IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.01.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.Nos.2965 and 3936 of 2004 The Managing Director, Tamil Nadu State Transport Corporation, (Salem) Limited, Salem – 636 007 ... Appellant in C.M.A.No.2965 of 2004 & First respondent in C.M.A.No.3936 of 2004/ 2nd Respondent Versus 1.K.Chinnusamy ... 1st Respondent in C.M.A.No.2965 of 2004 & Appellant in C.M.A.No.3936 of 2004/ Petitioner 2.V.Subramani ... Second respondent in C.M.A.No.3936 of 2004/ 1st Respondent R2 Given up. Prayer: Appeals are filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree dated 06.02.2004, made in M.C.O.P.No.776 of 2002, on the file of the Motor Accidents Claims Tribunal, Sub judge, Namakkal. For Appellant : Mr.V.Ramesh (in C.M.A.No.2965/04) Mr.B.Singaravelu (in C.M.A.No.3936/04) For Respondent 1 : Mr.B.Singaravelu (in C.M.A.No.2965/04) M/s.V.Ramesh in C.M.A.No.3936/04) - - - 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.2965 of 2004 against the award and decree dated 06.02.2004, made in M.C.O.P.No.776 of 2002, on the file of the Motor Accidents Claims Tribunal, Sub judge, Namakkal, awarding a compensation a sum of Rs.2,14,350/- with interest at the rate of 9% per annum. Aggrieved https://hcservices.ecourts.gov.in/hcservices/ 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.3936 of 2004 against the award and decree dated 06.02.2004, made in M.C.O.P.No.776 of 2002, on the file of the Motor Accidents Claims Tribunal, Sub judge, Namakkal, awarding a compensation a sum of Rs.2,14,350/- with interest at the rate of 9% per annum. Not being satisfied with the said award, the claimant has filed the above appeal for additional compensation of a sum of Rs.5,00,000/- with interest. 3.The short facts of the case are as follows: On 27.12.1994, at about 5.30 p.m., when the petitioner / claimant was riding his TVS 50 vehicle bearing Registration No.TN 27 V 1328 on the Tiruchengode to Pallipalayam Main Road and when he was near Mahesh Modern Rice Mill, the Tamil Nadu State Transport Corporation bus bearing Registration No.TN27 N 0459, coming in the same direction and driven by its driver in a rash and negligent manner at high speed dashed against the TVS 50. In the impact, the petitioner sustained severe skull injury and multiple fractures and lacerated injuries all over the body. The petitioner was aged 45 years at the time of accident and was the owner of two lorries and also a lorry operator. As a result of the skull injury, he is unable to do any work, he has partially lost his regular fluent speech and memory power and his face and head has been disfigured by scars. Regarding the accident, a Criminal Case has been registered in the Tiruchengode Rural Police Station, Salem District as Crime No.856/94 as against the first respondent, the driver of the bus. Hence, the petitioner has claimed a compensation of Rs.10,00,000/- with interest and costs from the respondents, the owner and driver of the bus bearing Registration No.TN27 N 0459 . 4.The second respondent, in his counter has resisted the claim denying the allegations in the claim regarding the age, income and occupation of the petitioner and manner of accident. It has also been stated that the claim petition is bad for non-joinder of the Insurance Company of the TVS 50. It has also been stated that the claim is speculative and excessive, without any reason or basis. Hence, the second respondent has prayed for dismissal of the petition with costs. 5.On hearing the pleadings of both parties, the Motor Accidents Claims Tribunal framed two issues for consideration, namely; “(i)Was the accident caused by the rash and reckless driving of the driver of the Tamil Nadu Transport Corporation Bus bearing Registration No.TN27 N 0459? Or was the accident caused by the negligence and reckless riding of the petitioner? https://hcservices.ecourts.gov.in/hcservices/ (ii)Is the petitioner entitled to get compensation? If so what is the quantum of compensation which he is entitled to get?” 6.On the petitioner's side, the petitioner was examined as PW1 and three other witnesses were examined and seven documents were marked as exhibits P-1 to P-7. Additionally, the petitioner has marked a document as X-1. On the respondents' side, two witnesses were examined and no documents were marked. 7.PW1, in his evidence adduced that on 27.12.1994, when he was travelling in his TVS 50 on the Tiruchengode to Pallipalayam road and when he was near Mahesh Modern Rice Mill, the respondent bus bearing Registration No.TN 27 N 0459 coming from behind him, had dashed against the vehicle. As a result, he had been thrown out of his moped and that he had suffered grievous injuries. RW1, the Conductor of the bus in his evidence adduced that on 23.12.1994, when the bus was on its route from Tiruchi to Erode and when it was nearing Thokkadi, he was standing in the rear steps of the bus, after issuing tickets to passengers, the TVS 50 Moped going ahead of them had dashed against the left rear side of the bus and hence the petitioner had sustained injuries. RW2, the Ticket checker in the bus, had adduced evidence stating that when the bus was nearing Thokkadi, the driver of the moped had lost his balance and dashed the Moped