was employed was marked as Ex.P6. It has been stated in this Certificate that the petitioner is working in the said firm as Production Manager and earning a monthly salary of Rs.7,500/- Further, Ex.P7, the ESI Identification Certificate, wherein the photo of the petitioner has also been affix was marked. 13.Further, Mr.Selvaraj, the Manager of M/s.A.K.R.Textiles was examined as PW5. He has stated in his evidence that the General Manager of A.K.R.Textiles has issued the Salary Certificate to the petitioner, which has been marked as Ex.P6. To prove that the petitioner was employed in the said firm, the copy of the attendance register pertaining to the months of April, May and June 2005, along with copy of salary slips issued during this period as well as the vouchers given by the petitioner has been marked as Exs.P18 and P19 respectively. On inspection of Ex.P19, the Salary Certificate, it is clear that the petitioner was drawing a monthly salary of Rs.6,500/- and getting an additional petrol allowance of Rs.1,000/- per month. Further, Ex.P20 was marked, which shows that the petitioner had received a bonus of Rs.9,900/- for the year November 2003 to October 2004. 14.Mr.Senthil Kumar, the Orthologist was examined as PW6. In his evidence, he has adduced that the petitioner's Radial Alua bones in his left had and Tribiya Fibula bones in his left leg have been broken into many bits; that the Tibiya bone in his left knee bad been fractured; that two of the public Rami bones in his right hip had been fractured; that the 4th & 5th Metatowal bones in his left leg had been fractured; that the petitioner had sustained head injuries and that he had bleeding injuries in the left temporal cobe of brain. 15.Further, he had adduced evidence that a rod has been fixed to join his Tibia bone and a plate and screw were fixed to join and set the Radial Alua bone fracture. Further, the doctor had adduced evidence that because of the injuries, the movements of both the legs of the petitioner has become restricted and has certified disability of 20% on this Court, and has also certified disability of 35% for the inability to stand still due to the misshapen Radius Alua bones, Tibia, Fibula bones in his legs and further stated that the petitioner in total had sustained a disability of 47.2% as per structured formula. Further, the disability of 9% was certified for the loss of movement and strength in the left hand; for loss of co-ordinated movement of hand, a 12% disability was fixed and a total disability of 19.8% was certified as per structured formula, a total disability of 56.56% has been sustained by the petitioner in his hand and legs on adding the 3% disability for head injuries. The total disability sustained by the petitioner was certified as 59.56% and this certificate was marked by the Doctor as Ex.P21 the https://hcservices.ecourts.gov.in/hcservices/ disability Certificate and Ex.P22, the X-Rays series. But, the Tribunal on consideration of the fact that the petitioner has not lost his job on account of disability and was still employed as Production Manager in the said concern, held that the petitioner has not suffered monetarily on account of disability and as such they decided that the disability sustained by the petitioner in the accident could be taken to be only 30%. As per Ex.P19, his salary was taken as Rs.6,500/- per month and after considering Ex.P3 Wound Certificate and Ex.P4 Discharge Summary, the age of the deceased as 35 years. Adopting a multiplier of 17 as per Motor Vehicles Act, 2nd schedule,the tribunal assessed that the loss of earnings suffered by the petitioner on account of disability as 6,500 X 12 X 17 X 30/100 = Rs.3,97,800/-. For pain and suffering, the Tribunal awarded Rs.20,000/- and for medical expenses Rs.5,41,000/- was awarded. For nutrition, the Tribunal awarded Rs.5,000/- and for loss of income of the petitioner during the time he was taking medical treatment, and for transport expenses, the Tribunal awarded Rs.10,000/-. In total, the Tribunal awarded a compensation of Rs.9,73,800/- to the petitioner. Further, the Tribunal considering that the petitioner had spent over Rs.5,00,000/- for medical treatment and also considering the fact that the petitioner may need further treatment at a later date, permitted the petitioner to receive the entire compensation amount, after such deposit is made by the respondent and directed the respondent to deposit the award amount with interest at the rate of 7.5% from the date of petition till the date of payment of compensation into the credit of M.C.O.P.No.590 of 2005, on the file of the Motor Accident Claims Tribunal-cum-Additional District Court (Fast Tract Court No.V), Coimbatore setting at Tiruppur, within a period of one month from the date of its order. The Advocate fees was fixed as Rs.16,738/-. Further, the Tribunal directed the petitioner to pay the balance Court fee payable on the award amount within ten days of its order. The Tribunal also directed the respondent, that even it it went on appeal against the order, they should arrange to deposit 50% of the award granted within two months from the date of its order, and failure to do so will make than liable to deposit the award with 10.5% interest instead of 7.5 interest. 