IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 16.09.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2723 of 2007 And M.P.Nos.1 of 2007 and 1 of 2008 The Managing Director Tamil Nadu State Transport Corporation Division, Dharmapuri-5. ... Appellant/Respondent Vs 1.R.Nagesh ... Respondent/Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 31.10.2005, made in M.C.O.P.No.57/2003 on the file of the Motor Accidents Claims Tribunal (SUB COURT), HOSUR. For appellant : Mr.P.Jagadeeswaran For respondent : Mr.J.Nandagopal JUDGMENT The above Civil Miscellaneous Appeal has been filed by the appellant/State Transport Corporation against the award and decree passed by the learned Motor Accident Claims Tribunal (Sub Court, Hosur), in MCOP No.57 of 2003, dated 31.10.2005 awarding a compensation of Rs.2,45,000/- with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. 2.Aggrieved by the said award and decree the appellant-Transport Corporation filed this appeal to scale down the compensation amount passed by the Tribunal. 3.The brief facts of the case are as follows: On 27.04.2001 at about 3.30 p.m. the injured was travelling in the respondent Corporation bus bearing registration No.T.N.29-N-0813, from Hosur to Rayakottai. When the said bus was proceeding near Agaram Temple, the driver of the bus was driving the bus at high- speed and in a rash and negligent manner, endangering human lives, and suddenly he applied brakes due to which the said bus turned upside down and rolled 2 to 3 times. In the result, four passengers died on the spot and some other passengers who were travelling in the https://hcservices.ecourts.gov.in/hcservices/ bus, including the petitioner, sustained injuries. The injured was taken to Government Hospital for treatment from 27.04.2001 to 28.04.2001. As his right leg below knee was crushed, he was referred to a higher institution for further treatment. The injured had taken treatment in Srinivasa Nursing Home, Bangalore and other private Hospitals, Bangalore for about 1 year and he underwent operation, and I.M.Nailing was done in his right leg bones. Subsequently, he took periodical treatment from Dr.D.V.Gandhi, Hosur. The injured was hale and healthy, aged only 34 years old and he was an Auto driver, earning more than Rs.4,500/- P.M. He is the only bread winner in his family. Due to the said accident, the injured is not able to drive any vehicle or to do any other work as he was doing before the accident. The said accident was caused only by the rash and negligent act of the driver of the above said T.N.S.T.C. Bus bearing No.TN-29-N-0813. The Uddanapalli Police had registered a case against the driver of the said bus in Cr.No.78/2001 under Sections 279, 337, 338, 304(A) of I.P.C. As such, he claimed a compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) with interest before the Tribunal. 4.The appellant herein State Transport Corporation resisted the claim petition by filing the counter statement on the following grounds. "4.This Respondent does not admit the correctness of the age of the Petitioner. It is not true to say that the petitioner was earning a sum of Rs.4500/- per month as stated in the petition and the respondent denies the same. 3.The particulars of loss of earning stated in para 21 of the petition are all imaginary. The break up details of amounts given under various heads in para 21 A are not supported by any documents and the compensation claimed is exhaustive and too high. 4.That the contents of para 23 of the petition are not correctly stated. It is not true that the driver of the bus bearing No.TN 29 N 9813 (Route No. Town bus) drove the vehicle rashly and negligently and caused the accident. There is no contributory negligence on the part of the driver of the bus. 5.While the TNSTC bus bearing No.TN 29 N 9813 driver drove the said vehicle on 27.04.2001 at about 15.40 hrs after Agaram Murugan Temple suddenly on the left side a person who was travelling on cycle came in front of the vehicle, to save him, immediately the driver applied the break, for the sake of that the shakle of the vehicle had broken and joint yoke had fallen so, the rear housing alignment changed, hence, the accident had been caused. It had been caused https://hcservices.ecourts.gov.in/hcservices/ only for the sake of the cyclewala interference not by the bus driver. 6.The Petitioner is hale and healthy and doing his normal work. There is no permanent disability. The petitioner is strictly to be proved for travelling in the bus by way of documentary evidence. 7.There is no negligence contributed by the driver. The petitioner did not sustain any injury because of accident. 8.The respondent is not liable to pay any compensation due to the negligent act of the passenger." 5.The learned Motor Accident Claims Tribunal after considering the plea of the claimant and the counter statement of the respondent had framed two issues for consideration, namely, (i)Whether the accident had occurred due to the rash and negligent driving of the driver of the respondent Corporation bus? (ii)Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation? 6.On the side of the claimant two witnesses were examined, viz., P.W.1-claimant and P.W.2-Dr.T.V.Gandhi and five documents were marked, viz., Ex.P.1-First Information Report, Ex.P.2-Wound certificate issued by the Hosur Government Hospital, Ex.P.3-Permanent Disability Certificate issued by the P.W.2, Ex.P.4-X-Ray and Ex.P.5 X-Ray Bill. On the side of the respondent R.W.1-S.Ranganathan, the driver of the bus, was examined and no document was marked. 