IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3110 of 2007 The Branch Manager Tamil Nadu State Transport Corporation Ltd., Periamelaguparai,Trichy .. Appellant/Respondent Vs Uthaman .. Respondent/Claimant Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 19.01.2007, made in M.C.O.P.No.956 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur. For appellant : Mrs.B.Vijayalakshmi For respondent : No appearance J U D G M E N T The Civil Miscellaneous Appeal has been filed by the appellant/respondent, against the Award and Decree, dated 19.01.2007, made in M.C.O.P.No.956 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur, awarding a compensation of Rs.53,000/- 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. 2.Aggrieved by the said Award and Decree passed by the Tribunal, the appellant/respondent, the Tamil Nadu State Transport Corporation Ltd., Trichy has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the claim case is as follows: On 11.05.2005, the petitioner came in a town bus proceeding from Sengunam towards Perambalur and at about 6.00 in the evening, when the said bus was nearing Krishna Theatre, a town bus, https://hcservices.ecourts.gov.in/hcservices/ belonging to the respondent, which was proceeding towards Sithali, was coming in the opposite direction from west to east. The driver of the bus in which the petitioner was travelling had earlier asked the passengers in the said bus, who wanted to proceed to Sithali and Perali, to get down and board the bus coming in the opposite direction. The petitioner and some other passengers got down from the bus and they were in the process of getting into the bus, bearing registration No.TN45 N1475, which was going towards Sithali. But, even before the petitioner could get into the bus, the driver of the bus, drove the bus in a rash and negligent manner and the bus hit against the petitioner, as a result of which, the petitioner fell down on the road. 4.Immediately, the petitioner was taken to the Government Hospital at Perambalur, where he was given first aid and he remained there, as inpatient for two weeks, and took medical treatment. The petitioner incurred an expense of Rs.5,000/- for his treatment. 5.Due to the accident, the petitioner sustained grievious injuries all over his body namely fractures in right shoulder bone and right side rib. He is unable to move his hands freely and he is unable to do work as he was doing before the accident. 6.As the accident had taken place only due to the rash and negligent driving by the driver of the respondent's bus, the respondent as owner of the said bus is liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.1,00,000/- with interest at the rate of 12% per annum from the date of accident till the date of payment, from the respondent, under Sections 163 and 166 of the Motor Vehicles Act. 7.Regarding the accident, the Perambalur Police Station has registered a case in Crime No.265 of 2005, under Sections 279 and 337 of I.P.C. 8.The respondent, in his Counter, has resisted the claim denying the averments contained in the petition regarding the manner of accident. It was submitted that on 11.05.2005, the respondent's bus bearing registration No.TN45 N1475 was driven by its driver with all care and caution and was on its regular trip from Perambalur to Veppur. At about 18.00 hrs, when the respondent's bus was nearing Perambalur Krishna Theatre, the driver of the bus applied brakes and stopped the bus to facilitate passengers to board the bus. After the passengers had boarded the bus, the respondent's driver slowly moved the bus forward. At that time, the petitioner, who had got down from another town bus ran across to board the moving bus, lost his balance and fell down on the road. As such, the accident had happened due to the fault of the petitioner and no fault can be laid on the part of the https://hcservices.ecourts.gov.in/hcservices/ respondent's driver. 9.It has also been submitted that the averments contained in the petition regarding the age, occupation, income, nature of injuries and nature of treatment has to be proved through documentary evidence. It was also submitted that the claim was excessive and hence it was prayed that the claim should be dismissed with costs. 10.The Motor Accident Claims Tribunal framed two issues for the consideration namely: 1.Whether the accident took place due to the rash and negligent driving of the bus driver? 2.Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation, which he is entitled to get? 11.The petitioner, Uthaman, was examined as PW1 before the Tribunal. The PW1, has deposed in his evidence, the same version of accident, which was made in his claim. The PW1 has alleged that the accident took place due to the rash and negligent driving of the bus driver. In support of his evidence, the PW1 has marked Ex.P1, the copy of FIR. It is seen from a scrutiny of FIR, that the petitioner himself has lodged the complaint with the police. The statements made in the FIR regarding the manner of accident was found in consonance with the evidence of PW1. As such, the Tribunal held that the accident had been caused only due to the rash and negligent driving of the bus driver of the respondent's bus and consequently held the respondent liable to pay compensation to the petitioner. 12.Ex.P2, the Wound Certificate, wherein the following injuries sustained due to the accident had been found on the petitioner: 1.Swelling and pain lateral aspect of Right clavicle 3 cm X 3 cm. 2.Abrasion left elbow 2 cm X 0.2 cm. 3.Pain all over the body. The Doctor opined that injury was grivious in nature and that injuries 2 and 3 are simple in nature. 