IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.07.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.772 of 2001 G.Balaji ... Appellant/Petitioner Vs. The Managing Director Metropolitan Transport Corpn. Ltd. (Division-I) Pallavan Salai, Chennai - 2 ... Respondent/Respondent This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the Judgment and Decree of the Motor Accidents Claims Tribunal (VI Judge, Small Causes Court), Chennai passed in M.C.O.P.No.122/1998 dated 27.09.1999. For Appellant : Mr.A.Shanmugaraj For Respondent : Mr.Krishnamurthy J U D G M E N T The petitioner in M.C.O.P.No.122 of 1998 on the file of the Motor Accident Claims Tribunal (VI Judge, Court of Small Causes, Chennai) has preferred the appeal against the award dated 27.09.1999 passed in the said M.C.O.P. in so far as the disallowed portion of the claim is concerned. 2. The case of the appellant/petitioner is as follows:- On 17.07.1997 at about 3.30 p.m. while the appellant/petitioner was travelling as a passenger in the respondent transport corporation's bus bearing Regn.No.TCB 1586, its driver drove it in a rash and negligent manner from south to north on the Velachery Main Road, entered the wrong side of the road, dashed against the lorry bearing Registration No.TNH 5229 that came in the opposite direction and thus caused the accident. In the said accident, the appellant/petitioner sustained grievous injuries including a crush injury and a fracture on his right https://hcservices.ecourts.gov.in/hcservices/ elbow. For the injuries sustained by the appellant/petitioner he was given first aid treatment at Government Royapettah Hospital and then treated as an in-patient in Hindu Mission hospital from 17.07.1997 to 26.07.1997. Despite proper treatment, the appellant/petitioner sustained permanent disability. As the accident was the result of the rash and negligent driving of the bus belonging to the respondent transport corporation by its driver, the respondent transport corporation is liable to pay compensation to the appellant/petitioner to the tune of Rs.1,25,000/- as per the calculation made by him. Based on the above said contentions, the appellant/petitioner prayed for an award directing the respondent to pay a sum of Rs.1,25,000/- as compensation together with interest and costs. 3. The claim made by the appellant/petitioner in the MCOP was resisted by the respondent transport corporation by filing a counter statement denying the petition averments regarding the manner in which the accident took place, the alleged negligence on the part of the driver of the bus belonging to the respondent and the reasonableness of the amount claimed as compensation. It was also contended therein that there was no rashness or negligence on the part of the driver of the bus belonging to the respondent transport corporation; that the lorry bearing Regn. No.TNH 5229 that came in the opposite direction hit the rear side right corner of the bus; that in the said process, the appellant/petitioner, who was sitting in the rear side seat of the bus, negligently stretched out his arm out of the bus and got injured and that the appellant/petitioner himself contributed for the above said accident. It was also the contention of the respondent transport corporation that the petition for compensation was bad for non- joinder of necessary parties, as the owner and insurer of the said lorry were not made parties to the MCOP. 4. The Tribunal conducted enquiry, in which two witnesses were examined as P.W.1 and P.W.2 and nine documents were marked as Ex.P1 to Ex.P9 on the side of the appellant herein/petitioner and only one witness was examined as R.W.1 and no document was marked on the side of the respondent. The Tribunal considered the evidence in the light of the arguments advanced on either side and upon such a consideration, came to the conclusion that the accident was the result of the rash and negligent driving of the bus belonging to the respondent by its driver; that the petition was not bad for non-joinder of necessary parties and that the respondent transport corporation was liable to pay the compensation to the petitioner for the injuries sustained by him and the consequences flowing from the said injuries. Based on the disability certificate produced on the side of the appellant herein/petitioner, the Tribunal held that the appellant sustained injuries which led to permanent disability at 40% and awarded a total sum of Rs.50,750/- as compensation with the following split up particulars: https://hcservices.ecourts.gov.in/hcservices/ Compensation for permanent disability : Rs.30,000/- For Pain and Suffering : Rs. 5,000/- Transport Expenses : Rs. 1,000/- Expenses on extra nourishment : Rs. 1,000/- Medical Expenses : Rs.13,750/- ------------- TOTAL Rs.50,750/- ------------- 5. Claiming that the above said amount is inadequate, the appellant herein/petitioner has come forward with this Civil Miscellaneous Appeal on various grounds set out in the memorandum of grounds of appeal. 