IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2862 of 2009 and M.P.No.1 of 2009 The Managing Director Tamil Nadu State Transport Corporation Ltd., Vellore .. Appellant/Respondent Vs Aarimuthu .. Respondent/Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree Order dated 06.01.2009, made in M.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents Claims Tribunal, Sub-Court, Cheyyar. For appellant : Mr.C.Prabhakaran for M/s.N.Anand 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 Order dated 06.01.2009, made in M.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents Claims Tribunal, Sub-Court, Cheyyar, awarding a compensation of Rs.72,556/-, with 7.5% interest per annum, from the date of filing petition to till the date of payment. 2.The contentions raised by the learned counsel appearing for the appellant are that the negligence has been fixed wrongly as against the appellant bus driver, that the injuries suffered by the claimant are not of a serious nature and further claims under various heads are excessive in nature. 3.The short facts of the case are as follows: It is a case of injury. In this case, the accident happened on 24.08.2004, at about 11 a.m. near Keiayyampettai Vinayagar Temple, on the Arani to Polur Road. It is stated that the injured claimant, a https://hcservices.ecourts.gov.in/hcservices/ Milk Vendor, aged about 30 years, was about to take his parked cycle, parked near a Tea stall near Keiayyampettai Vinayagar Temple, when he was hit by the bus, bearing registration No.TN23 N0784, belonging to the appellant. In the said accident, the claimant sustained injuries on the back of his body, leftside of chest, head and hands. He was initially admitted in the Government General Hospital, Arani, on 24.08.2004 and had subsequently taken treatment at CMC Hospital, Vellore. The injured claimant has claimed a compensation of Rs.5,00,000/-. 4.The appellant-Transport Corporation resisted the claim in his Counter. It is stated that when the bus driver had stopped his bus at the Ayyampettai Bus stand at 11.25 a.m. to enable the passengers to alight and board the bus, a person was trying to cross the road to board the bus. On seeing an Auto carrying goods, coming from Arani towards Kalambur, in a zig-zag manner towards him, on the road, the said person, in order to avoid being hit by the Auto had dashed against the front Bumper on the right side of the bus and consequently had fallen down. It is further stated that the bus driver, on humanitarian grounds had taken the injured person to Hospital for treatment. As such, the appellant's bus driver is not in any way responsible for the accident. Further, all the averments in the claim petition regarding manner of the accident, nature of the injuries, medical treatment, age, income and occupation of the claimant were not admitted. It is further stated that the claim is excessive and the interest is also on higher side. 5.The Motor Accident Claims Tribunal framed two issues for consideration namely: (i) Who is responsible for the accident? (ii) Is the respondent liable to pay compensation to the petitioner? If so, what is the quant um of compensation? 6.On the petitioner's side, two witnesses were examined as PW1 and PW2 and ten documents were marked as Exs.P1 to P10. On the respondent's side, one witness was examined as RW1. No documents were marked. 7.PW1, the petitioner himself was examined and he has adduced evidence that on 24.08.2004, at 11 a.m. when he was crossing the Arani-Seyyar Road, near Keiayyampettai Vinayagar Temple to take his cycle, which was parked in a Tea Stall, there, the bus bearing registration No.TN23 N0784, coming from Aathuvambadi towards Arani, on the said road, driven negligently and with highspeed by the driver, hit him and as such, the accident was caused only due to the negligence of the driver. But, on the respondent's side, it has been stated that the accident was caused by the negligence of the petitioner. To prove this point, RW1, the conductor of the bus was examined. The RW1, in his evidence has stated that the bus was on https://hcservices.ecourts.gov.in/hcservices/ its way from Aathuvambadi to Arani and that on nearing Ayyampettai he flew the whistle and the bus came to a halt. At that time, the petitioner alighted from a luggage Auto and ran across the road to board the bus and in his hurry has dashed against the bus and fell down. But, on subsequent cross-examination, it has been stated by the RW1, that as the bus was being taken forward, the accident had happened and that he had not witnessed the accident and that he has come to know about the accident only from the others, who had told him that the petitioner had crossed the road and dashed against the bus. As such, the Tribunal held that