IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.02.2009 CORAM THE HON'BLE Mr. JUSTICE S.PALANIVELU C.M.A.No.407 of 2003 and C.M.P.No.3510 of 2003 The Managing Director Metropolitan Transport Corporation Ltd Pallavan House, Mount Road Chennai 600 002 ... Appellant/ Respondent (Formerly known as "Pallavan Transport Corporation Ltd., Chennai 2) Vs. Senthilkumar ... Respondent/ Petitioner This civil miscellaneous appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 to set aside the award passed by the Motor Accidents Claims Tribunal (V Judge, Court of Small Causes), Chennai in M.C.O.P.No.2529/2000 dated 02.05.2002. For Appellant : Mr.A.Babu For Respondents : Mr.Ravichandran for Mr.A.Shanmugaraj J U D G M E N T In M.C.O.P.No.2529 of 2000, the following are alleged. 2. On 26.03.1995 at about 14.45 hours this petitioner and one Ashok were travelling by Yamaha motorbike bearing Regn.No.TN-04 A- 2486 from Guindy to Tambaram and near DCM Toyota show room, a bus belonging to the respondent Corporation bearing Regn.No.TML 1659 came from the same direction at a high speed, driven by its driver in a rash and negligent manner, lost its control and hit the Yamaha motorbike, as a result of which the petitioner sustained grievous and multiple injuries over the body. Ashok was driving the motorbike and the petitioner was sitting as pillion rider. The said Ashok died in the accident. For the personal injuries sustained by this petitioner a sum of Rs.5,60,000/- is claimed as compensation. https://hcservices.ecourts.gov.in/hcservices/ 2. In the counter filed by the respondent Transport Corporation, it is alleged that there was no rash or negligent driving by the driver of the respondent bus, when the bus was proceeding according to the traffic rules from Periyar Bridge to Tambaram. When the bus was going slowly on its proper side, the motorcyclist came in a negligent manner, hit against another motorcycle, fell down near the bus and thereby the accident took place. The petitioner was guilty of contributory negligence. The petition is bad for non-joinder of the owner of the motorcycle and its insurer. Age, occupation and monthly income of the petitioner, nature of injuries, period of treatment and place of treatment alleged in the petition are denied. The petitioner did not suffer any disability. It is not admitted that the motorcyclist was having a valid driving licence at the time of the accident. The amount claimed is excessive and unsustainable, hence the petition has to be dismissed. 3. Parents of Ashok filed another claim petition in M.C.O.P.No.2530/2000 on the file of the same Tribunal and a common award came to be passed. In M.C.O.P.No.2529/2000 filed by this claimant, a sum of Rs.5,75,000/- was awarded, while Rs.2,64,000/- has been awarded as compensation to the parents of the deceased Ashok in M.C.O.P.No.2530/2000. The appellant herein has carried the matter in appeal as far as the award passed in M.C.O.P.No.2529/2000 is concerned. 4. The learned counsel for the appellant Mr.A.Babu would draw attention of this court to various portions of oral evidence as regards the accident and tried to convince the court that the driver was not at fault. The learned Tribunal judge has anchored liability upon the driver of the bus. P.W.1, the claimant would say that the bus came in a rash manner. R.W.1, the driver of the bus would state that the motorcycle was driven by its rider clandestinely and on seeing the same he stopped the bus. However, the persons travelling on the bike fell down and the injured were removed to Chrompet Hospital. R.W.2, Transport Inspector in the Transport Corporation says that two motorcycles were driven as if they participated in a race and one of the motorcyclist lost balance and dashed against other motorcycle by means of which the persons and the bikes fell down and hence the motorcyclist was responsible for the accident. 5. The Tribunal Judge has analysed the oral evidence on record and observed that remarkable inconsistencies are found between the oral testimonies of R.W.1 and R.W.2 and hence their evidence could not be believed. This court does not find any infirmity in the said observation. The operative portions of the oral evidence of both the witnesses are contra to each other. While R.W.1 says that he heard the friction caused by the hit of the motorcycle on the body of the bus, R.W.2 stated that two motorcycles involved in the accident and the same took place due to the dashing of one motorbike with another. Hence the finding as regards fixing up of responsibility of causing accident as https://hcservices.ecourts.gov.in/hcservices/ found by the Tribunal has to be confirmed and it is accordingly confirmed. 6. As for the quantum of compensation arrived at by the Tribunal, the appellant is much aggrieved. 7. The learned counsel for the appellant would submit that the compensation awarded does not reflect the nature of the injuries and that it is excessive. The injuries sustained by the claimant could be visualised from the oral evidence of the doctors P.W.4 and P.W.5. P.W.4, doctor would say that in the spinal chord C6, C7 nerves got damaged and hence the left hand of the claimant was paralysed, that he could not do any work with his left hand and he has to wear collar in his neck, that the left clavicle bone fractured and hence he could not lie down on the ground, that due to the constriction of muscles, he could not utilise his right hand to do any work and that he is suffering from the permanent disability to the tune of 95%. 