6. The point that arises for consideration is, "whether the amount awarded by the Tribunal is inadequate requiring upward revision?" 7. This court heard the submissions made by Mr.A.Shanmugaraj, learned counsel appearing on behalf of the appellant and Mr.Krishnamurthy, learned counsel appearing on behalf of the respondent. The materials available on record were also perused. 8. There is no dispute over the fact that the petitioner sustained injuries in an accident that took place on 17.07.1997 at about 3.30 p.m. and in that accident, the bus bearing Regn. No.TCB 1586 belonging to the respondent transport corporation and a lorry bearing Regn. No.TNH 5229 were involved. It is also not in dispute that the petitioner was a passenger in the above said bus and he sustained injuries in the impact between the bus and the lorry. It is the specific case of the appellant herein/petitioner that the driver of the bus drove it in a rash and negligent manner and entered the wrong side of the road and that thus the bus involved in a collision with the above said lorry that came in the opposite direction. Though the said contention of the appellant herein/petitioner was denied by the respondent transport corporation in its counter filed before the Tribunal, the respondent transport corporation has not preferred any appeal or cross objection against the finding of the Tribunal that the accident was the result of the rash and negligent driving of the bus by its driver. Nor did the respondent transport corporation challenged the award on the question of liability of the respondent transport corporation based on theory of fault. The rejection of the respondent transport corporation's contention that the MCOP was bad for non-joinder of necessary parties has also not been challenged. The learned counsel for the respondent also submits that the respondent has no serious grievance against the said findings. Therefore, the findings of the trial court regarding question of negligence and the question of non-joinder of necessary https://hcservices.ecourts.gov.in/hcservices/ parties have got to be confirmed, as the same have not been challenged. This court also, after going through the evidence, finds no reason to interfere with the said findings of the Tribunal. Hence the findings of the Tribunal that the accident took place due to rash and negligent driving of the bus belonging to the respondent transport corporation by its driver and that the claim petition made against the respondent transport corporation alone without impleading the owner and insurer of the other vehicle, namely lorry bearing Regn.No.TNH 5229 is perfectly maintainable, are hereby confirmed. 9. Turning to the question of quantum of compensation, the learned counsel for the appellant submitted that the Tribunal, having accepted the assessment of disability made by the Medical Officer, committed an error in awarding a meagre sum of Rs.30,000/- as lumpsum compensation for permanent disability; that the amounts awarded on all other heads are grossly inadequate; that the total amount awarded by the Tribunal was far less than the reasonable amount to which the appellant is entitled and that hence the amount awarded by the Tribunal shall be enhanced and the total amount claimed in the petition should be awarded as compensation. 10. On the other hand, the learned counsel for the respondent would contend that though the Tribunal might have chosen to refer to the disability certificate marked as Ex.P7 to hold that the appellant herein/petitioner sustained permanent disability, since the Tribunal assessed disability at 30% as against 40% certified by the Medical Practitioner, the Tribunal had rightly awarded a sum of Rs.30,000/- as lumpsum compensation for the disability suffered by the appellant herein/petitioner and that hence there is no need to interfere with the award of the Tribunal regarding quantum. 