IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1847 of 2006 The Managing Director Tamil Nadu State Transport Corporation Vellore ..Appellant Vs B.Devendiran ..Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 14.11.2005, made in M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court) Tiruppattur. For Appellant : Mr.A.Babu For Respondent : Mr.E.Prakasam 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 14.11.2005, made in M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court) Tiruppattur, awarding a compensation of Rs.3,42,160/- with 7.5% 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/respondent has filed the above appeal praying to set aside the said award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 13.12.2003, at about 11.10 a.m. when the petitioner was riding TVS50 motorcycle bearing registration No.TN29 V0522, on the extreme left side of the Tiruppattur-Natrampalli main road and when he was nearing T.V.Duraisamy Nagar, the respondent's bus bearing registration No.TN23 N0570, coming in the opposite direction from https://hcservices.ecourts.gov.in/hcservices/ Natrampalli to Tiruppattur on the same road and driven by its driver in a rash and negligent manner, dashed against the petitioner. Due to the impact, the petitioner sustained crush injury on his left leg and sustained extensive soft tissue injury on his left lower thigh, left knee and left leg posterior aspect and his motorcycle was completely damaged. Immediately after the accident, the petitioner was taken to Government Hospital at Tiruppattur and admitted as inpatient. The petitioner was referred to Government Vellore Medical College Hospital, but the petitioner was taken to Kovai Medical Centre and Hospital, Coimbatore and admitted as inpatient on 14.12.2003. Surgical operation was done on the left leg of the petitioner in the Kovai Medical Centre and Hospital and skin grafting was also done to the petitioner in the same hospital. The petitioner is completely bed ridden and he cannot walk without others' help and he has become permanently disabled. The petitioner is a bright student and his future and higher education have been completely affected by the said accident. 4.As the accident took place only due to the rash and negligent driving of the bus by its driver, in the course of his employment under the respondent, the respondent being the owner of the said bus is liable to pay compensation to the petitioner for the injuries sustained by him in the above accident. The petitioner has claimed a compensation of Rs.5,00,000/- from the respondent together with interest at the rate of 12% per annum from the date of accident to the date of payment of compensation, under Section 166 of the Motor Vehicles Act, 1988. 5.Regarding the said accident, a criminal case has been registered by the Jolarpettai Police in Crime No.840/2003, as against the driver of the bus, under Sections 279 and 337 of I.P.C. and is pending for investigation. 6.The respondent, in his counter has resisted the claim denying the averments in the claim regarding the manner of accident. It has been stated that the driver of the bus started the bus bearing registration No.TN23 N0570 at Kothanoor and was proceeding towards Tiruppattur and when the bus was nearing T.V.Duraisamy Nagar, the petitioner, who was riding TVS50 motorcycle in the opposite direction had tried to overtake a borewell lorry going ahead of him, without noticing the respondent's bus coming on the opposite side. The petitioner had then seen the bus, coming opposite to him and had lost control of his motorcycle and dashed his motorcycle against the right side of the bus and as a result he had fallen down and sustained injuries. Hence, it has been contended by the respondent that the accident had occurred only due to the fault of the rider of the motorcycle. As such, it has been submitted that the respondent is not liable to pay any compensation to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7.It has also been submitted that the petitioner should prove the nature of injuries, medical treatment taken, medical expenses, loss of earning capacity by documentary evidence. It has also been contended that as the owner and the insurer of the motorcycle involved in the accident had not been added as a necessary party in the claim, it renders the claim not maintainable. It has been submitted that the claim is excessive and baseless and has to be dismissed with costs. 8.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? (ii) Is the respondent liable to pay compensation to the petitioner? If so, what is the quantum of compensation, which the petitioner is entitled to get? 9.On the petitioner's side two witnesses were examined as PW1 and PW2 and 18 documents were marked as Exs.P1 to P18. On the respondent's side, one witness was examined as RW1 and one document was marked as Ex.R1. 10.The petitioner was examined as PW1. The PW1 in his evidence and sworn affidavit had deposed that he had completed his final year in higher secondary school and was working as a coolie and earning a sum of Rs.100/- per day; that he had four years experience in driving of two wheelers; that on 13.12.2003, at about 11.00 a.m. when he was proceeding cautiously and slowly on the TVS50 motorcycle on the extreme left side of the Tiruppattur-Natrampalli road and when he was nearing T.V.Duraisamy Nagar, the respondent's bus, coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner had dashed against him; that as a result of the impact, his motorcycle had been completely damaged; that he had sustained crush injuries and fracture in his left leg and and also sustained extensive soft tissue injuries all over his body; that he had sustained severe injuries in his knee and forehead; that he had travelled in a hired Car to Tiruppattur Government Hospital to take treatment; that he had paid a sum of Rs.250/- as hire charges for car; that after admission as inpatient at Tiruppattur Government Hospital, he