IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1706 of 2008 and M.P.No.1 of 2008 The Managing Director Tamil Nadu State Transport Corporation Ltd., Salem Division .. Appellant/ I Respondent Vs 1.Samraj 2.P.Nagarajan .. Respondents/ Petitioner/ 2nd Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 13.04.2007, made in M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Mettur. For appellant : Mrs.B.Vijayalakshmi For respondents : Mr.V.Kumaravelan, for R1 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/first respondent against the Award and Decree, dated 13.04.2007, made in M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Mettur, awarding a compensation of Rs.25,000/- with 9% 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/first respondent, the Managing Director, Tamil Nadu State Transport Corporation Ltd., Salem-7, 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 07.06.2005, at about 8.30 p.m. the petitioner was https://hcservices.ecourts.gov.in/hcservices/ travelling in the second respondent's Maruti Car bearing registration No.TAN 536, from Vanavasi and the car was driven by the second respondent. The second respondent's brother's wife also travelled in the said car. When the car came on the bridge near Alamarathu Bus stop at Periasoragai, the TSTC Bus route No.03, was coming from Tharamangalam to Vanavasi and driven in a rash and negligent manner by its Driver. On seeing the rash driving by the driver of the bus, the second respondent stopped the Car at the extreme left side of the road. But, in spite of that, the TSTC bus dashed the Maruti car directly on its front side. Due to this accident, the petitioner sustained grievous injuries and the driver of the Maruti car, the second respondent also sustained injuries. 4.The petitioner was immediately admitted in the Salem Gopi Hospital and was treated as inpatient for a week. After discharge, the petitioner took treatment from his house for another three months. The petitioner was able to resume his work after six months only. 5.The Nangavalli Police registered a criminal case against the driver of the TSTC Bus in Crime No.98/2005, under sections 279 and 337 of I.P.C. and subsequently altered to Crime No.98/2005, under Sections 279, 337 and 338 of I.P.C. 6.The petitioner is still experiencing pain all over his body. He is unable to do any work, which he had done before the accident. He was a Spinner in a Mill, before the accident and after the accident he has difficulty in doing his work. The petitioner's face has changed due to the fracture sustained in his nose. The petitioner has claimed a compensation of Rs.2,00,000/- from the first and second respondents, who are the owner of the said TSTC Bus and Maruti Car respectively, under Section 166 of the Motor Vehicles Act r/w Rule 3 of the TNMACT Rules. 7.The first respondent, in his Counter has resisted the claim stating that on 07.06.2005, the first respondent's bus driver had started the bus from Tharamangalam and was proceeding to Nangavalli and the bus was stopped at Soragai. Some passengers alighted from the bus and the bus was again started and was proceeding slowly, when the bus driver saw the second respondent's car, driven in a rash and negligent manner by its driver. On seeing this, the bus driver took the bus to the extreme left of the road, but that in spite of this, the driver of the Maruti Car had dashed the car against the front bumper of the bus. As such, the accident had been caused solely by the rash driving of the car by the second respondent. There is no fault on the part of the bus driver. In the said accident, only the second respondent had sustained minor blood injuries. Further, the first respondent has submitted that non inclusion of the Insurance Company of the Maruti Car as a necessary Party in the claim renders the claim not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 8.The age and income of the petitioner has not been admitted. Further, the claim of the petitioner is excessive. No documentary evidence has been furnished in support of the claim. As such, the claim is liable to be dismissed with costs. 9.The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Whose negligence caused the accident? (ii) Is the petitioner entitled to receive compensation from the respondents? (iii)If so, what is the quantum of compensation, which the petitioner is entitled to? 10.On the petitioner's side, the petitioner was examined as PW1 and eight documents were marked as Exs.P1 to P8. On the first respondent side, one Arumugam was examined as RW1 and no documents were marked. 