IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.382 of 2008 The Branch Manager Tamil Nadu State Transport Corporation Ltd., Kumbakonam Division-IV Thirumaiyam Road, Pudukottai. ..Appellant/Respondent Vs C.Pushpa ..Respondent/Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 09.08.2007, made in M.C.O.P.No.333 of 2006, on the file of the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai. For Appellant : Mrs.B.Vijayalakshmi For Respondent : Mr.Francis C.D. Cruz for Mr.P.B.Ramanujam 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 09.08.2007, made in M.C.O.P.No.333 of 2006, on the file of the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai, awarding a compensation of Rs.11,84,296/- with 7.5% interest from the date of filing the petition till the date of payment of the compensation. 2.Aggrieved by the said Order, the appellant/respondent, The Branch Manager, Tamil Nadu State Transport Corporation Ltd., Pudukottai, has filed the above appeal to set aside the award and decree. 3.The short facts of the case are as follows: The petitioner was aged about 45 years and was working as a Commercial Assistant in Systems Engineering and was earning a sum of Rs.3,000/- per month. On 16.09.2005, when the petitioner was https://hcservices.ecourts.gov.in/hcservices/ travelling as a passenger in the respondent Transport Corporation bus bearing registration No.TN55 N0242, from Thirumayam to Chennai from south to north direction and at about 5.30 a.m., when the bus was nearing Kowlambakkam Village road junction, on GST Road, the bus driver drove the bus in a rash and negligent manner and dashed against the lorry bearing registration No.TNR 4186, which was also proceeding in front of the bus in the same direction, resulting the grievous injuries to the passengers including the petitioner. The petitioner sustained crush injury of both lower climbs, fracture of both bones in left leg, inferior public rami fracture with dislocation of pelvis and compound grade-III comminuted both bone right leg. Immediately, after the accident, the petitioner was admitted in Government Hospital, Chengelpet, and later shifted to Vijaya Health Centre, Chennai and discharged on 31.10.2005. 4.Regarding the accident, a case in FIR No.359/2005 was registered with Padalam Police Station and investigated. The accident occurred solely due to the rash and negligent driving of the respondent Transport Corporation bus driver. Due to the injuries sustained by the petitioner, the petitioner has suffered loss of income, loss of earning power, medical expenses, transport expenses, extra-nourishment charges, pain and suffering, disability etc., The petitioner has claimed a sum of Rs.22,38,844/- as compensation for the injuries sustained by her under Section 166 of Motor Vehicles Act, 1988. 5.The respondent, in his Counter resisted the claim and has denied the manner of accident as alleged in the claim. He has stated that on 16.09.2005, the respondent's bus was plying from Pudukottai to Chennai. When the bus was proceeding along GST road near Padalam at 5.30 a.m. along the right track, the lorry bearing registration No.TNR 4186, was proceeding along the left side track. At that time, the lorry came to the right side track in order to over take a vehicle proceeding ahead of it. As the lorry could not overtake the vehicle, the lorry driver abruptly braked and stopped the vehicle without caring for other vehicles proceeding on the road. On seeing it, the respondent driver stopped the bus but in spite of it, the bus had dashed against the lorry and so the impugned accident happened. Thus, the driver of the lorry bearing registration No.TNR 4186 was solely responsible for the accident. The claim petition is also bad for non-joinder of the necessary parties. Further, the amount claimed under various heads are excessive and so the respondent has prayed for dismissal of the petition. 6.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whether the accident occurred due to the rash and negligent driving of the driver of the bus bearing registration No.TN55 N0242 or the https://hcservices.ecourts.gov.in/hcservices/ contributory negligence on the part of the driver of the lorry bearing registration No.TNR 4186? (ii) Whether the petitioner is entitled to claim compensation from the respondent? If so, what is the reasonable amount that can be awarded as compensation? 7.The claimant, C.Pushpa, who travelled as a passenger in the Government Transport bus, was examined as PW1. In her chief- examination, she adduced that she was seated on the second seat adjacent to the window; that the bus driver was driving the vehicle at a high speed, and had dashed against the lorry, which was going ahead of the bus. But, in her cross-examination, she admitted that only after hearing a sound, she realised that the accident had occurred. She had further stated that she came to know from the co-passengers that the fault was on the bus driver. In support of her claim, she had examined three witnesses as PW1 to PW3 including herself and marked 30 documents as Exs.P1 to P30. The Head Constable attached to the Padalam Police Station was examined as PW3 and through him the Charge Sheet laid against the bus driver has been marked as Ex.P28 and the Alteration Report as Ex.P29. Ex.P1 is the FIR, registered on the complaint given by one Amalasavier, the brother of one of the passenger, who succumbed to the injuries in the accident. It is averred in the FIR that when the bus was proceeding near Kowlambakkam, it had dashed against the lorry, which was going ahead of it and according to the said averment, the entire negligence was on the bus driver. Ex.P2 is the Rough Sketch, where the accident is shown on the left side of the GST Road ie. on the western end of the said road. As per the Charge Sheet, Ex.P28, the lorry driver has been found to be at fault for having driven the vehicle in a negligent manner and dashed against the bus, which was going ahead of it in the right direction. 