7.P.W.1, the claimant had adduced evidence stating that on 27.04.2001, at about 03.30 p.m. he was travelling in the respondent Corporation bus from Hosur to Rayakottai. When the bus was nearing Rayakottai, the driver of the bus, driving the bus in a rash and negligent manner suddenly applied its brakes. Due to which, the bus turned upside down and rolled two to three times. In the said accident, four passengers expired and some other passengers including the claimant sustained grievous injuries. He further adduced evidence stating that a case was registered against the driver of the bus. P.W.1 had further adduced evidence stating that before the accident, he was an auto driver and was earning Rs.5,000/- per month at Bangalore. After the accident his avocation was totally affected. He further adduced evidence that immediately after the said accident, he was taken to the Government hospital, Hosur. He went to Bangalore Private hospital for further treatment. He stated that after the accident, he is unable to walk, stand, squat and his right leg became disfigured. P.W.2, Doctor had adduced evidence after examining the claimant and verified the medical records, he assessed the disability sustained by the claimant at 60%. https://hcservices.ecourts.gov.in/hcservices/ 8.R.W.1, driver had adduced evidence stating that one cyclist came across the road, he strongly applied the brake, as such the bus was capsized. Therefore, he is not responsible for the said accident. 9.After considering the evidence of P.W.1., P.W.2 and R.W.1 and on perusing the Ex.P1 First Informaion Report, the learned Motor Accident Claims Tribunal has came to a conclusion that the driver of the bus had driven the vehicle in a rash and negligent manner and caused the accident. Hence the Transport Corporation is liable to pay compensation to the claimant and awarded a compensation as follows: Rs.80,000/- under the head pain and sufferings Rs.1,00,000/- under the head disability Rs.60,000/- under the head loss of earning capacity Rs.5,000/- under the head nutrition and transport charges In total, the Tribunal awarded a sum of Rs.2,45,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. The Tribunal further directed the respondent to deposit the said amount within a period of two months from the date of its order. In turn, the said amount to be deposited in a Nationalised Bank for a period of three years in the Fixed Deposit Scheme. The Tribunal fixed a sum of Rs.7900/- as Advocate fee. Accordingly ordered. 10.Aggrieved by the said award and decree the appellant- Transport Corporation filed this appeal to scale down the compensation amount passed by the Tribunal. 11.The learned counsel for the appellant vehemently argued that the Tribunal awarded a sum of Rs.80,000/- under the head pain and suffering, which is on higher side. Further, the Tribunal awarded a sum of Rs.60,000/- under the head loss of earning capacity, which is not pertinent to the instant case. The learned counsel further argued that the Doctor, P.W.2 assessed the disability at 60%, which is also on higher side, considering the mode of injury and the nature of injuries. Further the learned counsel specifically argued that the Motor Accident Claims Tribunal had awarded the compensation in an arbitrary manner without assigning any proper reasons. As such he prays to scale down the compensation amount passed by the Tribunal. 12.The learned counsel for the respondent/claimant argued that the claimant was an auto driver. After the said accident he was unable to do his normal work as an auto driver. As such his avocation was totally affected. Hence, he is entitled to get compensation under the head loss of earning capacity and after considering this point, the Tribunal awarded a sum of Rs.60,000/- under the same head and as such it is proper. The learned counsel further argued that the Tribunal had awarded a sum of Rs.5,000/- under the head nutrition and transport charges is on lower side, https://hcservices.ecourts.gov.in/hcservices/ since the claimant initially took treatment at Government Hospital, Hosur and then took treatment in a Private Hospital, Bangalore. 13.Considering the facts and circumstances of the case, the arguments advanced on either side learned counsels and award and decree passed by the Motor Accident Claims Tribunal, in MCOP No.57 of 2003, dated 31.10.2005, this Court is of the view that the award of a sum of Rs.2,45,000/- is on higher side. Hence, this Court decides to restructure the same as follows: (i)This Court awards a sum of Rs.1,20,000/-under the head loss of income due to 60% disability. (ii)The Tribunal awarded a sum of Rs.80,000/- under the head pain and sufferings, this Court reduces the same to Rs.20,000/-. (iii) The Tribunal awarded a sum of Rs.5,000/- under the head nutrition and transport expenses, this Court awards Rs.5,000/- each under the head nutrition and transport expenses. (iv)This Court further awards a sum of Rs.10,000/- under the head disfigurement on his right leg. In total, this Court awards a sum of Rs.1,60,000/- with interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation which is equitable and fair. 14.This Court imposed a condition on the appellant-Transport Corporation, on 29.10.2005, to deposit the entire compensation amount together with interest and cost, into the credit of MCOP No.57 of 2003, dated 31.10.2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Hosur. 15.As the accident had happened in the year 2001, it is open to the claimant to withdraw the compensation amount fixed by this Court with accrued interest thereon, lying in the credit of MCOP No.57 of 2003, dated 31.10.2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Hosur, after filing necessary payment out application, in accordance with law, subject to deductions of withdrawals if any. Likewise, the appellant/State Transport Corporation is at liberty to withdraw the excess compensation amount of a sum of Rs.85,000/- with accrued interest thereon, after observing necessary formalities of the Court below. 16.In the result, the above appeal is partly allowed and the award and decree passed by the Motor Accident Claims Tribunal, in MCOP No.57 of 2003, dated 31.10.2005 is modified. Consequently, connected miscellaneous petitions are closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ pri To 1.The Motor Accident Claims Tribunal (Subordinate Judge, Hosur). 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.P.Jagadeeswaran, Advocate, SR.68337. 1 cc To Mr.J.Nandagopal, Advocate, SR.68333. C.M.A.No.2723 of 2007 And M.P.Nos.1 of 2007 and 1 of 2008 TAM(CO) RVL 21.02.2011 https://hcservices.ecourts.gov.in/hcservices/