16.The learned counsel for the appellant, in support of the contentions in his appeal has brought the attention of this Court on a legal ruling made in a Judgement in 2005(1) CTC 38, High Court of Madras, United India Insurance Company Ltd., Vs. Veluchamy & Another, wherein the relevant portion, as applicable to the present case, has been highlighted. The relevant portion reads as under: "11.The following principles emerge from the above discussion: a.In all the case of injury or permanent disablement "multiplier method" cannot be mechanically applied to ascertain the future loss of income or earning power. https://hcservices.ecourts.gov.in/hcservices/ b.It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power etc., and if so, to what extent? c. (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle till the rest of his life, in that event loss of income or earning may be ascertained by applying "multiplier method" as provided under Second Schedule to the Motor Vehicles Act, 1988. (2)Even if so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income. d.Mainly in depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident. 17.After perusal of the Tribunal findings and the appellants contentions, this Court makes the following observations. Where a victim suffers fractures, he is deprived of a portion of his body or joint. In the case of fracture of tenur, Tibia and fibula bones, till he recovers in his health, he is deprived of the enjoyment of that joint or member of the body. In the present case, the doctor, PW6, has adduced evidence that the petitioner is not able to stand still due to the misshapen Radians Alua bones, Tibia, fibula bones in his legs and has further certified that the movements of both the legs of the petitioners have become restricted. Though the petitioner has not lost his earning capacity as per the Tribunal finding, it is a fact that the petitioner has lost the pleasures of life due to the injuries suffered by him in the accident. Whether he is still getting the same salary as he was getting before the accident does not in any way alter the fact that the petitioner is now not as normal in health as he was before the accident. Whether this condition improves in the future or not is a question, which cannot be determined with precision. He may on the contrary also have distress on this Count of injury throughout his life. 18.Further, this Court considered the Tribunals finding that the petitioner may need further medical treatment in the future. This Court opines that out of the total compensation of Rs.9,73,800/- awarded by the Tribunal, the medical expenses, which the petitioner has spent already, amounts to Rs.5,41,000/-. The compensation awarded under other heads are reasonable, and even the rate of interest at 7.5% fixed by the Tribunal is correct. https://hcservices.ecourts.gov.in/hcservices/ 19.This Court has already directed the appellant Corporation to deposit the entire compensation amount into the credit of M.C.O.P.No.590 of 2005, on the file of the Motor Accident Claims Tribunal, Coimbatore. This Court could not find any infirmity in the award passed by the Motor Accident Claims Tribunal. The Tribunal after well considering the evidence, nature of injuries and medical expenses incurred by the petitioner has passed the above award. Hence, this Court confirms the said award passed by the Tribunal. 20.It is open to the respondent/claimant to receive the entire compensation amount lying in the credit of M.C.O.P.No.590 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District Judge (FTC No.V), Coimbatore sitting at Tiruppr by filing necessary payment out application in accordance with law. 21.In the result, the civil miscellaneous appeal is dismissed and consequently the award passed by the Motor Accident Claims Tribunal in M.C.O.P.No.590 of 2005 on the file of Additional District Judge (FTC No.V), Coimbatore at Tiruppur is confirmed. Consequently connected miscellaneous petition is also closed. There will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.Motor Accidents Claims Tribunal-cum- Additional District Court (Fast Tract Court No.5), Coimbatore sitting at Tiruppur. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.S.S. Swaminathan, Advocate, SR. 63801 C.M.A.No.1797 of 2007 PVR (CO) kk 8/1 https://hcservices.ecourts.gov.in/hcservices/