IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3114 of 2007 and M.P.No.2 of 2007 State Transport Corporation Ltd., rep.by its Managing Director Chennai-2 .. Appellant/ Respondent Vs A.Venkatachalam .. Respondent/ Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 08.03.2006, made in M.A.C.T.O.P.No.136 of 2004, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sankagiri. For appellant : Mr.M.Krishnamoorthy For respondent : Mrs.K.Priya 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 08.03.2006, made in M.C.O.P.No.136 of 2004, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sankagiri, awarding a compensation of Rs.1,25,000/- with 7.5% 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 of Tamil Nadu State Express Transport Corporation Ltd., has filed the above appeal praying to set aside the award and decree, passed by the Tribunal. 3.The short facts of the case are as follows: The petitioner, who is aged about 49 years, is a businessman and earning a sum of Rs.10,000/- per month. He is one of the shareholder in a firm by name 'Homely Foods' and its principal place of business is situated at No.905/A1, 1st floor, 5th Main Road, Vijaya https://hcservices.ecourts.gov.in/hcservices/ Nagar, Bangalore and this firm was used as a restaurant. They were also food caterers and engaged in marketing of food items, food products and dairy products. Apart from this the petitioner was engaged in the business of selling towels, lungies and other textile articles. 4.It is submitted that on 23.01.2004, the petitioner having completed his routine business trip to Tiruppattur, got into the State Express Transport Bus bearing registration No.TN01 N6557 to reach his destination at Salem. At about 4.45 p.m. when the bus reached the first turning at the forest check post at Manjavadikanavai, the driver of the above said bus drove the bus rashly and negligently, not heeding the protest of the passengers and despite the fact that it was a ghat road going down, and so the bus toppled down to a depth of about 15 feet. The accident occurred due to the reckless, rash and negligent driving by the driver. 5.It is submitted that on information received through phone, the Inspector of Police, Pappireddipatty Police Station, inspected the spot and on the statement given by one of the injured passenger by name Alwin, s/o.Soundarajan, registered a case in Crime No.39 of 2004, under Sections 279, 337, 338 and 304(A) IPC. 6.It is submitted that in the said accident, nine persons were killed which includes the driver and conductor and 24 passengers injured grievously. The petitioner, who was injured grievously was taken to Salem Government Hospital. 7.The petitioner submits that he was admitted as an in-patient at Salem Government Hospital and thereafter at his request, he was discharged and admitted at R.K.Hospital for special treatment, where he took treatment from 23.01.2004 to 02.02.2004. 8.The petitioner submits that after the accident, due to injuries sustained by him, he is not able to earn as before. He has been forced to employ a driver to drive his vehicle and an attendant to help him. So, as the accident had been caused by the rash and negligent driving of the respondent's bus driver, the petitioner has sought a compensation of Rs.8,80,600/- with interest and costs from the respondent, under Section 166 of the Motor Vehicles Act r/2 rule 3 of TNMACT Rules. 9.The respondent, in his Counter has resisted the claim denying the manner of the accident as alleged in the claim petition. It was submitted that at the time of the accident, the bus driver was driving the said bus in a careful way and slowly. The curved roads at Sodhanaichavadi were not flat and had many ups and down. As such, the driver of the said bus could not have driven the bus at a high speed. While the bus was being drivern slowly, a group of https://hcservices.ecourts.gov.in/hcservices/ buffaloes came across the road and so the driver applied brakes to halt the bus. But, unexpectedly, the brakes and steering control in the vehicle failed, as a result of which the accident occurred. The bus had been well maintained and it had already been driven over a distance of 215 k.m. prior to the accident. So, the respondent's bus driver could not be held to be at fault due to sudden brake failure in the bus. Further, the age, income and occupation of the petitioner has to be proved. Further, the claim of the petitioner is excessive and considering that the respondent's bus driver is not at fault, the claim has to be dismissed. 10.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the accident caused due to the rash and reckless driving of the respondent's bus driver? (ii) If so, what is the quantum of compensation that the petitioner is entitled to get? 11.On the petitioner's side two witnesses were examined and 18 documents were marked as Exs.P1 to P18. On the respondent's side a witness was examined. No documents were marked. 12.PW1, the petitioner, in his evidence has adduced that on 23.01.2004, while he was returning from Tiruppattur and travelling as a passenger in State Express Transport Bus bearing registration No.TN01 N6557, at about 4.45 p.m. in the evening, when the bus was proceeding on the first curved road near Manjavadikanavai Vana Elakka Sodhanai Chavadi, the bus driver drove the bus at a high speed and in a negligent manner, not heeding the protests of the passengers, as a result of which, the bus toppled down into a pit of 15 feet depth. 