IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1815 of 2007 and M.P.No.1 of 2007 The Managing Director Tamil Nadu State Transport Corporation Ltd., Dharmapuri .. Appellant / Respondent Vs Rukkumani .. Respondent / Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 22.06.2006, made in M.C.O.P.No.1764 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. For appellant : Mrs.B.Vijayalakshmi For respondent : Mr.P.Arivudainambi 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 22.06.2006, made in M.C.O.P.No.1764 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, awarding a compensation of Rs.1,75,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/respondent, the Managing Director, Tamil Nadu State Transport Corporation Ltd., Dharmapuri, 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 15.08.2001, the petitioner and her relatives were travelling as passengers in the respondent's bus bearing registration No.TN29 N1001, from Dharmapuri to Hogenekal. At 11.30 a.m. when the bus was nearing Hogenekal water falls, the driver of the respondent's bus drove the bus at a high speed and in a rash and negligent manner. Resultantly, he lost control of the bus and the bus turned turtle. https://hcservices.ecourts.gov.in/hcservices/ Due to the accident, the petitioner and some other passengers in the bus sustained injuries and two passengers died on the spot. The petitioner was immediately taken to Government Head Quarters Hospital, Dharmapuri, wherein treatment was given to the petitioner. 4.Prior to the accident, the petitioner was a vegetable vendor and earning a sum of Rs.3,000/- per month. After the accident, she is unable to carry on her business due to the injuries sustained in her right elbow. As such, she has sustained permanent disability in the accident. The respondent, being the owner and insurer of the TSTC bus bearing registration No.TN29 N1001 is liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.2,00,000/- together with interest at the rate of 12% per annum from the respondent under Section 166 of the Motor Vehicles Act. 5.Regarding the said accident, the Hogenakkal Police has registered a case against the driver of the bus bearing registration No.TN29 N1001, in Crime No.246/2001, under Sections 279, 337 and 338 of I.P.C. 6.The respondent, in his Counter, has resisted the claim denying the averments in the claim regarding the age, income and occupation of the petitioner, as well as the nature of injuries and permanent disability of the petitioner. The respondent has also denied the averments in the claim regarding the manner of the accident. It has been submitted that on the date of occurrence of the accident, the driver of the bus had driven the bus slowly and adhering to all the traffic rules of the road. At that time, a man driving a bicycle at high speed had crossed the road suddenly, without observing the bus coming at a distance of 10 feet from him and resultantly the accident had occurred. As such, the respondent had submitted that the driver of the bus was not at fault and hence they could not be held liable to pay compensation to the petitioner. The respondent had also submitted that the claim was excessive and has to be dismissed. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? (ii) What is the quantum of compensation, which the petitioner is entitled to get? 8.On the petitioner's side, two witnesses were examined as PW1 and PW2 and four documents were marked as Exs.P1 to P4. Ex.P1 is the copy of FIR; Ex.P2 is the Wound Certificate; Ex.P3 is the Disability Certificate and Ex.P4 is the X'rays. On the respondent's side, no witnesses were examined and no documents were marked. 9.The Tribunal, on considering that the respondent had not https://hcservices.ecourts.gov.in/hcservices/ examined any witness to prove that the bus driver had not been at fault and that the respondent had not marked any contra evidence to refute the oral and documentary evidence produced on the petitioner side and further considering that no explanation was offered on the respondent's side regarding this held that the accident had been caused only due to the fault of the driver of the respondent's bus and held that the respondent is liable to pay compensation to the petitioner. 10.The petitioner, PW1, in her evidence has stated that due to the accident, she had sustained injuries on her knuckle of the right hand, left leg and on the back of her body and also fractures on her right fore arm and that as a result of these injuries, she has sustained pain and suffering, permanent disability, medical expenses, transport expenses, expenses towards nutrition and loss of income. 11.The Doctor, who assessed the disability of the petitioner, was examined as PW2. The PW2, in his evidence deposed that due to the accident 1/3rd of the petitioner's radin's bone in her right forearm had been broken and that even after treatment this bone has joined in a improper way and has also become curved and as such the petitioner had sustained 25% permanent disability on this count. The Tribunal, on considering the claim of the petitioner as well as the other documentary exhibits marked, awarded a compensation of Rs.50,000/- to the petitioner under the head of pain and suffering and awarded a sum of Rs.40,000/- under the head of permanent disability. In addition to this, the Tribunal also awarded a compensation of Rs.30,000/- under the head of loss of earning capacity due to disability; a sum of Rs.20,000/- under the head of medical expenses. The Tribunal also awarded a sum of Rs.10,000/- as compensation to the petitioner