IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.03.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NOS.350 of 2008 and 3757 of 2010 & M.P.No.1 of 2008 The Managing Director Tamil Nadu State Transport Corporation Limited, Coimbatore. ... Appellant in C.M.A.No.350 of 2008 & 2nd Respondent in C.M.A.No.3757 of 2010/ 2nd Respondent Vs 1.Murthy ... 1st Respondent in C.M.A.No.350 of 2008 & Appellant in C.M.A.No.3757 of 2010 2.Raghupathy ... 2nd Respondent in C.M.A.No.350 of 2008 & 1st Respondent in C.M.A.No.3757 of 2010/ Claimant & I Respondent Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in M.C.O.P.No.49 of 2005, dated 16.03.2005, on the file of Motor Accidents Claims Tribunal / Fast Track Court No.II, Additional District Judge, Gopichettypalayam. For Appellant in C.M.A.No.350 of 2008 : M/s.Rajinish Pathiyil For Respondent NO.1 in C.M.A.No.350 of 2008 : Mr.M.A.P.Thangavel For Appellant in C.M.A.No.3757 of 2010 : Mr.M.A.P.Thangavel For 2nd respondent in C.M.A.No.3757 of 2010 : Mr.N.Anand C O M M O N J U D G M E N T The appellant / State Transport Corporation has filed C.M.A.No.350 of 2008 against the award and decree dated 16.03.2005, made in M.C.O.P.No.49 of 2005, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.II, https://hcservices.ecourts.gov.in/hcservices/ Additional District Judge, Gopichettypalayam, on awarding a compensation a sum of Rs.2,96,200/- with interest at the rate of 7% per annum. Aggrieved by the said award, the appeal has been filed to scale down the said compensation. 2.The appellant / claimant has field C.M.A.No.3757 of 2010 against the award and decree dated 16.03.2005, made in M.C.O.P.No.49 of 2005, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.II, Additional District Judge, Gopichettypalayam, on awarding a compensation a sum of Rs.2,96,200/- with interest at the rate of 7% per annum. Not being satisfied with the said award, the claimant has filed the above appeal for additional compensation. 3.The short facts of the case are as follows: On 17.12.2002 at about 20.00 hours, the petitioner was riding his TVS 50 bearing Registration No.T.A.G.9619 on Karamadai to Mettupalayam main Road from south to north direction, on the extreme left side of the road, along with his wife Kalaivani as a pillion rider, and when he was near Sathiya Sayee Petrol Bunk, the TNSTC bus bearing Registration No.TN38-N-0187, coming in the opposite direction at high speed, overtook a lorry going ahead of it and subsequently dashed against the said TVS 50. In the impact, the petitioner sustained grievous injuries. The petitioner was aged 31 years only and he was a mason, earning a monthly income of Rs.4,500/-. As a result of accident, he could not do his normal work. Hence, he has claimed a compensation of Rs.4,00,000/- from the respondents. 4.The second respondent, the Tamil Nadu State Transport Corporation Ltd., in his counter has denied the averments in the claim regarding manner of accident. It was stated that the first respondent was driving the bus carefully from Ooty to Coimbatore and the bus was stopped at Velankanni bus stop to facilitate passengers to board the bus, subsequently, when the bus was proceeding onwards at a moderate speed, the driver of the bus, in order to overtake a timber loaded lorry going ahead of it, sounded horn and put on proper light as signal to indicate that he is overtaking the lorry. But, the petitioner coming in the opposite direction from a petrol bunk, in his TVS 50, without using the headlights of his vehicle and unmindful of the movements of vehicles on the main road, came at a high speed and in a rash and negligent manner. In order to avoid collusion with the TVS 50, the driver of the bus applied sudden brake and stopped the bus. But, in spite of this, the petitioner dashed his TVS 50 on the front right side of the bus and fell down. Thus, the accident occurred due to fault of the petitioner. Further, the respondent has denied the averments in the claim regarding age, income and occupation. https://hcservices.ecourts.gov.in/hcservices/ It was also stated that the petitioner should prove that he was the owner of the said TVS 50 and had a valid driving license. The respondent has also denied the averments in the claim regarding nature of injuries and disability sustained by the petitioner. It was also stated that the compensation claimed was excessive. 5.On the pleadings of both parties, the Tribunal had framed two issues for consideration, namely; (i)On whose negligence, did the accident happen? (ii)Is the petitioner entitled to get compensation? If so, what is the quantum?” 