IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 29 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.2097 of 2007 & M.P.No.2 of 2007 The Managing Director, Tamil Nadu State Transport Corporation Limited, Villupuram Division III Ltd., Kancheepuram. ... Appellant Versus A.Sarkkarai ... Respondent Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decreetal order passed by the Motor Accidents Claims Tribunal, (Sub Court), Vellore and made in M.A.C.T.O.P.No.5 of 2003, dated 29.03.2006, praying to set-aside the same. For Appellant : Mr.A.Babu J U D G M E N T The above appeal has been filed by the appellant / Tamil Nadu State Transport Corporation Limited, against the award and decree made in M.A.C.T.O.P.No.5 of 2003, dated 29.03.2006 on the file of Motor Accidents Claims Tribunal, Sub Court, Vellore. 2.The short facts of the case are as follows:- On 12.10.2003, at 4.30 p.m., when the petitioner was riding on his two wheeler, along with his co-worker Arunkumar as a pillion rider, on the G.W.T. Road, near Vedal Village, within Kancheepuram Taluk and District, the respondents bus bearing Registration No.TN57-N-0897, coming in the opposite direction and driven by its driver in a rash and negligent manner dashed against the motorcycle ridden by the petitioner. Due to the impact, the petitioner fell down and sustained compound fracture on his right fore-arm, injuries on his head and allover his body. He initially took treatment at Kancheepuram Government Hospital, wherein he was given first aid and https://hcservices.ecourts.gov.in/hcservices/ then he was admitted at C.M.C. Hospital, Vellore. Prior to the accident, he was working as a Security Officer at Chennai and was earning a sum of Rs.5,000/- per month. After the accident, he is unable to do any work and has become a physically handicapped person. Hence, the petitioner has filed a claim for Rs.7,00,000/- against the respondents, the Tamil Nadu State Transport Corporation, Kancheepuram. 3.The respondent, in his counter has denied the averments in the claim regarding manner of accident. It was stated that on 12.10.2002, while the driver of the bus was driving the bus cautiously from Cheyyar to Chennai and when the bus was near Vedal Village, the driver of the bus tried to overtake a slow moving lorry going ahead of it and at that point of time, the motorcycle coming in the opposite direction and ridden by its rider in a rash and negligent manner had rubbed the handle bar of the motorcycle on the right side back of the bus and due to this, he had fallen down and sustained injuries. As such, the accident had occurred only due to the negligence of the motorcyclist and not due to any negligence on the part of the respondent's bus driver. The respondent has also denied the averments in the claim regarding age, income and occupation of the petitioner as well as the nature of injuries and medical expenses incurred. It was also stated that the claim was excessive. 4.On the averments of both parties, the Tribunal had framed three issues for consideration, namely; “(i)Is the driver of the respondent responsible for the accident? (ii)Is the petitioner entitled to get compensation from the respondent? (iii)What is the quantum of compensation which the petitioner is entitled to get?” 5.On the petitioner's side, two witnesses were examined and seven documents were marked as Exs.P1 to P7 viz., First Information Report, Wound Certificate, Discharge Summary, Salary Certificate, Medical Bills, Disability Certificate and X-ray films (series). On the respondent's side, one witness was examined as RW1 and no document was marked. 6.The petitioner himself was examined as PW1. PW1, adduced evidence that on 12.10.2002 at 4.30 p.m., when he along with his friend, were going on a 'Hero Honda' motorcycle bearing Registration No.TN57-N-0897, coming in the opposite direction was the bus driven by its driver in a rash and negligent manner and the driver tried to overtake another bus going ahead of it and in the process had hit against the motorcycle and caused the accident. Due to the impact, https://hcservices.ecourts.gov.in/hcservices/ the petitioner and his friend had fallen down and sustained injuries. He had further adduced evidence that he was working in Reliance Security Service Private Limited, Chennai as Security Officer and his monthly income was Rs.8,070/-. He has adduced evidence that due to the accident, he sustained injuries in his right leg and right hand and also sustained injuries in his head. He had been given first aid at Government Hospital, Kancheepuram and subsequently had taken treatment at C.M.C. Hospital, Vellore, where he remained as inpatient for 10 days. Due to the injuries sustained by him, he could not do any work for one year. Further, he is not able to do his work as before. In support of his evidence, he had marked Exs.P1, P2, P3, P4 and P5. The doctor, PW2, who had examined the petitioner on 09.08.2005, after taking X-rays, certified that the disability sustained by the petitioner was 40% and in support of his evidence had marked Ex.P7 (X-ray series) and Ex.P6, the disability certificate. The driver of the respondent's bus was examined as RW1. RW1 adduced evidence that on the date of accident, while he was driving the bus from Cheyyar to Chennai and was nearing Vedal, a container lorry was going ahead of him and he had seen a two wheeler coming in the opposite direction. So he had slowed down the bus but as the rider of the two wheeler rode his vehicle in a rash and negligent manner, the handle bar of their two wheeler had hit against the bus and as a result of this, the motorcyclists have fallen down. He has further adduced evidence that he had admitted them in Government Hospital, Kancheepuram and had also given the complaint to the Police regarding the accident. 