IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 12.11.2011 Coram THE HONOURABLE MR. JUSTICE B.RAJENDRAN Civil Miscellaneous Appeal No.3839 of 2008 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore Division-II, Erode. ... Appellant vs. 1.Dhanasekar 2.K.R.Marimuthu (Given up) ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 09.08.2006 made in M.C.O.P.No.32 of 2006 on the file of the Motor Accidents Claims Tribunal (Additional District Court/Fast Track Court No.IV), Bhavani. For Appellant : Mr.N.Anand For 1stRespondent : Mr.T.Murugamanickam JUDGMENT The State Transport Corporation has come forward with his appeal as against the grant of award of Rs.1,56,023/- made in M.C.O.P.No.32 of 2006 on the file of the Motor Accidents Claims Tribunal (Additional District Court/Fast Track Court No.IV), Bhavani in respect of the injury caused to driver of the vehicle. 2.The appellant questioned the negligence as well as the quantum in this appeal. As far as the negligence is concerned, he would mainly contend that the bus did not hit the van, which was standing in the opposite side of road, as projected. The driver of the van, the claimant herein has been chargesheeted in the Criminal case. First Information Report was registered in his name. Therefore, negligence aspect is not properly appreciated by the Court below. According to the appellant, the Court below mainly carried away by https://hcservices.ecourts.gov.in/hcservices/ the fact that the driver was acquitted in the criminal case, which cannot be a reason for fastening the liability on the Corporation. 3.As far as the quantum is concerned, the lower Court has awarded a sum of Rs.40,000/- for 40% disability and also awarded a sum of Rs.1,00,000/- for loss of future earning capacity. As per the judgment of the Division Bench of this Court, the Tribunal ought not to have awarded the amount under the above said heads. Hence, the quantum is also questioned. 4.The learned counsel for the first respondent/claimant would vehemently contend that the Criminal Court has given reprimand to the van driver and acquitted him. In this case, the claimant was the driver of the van. In his evidence, he has stated that the vehicle was parked on the left side of the road, that the appellant Transport Corporation bus, actually overtook another bus which was standing on the left side of the road, and in that process, hit the van which was stopped there for alighting all the passengers. On this ground, the van driver was acquitted. The Court below has believed the version of the first respondent and awarded compensation. Therefore, question of negligence cannot be raised by the appellant, at this point of time, after the van driver/claimant was acquitted in the criminal case. Further, Ex.P.5, the Motor Vehicle Inspector's Report, Ex.P.7 the judgment of the Criminal Court, Ex.P.2, the copy of the Observation Magazor of the Criminal Case and Ex.P.3 the sketch of the occurrence spot have clearly proved beyond any reasonable doubt that the accident took place only due to the negligence on the part of the driver of the bus. Therefore, the lower Court was correct in granting the award as far as the negligence is concerned. 5.The learned counsel for the first respondent/claimant further submitted that the claimant sustained fracture in the right leg and he also sustained 40% disability. As per Ex.A.9 disability certificate, the lower Court has awarded a reasonable amount. Hence, he prayed for dismissal of the appeal. 6.I heard the submissions made by the learned counsel on either side. 7.The accident is admitted. The learned cousnel for the Transport Corporation would mainly contend regarding the negligence aspect that the First Information Report registered in the name of the driver of the van, the claimant herein and he was charge sheeted for the offence. As rightly pointed out by the learned counsel for the first respondent/claimant, under Ex.P.7 the judgment of the Criminal Court, the claimant was acquitted and Ex.P.3 the sketch of the occurrence spot very clearly proved that the accident took place https://hcservices.ecourts.gov.in/hcservices/ because of the Transport Corporation Bus overtaking another bus, which was standing on the left side of the road and in that process, it hit the Van which was parked on the left side of the road for alighting the passengers. Therefore, the Criminal Court obviously held that the mistake is on the part of the bus driver even though the