6.On the petitioners side, three witnesses were examined as PW1, PW2 and PW3 and eleven documents were marked as Exs.P1 to P11 viz., First Information Report, Wound Certificate, Motor Vehicle Inspector's Report, charge sheet, Provisional diagnosis of the eye Department of Coimbatore Medical College Hospital, Certificate issued at Saravana Medical Hospital, Mettupalayam; Medical bills, Trip Sheet, Disability Certificate, X-rays and Disability Certificate. On the respondents side, one witness was examined as RW1 and no documents were marked. 7.PW1 adduced evidence that was in consonance with the version of accident as stated in the claim. RW1, the bus driver, during cross examination had admitted that the Tar road width was 20 feet at the place where the accident occurred; that if two vehicles go side by side, they would occupy the entire width of the road; Hence, the Tribunal came to the conclusion that the bus while overtaking the lorry did not give any space on the road for the TVS 50 motorcyclist to avoid collision with the bus and this was admitted by RW1. As such, the Tribunal after scrutiny of Ex.P2, held that the accident occurred due to the rash and negligent driving of the driver of the respondent's bus. 8.The Tribunal considering that the petitioner was a mason and could have earned a sum of Rs.150/- per day took his monthly income as Rs.3,600/-. From a scrutiny of Ex.P2, wound certificate, it is seen that the petitioner had sustained six injuries viz., a tear on the portion above his right eye, and a tear injury on the lower portion beneath his right eye, a tear injury on his jaw, scratch injury on his left and right leg and a crush injury of his right skull and facial bones. From scrutiny of Ex.P5, the certificate issued by the Eye Department of Coimbatore Medical College Hospital, it is seen that the right eye vision of the petitioner is impaired. Further, from the scrutiny of Ex.P6, it is seen that the petitioner had taken treatment at Saravana Hospital, Mettupalayam and the doctor who had treated him has certified that the petitioner's nerves in the eye have been affected and due to https://hcservices.ecourts.gov.in/hcservices/ this the petitioner has completely lost his right eye vision. It is further seen that out of the six injuries sustained by petitioner, the injury of his skull has been termed as a grievous injury and the specialist doctor PW2, who had treated the petitioner had adduced evidence stating that the injury sustained in the skull is a grievous injury and the disability sustained on this count is 20% and in support of his claim had marked Ex.P9. PW3, the Eye Specialist who had treated the petitioner had adduced evidence that the optical nerves going from the skull towards the eye have been impaired and due to this the petitioner had lost his right eye sight. He assessed the disability on this count at 45%. The Tribunal on taking into account the five simple injuries sustained by petitioner in his face and legs awarded a compensation of Rs.25,000/- for the simple injuries and Rs.5,000/- for pain and suffering undergone due to these simple injuries. The Tribunal awarded Rs.60,000/- for the grievous injury sustained in the skull and Rs.5,000/- for pain and suffering undergone due to this grievous injury. PW2, who had adduced evidence stating that due to the fractures sustained in the face and skull, the petitioner would not be able to stand out in the Sun and do work and that he may get headache if he does so, and he had certified that the disability sustained on this count as 20%. The Tribunal therefore awarded Rs.20,000/- for disability of 20%. The Tribunal taking into the loss of vision of eye held that the petitioner would have sustained loss of work and consequent loss of income and awarded a compensation of Rs.45,000/- for disability of 45% in the eye. Further, the Tribunal awarded a sum of Rs.1,35,000/- for pain and suffering due to loss of right eye vision. The Tribunal further awarded Rs.400/- towards medical bills as per Ex.P7 and Rs.800/- for transport expenses as per Ex.P8. In total, the Tribunal awarded a sum of Rs.2,96,200/- as compensation to the petitioner together with interest at the rate of 7% per annum from the date of petition till the date of payment of compensation. 9.Aggrieved by the award passed by the Tribunal, appellant / the Tamil Nadu State Transport Corporation Limited has filed the appeal in C.M.A.No.350 of 2008 to set-aside the award passed by the tribunal. 