7.From a scrutiny of Ex.P1, First Information Report, it is seen that the First Information Report has been registered as against the driver of the bus. Further, the Tribunal, on perusal of counter of respondent, wherein it was stated that the accident had occurred while the driver of the bus had tried to overtake a slow moving lorry ahead of it, held that the accident had been caused by the rash and negligent driving of the respondent's bus driver. 8.Based on the oral and documentary evidence, the Tribunal awarded a compensation of Rs.1,97,830/- to the petitioner. The breakup of compensation is as follows:- Loss of income for six months .. Rs.30,000/- (taking his notional income as Rs.5,000/- per month) For transport expenses .. Rs.10,000/- For nutrition .. Rs.5,000/- For medical expenses .. Rs.35,830/- (as per Ex.P5, medical bills) For damages to clothes and articles.. Rs.5,000/- For miscellaneous expenses .. Rs.2,000/- https://hcservices.ecourts.gov.in/hcservices/ For pain and suffering .. Rs.30,000/- (Due to six injuries) Permanent disability of 40% .. Rs.40,000/- For loss of earning power due to disability of 40% sustained .. Rs.40,000/- The Tribunal directed the respondent to deposit the award with interest at the rate of 9% per annum from the date of filing the petition till the date of deposit, within one month from the date of their order. 9.Aggrieved by the said award passed by the Tribunal, the appellant / Tamil Nadu State Transport Corporation Ltd., has filed the present appeal, to scale down the compensation. 10.The learned counsel for the appellant has argued that the Tribunal failed to note that no eyewitness or police officer was examined to prove negligence on the part of the driver of the appellant Corporation. It was also pointed out that the claimant had also been rash and negligent and hence the tribunal should have fixed entire or at least contributory negligence on the part of the claimant. It was also argued that the Tribunal erred in relying upon the evidence of PW2, the doctor who had not treated the claimant and as such ought to have rejected Ex.P6, the disability certificate issued by him. Further, the Tribunal erred in awarding Rs.30,000/- for loss of income and Rs.40,000/- for loss of earning power without any oral and documentary evidence. It was argued that the award granted under various heads are excessive and has to be scaled down. 11.In view of the facts and circumstances of the case and arguments advanced by the learned counsel for the appellant and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the claimant had sustained multiple bone fracture injuries on his right fore-arm and fracture of tibia and fibula bones and he had sustained 40% disability. The medical expenses amounts to a sum of Rs.35,830/-. The age of the claimant is 40 years. Considering all these aspects , the quantum of compensation of a sum of Rs.1,97,830/- awarded by the Tribunal is not on the higher side. However, a restructuring is required in the compensation granted under the various heads. Accordingly, this Court restructures the compensation as follows:- Rs.80,000/- for loss of income due to disability of 40%; Rs.35,830/- for medical expenses; Rs.20,000/- for loss of income during medical treatment period; Rs.20,000/- for pain and suffering; Rs.5,000/- for transport; Rs.10,000/- for nutrition; Rs.10,000/- for attender charges https://hcservices.ecourts.gov.in/hcservices/ Rs.2,000/- for damage to clothes and articles; Rs.15,000/- towards loss of amenities and comfort; In total, this Court awards a sum of Rs.1,97,830/-. As such, this Court confirms the award passed by the Tribunal, as it is found to be fair and justifiable. 12.On 05.09.2007, this Court imposed a condition on the appellant / Tamil Nadu State Transport Corporation Limited to deposit a sum of Rs.1,67,000/- with proportionate interest to the credit of M.A.C.T.O.P.No.5 of 2003, on the file of Motor Accidents Claims Tribunal, Sub Court, Vellore, within a period of six weeks from the date of receipt of its order. Therefore, this Court directs the appellant / State Transport Corporation Limited to deposit the balance compensation amount to the credit of M.A.C.T.O.P.No.5 of 2003, on the file of Motor Accidents Claims Tribunal, Sub Court, Vellore within a period of six weeks from the date of receipt of copy of this order. After such deposit has been made, it is open to the claimant to withdraw the entire compensation amount with accrued interest therein lying in the credit of M.A.C.T.O.P.No.5 of 2003, on the file of Motor Accidents Claims Tribunal, Sub Court, Vellore, after filing a Memo along with this order. Subject to deduction of withdrawals, if any, made already. 13.Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.A.C.T.O.P.No.5 of 2003, dated 29.03.2006 on the file of Sub Court, Vellore is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Deputy Registrar /True Copy/ Sub.Asst.Registrar r n s To The Motor Accidents Claims Tribunal, (Sub Court), Vellore. + 2 cc to M/s A. Babu, Sr.37916 C.M.A.No.2097 of 2007 SSK(CO) Eu 5.9.11 https://hcservices.ecourts.gov.in/hcservices/