negligence could not be laid down on the petitioner for the cause of the accident based on the evidence of RW1. The Tribunal then scrutinised as Ex.P1, the FIR. In the FIR, it has been stated that the complaint has been given by the petitioner and it was further found that the version of the accident given here was the same as that given in the evidence adduced by the PW1 before the Tribunal. As such, the allegation of the respondent, that the petitioner had alighted from an Auto and rushed across the road to board the bus, was not accepted by the Tribunal. Further, the Tribunal scrutinised Ex.P2, the Motor Vehicle Inspector's Report, wherein it had been stated that the accident had not occurred due to any mechanical defects in the bus and there had been no damages caused to the bus. The Tribunal has held that it is the responsibility of the driver of the bus to see whether any person in crossing the road, especially so, when this is in front of the bus. Considering that the accident happened on a highway, which was straight, the driver of the bus had ample opportunity to perceive, who is crossing the road in front of it. If, the respondent had examined the driver of the bus, then the truth regarding the manner of accident could have been easily ascertained. The Tribunal further held that the evidence adduced by the PW1 has been corroborated by statements contained in Ex.P1 and there has been no rebuttal of these by way of counter evidence on the respondent's side. As such, the Tribunal held that the accident has been caused only by the negligence of the respondent's bus driver. 8.The bus owner is the respondent herein. As the Tribunal had concluded that the accident had occurred because of the negligence of the bus driver, the respondent was held liable to pay compensation to the petitioner. 9.The PW1 has adduced evidence that in the accident, his hip bone has been fractured and that he had taken initial treatment at Government Hospital, Arani and that subsequently he had taken treatment at CMC Hospital, Vellore. The Wound Certificate issued by the Government Hospital, Arani was marked as Ex.P3. Further, the Doctor, who has issued the Wound Certificate has certified that the petitioner had suffered three injuries; that bones from 2 to 7, on the leftside of his hip had been fractured and that this was a grievous injury and that the other injuries sustained by the petitioner was simple in nature. Ex.P4 is the Wound Certificate issued by C.M.C.Hospital, Vellore. Herein, it has been stated that the petitioner has sustained four injuries. Further, in the https://hcservices.ecourts.gov.in/hcservices/ Discharge Summary given by the Hospital, which is marked as Ex.P5, it is found that the petitioner has been admitted on 24.08.2004 and discharged on 30.08.2004. The list of medical bills giving expenses incurred during treatment has been marked as Ex.P6. The Tribunal granted a sum of Rs.11,556/- to the petitioner for the expenses incurred by the petitioner for medical treatment as per Ex.P6. But, the Tribunal, on scrutiny of Ex.P7, the transport expenses (by car) incurred by the petitioner, disallowed it as no details regarding the distance that the car had travelled were not furnished and also the person, who had billed the above was not examined. Further, the petitioner has marked Ex.P8, the Salary Certificate issued by the Chairman of the Union Panchayat Board, Kalambur. But, the Tribunal held that the Chairman of the Panchayat Board was not examined to prove this and he also had no authority to give such Certificate and therefore, Ex.P8 was not taken as permissible evidence by the Tribunal. 10.Further, on the petitioner's side, one Dr.Balakrishnan was examined as PW2. He adduced in his evidence that on 27.01.2008, he had carried out an examination of the petitioner and had found that the petitioner had rigidity of movement in his left fore arm and left shoulder and that he was not able to move his left fore arm above 90 Degrees and also found that the petitioner would have difficulty in that work, which involves his left hand and also he would have difficulty in lifting heavy weights. As such, he had certified that the petitioner has sustained 25% disability and marked Ex.P9-the Disability Certificate and Ex.P10-the X'ray series. The PW2 was not cross-examined by the respondent's side and so, the Tribunal held that the evidence of the PW2 could be accepted and accordingly did so. 11.Further, it has been certified by the Hospital that the petitioner had sustained fractures of his bones 2 to 7 on his left hip. But, the PW2, in his evidence has not given his opinion on these injuries. It appeared to the Tribunal that the left hand of the petitioner has been affected only by the fractures sustained by the