IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.04.2008 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.No.1710 of 2003 ***** Tamil Nadu State Transport Corporation (Villupuram Division I) Ltd., Villupuram rep. By its Managing Director. Formerly known as Thanthai Periyar Transport Corporation, Villupuram) ... Appellant Vs. Magarajan alias Magarasu ... Respondent Prayer: Appeal filed against the Judgment and Decree dated 23.2.2001 made in M.C.O.P.No.119 of 1997 on the file of the Motor Accident Claims Tribunal (Sub Court), Chidambaram and praying to set aside the same. For Appellant : Mr.Rajnish Pathiyil For respondent : Mr.R.Srinivas JUDGMENT The Civil Miscellaneous Appeal is filed by the Tamil Nadu State Transport Corporation (Villupuram Division I) Limited, Villupuram represented by its Managing Director, against the award of the Motor Accident Claims Tribunal viz., Sub Judge, Chidambaram dated 23.02.2001 passed in M.C.O.P.No.119 of 1997, awarding a compensation of Rs.25,000/- with interest at 9% per annum. 2.The respondent/claimant has filed a claim petition, claiming a compensation of Rs.1,00,000/- with interest at 18% per annum from the date of accident, towards loss of income, pain and suffering, medical expenses, etc. 3.The factual matrix to the present appeal are succinctly set out below:- (i)The respondent/claimant Magarasu on 10.03.1997 was travelling https://hcservices.ecourts.gov.in/hcservices/ as a paid passenger in the bus belonging to the appellant/respondent from Nandhimangalam Village, Chidambaram. The bus was driven by the driver in a rash and negligent manner and the bus capsized in the turning at Mangudi and Velakudi Cross Road and the respondent/claimant sustained injuries and he was admitted to the Government Hospital, Chidambaram as inpatient and subsequently at Private Hospitals. The respondent/claimant inspite of treatment, became permanently disabled. The appellant/ respondent is vicariously liable to pay compensation to the respondent/claimant as claimed in the petition. (ii)The pleas of the appellant/Transport Corporation are that on 10.03.1997 when the appellant/respondent bus bearing registration No.TN32/N0046 was proceeding from Nandhimangalam to Chidambaram, near Theethukudi Village, the bus was proceeding in a slow and diligent manner and at that time, a cyclist suddenly crossed the road and to avert the accident, the appellant's driver applied the break and turned the bus to the left, resulting in the bus falling capsized thereby some passengers sustained injuries and therefore, there was no rash and negligent driving on the part of the bus driver. (iii)Before the Tribunal, on the side of respondent/ claimant, P.W.1 was examined and Exs.P.1 to P.4 were marked and on the side of appellant, R.W.1 was examined and no documents were marked. The Tribunal on consideration of oral and documentary evidence came to the inevitable conclusion that the accident happened due to the rash and negligent driving of the bus by its driver and awarded a compensation of Rs.25,000/- with interest at 9% per annum from the date of petition till date of payment. The Tribunal fixed the Advocate's fee at Rs.1000/-. 4.According to the learned counsel for the appellant, the Tribunal erred in not taking note of the fact that the cyclist suddenly crossed the road and as a result of which the accident took place and that the Tribunal wrongly placed reliance on the evidence of P.W.1, the claimant in regard to the negligence aspect and it fixed the excessive compensation and further that the evidence of R.W.1- driver of the appellant Corporation was not taken into consideration by the Tribunal and in any event for the simple injuries sustained, the compensation of Rs.25,000/- (Rupees twenty five thousand only) awarded was on the higher side. 5.It is the evidence of P.W.1-Magarajan @ Magarasu (claimant) that on 10.03.1997 he travelled in the Thanthai Periyar Transport Corporation bus and that the bus was plying in a high speed and that he sustained injuries on his left ribs, left hand and on the head and that he took treatment at the Chidambaram Government Hospital, besides taking treatment with a Private Doctor-Natarajan and that after the accident, he is not able to do his work. Ex.P.1 is the Xerox Copy of FIR. Ex.P.2 is the Accident Register. Ex.P.3 is the Consultation Chit https://hcservices.ecourts.gov.in/hcservices/ given by the Doctor. Ex.P.4 is the three prescriptions prescribed by the Doctor in favour of the claimant/respondent. From the perusal of the Ex.P.1-Xerox Copy of FIR, it is evident that Thiru. Devanayagam, V.A.O. Of Vadakkumankudi, Kattumanarkudi Taluk has given a report about the accident that took place on 10.03.1997. It transpires from the FIR that Deivasigamani @ Chinnakutti S/o.Rajamanickam died on the spot, after the ill-fated bus in Cross Road capsized, because of the driver driving the bus in high speed and in a rash manner. Over 15 persons, male and female sustained simple and grievous injuries and that they were sent to the Government Hospital. Based on the FIR, a case was registered in Annamalai Nagar, P-6 Police Station in Crime No.122/1997 under Section 279, 337, 338, 304-A I.P.C. on 10.03.1997. It is evident from Ex.P.2-Accident Register that the claimant has sustained injuries. The claimant has also taken treatment for the injuries sustained. 