8.The bus driver has been examined as RW1 and he has stated in his evidence that at the place of accident, he was going on the right track and the lorry was going ahead of the bus on the left track. The lorry driver without giving any signal, suddenly came to the right track and on seeing it, even after applying brake, the bus driver could not stop the bus and it had dashed against the lorry. According to him, the left front portion of the bus hit against the right side of the lorry. His evidence clearly indicated that the accident occurred on the right track of the road, whereas Ex.P2 is otherwise. In Ex.P2, Site Plan, the place of the accident is shown on the left track, which is in consonance with the evidence of the claimant that the bus, while overtaking the lorry, dashed against the lorry on its right side with its left front portion. Though the PW1 has not seen the accident, the evidence placed on record clearly established that it is the negligence of the bus driver, which caused https://hcservices.ecourts.gov.in/hcservices/ the accident. It is pertinent to point that the claimant has proved the accident though she has not deposed how it happened to establish the negligence on the part of the bus driver. 9.This hardship is sought to be avoided by applying the principle of res ipsa loquitor in this case. There is a duty cast on the bus driver to exercise to reasonable care to avoid such an act, which can be reasonable foreseen as likely to happen. Assuming that the lorry driver had come in the path of the bus suddenly without any signal, even then if the bus, which was going on the back had left sufficient space between the bus and the lorry, the bus would not have dashed against the lorry, causing the grave accident. But, in this case, the manner in which the accident had taken place clearly established that the bus driver was driving the vehicle at a high speed and that is why he was unable to control the vehicle. Further, it is seen that since, the bus was keeping too close to the rear side of the lorry ahead, it had failed to pull up in time and had hit behind the lorry. Hence, considering the above aspects, the Tribunal came to a conclusion that the entire negligence was on the part of the bus driver and that no contributory negligence could be attributed to the lorry driver. 10.The petitioner has sustained severe injuries on both her limbs and according to her, she was taken away from the bus only after removing the front seat. Immediately after the accident, she was taken to Government Hospital, Chingelpet and later shifted to Vijaya Health Centre on the same day. To prove that she was a passenger in the said bus, copy of reservation ticket is filed as Ex.P3. While she was taken to Vijaya Health Centre, Chennai, it crush injury on her right leg exposing fractured bones and muscles with skin loss, lacerated wound on the left leg exposing muscles and bones with fracture and hip injury. In Ex.P5, Discharge Summary, the same injuries are noted with another injury of interior dislocation of pelvis. She was admitted on 16.09.2005 and discharged on 31.10.2005. Four surgeries have been performed on different dates ie. 16.09.2005, 27.09.2005, 10.10.2005 and 27.10.2005. Since her left leg had grade III with compound communited segmental fracture, her left leg was amputated above the knee. External fixator was fixed for the right leg under the wound depridement and transposition flap with SSG and on 27.10.2005 pelvis external fixator had been removed. Again on 19.12.2005, she had been admitted in Vijaya Health Centre and was discharged on 26.12.2005. Another, surgery was performed on her on 20.12.2005 to remove the external fixator and ilizarov fixator from right leg. Thereafter, again on 20.02.2006, she had been admitted in the same hospital and was discharged on 23.02.2006. On 22.02.2006, proximal corticotomy was done to her. Again in October 2006, she is said to have been admitted and rod was removed and artificial she was fixed to her on her right leg. It is also seen that an artificial limb has been fixed for her left leg. https://hcservices.ecourts.gov.in/hcservices/ 11.While, she was examined as PW1, she has stated that she is unable to walk and she should be lifted by two persons in order to stand even for few minutes. She has stated that she finds it difficult to attend to her nature's call and hence she is using only bedpan till date. The claimant was brought to the Court only in the wheel chair. 12.Before accident, she is claimed to have worked as a Clerk in Systems Engineering and was drawing a sum of Rs.3,000/- per month. To prove her employment and salary, she had marked the letter given by her employer as Ex.P25. The Chief Executive of the said company has given a letter stating that the claimant was working as Commercial Assistant and was drawing the consolidated salary of Rs.3,000/- per month till the date of accident. To show her educational qualification, she has filed the Degree Certificate as Ex.P24. 