IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.881 of 2009 and M.P.No.1 of 2009 Tamil Nadu State Transport Corporation Ltd., Division I : Kumbakonam rep.by its Managing Director ..Appellant/Respondent Vs Elangovan ..Respondent/Claimant Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 17.03.1999, made in M.C.O.P.No.49 of 1998, on the file of the Motor Accident Claims Tribunal, The Principal District Judge, Nagapattinam. For Appellant : Mr.A.Babu For Respondents : No appearance 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, dated 17.03.1999, made in M.C.O.P.No.49 of 1998, on the file of the Motor Accident Claims Tribunal, The Principal District Judge, Nagapattinam, awarding a compensation of Rs.2,15,000/- with 12% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/respondent, the Managing Director, Tamil Nadu State Transport Corporation Ltd., Kumbakonam has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 20.09.1997, the petitioner was travelling, as a passenger in the respondent's bus bearing registration No.TN32 N0340 to Mayiladuthurai. At about 7.30 a.m. when the bus was stopped at the entrance of the Mayiladuthurai Bus stand, the Conductor of the bus https://hcservices.ecourts.gov.in/hcservices/ asked the passengers to alight. As the petitioner was getting down from the bus, the Driver of the bus in a rash and careless manner suddenly started the bus and drove the bus at a high speed, as a result of which, the petitioner lost his balance and fell down from the front entrance steps of the bus. The left front tyre of the bus ran over the right foot of the petitioner, as a result of which, the petitioner's right foot was crushed and the muscles in his foot protruded out and the bones in his foot were fractured. He was initially treated at Mayiladuthurai Government Hospital and was subsequently referred to Thanjavur. Subsequent to this he was admitted in Vinodhagan Memorial Hospital on 20.09.1997 and took treatment here. Due to the accident, number of bones in his right foot were fractured and his heel was also dislocated. Metal plate and screws were inserted in his foot to set the fractured bones and the skin removed from each of his thighs was grafted on to the bones of his right foot though surgery. The medical expenses incurred for this treatment amounted to Rs.70,000/-. At the time of accident, the petitioner was working as a Teacher in a Higher Secondary School and earning a sum of Rs.8,233/- per month. After the accident, the petitioner is not able to stand and has to take the support of others to move around. He has difficulty in taking his bath, sitting and squatting and resultantly has undergone mental agony. As such, the petitioner has claimed a compensation of Rs.3,00,000/- from the respondent under various heads under Section 166 of the Motor Vehicles Act. 4.The respondent in his Counter has resisted the claim stating that on the said date of accident, while the bus was entering the Mayiladuthurai Bus stand, the petitioner had suddenly tried to alight from the moving bus, as a result of which, he had lost his balance, fell down and sustained injuries. As such, the petitioner only has invited the accident. Hence, the driver of the bus cannot be held liable for the cause of accident. Further, the petitioner has to prove by documentary evidence, the nature of injuries sustained by him, disability and medical expenses incurred by him as a result of the accident. It has further been submitted that the claim is excessive. 5.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the accident caused due to the negligence of the respondent's bus driver? (ii) What is the quantum of compensation, which the petitioner is entitled to receive? https://hcservices.ecourts.gov.in/hcservices/ 6.On the petitioner's side, two witnesses were examined as PW1 and PW2 and 19 documents were marked as Exs.P1 to P19. On the respondents side, no witnesses were examined and no documents were marked. 7.The petitioner was examined as PW1 before the Tribunal. The PW1, in his evidence has adduced that on 20.09.1997, at 7.30 a.m. after the Conductor of the bus had asked the passengers to alight, he had tried to get down from the front entrance of the bus, bus as the driver of the bus had suddenly stared the bus, he had lost his balance and fell down. His right foot had been crushed by the front left tyre of the bus and he had sustained fractures on his left foot. On examination of Ex.P1-the FIR, it was found that the petitioner's version regarding manner of the accident is in consonance with that given in the FIR. Further, on scrutiny of Ex.P1, it was found that a criminal case had been filed against the driver of the said bus, but it is also found that the case has not been taken up by the Judicial Magistrate, Mayiladuthurai, due to lack of documentary evidence as per Ex.P2. The Motor Vehicle Inspector's Report of the said bus was marked as Ex.P3. On scrutiny of this, it is evident that the accident had not happened due to mechanical defects in the said bus. No witnesses had been examined by the respondent's side to contradict the above evidence let in by the petitioner's side and establish that the accident had not been caused by the bus driver. As such, the Tribunal held that the evidence of the PW1 is genuine and held that the accident had been caused only by the negligent act of the driver of the respondent's bus. 8.Ex.P19, the X'rays marked, shows that the petitioner has sustained multiple fractures in his right foot. Exs.P6 and P9 are the Discharge Summary and Treatment Records issued by the Vinodhagan Medical Hospital, wherefrom it is evident that the petitioner had been an inpatient in the said hospital. The Wound Certificate given to the petitioner has been marked as Ex.P4. Further, Dr.Gunasekaran, who had given the Disability Certificate, which had been marked as Ex.P16, X'ray and Ex.P17, Disability Certificate, was examined as PW2. The PW2, in his evidence has adduced that due to the fractures sustained by the petitioner, there is no movement in the right heel of the petitioner and that the toe movements are absent. Further, he has stated that as there was no fat on the heel and foot of the petitioner, the skin has been removed from his left and right thigh and grafted onto the bones of the right foot of the petitioner to enable the injury to heal. The Doctor has stated that due to this, his right foot appears very thin and has certified that the disability sustained