IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.10.2008 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.3173 of 2008 and M.P. No. 1 of 2008 The Managing Director, Tamilnadu State Transport Corporation Ltd., Kancheepuram. .. Appellant/ Respondent Vs. M. Subramani .. Respondent/Petitioner Appeal filed under section 173 of Motor Vehicles Act 1988 against the award and decree dated 3.7.2007 in MCOP No. 628 of 2006 on the file of the Motor Accidents Claims Tribunal cum Additional District Court (Fast Track Court No.5), Tiruvallur. For Appellant : Mr. N. Anand For Respondent : --- JUDGMENT The transport corporation has filed this appeal challenging the award dated 3.7.2007 in MCOP No. 628 of 2006 on the file of the Motor Accidents Claims Tribunal cum Additional District Court (Fast Track Court No.5), Tiruvallur. 2. The respondent/ claimant Subramani, aged 70 years, was proceeding on a M-80 Bajaj motor cycle on the left side of the road. At that point of time, the driver of the appellant transport corporation bus drove the bus in a rash and negligent manner, hit the two wheeler and thereafter, crashed into a tamarind tree on the right side of the road. In that accident, the respondent – claimant https://hcservices.ecourts.gov.in/hcservices/ suffered fracture of his right and left ribs, fracture of right shoulder, fracture of right hip. He was treated at apollo hospital as inpatient for nearly 17 days and he spent substantial amount towards medical treatment. In the very same accident, many passengers, who were travelling in the bus also suffered injuries. All the injured persons filed claim petitions claiming compensation. MCOP No. 624 of 2006 was filed by one Gunasekaran. MCOP No. 625 of 2006 was filed by Yesodha. MCOP No. 626 of 2006 was filed by Saraswathi. MCOP No. 627 of 2006 was filed by Thangam and MCOP No. 628 of 2006 was filed by Subramani, the respondent/ claimant herein. All the claim petitions were heard and disposed of by the Tribunal by a common award. 3. The finding of negligence on the part of the driver of the bus and the liability of the appellant transport corporation to compensate the claimant is not seriously disputed and the same is confirmed. 4. In support of the claim petition, the claimant/ respondent herein was examined as P.W.5 and the Doctor, who gave the disability certificate has been examined as P.W.6. P.Ws. 1 to 4 are the other claimants. Documents Exs.P1 to P16 were marked on behalf of the claimants in all the cases. The relevant documents are as follows:- Ex.P1 is the copy of the F.I.R. Ex.P2 is the copy of rough sketch. Ex.P3 is the copy of the M.V.I. Report. Ex.P8 is the discharge summary of the claimant in this case. Ex.P9 is the medical bills. Ex.P14 is the disability certificate of the claimant. Ex.P15 is the driving licence of the claimant Ex.P16 is the copy of the charge sheet filed against the driver of the bus. On behalf of the appellant/ respondent before the Tribunal, one Ramasamy, conductor of the bus was examined as R.W.1. No documentary evidence was let in on behalf of the appellant/ respondent before the Tribunal. 5. As on today, it appears that no appeal has been filed in the case of four other claimants. The present appeal has been filed challenging the award in favour of the respondent / claimant herein. 6. As far as negligence is concerned, the Tribunal disbelieved the evidence of the conductor, who stated that the respondent – claimant was responsible for the accident. The Tribunal rightly came to the conclusion that the negligence alleged on the part of P.W.5- claimant/ respondent herein has not been proved by the present appellant by letting in any acceptable evidence. The Tribunal observed that the investigation report has not been filed and the investigation officer has not been examined to prove that the claimant was responsible for the accident. The Tribunal came to the conclusion that the driver of the bus, who was driving rashly and negligently after hitting the scooter, has gone astray and hit a https://hcservices.ecourts.gov.in/hcservices/ tamarind tree on the right side of the road which clearly proved that he was driving the vehicle without control. In any event, in the absence of the evidence by the driver, the Tribunal came to the conclusion that the accident was due to rash and negligent driving on the part of the driver of the bus. All the materials on record was considered by the Tribunal and it found that the driver of the bus was rash and negligent and was responsible for the accident. In such view of the matter, this Court is unable to find any good reason to come to a different conclusion than what has been arrived at by the Tribunal. Therefore, the finding of negligence on the part of the driver of the bus and the liability of the appellant transport corporation to compensate the claimant is confirmed. 