13.Dr.Saichandran, who was examined as PW2 and who is an Orthopaedic Surgeon, has examined her and assessed her disability for the amputation of left leg as 70% and for the disability caused for right leg, as the bones were not united, at 30%. Further, as there was fracture in the pelvis and it had remained ununited, she is unable to stand or walk. Hence, for the disability caused due to the fracture of pelvis, he had assessed the disability of 25%. In total, she had given the disability sustained by the petitioner as 125%. That apart, Government Institute of Rehabilitation Medicine, K.K.Nagar, has issued the Disability Certificate marked as Ex.P23, stating that the petitioner has sustained 70% permanent physical impairment. The Doctor further stated that the petitioner has suffered permanent and total disablement for her entire period of life. She will not be able to walk or do any work, much less the household work. According to the claimant, her husband, who is working in a private company is rendering all services to her and also for the household. She feels ashamed to go out as a lame person and lamented before this Court about her pitiable condition. She has marked Exs.P8 to P22, the Medical Bills, totalling Rs.5,39,295.80 as the expenses incurred by her for medical treatment. The Tribunal, on scrutiny of bills and also considering that the respondent had not disputed this, awarded a compensation of Rs.5,39,296/- under the head of medical expenses to the petitioner. 14.The Tribunal, then on considering the salary of petitioner as Rs.3,000/- per month and deducting a sum of Rs.1,000/- for personal expenses took the monthly contribution by her to her family as Rs.2,000/-. Her annual contribution was taken as Rs.24,000/- and taking the age of the petitioner as between 40 to 45 years, as no definite material has been filed to prove her age, adopted a multiplier of 13 and calculated her loss of income during treatment and loss of future earning power as Rs.3,25,000/-. She has stated before this Court that she is not able to have sexual relationship https://hcservices.ecourts.gov.in/hcservices/ with her husband. Considering the nature of her injuries and its consequences, definitely it will be difficult for her to have sexual relationship with her husband. Hence, for loss of marital pleasure, the Tribunal awarded a sum of Rs.50,000/- to the petitioner. 15.She has to depend on others for each and every work. She has stated that she is not able to attend her calls of nature, unable to stand, walk and unable to do normal household works and hence the Tribunal awarded her Rs.1,00,000/- towards loss of amenities. As she has undergone more than six surgeries and as her left leg had been amputated, the Tribunal granted her Rs.1,00,000/- towards pain and suffering. Further, the Tribunal granted a sum of Rs.10,000/- towards transport expenses and Rs.10,000/- towards extra-nourishment. 16.Further, the Tribunal on taking into account, that because both her limbs had been disabled, she would not be able to do any work including tending of her son, without outside support and taking into account that even for household work and kitchen work, she had to employ persons to do the work and considering the mental agony suffered by her, granted an award of Rs.50,000/- towards mental agony and hardship. In total, the Tribunal granted a sum of Rs.11,84,296/- as compensation to the petitioner and directed the respondent to pay and deposit above said award amount with interest at the rate of 7.5% per annum from the date of filing of petition till the date of deposit, into the credit of the M.C.O.P.No.333 of 2006, on the file of the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai, within a period of two months from the date of its Order. Further, the petitioner was permitted to withdraw 50% of the award amount, after appeal time, and the remaining amount was to be deposited in anyone of the Nationalised Banks for a period of three years as fixed deposit and the petitioner was permitted to receive interest on such deposit directly from the Bank. Court fee for the award amount was fixed at Rs.11,215.45. Excess Court fee was to be refunded to the petitioner after appeal time. Advocate fees was fixed at Rs.18,843/-. 17.The learned counsel for the appellant has argued in his appeal that the claimant herself has been awarded a sum of Rs.3,25,000/- for 70% disability, by the Tribunal, by adopting a multiplier of 13. Further, the award of Rs.1,00,000/- for pain and suffering and an award of Rs.50,000/- for mental agony granted by the Tribunal is erroneous as these come under a single head and so a grant under two heads is not proper. Further, it has been argued that as the owner and insurer of lorry were not impleaded, it renders the claim petition not maintainable. As such, the respondent has argued that an award of Rs.11,84,296/- granted by the Tribunal is not sustainable and hence should be set aside. https://hcservices.ecourts.gov.in/hcservices/ 18.The learned counsel for the respondent argued that the claimant underwent four surgeries in the private hospital and her leg was also amputated and that she is walking with the support of artificial limb. Her physical appearance has been disfigured and due to this condition she is in a pitiable state. Further, the