chargesheet was filed as against the driver of the van/claimant. He was also examined and he has clearly deposed in his evidence about the entire scenario of the accident. In such circumstances, the lower Court was right in holding that the negligence is on the part of the bus driver and not on the part of the Van driver. Therefore, definitely, the van driver is entitled to compensation for the injuries sustained by him. 8.In so far as the quantum is concerned, the learned counsel for the appellant brought to the notice of this Court that the lower Court after taking into consideration the evidence of the Doctor, has awarded not only Rs.40,000/- for 40% disability, but also awarded Rs.1,00,000/- towards loss of future earning capacity. As per the decision of the Division Bench of this Court, the compensation shall not be awarded under the head disability as well as the loss of income. Therefore, the tribunal ought not to have awarded compensation under the heads 'disability and 'loss of income'. But at the same time, taking into consideration the driver of the van sustaining injury in the leg, he will be entitled to some amount. Taking into consideration the disability assessed at 40% by the Doctor, the amount of Rs.40,000/- awarded by the Tribunal for disability is very low. As per the judgment of the Division Bench, upto Rs.2,000/- per percentage of disability can be given. Therefore, Rs.80,000/- (Rs.2,000/- x 40%) for 40% disability is awarded and hence, a sum of Rs.80,000/- could be awarded instead of Rs.40,000/- awarded by the Tribunal. 9.For future loss of income, a sum of Rs.1,00,000/- awarded by the Tribunal is not correct. 10.But at the same time, the lower Court has awarded only Rs.10,000/- for pain and suffering. Taking into consideration the claimant was taking treatment in the hospital as in patient for sometime and continued his treatment after discharge, the amount granted by the Court below under the head "pain and suffering" is enhanced from Rs.10,000/- to Rs.20,000/-. 11.As far as the Transportation and Extra Nourishment are concerned, the lower Court has awarded only a meagre sum of Rs.2,000/- each and the same can be enhanced to Rs.10,000 for Extra Nourishment and Rs.5,000/- for Transportation. For Medical Expenses, the lower Court has awarded Rs.2,023/- which is just and fair and the same is confirmed. https://hcservices.ecourts.gov.in/hcservices/ 12.The learned counsel for the first respondent/claimant would point out that no amount has been granted for Attendant Charges. As rightly pointed out by the learned counsel for the first respondent/claimant, the Court below has not awarded any amount towards Attendant Charges especially when the claimant sustained injuries in his legs. Hence, a sum of Rs.10,000/- is awarded for Attendant Charges. For loss of income during the period of treatment no amount has been awarded by the Tribunal. A sum of Rs.8,000/- could be awarded under this head and thus, compensation of Rs.1,56,023/- awarded by the Tribunal is hereby reduced to a sum of Rs.1,35,023/- which is rounded off to Rs.1,35,000/- Accordingly, the modified compensation amount, which the claimant is entitled to under the different heads are as follows: Disability ... Rs.80,000/- Pain and Suffering ... Rs.20,000/- Extra Nourishment ... Rs.10,000/- Transport ... Rs. 5,000/- Medical Expenses ... Rs. 2,023/- Attendant Charges ... Rs.10,000/- Loss of income during the treatment period ... Rs. 8,000 -------------- Total Rs.1,35,023/- --------------- ` Rs.1,35,000/- (Rounded off) 13.In the result, the appeal is allowed and the award amount of Rs.1,56,023/- is reduced to Rs.1,35,000/- along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. It is now represented that the entire award amount has been deposited before the Tribunal by the appellant Transport Corporation. The appellant is permitted to withdraw the excess amount i.e. over and above the amount determined in his appeal and the claimant is permitted to withdraw the amount of Rs.1,35,000/- along with accrued interest. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. cla https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accidents Claims Tribunal (Additional District Judge), Fast Track Court No.IV, Bhavani. 2.The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.T. Murugamanickam, Advocate, sr. 69067 1 cc to Mr.N. Anand, Advocate, sr. 69359 C.M.A.No.3839 of 2008 TS (CO) kk 4/1 https://hcservices.ecourts.gov.in/hcservices/