7. The next contention which is seriously urged by the learned counsel for the appellant is on the quantum of compensation awarded to the injured claimant in this case. The injured claimant, an agriculturist, suffered fracture of the left and right ribs. He was found to be bleeding around lungs with congestion of lungs, fracture of right clavicle, fracture of right ramus and head injury. The claimant was taken to a private hospital and treated from 10.5.2006 to 26.5.2006. Thereafter, he was also treated as out- patient and that has been recorded by the Tribunal. The Doctor examined the claimant on 15.4.2007 and he has found that due to the injuries, right clavicle is fractured and is malunited. The right hand movement is restricted to 80 degree. He also found that right side chest 3 to 8 rib bones and 5 to 8 left rib bones were fractured and malunited. After the fracture, the claimant suffered from breathing difficulty. In addition to this, his right hip joint and ramus is malunited and therefore, he cannot squat. In view of the multiple grievous injuries suffered, the Doctor-P.W.6 assessed the disability at 75% under Ex.P14. This assessment of disability was not challenged in the grounds of appeal filed by the appellant. In the disability certificate – Ex.P14, the Doctor has also opined that the claimant is unable to do any hand work. There is a difficulty in flexion. He cannot sit or stand as a normal person and there will be a difficulty in walking as well. 8. The fact is that the injured claimant was hale and healthy person, owning a driving licence and also engaged in agriculture. In the discharge summary given by the private hospital, it has been shown that the injured claimant has undergone extensive medical management. In the award of the Tribunal, it has been recorded as follows:- " Considering the discharge summary of P.W.5, it is evident that this petition has sustained injuries due to the hit by the bus on him in his scooter. He had sustained polytrauma, flail chest and right pneumothorax with hemothorax. It is evident from the discharge summary that https://hcservices.ecourts.gov.in/hcservices/ this petitioner had sustained fracture on right ribs and multiple fracture on left side ribs. There is also pain in right clavicle with fracture and dhas been managed by orthopaedician in Apollo hospital. It is also evident that he had required anotrophic support and was kept on ventilatory support. Inter costal drainage was put in Multiple rib fractures on right side with displacement of fractured fragments, consolidation and collapse of right lower lobe and posterior basal segment of left lower lobe. Pneumomediastrium, pneumopericardium and loculated pneumothorax on anterior aspect of right side has been done. Therefore, it is evident that P.W.5 has sustained grievous injuries and as per the evidence he is aged about 70 years and therefore, the disability assessed by him cannot taken to its normal due to this age being one of the factors, due to the fracture of right hip, public ramus, the movement of right leg is affected and is unable to squat or stand long and walk further. " The medical bills are also not in dispute. The Tribunal granted the following amount as compensation with interest at the rate of 7.5% p.a. Sl.No. Head Amount granted by the Tribunal 1 Medical bills Rs. 2,60,000/- 2 Injuries Rs. 55,000/- 3 Transport expenses and extra nourishment Rs. 10,000/- 4 Pain and suffering Rs. 60,000/- 5 Future medical expenses Rs. 25,000/- Total Rs.4,10,000/- 9. According to the learned counsel for the appellant, the sum of Rs.60,000/- granted towards pain and suffering is on the higher side and the future medical expenses of Rs.25,000/- is not warranted. 10. The Tribunal granted the compensation only on five heads. It is apparent that the Tribunal has not granted compensation for loss of income during the period of treatment, attender charges, loss of amenities etc. Further, the disability has been assessed at 75% and that is not disputed. Therefore, the claimant will be entitled to higher compensation on this head also. Assuming without accepting, that the amount of Rs.60,000/- towards pain and suffering is on the higher side, the fact that no amount has been granted for attender charges, loss of income during the period of treatment and loss of amenities, the total compensation, de hors the medical expenses, is only Rs.1,50,000/-. https://hcservices.ecourts.gov.in/hcservices/ 11. Considering the nature of injury, the treatment and the disability, this Court finds no good reason to reduce the quantum of compensation any further. The interest granted by the Tribunal at 7.5% stands confirmed as the accident happened in the year 2006 and the award was passed in the year 2007. 12. In the result, the civil miscellaneous appeal is dismissed. No costs. Consequently, M.P.No. 1 of 2008 is also dismissed. 13. Learned counsel for the appellant seeks eight weeks time to deposit the award amount and the same is allowed. On such deposit, the claimant is entitled to withdraw the amount as per the order of the Tribunal. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ra To The Motor Accidents Claims Tribunal, cum Additional District Court (Fast Track Court No.5), Tiruvallur. 1 cc to Mr.N. Anand, Advocate, SR. 57799 CMA No. 3173 of 2008 SSN (CO) kk 10/11 https://hcservices.ecourts.gov.in/hcservices/