IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.10.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1883 of 2006 and M.P.No.1 of 2006 The Managing Director Tamilnadu State Transport Corporation Coimbatore Division-II Ltd.,Erode .. Appellant/2nd Respondent Vs 1.S.A.Annadurai .. 1st Respondents/Petitioner 2.R.Senthil Kumar .. 2nd Respondents/1stRespondent (R2 Given-up) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 15.03.2005, made in M.C.O.P.No.982 of 2002, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Erode. For appellant : Mr.A.Babu For respondents : Mr.T.M.Karthikeyan for R1 Given-up - R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 15.03.2005, made in M.C.O.P.No.982 of 2002, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Erode, awarding a compensation of Rs.1,05,000/- together with 9% interest 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, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 02.05.2002, at about 12.30 a.m., the petitioner was travelling in the second respondent's Corporation bus bearing registration No.TN33 N1501, from Tiruppur to Erode. While the bus was nearing Mettumuniappan Temple in the Perundurai Road, the first respondent, who is the driver of the bus, tried to overtake a lorry https://hcservices.ecourts.gov.in/hcservices/ in a rash and negligent manner. Due to which, the driver of the bus lost his control and dashed against the road side tree and the bus was capsized. In the accident, the petitioner sustained bone fracture. Immediately after the accident, he was taken to Erode Ramana Hospital and then he was referred to Salem Bharath Hospital. Regarding the said accident, a criminal case has been registered by the Perundurai Police Station in Crime No.234/2002, under Sections 279, 337 and 338 I.P.C. The accident had happened only due to the rash and negligent driving of the driver of the second respondent's Corporation bus. As such, the petitioner claimed a compensation of Rs.3,00,000/- together with interest at the rate of 18% per annum, before the Tribunal. 4.The second respondent, in their Counter, had resisted the claim petition on the grounds that the first respondent had driven the bus in a rash and negligent manner and attempted to overtake the lorry, hence the accident had happened, which is false. Actually, the first respondent had driven the bus in a cautious manner. But a lorry coming all of a sudden from the left side Workshop. Therefore, the first respondent applied its brake all of a sudden, resulting the accident. So, the first respondent is not liable to the said accident. Further, the second respondent denied the age, income and profession of the claimant. 5.The learned Motor Accident Claims Tribunal framed two issues for the consideration namely: (i)Whether the accident had occurred due to the rash and negligent driving of the first respondent? (ii)Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation? 6.On the petitioner's side, the petitioner himself was examined as PW1 and Dr.P.Sundaravadivel was examined as PW2 and twenty two documents were marked as Exs.P1 to P22 namely Ex.P1-Xerox copy of the First Information Report, Ex.P2-Xerox copy of the Rough Sketch, Ex.P3-Xerox copy of the Observation Mahazar, Ex.P4-Xerox copy of the Motor Vehicle Inspector's Report, Ex.P5-Xerox copy of the Wound Certificate, Ex.P6-Xerox copy of the Charge Sheet, Ex.P7-Discharge Summary, Ex.P8-Hospital Admission Card, Ex.P9-Hospital Bill, Ex.P10- Doctor Bill, Ex.P11-Medical Bills, Ex.P12-Hospital Receipt, Ex.P13- Blood Bank Receipt, Ex.P14-Hospital Receipt, Ex.P15-X-ray Lab Receipt, Ex.P16-Lab Report, Ex.P17-Railway Department Identity Card, Ex.P18-Salary Certificate, Ex.P19-X-ray, Ex.P20-Disability Certificate, Ex.P21-X-ray receipt and Ex.P22-X-ray. On the respondents' side the first respondent was examined as RW1 and no documents were marked. 7.The PW1, the claimant had adduced evidence stating that on 02.05.2002, at about 12.30 noon while he was travelling in the respondent's bus bearing registration No.TN33 N1501 from Tiruppur to https://hcservices.ecourts.gov.in/hcservices/ Erode. When the bus was nearing Mettumuniappan Temple in the Perundurai Road, the first respondent-driver had attempted to overtake a lorry, which was proceeding in front of the bus and at that point of time the driver lost his control and dashed against a tree on the roadside. In the result, the bus was capsized and the passengers had sustained injuries. The case was registered against the driver of the bus. In order to prove the accident, Ex.P1-FIR, Ex.P2-Sketch, Ex.P3-Observation Mahazar and Ex.P4-Motor Vehicle Inspector's Report were marked. The PW1 further adduced evidence stating that immediately after the accident he was taken to the Ramana Private Hospital, Erode, wherein he was inpatient for a period of one week. Thereafter, he was referred to the Bharath Hospital, Salem for further specialised treatment, wherein he was inpatient for about 10 days and during the medical period treatment, a surgical operation was conducted on his right leg thigh and a steel plate was affixed on the operated area. Further, he stated that at the time of accident his age was 44 years and he was working in the Railway Department as a Commercial Clerk, his earning was Rs.6,050/- per month. 