8. P.W.5, doctor says that the claimant's left side jaw got fractured resulting in disfiguration of his face, that he lost two teeth and he is unable to chew the food properly and he assessed his permanent disability at 35%. 9. The petitioner was aged about 26 years at the time of accident. The Tribunal has awarded the compensation of Rs.5,75,000/- under following various heads:- Rs. Pain and suffering : 40,000/- Transport expenses : 10,000/- Extra nourishment : 10,000/- Permanent disability : 90,000/- Medical Expenses : 70,000/- Mental agony : 25,000/- Loss of earning power : 3,30,000/- On the basis of the oral evidence, the Tribunal has fixed Rs.3,400/- as his monthly income and applied multiplier 20 considering the permanent disability at 130% and reached a total compensation of Rs.7,20,000/-, however it was restricted to Rs.3,30,000/- as claimed in the claim petition. 10. The learned counsel for the respondent Mr.Ravichandran for Mr.A.Shanmugaraj would submit that even though no cross objections are filed on behalf of the respondent, if the court is justified in its view to award a larger sum, it can be awarded. For this proposition he placed reliance upon a judgment of a Division Bench of this Court in 2000(1) CTC 10 in The District Collector, Pudukottai and another Vs. Tmt.Neela Bai and two others. https://hcservices.ecourts.gov.in/hcservices/ 11. Learned counsel for the respondent would garner support from a decision of the Supreme Court in 2008 (1) T.A.C. 9 (S.C.) [Sunil Kumar v. Ram Singh Gaud and Others] for a proposition of law that in cases of permanent disabilities after deducting 1/3rd in the total loss of income, multiplier to be adopted is 18 as per Second Schedule to Section 163-A of the Motor Vehicles Act. The operative portion in the Judgment is as follows:- "9. Taking into consideration the present income of the appellant as Rs.4,000/- per month, and the permanent disability of 45% suffered by him, we are of the view that the capacity of the appellant to earn in future would be reduced by Rs.1,800/- per month approximately. If 1/3rd is deducted towards miscellaneous expenses, the loss of income comes to Rs.1200/- per month, in turn, comes to Rs.14,400/- per annum. Appellant was 29 years of age at the time of accident. Taking the multiplier to be 18 (as per Second Scheduel to Section 163-A of the Act), the total loss of income comes to Rs.2,59,200/-" Their Lordships fixed Rs.1,800/- per month as loss of monthly income against the claim considering the oral evidence to the effect that the injured was 29 years, earning about Rs.4,000/- per month. Adverting to the facts of the present case, it is on record that the claimant has been earning a sum of Rs.3,400/- per month. For the purpose of granting compensation, this Court fixes Rs.2,200/- as monthly loss of income and if 1/3rd in the said amount is deducted, it is Rs.1470/- (rounded). Annual loss of income is Rs.17,640/-. Applying multiplier 18, the compensation is Rs.3,17,520/-. The Tribunal has fixed Rs.3,30,000/- as prayed in the claim petition even though in its opinion the compensation available was more. In view of this Court, it is appropriate to grant a sum of Rs.3,17,520/- instead of Rs.3,30,000/- as fixed by the Tribunal. The Tribunal has disallowed a portion of the medical expenses, which appears to have been actually spent by the claimant during his treatment. While Rs.86,000.57P was actually expended for medical expenses, which are borne out by records, the Tribunal has awarded only Rs.70,000/- as claimed in the petition. It is not proper. Disallowed portion should also be made available to the claimant. Hence a sum of Rs.16,000/- has to be granted totalling Rs.86,000/- under the head medical expenses. Considering the gravity of the injuries, this Court feels it appropriate to grant a sum of Rs.15,000/- towards loss of amenities. In all other aspects, the award of compensation under various heads is confirmed. In all, total compensation is arrived at Rs.5,93,520/-(Rs.5,62,520/- + Rs.15,000/- + Rs.16,000/-). 12. In view of the above the Civil Miscellaneous Appeal is dismissed without costs. The respondent is entitled for Rs.18,520/- as an additional award, which is payable by the https://hcservices.ecourts.gov.in/hcservices/ appellant along with interest at the rate of 6% (for the enhanced compensation) from the date of claim petition till the date of deposit, within eight weeks from the date of this Order. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. asr/ To 1. The Motor Accidents Claims Tribunal (V Judge, Court of Small Causes), Chennai 2. The Registrar Court of Small Causes Madras Copy to The Record Keeper VR Section High Court, Madras-104 1 cc to Mr.A. Shanmugaraj, Advocate, SR. 5484 C.M.A.No.407 of 2003 RSM (CO) kk 2/3 https://hcservices.ecourts.gov.in/hcservices/