IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.2916 of 2009 & M.P.No.1 of 2009 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Division – II, Chennimalai Road, Erode. ... Appellant/Respondent Versus K.Balsubramaniam ... Respondent/Petitioner Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the decree and judgment in M.A.C.T.O.P.No.1445 of 2006, dated 03.12.2008 passed by the Motor Accident Claims Tribunal cum Additional District Court (Fast Track Court No.5), Coimbatore sitting at Tiruppur. For Appellant : Mr.N.Anand For Respondents: Mrs.R.A.Srividhya - - - J U D G M E N T The above appeal has been filed by the appellant / Tamil Nadu State Transport Corporation Limited against the decree and judgment in M.A.C.T.O.P.No.1445 of 2006, dated 03.12.2008, on the file of the Motor Accident Claims Tribunal cum Additional District Court (Fast Track Court No.5), Coimbatore at Tiruppur. 2.The short facts of the case are as follows:- On 28.05.2006, at about 12.30 hours, the petitioner was proceeding on a vehicle bearing Registration No.TN39-M-7875 from Tirupur to Uthukuli. At that time, the respondent's bus driver had driven the bus bearing Registration No.TN33-N-1968 at a high speed and in a rash and negligent manner and dashed against the petitioner. In the result, the petitioner had sustained grievous injuries https://hcservices.ecourts.gov.in/hcservices/ including multiple bone fractures. Hence, the claim petition has been filed against the respondents for a sum of Rs.9,00,000/- with interest. 3.The respondent had filed a counter statement and resisted the claim petition. The respondent submitted that as the claimant's two wheeler had also been involved in the said accident, the owner and insurer of the two wheeler are necessary parties in the claim but they have not been impleaded. The claimant's vehicle was not covered under any valid records. On 28.05.2006, the claimant had ridden the motorcycle in a rash and negligent manner and dashed against the bus. The age, income and occupation, nature of injuries and mode of treatment are denied. 4.On the plea of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Whether the accident was due to the rash and negligent act of the driver of the bus TN33-N-1968? (ii)Whether the petitioner is entitled to compensation and if so, what is the quantum?” 5.On the side of the claimant three witnesses were examined and ten documents were marked viz., First Information Report, Wound Certificate, Discharge Summary, Medical Bills, Salary Certificate, Partition deed of Ms.Vishnu Exports, Disability Certificate, X-rays, Scan report. On the side of the respondent, RW1 was examined and no documents were marked. 6.PW1 had adduced evidence stating that on 28.05.2006, at around 17.30 hours, when he was proceeding on a TVS Moped bearing Registration No.TN39-M-7875 from Tiruppur to Uthukuli Road, the respondent's bus bearing Registration No.TN33-N-1968, which was coming in the same direction and driven by its driver at a high speed and in a reckless manner, dashed against the two wheeler. The same was witnessed by PW2, Ramesh Kumar, who spoke in tandem regarding the manner of accident. PW1 further adduced evidence stating that immediately after the accident, he was taken to the Government Hospital, Tiruppur for preliminary treatment. Thereafter, he had undergone treatment at K.G.Hospital, Coimbatore, as inpatient. PW1 further stated that he had sustained lacerated injuries measuring 2 x 3 cms over his left temporal region. A portion of his skull bone was removed. The doctor, PW3, who had examined the claimant and verified the medical records had assessed the disability as 69%. PW1 further stated that he had spent a sum of Rs.2,32,780/- for medical expenses. In order to prove the same, he had marked Ex.P4, medical bill series. Before the accident, he was working as a tailor, proficient in the use of “singer machines” at a private garment firm and was earning a sum of Rs.8,000/- per month. https://hcservices.ecourts.gov.in/hcservices/ 7.On considering the evidence of the witnesses and documentary evidence, the Tribunal had awarded a sum of Rs.5,83,980/- as compensation to the petitioner, together with interest at the rate of 7.5% per annum. The breakup of compensation are as follows:- Rs.2,32,780/-, Rs.10,000/-, Rs.2,000/-, Rs.5,000/-, Rs.50,000/- Rs.25,000/- and Rs.2,59,200/- were granted towards medical expenses, loss of income during medical treatment and convalescent period, transport, nutrition, loss of amenities, pain and suffering, loss of income due to disability at 60% respectively. 