by the petitioner in the accident as 45%. He has also stated that this is a grievous injury, which cannot be medically set right and that the petitioner has sustained a permanent partial disability of his right foot and hence he cannot use his right foot as before and move freely. https://hcservices.ecourts.gov.in/hcservices/ 9.The Tribunal, on scrutiny of Exs.P10 and P13, the Medical Bills, awarded a compensation of Rs.70,000/- for medical expenses incurred by the petitioner. Further, on scrutiny of Ex.P18, it is found that the petitioner had been under continuous treatment in hospitals for a period of five months, to get medical treatment of his leg injured in the accident. Further, on inspection of Ex.P15, the Salary Certificate of the petitioner, it is clear that he had incurred a salary of six months, due to the hospitalisation as a result of the accident. Hence, the Tribunal considering that the petitioner was earned a salary of Rs.8,128/- per month, awarded a compensation of Rs.45,000/- to the petitioner under the head of loss of income suffered by the petitioner due to hospitalisation. Further, the Tribunal on considering that the petitioner had sustained a permanent partial disability of his right foot for life awarded a sum of Rs.75,000/- under this head and also awarded a sum of Rs.25,000/- for pain and suffering undergone by the petitioner and for future loss of amenities as a result of his disability. In total, the Tribunal awarded a compensation of Rs.2,15,000/- and directed the respondent to deposit the above said award with interest at the rate of 12% per annum, from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.49 of 1998, on the file of the Motor Accident Claims Tribunal, The Principal District Judge, Nagapattinam, within a period of one month from the date of its Order. 10.The petitioner was permitted to withdraw 50% of award, after such deposit has been made, immediately and the balance 50% of the award has to be invested in a nationalised bank as fixed deposit for a period of three years and the petitioner was allowed to receive interest on such deposit, once in three months, directly from the bank. The Advocate fees was fixed as Rs.7,300/-. 11.The learned counsel for the appellant has contended in his appeal that the Tribunal, without properly appreciating the evidence of PW1, the claimant and Ex.P1, the FIR and Ex.P2, the Motor Vehicle Inspector's Report had erred in fixing the negligence on the conductor of the bus of the appellant's Corporation. It has further been contended that the Tribunal failed to take into consideration the plea of the appellant Corporation that the claimant jumped out of the moving bus and invited the trouble. Further, it has been contended that the Tribunal without properly analysing the evidence of PW2, the Doctor, fixed the disability of the claimant at 45% and erred in awarding the huge amount of Rs.75,000/- for the same. 12.Further, it has been contended that the Tribunal failed to consider the vital point ie. whether the medical expenses of Rs.70,000/- claimed by the claimant was reimbursed to him, and if so, whether he is entitled to get that amount, but without discussing this aspect, the Tribunal awarded a sum of Rs.70,000/- as was claimed. https://hcservices.ecourts.gov.in/hcservices/ 13.It has also been contended that when Rs.75,000/- has been awarded by the Tribunal for disability, it is erroneous to award Rs.25,000/- under the head of pain and suffering that may be suffered by him in future. As such, the learned counsel for the appellant has prayed to set aside the award and decree passed by the Tribunal. 14.Considering the facts and circumstances of the case and arguments advanced by the learned counsel for the appellant, who has raised a valid point that the claimant is an employee and teaching staff attached to the Government Educational Institution. As such, he could get reimbursement of medical expenses from the Government. As there was no material evidence regarding this issue before the Trial Court, this Court is not able to come to a crystal clear conclusion in this aspect and as such this point is answered in favour of the claimant. 15.The Tribunal awarded a sum of Rs.70,000/- on the strength of Exs.P10 to P13, which are medical records pertaining to expenses. Rs.45,000/- was awarded by the Tribunal as loss of income during the period of hospitalisation and medical leave and as such this Court confirms the award under this head. The Tribunal awarded a sum of Rs.75,000/- for 45% permanent disability, which this Court considers reasonable and hence the Court confirms the award granted under this head. For pain and suffering, a sum of Rs.25,000/- has been awarded by the Tribunal and the Court is of the view that the award granted under this head is reasonable as the claimant had skin grafting done on his fractured leg and has suffered loss of muscles and has difficulty in walking, sitting., As such, the award granted by the Tribunal under various heads are equitable and fair. 16.So, this Court confirms the award of Rs.2,15,000/- with 12% interest per annum, passed by The Principal District Judge, Motor Accident Claims Tribunal, Nagapattinam, in M.C.O.P.No.49 of 1998, as it is found to be reasonable and fair. 17.Already, the appellant deposited the award amount with interest, which is a sum of Rs.2,56,365/- into the credit of the M.C.O.P.No.49 of 1998, on the file of the Motor Accident Claims Tribunal, The Principal District Judge, Nagapattinam. 18.As the accident happened in the year 1998, it is open to the claimant to withdraw the entire compensation amount with accrued interest and costs, lying in the credit of M.C.O.P.No.49 of 1998, on the file of the Motor Accident Claims Tribunal, The Principal District Judge, Nagapattinam, after filing necessary payment out application, in accordance with law, subject to the deduction of withdrawals of compensation amount, if any. 19.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by The Principal District Judge, https://hcservices.ecourts.gov.in/hcservices/ Motor Accident Claims Tribunal, Nagapattinam, in M.C.O.P.No.49 of 1998, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1. The Principal District Judge, Motor Vehicles Accident Claims Tribunal, Nagapattinam. 2. The Section Officer, VR Section, High Court, Madras. + 1 c.c. to M/s. A. Babu, Advocate. S.R.No.2797. C.M.A.No.881 of 2009 KSK (CO) GSK 22.01.2010. https://hcservices.ecourts.gov.in/hcservices/