13.On the respondent's side, the Assistant Engineer employed in the Salem Branch of the respondent's Transport Corporation, one Chandrasekar has refused the above allegation. In his evidence as RW1, he has adduced that the said bus has been well maintained and that during the time of the accident, the respondent's bus driver had driven the bus in a slow and careful manner. It was submitted by him that at the time of the accident, a group of buffaloes crossed the road and so the bus driver in order to avoid hitting against them had tried to stop the bus on the left side of the road. But, unexpectedly the bus had toppled. He has therefore, contended that the accident had not occurred due to the high speed and rash driving of the driver of the bus as a alleged by the petitioner. But, RW1 has not produced any documents to prove the above manner of accident as alleged by him. The Tribunal considered the statement given in the Counter of the respondent, wherein it was stated that https://hcservices.ecourts.gov.in/hcservices/ due to failure of brake and steering in the bus, the accident had occurred. But, in Ex.P1 – FIR, only the driver of the said bus has been held at fault. The Tribunal on scrutiny of Ex.P1, wherein, it has been stated that the bus driver and the conductor had told the passengers, before going down the ghat road, that the brakes in the said bus had failed and then they had proceeded to go down the ghat road, and due to this the bus toppled down into a pit due to failure of brake of bus. But, on inspection of Ex.P2, the Motor Vehicle Inspector's Report of the said bus, it is evidence that the accident had not happened due to any mechanical failure in the bus. So, considering all the oral evidence and documentary evidence, the Tribunal held that the accident had been caused only due to the rash and reckless driving by the driver of the respondent Bus Corporation. 14.PW1, in his evidence has adduced that due to the accident, he had sustained severe injuries all over his body; that he was initially admitted at Salem Government Hospital and subsequently was admitted in the R.K.Hospital, Salem, for advanced treatment and had remained here, as in-patient, from 23.01.2004 to 02.02.2004. He has also stated that due to the accident, he had sustained fractures in his left leg and that he is not able to walk as before. Further, he has adduced evidence that due to the injuries sustained he is not keeping good health and has memory loss and due to this his work has been affected. He has stated that during the time of accident, he was a shareholder of 'Homely Food' and was also doing textile business and was earning a sum of Rs.10,000/- per month. He has further stated that due to the accident, his income has been affected and in support of this, he has marked Ex.P3-X'rays; Exs.P4 and P5-Wound Certificates; Ex.P6-Discharge Summary; Ex.P7-Press Report; Ex.P8-Petitioner's driving licence; Ex.P9-Income Tax Certificate; Ex.P10-Share Certificate given by Homely Foods; Ex.P11- registered sale of share of the said firm; Ex.P12-Petitioner's Sworn Statement; Exs.P13 and P14-Medical Bills and Ex.P15-Accident Register. 15.PW2, the Doctor, who was examined before the Tribunal, and who had given the Disability Certificate to the petitioner has adduced in his evidence that he had scrutinised the medical reports given by the petitioner and had taken X'rays of the petitioner and had medically examined the petitioner. It has been submitted by him that the petitioner's lower leg below the knee had a deep wound scar in its centre and that he movements of his left knee has been decreased by 70 Degrees and as such, the petitioner would have permanent pain. Further, he has stated that due to this, the petitioner is unable to bend his legs and sit. He has also stated that the petitioner has difficulty in climbing up or down the stairs; that there is deformation in his left leg due to the fractures sustained; that the plate and screws have been fixed on the top bone of his left leg and the petitioner's knee region https://hcservices.ecourts.gov.in/hcservices/ appears reduced. Due to this the petitioner has difficulty in performing hard labour and taking all the above factors into consideration, the Doctor has assessed that the permanent disability sustained by the petitioner is 35% and has marked Ex.P16-Disability Certificate; Ex.P17-X'rays and Ex.P18-Bill for taking of X'rays. The Tribunal on consideration of disability of 35% given by the Doctor, granted an award of Rs.35,000/- for permanent disability sustained by the petitioner. For transport expenses, an award of Rs.2,000/- was granted and for nutrition, an award of Rs.5,000/- was granted. For damage to clothes in the accident, the Tribunal awarded a sum of Rs.3,000/-. On scrutiny of Exs.P14 and P15, the medical bills, the Tribunal awarded a sum of Rs.20,000/- to the petitioner. 16.Though, the petitioner has stated in his evidence that he was earning a sum of Rs.10,000/- per month, the Tribunal on consideration of his disability of 35%, and opining that due to this the earning capacity of the petitioner would not be affected in a substantial manner in future, held that the petitioner would only sustain a monthly loss of income of Rs.1,000/- for five years after the accident and accordingly, granted a sum of Rs.60,000/- for loss of earning capacity. 