6.R.W.1-Rajendran, the Conductor of the bus in his evidence has deposed that on 10.03.1997 the bus was driven by a driver employed temporarily by the appellant Corporation and that in Velapudi Road suddenly a person came from east to west and consequently the driver applied the breaks, as a result of which the accident took place and that the driver of the bus is not responsible for the accident. As far as the present case is concerned, the driver who drove the bus on 10.03.1997 was not examined by the appellant Corporation before the Tribunal. The fact that the bus capsized itself shows that it is a case of 'res ipsa loquitur', in the considered opinion of this Court. This view is strengthened by the fact that well over 15 persons have sustained injuries arising out of the accident. The evidence of P.W.1, Devanayagam, V.A.O. is an unassailable one. It is quite natural, cogent and convincing and therefore, the same is accepted by this Court. Though a plea is taken by the appellant Corporation that a cyclist suddenly crossed the road, the same has not been substantiated to the satisfaction of this Court and hence, the said plea of the Corporation in this regard is rejected. Therefore, this Court agrees with the finding given by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of the bus and resultantly, the driver of the bus is held responsible for causing the accident. 7.According to Lord Blackburn in 1880 5 AC "where any injury is to be compensated by damages in setting the sum of money to be given ... you should as nearly as possible get at that sum of money which will put the person who has been injured in the same position as he would have been if he had not sustained the wrong". 8.Further, the damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant but would consider them to be sensible and fair (Salmon LJ in (1968) I All ER 726. https://hcservices.ecourts.gov.in/hcservices/ 9.For the injury sustained by the respondent/claimant, the Tribunal has awarded Rs.25,000/-, as against the claim of Rs.1,00,000/-. In Ex.P.2-Accident Register, the injuries mentioned are: 1.Haematoma on the (L) side of chest 1 c.m. In diameter. Tender 2.Lacerated wound on the (L) Forearm 2.5 x 2 x 2 c.m. Ex.P.3 is the Consultation Chit given by the Doctor in respect of the claimant. Ex.P.4 is the three prescriptions prescribed by the Doctor to the claimant. 10.A cursory perusal of Exs.P.2 to P.4 do clearly indicate in candid terms that the injury sustained by the claimant are only simple in nature. They are not by any stretch of imagination to be a grievous one. Hence, this Court is of the considered opinion that a sum of Rs.25,000/- awarded by the Tribunal towards compensation to the claimant is on the higher side and excessive. In C.M.P.No.15107 of 2004 and C.M.P.No.12616 of 2004, this Court on 07.03.2005 has permitted the respondent/claimant to withdraw 50% of the award amount with entire accrued interest and costs without furnishing security and directed the Tribunal to invest the balance amount in a nationalised bank initially for a period of three years, to be renewed thereafter till the disposal of appeal under the re- investment scheme. 11.Considering the overall assessment of the facts and circumstances of the case in an integral fashion and on examination of available material evidence on record, this Court opines that the award of Rs.25,000/- as compensation fixed by the Tribunal to the claimant for the injuries sustained is on a higher note and therefore, awards only 50% of the amount awarded as just and prudent compensation and the claimant is entitled to claim only the proportionate costs and interest accrued thereto and in that view of the matter, allows the Civil Miscellaneous Appeal on above terms. Resultantly, the appellant Corporation is given the liberty to claim the balance amount from the Tribunal, in the manner known to law. By virtue of this Judgment, if any amount is to be recovered from the respondent/claimant, it is open to the appellant to claim the same in accordance with law. Bearing in mind the facts and circumstances of the case, the parties are directed to bear their own costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sgl To The Sub Judge, Motor Accidents Claims Tribunal, Chidambaram. RL(CO) km/17.7. C.M.A.NO.1710 OF 2003 https://hcservices.ecourts.gov.in/hcservices/