8.Aggrieved by the same, the appellant has filed the above appeal against the award and decree passed by the Tribunal. 9.The learned counsel for the appellant argued that the Tribunal had awarded a sum of Rs.2,59,200/- under the head of “loss of earning”, which is on the higher side. Rs.50,000/- awarded under the head of loss of amenities is also on the higher side. The doctor had assessed the disability as 69%, which is also on the higher side. Actually, the accident had been committed by the rider of the motorcycle, i.e., the claimant herein, due to his rash and negligent manner of riding. 10.The learned counsel for the claimant argued that the claimant was proceeding on a two wheeler motorcycle. At that time, the respondent's bus driver had driven the bus in a reckless manner in the same direction, at a high speed and had hit against the motorcycle. In the result, the claimant had sustained injuries on his right side head, left hand, right leg, frontal region of head and other bodily injuries. A portion of the skull bone was removed and the affected area was covered by the skin which does not give permanent safety to the brain. The medical expenses alone was a sum of Rs.2,32,780/-. The attender charges was not considered. The claimant's brain had been totally affected. Therefore, the nervous system has been impaired, due to which the movements of the claimant's limbs have been totally affected. After the accident, the claimant is unable to perform his normal work. 11.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the compensation under the head of loss of earning power of a sum of Rs.2,59,200/- is on the higher side. Therefore, this Court modifies the compensation as follows:- Rs.2,32,780/- towards medical expenses; Rs.30,000/- for pain and suffering; Rs.10,000/- for nutrition; Rs.10,000/- for transport; https://hcservices.ecourts.gov.in/hcservices/ Rs.10,000/- towards loss of income during medical treatment period; Rs.15,000/- for attender charges; Rs.1,30,000/- for loss of income due to disability. Rs.1,00,000/- towards loss of amenities and permanent comfort, since a portion of a skull bone of the petitioner had been removed. In total, this Court awards Rs.5,37,780/- as compensation to the claimant as it is found to be fair and justifiable. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. 12.On 26.10.2009, this Court imposed a condition on the appellant / Tamil Nadu State Transport Corporation Limited to deposit the entire compensation amount with interest to the credit of M.A.C.T.O.P.No.1445 of 2006, on the file of Motor Accident Claims Tribunal cum Additional District Court (Fast Track Court No.5), Coimbatore at Tiruppur. Now, it is open to the claimant to withdraw the modified compensation amount, as mentioned above, lying in the credit of M.A.C.T.O.P.No.1445 of 2006, on the file of Motor Accident Claims Tribunal cum Additional District Court (Fast Track Court No.5), Coimbatore at Tiruppur, after filing a Memo along with this order. Likewise, the appellant / Tamil Nadu State Transport Corporation is at liberty to withdraw the excess compensation amount lying in the credit of M.A.C.T.O.P.No.1445 of 2006, on the file of Motor Accident Claims Tribunal cum Additional District Court (Fast Track Court No.5), Coimbatore at Tiruppur, after observing necessary formalities of the Court below. 13.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.A.C.T.O.P.No.1445 of 2006, dated 03.12.2008 on the file of Additional District Court (Fast Track Court No.5), Coimbatore at Tiruppur is modified. There is no order as to costs. r n s Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Additional District Judge (Fast Track Court No.5), Motor Accidents Claims Tribunal, Coimbatore at Tiruppur. + 1 cc to Mr. N. Anand, Advocate SR No.37300 + 1 cc to Mrs. Ra. Srividhya, Advocate SR No.37369 UG(CO) SR/14.10.2011 ORDER MADE IN C.M.A.No.2916 of 2009 https://hcservices.ecourts.gov.in/hcservices/