against the rear side of the bus, but on cross-examination, he was not able to produce any documentary proof that he was deputed for ticket examining on that day. As such, the Tribunal on finding that the evidence given by RW1 and RW2 in their direct and cross examination were at variance with one another and after considering that the FIR had also been filed as against the driver of the bus held that the accident had been caused by the driver of the bus. 8.PW1, in his evidence adduced that he was aged 42 years at the time of accident, that he was the owner of a lorry and was also a driver and as such was earning an income of Rs.15,000/- to Rs.20,000/- per month; that he had incurred a medical expense of Rs.36,350; that due to the accident, he was not able to do any agricultural work; that he was also not able to drive and his memory power has also become diminished. PW3, the Doctor who medically examined PW1 adduced evidence that PW1's right portion of skull has sustained fracture; that this fracture was a grievous injury; that on examining this portion through x-ray, it was found that PW1 has also sustained fracture in his right portion of brain and also the bone near it; that because of this injury, the petitioner would require a person to look after him; that he would be able to do his normal work only with assistance; that he would also not be able to drive; that his speech has also become slurred; that he had sustained a disability at 40% due to the accident and had marked Ex.P6, Medical https://hcservices.ecourts.gov.in/hcservices/ Disability Certificate. Further, the Tribunal on considering the evidence adduced by PW4, the registration clerk in the Sankagiri Regional Transport Office, held that PW1 had a valid heavy vehicle driving licence at the time of accident. Based on the oral and documentary evidence, the Tribunal on considering that the petitioner had sustained 40% disability and adopting multiplier method and taking his nominal salary as Rs.2,000/- per month assessed compensation as follows:- Loss of income sustained by the petitioner as Rs.2000 x 12 x 15 x 40 / 100 .... Rs.1,44,000/- Medical expenses as per P3, P4 & P7 .... Rs. 36,350/- Pain and suffering .... Rs. 10,000/- Transport and Nutrition expenses .... Rs. 4,000/- Compensation towards future loss of income .... Rs. 20,000/- In total, the Tribunal had awarded a sum of Rs.2,14,350/- as compensation. 9.The learned counsel for the appellant / Transport corporation argued that the Motor Accidents Claims Tribunal had adopted multiplier method and awarded a compensation a sum of Rs.1,44,000/- and that this is not pertinent in this case, since the claimant had sustained simple injuries and he has been carrying on doing his normal work as a driver. 10.The learned counsel for the claimant argued that the claimant had sustained bone fracture injuries and his skull had been fractured. After sustaining this skull injury, the claimant is unable to do his normal work as driver and unable to perform his agricultural work as he used to do before the accident. The Tribunal had not considered compensation under the head of attender charges, transport and loss of income during medical treatment period. The learned counsel further argued that the claimant is able to move around only with others support. 11.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on going through the impugned order of the Tribunal, this Court is of the considered opinion that the multiplier method adopted in this case is not proper. However, the quantum of compensation fixed by the learned Tribunal is reasonable. Therefore, this Court restructures the compensation as follows:- https://hcservices.ecourts.gov.in/hcservices/ Rs.80,000/- towards loss of income due to 40% disability; Rs.30,000/- towards pain and suffering; Rs.36,350/- towards medical expenses; Rs.8,000/- for transport; Rs.30,000/- towards loss of amenities; Rs.15,000/- for attender charges; Rs.10,000/- for loss of earning during medical treatment period and convalescent period; Rs.5,000/- for nutrition. As such, the compensation awarded by the Tribunal i.e., a sum of RS.2,14,350/- with interest at the rate of 9% per annum is confirmed by this Court as it is found to be fair and equitable. 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.776 of 2002, on the file of the Motor Accidents Claims Tribunal, Sub judge, Namakkal, after filing necessary payment out application, subject to deduction of withdrawals made, if any. 12.Resultantly, the above appeal in C.M.A.No.2965 of 2004, filed by the State Transport Corporation is dismissed and the appeal filed by the claimant in C.M.A.No.3936 of 2004 is also dismissed. Consequently, the award and decree passed in M.C.O.P.No.776 of 2003 on the file of the Motor Accidents Claims Tribunal, Sub-Judge, Namakkal, dated 06.02.2004 is confirmed. Connected miscellaneous petition is closed. There is no order as to costs. Sd/ Assistant Registrar /true copy/ Sub Asst.Registrar r n s To The Motor Accidents Claims Tribunal, Sub-Judge, Namakkal. Copy to: The Section Officer, V.R.Section, High Court, Madras 1 cc To Mr.V.Ramesh, Advocate, SR.4140 C.M.A.Nos.2965 and 3936 of 2004 KU(CO) SRA (27/05/2011) https://hcservices.ecourts.gov.in/hcservices/