17.In total, the Tribunal granted an award of Rs.1,25,000/- to the petitioner and directed the respondent to deposit the said award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.136 of 2004, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sankagiri, within a period of one month from the date of its Order. After, the said deposit was made, the petitioner was permitted to receive a sum of Rs.50,000/- together with accrued interest on the entire award and costs. The balance award amount was to be deposited in a nationalised bank for three years and the petitioner was permitted to receive interest on such deposit once in three months, directly from the bank. The excess Court fee paid by the petitioner was to be refunded to him. The Advocate fees was fixed at Rs.5,500/-. 18.The learned counsel for the appellant has contended in his appeal that the Tribunal had erred in holding that the appellant's driver was rash and negligent in driving the bus and was responsible for the impugned accident; that the Tribunal had erred in awarding a sum of Rs.1,25,000/- as compensation for fracture of left leg; that the Tribunal erred in awarding a compensation of Rs.35,000/- for pain and suffering; that the Tribunal erred in awarding a compensation of Rs.20,000/- for medical expenses; that the Tribunal erred in awarding a compensation of Rs.60,000/- towards future loss of income for five years in the absence of acceptable evidence. As such, the learned counsel for the appellant has prayed for re- consideration of the award and decree passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 20.The learned counsel for the appellant further submitted that no documentary evidence has been produced towards medical expenses. 21.The learned counsel for the respondent argued that the claimant was admitted in the Salem R.K.Hospital as in-patient from 23.01.2004 to 02.02.2004. Subsequently, the claimant underwent treatment as out-patient. After accident, the claimant could not move independently and has to rely on support of others even for his routine work. Further, the claimant has sustained a wound and a deep scar below the left leg knee of size 8X3 cms. His left leg has also been deformed due to improper setting of bones after the accident. A plate and screw has been fixed in this leg. The claimant has claimed Rs.8,80,600/- but the Tribunal had awarded only Rs.1,25,000/-, which is too low. 22.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side, this Court is of the view that the Doctor, PW2, in his evidence has narrated that the claimant had sustained a deep wound in his left leg of 8X3 cms size and a result of which the movements in his left knee had reduced by 70 Degrees. Due to this, the petitioner is not able to bend his legs and sit. A screw and plate has also been fixed on his left let. The leg has been deformed because of improper setting of bones. 23.Considering this aspect, the Doctor has assessed the petitioner's disability at 35%, which this Court finds to be reasonable. The Tribunal had awarded a sum of Rs.60,000/- for loss of earning capacity for five years and this Court opines that the award granted under this head is not proper. Anyhow, the considering the nature of injuries and mode of treatment, this Court is of the view that the quantum of award granted by the Tribunal is reasonable, and so this Court restructures the quantum of compensation as follows: 1.For 35% disability, compensation awarded: Rs.70,000/- (taking Rs.2,000/- for 1% disability) 2.For transport expenses : Rs. 6,000/- 3.For nutrition : Rs. 6,000/- 4.For medical bills, a sum of Rs.20,000/- has been awarded by the Tribunal, based on medical bills as per Exs.P13 and P14 and hence this Court confirms the award of the Tribunal under this head. 5.For damage to clothes : Rs. 3,000/- 6.For pain and suffering : Rs.20,000/- 24.In total, this Court grants the compensation of Rs.1,25,000/- to the petitioner under the above mentioned heads and as such this Court confirms the compensation of a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.1,25,000/- granted by the Tribunal together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation made in M.C.O.P.No.136 of 2004, dated 02.03.2006, which is fair, equitable and well reasoned. 25.This Court already directed the appellant/State Transport Corporation to deposit the entire compensation amount with accrued interest and costs to the credit of the M.C.O.P.No.136 of 2004, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sankagiri. 26.As the accident happened in the year 2004, it is open to the respondent/claimant to withdraw the entire compensation with accrued interest and costs, lying in the credit of the M.C.O.P.No.136 of 2004, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sankagiri, after filing necessary payment out application in accordance with law, subject to the deduction of earlier withdrawal, if any. 27.In the result, the above Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Subordinate Judge, Motor Accident Claims Tribunal, Sankagiri, in the M.C.O.P.No.136 of 2004, dated 08.03.2006, is confirmed. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.Motor Accident Claims Tribunal, Subordinate Judge, Sankagiri. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.M. Krishnamoorthy, Advocate, SR. 84 C.M.A.No.3114 of 2007 SP (CO) kk 22/1 https://hcservices.ecourts.gov.in/hcservices/