11.PW1, the petitioner, in his evidence has adduced that on 07.06.2005, in order to participate in a marriage function at Sivanganur, he was travelling in the Maruti Car bearing registration No.TAN 536, belonging to the second respondent and driven by the second respondent and at about 8.30 p.m. when the car was nearing the bridge near Soragai Bus stand, the State Transport bus bearing registration No.TN27 N0645, coming from Tharamangalam towards Vanavasi, driven by its driver in a rash and negligent manner and at an uncontrollable speed, had dashed against the said car. In support this, the PW1 has marked Ex.P1-FIR, wherein the complaint has been registered as against the driver of the said bus. The copy of the Charge Sheet filed against the bus driver has been marked as Ex.P3. His driving licence has been marked as Ex.P5. It has been contended on the respondent's side that the driver of the said bus had driven the bus on a careful manner and at a moderate speed and that on seeing the Maruti car driven by the second respondent in a rash and reckless manner, the bus driver had taken the bus to the extreme left of the road but in spite of that the car had dashed against the bus. It was stated by the respondent that the Nangavalli Police had registered an FIR as against the bus driver, without proper investigation. 12.The Tribunal considered the arguments advanced by the learned counsel on the respondents side that there has been equal contributory negligence on the drivers of both the bus and the car for the accident to be caused. The RW1, the bus driver, in his evidence had adduced that on seeing the Maruti car driven in a rash and negligent manner by the second respondent, he had taken the bus https://hcservices.ecourts.gov.in/hcservices/ to the extreme left but in spite of it the second respondent, was unable to control the speed of his car and had dashed against the bus. The second respondent did not render appearance to refute this claim. Not even a Counter has been filed by the second respondent. Further, on considering that no rebuttal was put in by the second respondent and further considering that even in the Motor Vehicle Inspector's Report marked as Ex.P4, wherein it has been stated that the front bumper of the bus has been damaged, the Tribunal held that the second respondent has been equally negligent as the first respondent's driver for the accident to be caused. As such, the Tribunal attributed 50% contributory negligence on the part of the bus driver and 50% contributory negligence on the part of the second respondent. The Tribunal also found that no documents had been advanced by the second respondent regarding Insurance Policy for the said car. As such, the Tribunal held that each of the respondents are liable to pay 50% of the total compensation awarded to the petitioner. 13.The PW1, the petitioner, in his evidence has adduced that in the accident, he had sustained injuries on his head, neck, chest and fractures on his top nose and back of neck. On scrutiny of Wound Certificate marked as Ex.p2, it is seen that the petitioner had sustained grievous injury on his nose and back of the neck and that on taking X'rays of these parts, it was seen that he had sustained fractures, in his nose and neck. It has also been stated that these two injuries are grievous in nature. As such, the Tribunal on consideration of these two grievous injuries granted an award of Rs.15,000/- each towards grievous injury and in total they awarded a sum of Rs.30,000/- for two grievous injuries sustained by the petitioner. 14.Further, the PW1 has stated in his evidence that immediately after the accident,he has been admitted in the Salem Gopi Hospital, wherein he took treatment as an inpatient for one week and that subsequently he had taken treatment here, as outpatient, for a period of three months. In support of this, the PW1 has marked Ex.P6, the Medical Bills, totalling a sum of Rs.4,709/-. The Tribunal on scrutiny of Medical Bills, awarded a compensation of Rs.4,709/- to the petitioner. 15.The PW1, petitioner, has stated in his evidence that he was working in a Mill, prior to the accident, and was earning a sum of Rs.6,000/- per month. But, after the accident, due to injuries sustained, he has not been able to work in the Mill or any where else, and so has claimed compensation for loss of income. On scrutiny of Ex.P7-Discharge Summary, it is seen that the petitioner had taken treatment from 07.06.2005 to 12.06.2005 at the hospital but no documentary proof has been advanced to prove that the petitioner had taken treatment subsequent to this period. Though, the petitioner has claimed that he was working in a Mill, no income https://hcservices.ecourts.gov.in/hcservices/ proof has been furnished through documentary or oral evidence. As such, the Tribunal was not inclined to consider the salary of