learned counsel for the respondent pointed out that the medical bills alone amounted to about Rs.5,40,000/-. Due to this accident, for the rest of her lift-time, she has been deprived of enjoyment of life. She is not even able to attend to nature's call, without taking physical help of others. The award passed by the Tribunal is legally, a well considered one and fair. 19.For the foregoing reasons, facts and circumstances of the case, arguments advanced by the learned counsels on either side, this Court is of the view that as per Exs.P8 to P22, the medical bills, wherein the attenders salary, ambulance charges, cost of artificial limbs, doctor's fees, dressing charges have all been mentioned, it is evident that the medical expenses claimed is fair and reasonable. For assessment of the rest of the claim, the Tribunal had taken her net income as Rs.24,000/- per year and age of 44 and adopted a multiplier of 13 to assess compensation and awarded a sum of Rs.3,25,000/-. This Court, at this juncture, points out that the Tribunal had originally fixed her income as Rs.3,000/- in the relevant period of accident ie.2005. But, the Tribunal had erroneously deducted 1/3rd share as personal expenses, which is not applicable in the present case as in the said accident, the petitioner had sustained permanent disability. Normally, such deductions are done only in fatal cases. Considering the above aspect, the loss of income of Rs.3,25,000/- arrived at by the Tribunal, is reasonable. 20.The Tribunal awarded a sum of Rs.50,000/- for loss of marital pleasure and the reason assigned by the Tribunal is that she is not able to have sexual relationship with her husband. This Court totally agrees on this count. In the human life cycle, sexual relationship occurs only in the mid-portion of one's life and as such its period is limited. The claimant is middle aged and so the quantum of compensation under this head is valid and pertinent. 21.Considering the nature of injuries and her physical condition, the Tribunal awarded Rs.1,00,000/- towards loss of amenities. As the injury is grievous and permanent in nature, the loss of amenities will prevail throughout her life and hence the award of Rs.1,00,000 granted for loss of amenities, which is inclusive of attender charges, is appropriate and hence this Court confirms the same. 22.Considering the period of treatment and repeated surgeries done on her leg on various occasions, due to the accident, it is obvious that the petitioner would have undergone pain and suffering https://hcservices.ecourts.gov.in/hcservices/ and as such the Court is not warranted to interfere in the award granted under the head of pain and suffering. Further, the Tribunal had awarded Rs.10,000/- for nutrition and Rs.10,000/- for transport. As this is found reasonable, considering the period of treatment, this Court confirms the award under this head. 23.Though an award of Rs.50,000/- has been granted for compensation towards mental agony and pitiable condition, this Court is of the view that an award should not be granted under this head but that the same should only be treated as an award for future attender charges. Considering the claimants evidence that she is using only bed pan till date. So, this Court considers that the petitioner has to necessarily take help of attendants for her requirements. 24.As such the quantum of compensation awarded by the Tribunal ie. a sum of Rs.11,84,296/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, in M.C.O.P.No.333 of 2006, on the file of the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai, is fair and equitable and so this Court confirms the award. 25.The learned counsel for the appellant has raised a point that negligence cannot be attributed as against the driver of the bus. This Court on perusal of the evidence on record, ie. FIR as well as evidence of claimant, this Court is of the view that the finding of the Tribunal on negligence aspect is correct and accordingly confirms it. 26.This Court directed the appellant/State Transport Corporation on 07.02.2008 to deposit a sum of Rs.9,00,000/- only into the credit of the M.C.O.P.No.333 of 2006, on the file of the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai. Now this Court directs the appellant/Tamil Nadu State Transport Corporation to deposit the entire compensation amount together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, awarded by the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai, in M.C.O.P.No.333 of 2006, after deducting earlier deposits made as per this Hon'ble Court's Order dated 07.02.2008. It is open to the claimant to withdraw the entire compensation amount, lying in the credit of the M.C.O.P.No.333 of 2006, on the file of the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai, after filing necessary payment out application, in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 27.In the result, the Civil Miscellaneous Appeal is dismissed and the award passed by the Motor Vehicles Accident Claims Tribunal and Small Causes Court, at Chennai, in M.C.O.P.No.333 of 2006, is confirmed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1. Motor Vehicles Accident Claims Tribunal, Small Causes Court, at Chennai. 2. The Section Officer, VR Section, High Court, Madras. + 1 c.c. to Mrs. B. Vijayalakshmi, Advocate. S.R.No.70543. C.M.A.No.382 of 2008 BVN (CO) GSK 11.01.2010. https://hcservices.ecourts.gov.in/hcservices/