petitioner on his left hip. But, the PW2 has not adduced evidence as to whether the bones said to have been fractured have been set right or not. As such, the Tribunal awarded a sum of Rs.20,000/- for one grievous injury and a sum of Rs.3,000/- each for the three simple injuries sustained by the petitioner. For pain and suffering caused to the petitioner, the Tribunal granted a sum of Rs.5,000/-; for transport expenses, the Tribunal granted a sum of Rs.2,000/- ; for disability, the Tribunal granted a sum of Rs.25,000/- and for medical expenses, the Tribunal granted a sum of Rs.11,556/-. In total, the Tribunal granted a sum of Rs.72,556/- as compensation to the petitioner and directed the respondent to pay this amount, with interest at the rate of 7.5% per annum, from the date of filing the claim petition to till the date of payment of the compensation, within a period of two months, into the credit of the M.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents Claims Tribunal, Sub-Court, Cheyyar. The petitioner was permitted, after such deposit was made, to withdraw 50% of the award amount with https://hcservices.ecourts.gov.in/hcservices/ interest immediately. The balance 50% of the award amount with interest was to be deposited in a Nationalised Bank for a period of two years. The petitioner was also permitted to get refund of excess Court fees paid by him. The respondent was directed to pay a sum of Rs.240.50 to the petitioner as costs. 12.For the foregoing reasons, facts and circumstances of the case, points raised by the learned counsel appearing for the appellant, the Court is of the view that regarding negligence, the Tribunal has come to a conclusion on the basis of the PW1, claimant's evidence and based on the FIR, registered against the driver of the respondent's bus. The Court is of the view that the findings of the Tribunal on this aspect is correct. 13.Regarding the quantum of compensation, the claimant had initially taken preliminary treatment at Government Hospital, Arani and for further treatment, he had taken treatment at CMC Hospital, Vellore for a week time. Regarding medical expenses, mode of treatment, nature of injuries, disability, the claimant had marked Ex.P9, the Disability Certificate, issued by one Dr.Balakrishnan. Exs.P2, P7 and P10 are the medical records, which discloses that the claimant had sustained grievous injuries. The claimant sustained fractures of the bones in the right side of the body, injuries on left fore arm and left shoulder and as such, the claimant is unable to move his hand above 90 Degrees. For the said injuries, the Tribunal awarded, a sum of Rs.20,000/- for one grievous injury, a sum of Rs.9,000/- for three simple injuries; a sum of Rs.5,000/- for pain and suffering; a sum of Rs.2,000/- for transport expenses; a sum of Rs.25,000/- for disability of his physical condition and sum of Rs.11,000/- for medical expenses. In total, a sum of Rs.72,556/- was awarded to the claimant together with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment. As all the awards granted under the above mentioned heads passed in the M.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents Claims Tribunal, Sub-Court, Cheyyar, is fair and not excessive and as such, this Court confirms the same. 14.The appellant/State Transport Corporation deposited a sum of Rs.25,000/- on 10.07.2009, into the credit of the M.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents Claims Tribunal, Cheyyar. Now, this Court directs the appellant to deposit the balance compensation amount with accrued interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment, within a period of six weeks from the date of receipt of a copy of this Order, into the credit of the M.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents Claims Tribunal, Sub-Court, Cheyyar. 15.As the accident happened in the year 2004, it is open to the respondent/claimant to withdraw the entire compensation amount, after such deposit has been made, into the credit of the M.A.C.T.O.P.No.234 of 2005, on the file of the Motor Accidents Claims Tribunal, Sub- https://hcservices.ecourts.gov.in/hcservices/ Court, Cheyyar, by filing necessary payment out application, in accordance with law. 16.In the result, the Civil Miscellaneous Appeal is dismissed and the Award and Decree Order dated 06.01.2009, made in M.A.C.T.O.P.No.234 of 2005, passed by the Motor Accidents Claims Tribunal, Sub-Court, Cheyyar is confirmed. Consequently, connected civil miscellaneous petition is also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1. Motor Accidents Claims Tribunal, Sub-Court, Cheyyar. 2. The Section Officer, VR Section, High Court, Madras. C.M.A.No.2862 of 2009 KA(CO) sra 05.01.2010 https://hcservices.ecourts.gov.in/hcservices/