towards attendant charges and a sum of Rs.15,000/- under the head of loss of income. The Tribunal also awarded a sum of Rs.5,000/- for transport expenses and a sum of Rs.5,000/- under the head of nutrition. In total, the Tribunal awarded a compensation of Rs.1,75,000/- to the petitioner and directed the respondent to deposit the above said award together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, with costs, into the credit of the M.C.O.P.No.1764 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, within a period of two months from the date of its Order. Further, after such deposit was made, the award amount was to be deposited in a nationalised bank, as fixed deposit, for a period of three years and the petitioner was permitted to receive the interest on such deposit, once in six months, directly from the bank. The petitioner was directed to pay the Court fee due on the award amount within a period of two months from the date of its Order. The Advocate fees was fixed at Rs.6,500/- and the respondent was directed to pay the cost of Rs.7,633/- to the petitioner. 12.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal failed to consider that there was no https://hcservices.ecourts.gov.in/hcservices/ negligence on the appellant's Corporation bus driver, who was disturbed by the cyclist, but he has not been considered by the Tribunal. Further, it has been contended that as the claimant had not produced any proof regarding her age and income, the award of Rs.30,000/- granted by the Tribunal under the head of loss of income was erroneous. It has also been pointed out that the Tribunal ought to have considered award cannot be granted for both permanent disability and loss of earning. It has also been contended that as per Schedule-II of Motor Vehicles Act, only an award of Rs.5,000/- can be given under the head of pain and suffering and hence the award of Rs.50,000/- granted by the Tribunal under the head of pain and suffering was erroneous. 13.As such, the learned counsel appearing for the appellant has contended that the total award passed by the Tribunal is excessive and has prayed the Court to set aside the award and decree passed by the Tribunal. 14.The learned counsel appearing for the respondent argued that the claimant is a vegetable vendor and that after the accident, she is unable to carry on her vegetable business. Her right elbow had been fractured and has become deformed. She has sustained grievious injuries and as such, the findings of the Tribunal is a well- considered one. 15.Considering the facts and circumstances of the case, arguments of the learned counsels of both sides and scrutiny of findings of the Tribunal, this Court is of the view that the award passed by the Tribunal in M.C.O.P.No.1764 of 2003, is on the higher side. Hence, this Court reduces the compensation awarded as follows: 1.This Court awards a compensation of Rs.50,000/- to the petitioner for disability of 25% sustained by her in the accident. 2.The Tribunal had awarded a sum of Rs.50,000/- under the head of pain and suffering. This Court scales down the award granted under this head and awards a sum of Rs.10,000/- under the head of pain and suffering. 3.The Tribunal had awarded a sum of Rs.20,000/- for medical expenses. This Court, on considering that no medical bills had been attached, but she may have to met expenses for medical treatment awards a sum of Rs.10,000/- under the head of medical expenses. 4.The Tribunal awarded a sum of Rs.5,000/- under the head of nutrition. This Court confirms the award granted under this head. https://hcservices.ecourts.gov.in/hcservices/ 5.The Tribunal awarded a sum of Rs.5,000/- for transport expenses and this Court confirms the same. 6.The Tribunal awarded a sum of Rs.10,000/- for attendant charges. This Court scales down the award to a sum of Rs.7,000/-. 7.The Tribunal awarded a sum of Rs.30,000/- for loss of earning during the period of treatment. This Court scales down the award to Rs.15,000/-. In total, this Court awards a sum of Rs.1,02,000/- as compensation to the claimant together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, as it is found to be equitable and fair. 16.Therefore, the award of Rs.1,75,000/- granted by the Tribunal, in M.C.O.P.No.1764 of 2003, dated 22.06.2006, is scaled down by this Court to Rs.1,02,000/- with interest at the rate of 9% per annum. 17.This Court imposed a condition on 07.08.2007 on the appellant/Tamil Nadu State Transport Corporation Ltd., to deposit the entire award amount into the credit of the M.C.O.P.No.1764 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. 18.As the accident happened in the year 2001, it is open to the claimant to withdraw a sum of Rs.1,02,000/- together with interest, lying in the credit of the M.C.O.P.No.1764 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals, if any. The appellant/Transport Corporation Ltd., is at liberty to withdraw the balance compensation amount, with accrued interest thereon, after observing necessary formalities before the Tribunal. 19.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 22.06.2006, in M.C.O.P.No.1764 of 2003, passed by the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, is modified. 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. The Motor Vehicles Accident Claims Tribunal, Subordinate Judge, Krishnagiri 2. The Section Officer, VR Section, High Court, Madras. 1 cc To Mrs.B.Vijayalakshmi, Advocate, SR.14276 1 cc To Mr.P.Arivudai Nambi Advocate, SR.14102 C.M.A.No.1815 of 2007 BV(CO) sra 19/03/2010 https://hcservices.ecourts.gov.in/hcservices/