11. It is evident from Ex.P1 that the appellant herein/petitioner, soon after the accident, was given treatment at Royapettah Government Hospital, Chennai. From Ex.P2 - discharge summary it is quite obvious that the appellant herein/petitioner was admitted in Hindu Mission Hospital, Tambaram as an in-patient on 17.07.1997 and discharged on 26.07.1997. Ex.P2 also shows that the petitioner sustained fracture of humerus on the right hand near the elbow for which tension band wiring treatment was given. It is seen from the said document, the fracture sustained by the petitioner was not a compound fracture. One Dr.Saichandran who was examined as P.W.2. issued Ex.P7 - disability certificate opining that the appellant herein/petitioner has sustained 40% permanent disability. However, in his testimony, he would admit that the disability may be 5% less than the assessment made by him. Therefore, as per P.W.2's evidence itself, the permanent disability suffered by the appellant herein/petitioner could be assessed at 35%. 12. The petitioner was aged only 22 years at the time of accident. Therefore, in due course of time, there is every possibility of the disability getting reduced if proper physiotherapic exercises are practised. Hence, this court accepts https://hcservices.ecourts.gov.in/hcservices/ the contention of the learned counsel for the respondent that though P.W.2 might have assessed the permanent disability at 40%, the same could be reasonably assessed at a lesser percentage, namely 30%. Since the appellant herein/petitioner was aged 22 years only at the time of accident, while adopting the method of lumpsum payment for permanent disability, this court deems it fit and proper to award the same at the rate of Rs.1,500/- per one percentage of disability. If such a calculation is made, the lumpsum compensation for permanent disability shall be fixed at Rs.45,000/-. 13. Taking into account the nature of injuries, we can assume that the petitioner might have suffered a total loss of earning for a period of two months from the date of accident. Though the appellant/petitioner might have stated that he was getting a daily income of Rs.100/- as an assistant to mason, it shall be proper to take his daily income at Rs.75/-. Deducting 4 days from a month as rest days without pay, his monthly income can be fixed at Rs.1,950/-. Hence the loss of income for two months shall be Rs.3,900/-. This amount shall be awarded as compensation for total loss of earning for two months from the date of accident. 14. There is no need to revise the amount awarded towards transport expenses and extra nourishment. However, for the damages caused to the clothing and other belongings of the appellant/ petitioner, a sum of Rs.350/- can be awarded. As the Tribunal awarded a sum of Rs.13,750/- towards the medical expenses as against a sum of Rs.13,746.63P covered by the medical bills produced as Ex.P3, the same has got to be confirmed. 15. In line with the above said discussion, the total amount to which the appellant/petitioner shall be entitled as compensation is fixed at Rs.75,000/-. At the cost of repetition the details are given as under. Lumpsum compensation for permanent disability : Rs.45,000/- For pain and suffering : Rs.10,000/- For medical expenses : Rs.13,750/- Loss of income for two months from the date of accident : Rs. 3,900/- Transport Expenses : Rs. 1,000/- Expenses on extra nourishment : Rs. 1,000/- Compensatin for damage of clothing, etc. : Rs. 350/- ------------- TOTAL : Rs.75,000/- ------------- https://hcservices.ecourts.gov.in/hcservices/ 16. For all the reasons stated above, this court comes to the conclusion that, it shall be just and proper to modify the award of the tribunal by increasing the total amount of compensation from Rs.50,750/- to Rs.75,000/-. However, this court feels that the interest awarded by the Tribunal at the rate of 12% is on the higher side and the same has got to be reduced to 9% per annum. Subject to the above said modifications, the award of the Tribunal is liable to be confirmed in all other respects. 17. In the result, the Civil Miscellaneous Appeal No.772 of 2001 is allowed in part and the award of the Tribunal is modified by enhancing the total amount of compensation to Rs.75,000/- from Rs.50,750/- and reducing the rate of interest from 12% per annum to 9% per annum. In all other respects, the award of the Tribunal shall stand confirmed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To 1) The Motor Accidents Claims Tribunal (VI Judge, Small Causes Court), Chennai 2) The Section Officer, V.R.Section, High Court, Madras 1 CC To Mr.Mr.Krishnamurthy, Advocate, SR NO.40067 1 CC To Mr.A.Shanmugaraj, Advocate, SR NO.40242 C.M.A.No.772/2001 asm(co) pmk/12.8.2008. https://hcservices.ecourts.gov.in/hcservices/