10.The learned counsel for the appellant / the Tamil Nadu State Transport Corporation Limited argued that the Tribunal erred in awarding Rs.60,000/- for the injuries sustained in the head, which is highly excessive. It was pointed out that the Tribunal erred in awarding Rs.1,35,000/- which is excessive and is a double compensation as the Tribunal already awarded Rs.45,000/- for disability sustained by the injured. It was also argued that the Tribunal should have laid contributory negligence on the part of the claimant also for the occurrence of the accident. It was argued that the award of the Tribunal was highly excessive. https://hcservices.ecourts.gov.in/hcservices/ 11.Not being satisfied with the award passed by the Tribunal, the claimant has filed the appeal in C.M.A.No.3757 of 2010 for additional compensation of Rs.1,03,800/-. 12.The learned counsel for the appellant / claimant has argued that the Tribunal should have adopted multiplier method to assess compensation for permanent disability of 45% sustained due to loss of right eye vision and hence the lump sum award given by the Tribunal for 45% disability is not appropriate. It was also argued that due to the grievous injuries, the appellant was an inpatient for many days in CMC Hospital, Coimbatore as well as took treatment as outpatient for a period of four months and had spent a sum of Rs.30,000/- as medical expenses. Therefore, the fixing of disability of 20% itself is very low and even here, the tribunal had not adopted multiplier method to assess compensation. This is relevant as the appellant is not able to do any work and his vision has also been severely restricted. It was also argued that the tribunal should have awarded at least Rs.1,00,000/- for pain and suffering undergone by the petitioner for the five simple injuries and one grievous injury, whereas the Tribunal had awarded only Rs.10,000/- for the pain and suffering undergone by the petitioner for the six injuries. It was further pointed out that the Tribunal ought to have awarded Rs.5,000/- towards transport to hospital expenses, whereas the award granted by the Tribunal was only Rs.800/-. It was also contended that the Tribunal ought to have awarded Rs.30,000/- towards further medical expenses and also ought to have awarded Rs.10,000/- towards damage to clothing and article and damage of TVS 50 bike. 13.In view of the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the claimant had sustained grievous injuries including skull injury and lost his vision in his right eye as per doctor's evidence and documentary evidence marked as Ex.P6. The age of the claimant is 31 years, the doctors have assessed the total disability as 65% and the loss of vision is permanent in nature. The quantum of compensation a sum of Rs.2,96,200/- is not on the higher side but a slight modification has to be done for compensation. Therefore, this Court restructures the compensation as follows:- Rs.1,30,000/- towards loss of income for 65% disability; Rs.15,000/- for pain and suffering; Rs.5,000/- for transport; Rs.5,000/- for nutrition; Rs.10,000/- for attender charges; https://hcservices.ecourts.gov.in/hcservices/ Rs.15,000/- for loss of income during medical treatment period; Rs.1,16,200/- towards loss amenities due to loss of eye vision and consequent discomfort sustained. Therefore, the quantum of compensation a sum of Rs.2,96,200/- is reasonable and an adequate one. Therefore, this Court does not find any discrepancy in the award of the Tribunal. 14.The learned counsel for the Transport-Corporation submitted that the entire compensation amount with accrued interest thereon deposited to the credit of M.C.O.P.No.49 of 2005, on the file of Motor Accidents Claims Tribunal / Fast Track Court No.II, Additional District Judge, Gopichettypalayam. Now, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon lying in the credit of M.C.O.P.No.49 of 2005, on the file of Motor Accidents Claims Tribunal / Fast Track Court No.II, Additional District Judge, Gopichettypalayam, after filing a Memo along with this order. 15.Resultantly, the appeal filed by the State Transport Corporation in C.M.A.No.350 of 2008 deserves to be dismissed. Consequently, the appeal filed by the claimant in C.M.A.No.3757 of 2010 is also dismissed, since the Tribunal's award of the compensation of a sum of Rs.2,96,200/- is an adequate one. Consequently, the award and decree passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.49 of 2005, dated 16.03.2005, on the file of Fast Track Court No.II, Additional District Judge, Gopichettypalayam is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. r n s To The Motor Accidents Claims Tribunal, Fast Track Court No.II, (Additional District Judge) Gopichettypalayam. https://hcservices.ecourts.gov.in/hcservices/ Copy to The Section Officer, VR Section, High Court, Madras 1 cc to M/s. Rajinish Pathiyil, Advocate, SR. 17332 1 cc to Mr. Ma.Pa.Thangavel, Advocate, SR. 16870 1 cc to Mr.N. Anand, Advocate, SR. 17060 C.M.A.NOS. 350 OF 2008 AND 3757 OF 2010 CK (CO) kk 6/7 https://hcservices.ecourts.gov.in/hcservices/