8.PW2, Dr.P.Sundaravadivel stated in his evidence stating that he had examined the claimant and verified the medical records of the claimant and assessed the disability as 20% sustained. Further, he stated that the claimant had undergone surgical operation on his right leg thigh and had fixed a steel plate on the operated region. Further, he stated that the claimant's right leg thigh bone is bent towards his rear side. He had also marked Ex.P20-Disability Certificate, Ex.P21-X-ray Receipt and Ex.P22-X-ray respectively were marked. 9.RW1, R.Senthil Kumar, the driver of the bus was examined as RW1, he had adduced evidence stating that he had driven the bus in a cautious manner at low speed, when a lorry came from the opposite direction towards the bus at that time, he had applied the brake to avoid an accident with the lorry. In the result, the bus dashed against the tree. The driver of the lorry is wholly responsible for the said accident. 10.After considering the evidence of PW1, PW2 and RW1 and documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the first respondent, therefore the second respondent/State Transport Corporation is liable to pay compensation and awarded the compensation as follows: i. Rs.55,000/- under the head of medical expenses, ii.Rs.30,000/- under the head of pain and suffering, iii.Rs.20,000/- under the head of disability, In total, the Tribunal awarded a sum of Rs.1,05,000/- as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the https://hcservices.ecourts.gov.in/hcservices/ second respondent to deposit the compensation amount of Rs.1,05,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of one month from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period three years. Accordingly ordered. 11.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 12.The learned counsel appearing for the appellant argued that the Tribunal had failed to consider the evidence of RW1. Further, the Tribunal awarded a sum of Rs.55,000/- under the head of medical expenses, which is on the higher side and Rs.30,000/- under the head of pain and suffering, these are also on higher side and awarded the same in an arbitrary manner. Therefore, there is a discrepancy in the said award passed by the Tribunal. As such, the learned counsel prays to scale down the compensation before this Court. 13.The learned counsel for the first respondent/claimant argued that the Tribunal had properly assessed the compensation after considering the nature of injuries and mode of treatment. Further, there is no discrepancy in the said award and decree, which is fair and equitable. Therefore, the learned counsel prays to dismiss the appeal before this Court. 14.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the medical expenses alone ie.Rs.55,000/- after deducting this the balance compensation amount of Rs.50,000/-, this amount to be treated towards disability at 20%, pain and suffering, towards transport, towards nutrition, towards loss of income and attender charges, considering the instant case. Therefore, this Court is not willing to interfere with the quantum of compensation and therefore concurs with the same, which is fair and equitable. 15.On 05.07.2006, this Court enforced a condition on the appellant to deposit 50% of the compensation amount, into the credit of the M.C.O.P.No.982 of 2002, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Erode. 16.Now this Court directs the appellant Corporation to deposit the entire compensation amount with accrued interest thereon and costs, into the credit of the M.C.O.P.No.982 of 2002, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Erode, within a period of six weeks from the date of receipt of a copy of this Order. 17.After such a deposit being made, the first respondent/claimant is at liberty to withdraw the entire compensation amount, lying in the credit of the M.C.O.P.No.982 of 2002, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, https://hcservices.ecourts.gov.in/hcservices/ Erode, by making proper payment out application, subject to the deduction of withdrawals, if any, in accordance with law. 18.In the result, this Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 15.03.2005, made in M.C.O.P.No.982 of 2002, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Erode is confirmed. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar krk To 1.The Motor Accident Claims Tribunal, Principal Sub Court, Erode. + 1 cc to Mr.J.M. Karthikeyan, Advocate SR.73929 + 1 cc to Mr.A. Babu, Advocate SR.74144 C.M.A.No.1883 of 2006 SGL(CO) Eu 15.11.10 https://hcservices.ecourts.gov.in/hcservices/