Rs.6,000/- per month as claimed but fixed a notional income of Rs.3,000/- per month as income of the petitioner. Considering that due to the grievous injuries sustained by the petitioner, he could not have gone to work, the Tribunal awarded a compensation of Rs.9,000/- as loss of income to the petitioner for three months. For pain and suffering of the petitioner due to the grievous injuries sustained by him, the Tribunal awarded a sum of Rs.5,000/- and Rs.1,000/- was awarded for transport expenses. No documents or medical evidence has been produced to establish that the petitioner had sustained permanent disability in the accident. As such, the Tribunal was not inclined to grant any award for disability or continuing disability. In total, the Tribunal granted an award of Rs.49,790.19 and rounded it off to Rs.50,000/-. As such, each of the first and second respondents were directed to pay a sum of Rs.25,000/- as compensation to the petitioner, together with interest at the rate of 9% 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.105 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Mettur, within a period of one month. After such deposit was made, the petitioner was permitted to withdraw the entire award. The excess Court fees paid by the petitioner has to be refunded to him. Advocate fees was fixed at Rs.1,500/-. 16.The learned counsel for the appellant has contended in his appeal that the Tribunal had failed to consider that the accident had happened due to the negligence of the car driver. Further, it was submitted that the Tribunal had failed to consider that there was no disability to the claimant, as he had suffered only simple injuries and the fact that the claimant had only produced attested copies of Exs.P1, P2, P3 and P4. It was also pointed out that the Tribunal had erroneously granted a sum of Rs.9,000/- as award for loss of income, when no proof has been advanced by the claimant regarding his age and income. As such, it was contended that the award of Rs.25,000/- granted as against the first respondent is erroneous and liable to be set aside. 17.The learned counsel for the respondent argued that the quantum of compensation awarded by the Tribunal was on the lower side. Further, contributory negligence was established in the absence of Site Plan/Sketch, which alone would have established the tyre marks of the vehicles and as such, the conclusion arrived by the Tribunal is erroneous. Further, even from the FIR, it is seen that a case has been registered only as against the driver of the bus. If there had been any fault on the part of the driver of the car, a counter complaint would have been lodged by the driver of the bus against the car driver before the investigating officer. In the absence of such a counter complaint, the Tribunal should not https://hcservices.ecourts.gov.in/hcservices/ have fixed 50% as contributory negligence on the part of the car driver. As such, the award passed by the Tribunal is also fair. 18.After considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side, this Court is of the view that the quantum of compensation of Rs.25,000/- awarded by the Tribunal as against the appellant, together with interest at the rate of 9% per annum, from the date of filing the petition, till the date of payment, is fair and reasonable. 19.From the nature of injuries, it is evident that he underwent treatment at Salem Gopi Hospital, as inpatient for one week and subsequently took treatment as outpatient for three months, this has been established by documentary evidence marked as Ex.P2, the Wound Certificate. As such, the Court, is of the view that the Order of the Tribunal is fair and equitable, in the circumstances of the case. 20.At the time of admission, this Hon'ble Court imposed a condition on 24.06.2008 to deposit the entire compensation amount together with interest and costs. This was complied with by the appellant. 21.It is open to the claimant to withdraw the entire compensation amount with accrued interest and costs, lying in the credit of the M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Mettur, after filing necessary application in accordance with law. 22.In the result, the above Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accident Claims Tribunal, Sub Court, Mettur, in M.C.O.P.No.105 of 2005 is confirmed. Consequently, connected miscellaneous petition is also closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk https://hcservices.ecourts.gov.in/hcservices/ To 1.Motor Vehicles Accident Claims Tribunal, Sub Court, Mettur. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mrs. B. Vijayalakshmi, Advocate, SR. 2184 C.M.A.No.1706 of 2008 KM (CO) kk 25/1 https://hcservices.ecourts.gov.in/hcservices/