13.Ex.P3, the Discharge Summary, it is seen from the Discharge Summary that the petitioner was admitted on 18.05.2005 at 01.10 p.m. and discharged on 27.05.2005 at 07.00 p.m. 14.Dr.Saravanan was examined as PW2. He has stated that he https://hcservices.ecourts.gov.in/hcservices/ is working at Perambalur General Hospital and that he had examined the petitioner on 23.09.2006 for assessing the disability. He had carried out medical examination and had found that the clavicle right bone was united. The right shoulder abduction is 60 Degrees and that rotation of the right shoulder is reduced by 20 Degrees. He has also deposed that the petitioner has difficulty in lifting his right upper limb above the shoulder level and so has difficulty in using his right upper limb for doing his day to day activities. As such, the Doctor had assessed the disability of the petitioner as 35% and in support of his evidence had marked Ex.P4, the Disability Certificate and Ex.P5, the X'ray. During cross-examination, the Doctor had admitted that if the petitioner is given proper physiotherapy, the disability could be reduced by 2%. 15.Hence, the Tribunal, held that the disability sustained by the petitioner was 33% and awarded a compensation of Rs.33,000/- to the petitioner under the head of loss of income due to disability. The Tribunal further granted an award of Rs.10,000/- to the petitioner under the head of medical expenses; a sum of Rs.5,000/- under the head of transport expenses and a sum of Rs.5,000/- under the head of pain and suffering. In total, the Tribunal granted an award of Rs.53,000/- as compensation to the petitioner together with interest at the rate of 7.5% per annum, from the date of petition till the date of realisation, with costs and directed the respondent to deposit the above said award with interest and costs, into the credit of the M.C.O.P.No.956 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur, within a period of two months from the date of its Order. Further after such deposit was made, the award was to be invested in a nationalised bank for a period of three years and the petitioner was permitted to receive interest on such deposit once in six months. The petitioner was directed to pay the balance Court fee within a period of ten days from the date of its Order. 16.The learned counsel appearing for the appellant has contended in his appeal that the accident was caused only due to negligence and fault of the claimant, who attempted to board the moving bus. It was also contended that the Tribunal failed to consider that the claimant had not suffered 33% disability due to the accident and as such the assessment regarding the permanent disability is excessive. It was also pointed out that the Tribunal's award of Rs.33,000/- for 33% disability was erroneous as the nature of injury sustained by the claimant was simple and curable. 17.As such, it has been submitted by the learned counsel appearing for the appellant that the award of Rs.53,000/- granted by the Tribunal is not sustainable under law and that the Award https://hcservices.ecourts.gov.in/hcservices/ and Decree, dated 19.01.2007, in M.C.O.P.No.956 of 2005, passed by the Motor Accident Claims Tribunal, District Court, Perambalur, should be set aside. 18.After going through the findings of the Tribunal and after hearing arguments advanced by the learned counsel appearing for the appellant, this Court is of the view that the Doctor PW2 had adduced evidence in support of the injuries sustained by the claimant and he has certified that the claimant has sustained 35% disability. As such, the Disability Certificate has been issued by a competent Doctor. This is a medical opinion and only on this, the Tribunal had awarded a sum of Rs.33,000/- for 33% disability. Therefore, the Tribunal had assessed compensation taking into consideration that the claimant was an agricultural worker and the use of his right hand was absolutely essential in performing his day to day work. The Tribunal had therefore not considered this disability as one which would affect his income throughout his life and have fixed a compensation of Rs.1,000/- only for 1% disability and awarded a sum of Rs.33,000/-. As such, this Court does not find any discrepancy in the award of Rs.33,000/- granted by the Tribunal under the said head. It is also found by this Court that the award of the Tribunal granted under the heads of medical expenses, transport expenses and pain and suffering are all fair and equitable and hence this Court confirms the award granted under the said heads. 19.This Court imposed a condition on 07.12.2007, on the appellant, to deposit the entire compensation award amount to the credit of the M.C.O.P.No.956 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur. As the accident happened in the year 2005, it is open to the claimant to withdraw the entire compensation amount together with accrued interest at the rate of 7.5% per annum, lying in the credit of the M.C.O.P.No.956 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur, after filing necessary payment out application, in accordance with law, subject to deduction of withdrawals, if any. 20.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 19.01.2007, in M.C.O.P.No.956 of 2005, passed by the Motor Accident Claims Tribunal, District Court, Perambalur, is confirmed. Consequently, connected miscellaneous petition is closed. There is no Order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ krk To 1.Motor Accident Claims Tribunal, District Court, Perambalur, 2. The Section Officer, VR Section, High Court, Madras. +1cc to Mrs.B.Vijayalakshmi, Advocate Sr 10668 VSV(CO) km/3.3. C.M.A.No.3110 of 2007 https://hcservices.ecourts.gov.in/hcservices/