had been referred to Vellore Government Hospital; that he had immediately gone to Palani Mudaliar memorial Hospital and had taken treatment there as an inpatient; that he had paid a sum of Rs.1,500/- towards hire charges for travelling in car from Tiruppattur to Salem; that he had been subsequently sent to Kovai Medical Hospital, wherein five surgeries were done on the petitioner and skin grafting was done; that his uncle and father were also staying with him at the said hospital and an expense of Rs.500/- was incurred by them every day during their stay at the hospital; that he https://hcservices.ecourts.gov.in/hcservices/ had spent over Rs.50,000/- towards medicines and treatment and also incurred transport expenses; that skin was removed from his left thigh and right arm for skin grafting of his leg and due to this the portions of his right thigh and right arm, where from skin was removed, looked ugly; that as the skin below the knee of his left leg had been completely damaged, the size of his leg had become smaller and weaker and that his left sole has become curved; that he is not able to keep his left leg firmly on the ground as it is bend; that he is not able to walk and sit; that after the said accident, he is not able to do the work, which he used to do before the accident and hence he had sustained loss of income and his prospects of marriage had also been reduced and that the accident had been caused only by the negligence of the driver of the bus. In support of his evidence, he has marked Ex.P1-FIR, registered at the Jolarpettai Police Station; Ex.P2-the copy of Accident Register issued at the Government Hospital, Tiruppattur; Ex.P3-the Discharge Summary issued by the Government Hospital, Tiruppattur; Ex.P4-Medical Report given at Salem Hospital; Ex.P5-Medical Bills given at Salem Hospital for purchase of medicines; Ex.P6-the copy of Accident Register issued at Kovai Medical Centre; Ex.P7-the Medical Bills given at Kovai Medical Centre, wherein it is seen that the total amount is Rs.46,112.87; Ex.P8, the receipt showing that payment of Rs.46,112.87 has been made; Ex.P9-the bill for Rs.90/- given at Kovai Medical Centre for purchase of articles; Ex.P10-two receipts showing that treatment has been given to him as an out-patient in the Kovai Medical Hospital; Ex.P11-X'rays taken on the petitioner's leg showing the extent of disability of his left leg; Ex.P12, the Permanent Disability Certificate; Ex.P13, the bill for the photos taken of his leg; Ex.P14, the Hospital fee paid at Kovai Hospital, while he was undergoing treatment as an inpatient here; Ex.P15 showing that the petitioner is doing his second year graduate course in Maths at the Ambur Magasullam College; Ex.P16, the copy of Certificate issued at his school. 11.One Dr.Lenin, who had assessed the disability of the petitioner was examined as PW2. The PW2, in his evidence, has stated that he was employed at the Vaniambadi Government Hospital as a Civil Surgeon and that he had examined the petitioner Devendran on 05.09.2004; that he had examined the copy of Accident Register issued at Tiruppattur Government Hospital as well as the medical treatment records issued by Kovai Medical Centre. After scrutiny of the above records, it is seen that the petitioner had sustained severe injuries on his left thigh, left knee, back of his left leg and that these had been caused in the said accident. He had adduced that he had taken X'rays of the petitioner's leg and has stated that at present the petitioner is unable to move his sole and because his leg has been deformed and bent, he has reduced movements in his knee; that because of this defect, the petitioner would be unable to stand up and walk and that he has pain in his leg; that he would not be able to do any work. As such, the Doctor has adduced that the petitioner has https://hcservices.ecourts.gov.in/hcservices/ sustained 40% disability and in support of his evidence, he has marked Ex.P17-the Disability Certificate and Ex.P18-X'rays. 12.The driver of the respondent's corporation bus, one Vedi, was examined as RW1. The RW1, in his evidence deposed that he had been working as a driver in the respondent's corporation for a period of 19 years; that on 13.12.2003, at 10.00 a.m. he had started the bus at Kothur and was proceeding towards Tiruppattur and that he had stopped the bus at the bus stand near T.V.Duraisamy Nagar. He had deposed that the passengers in the bus were cloth merchants and that one lady had alighted from the bus at this point, that during this time, a borewell lorry, coming in the opposite direction from Natrampalli to Tiruppattur had passed the bus; that a TVS50, which had been following the said lorry had fallen near the bus; that a complaint was given by the petitioner to the police station; that provisions were being carried in the said TVS50; that the accident had been caused by the negligent of the rider of the TVS50; that the criminal case filed against him had been tried at the criminal Court and a Judgment was given at this Court dismissing the case absolving him of guilt. In support of his evidence, he has marked Ex.R1-copy of the Judgment made by the Criminal Court. As such, the RW1 has deposed that he is not responsible for the said accident. 13.The Tribunal, on scrutiny of the evidence given by the PW1 and PW2 and on considering the documents marked as Exs.P1 to P18, wherefrom it is seen that the FIR has been registered only as against the driver of the bus and that the petitioner has sustained injuries in the said accident and treatment has also been taken by him, were of the view that the petitioner has established his case through documentary evidence and were not inclined to accept the evidence of the RW1 and therefore held that the accident had been caused only due to the negligence of the driver of the respondent's bus and accordingly held the respondent is liable to pay compensation to the petitioner. 14.As such, the Tribunal, on considering that the petitioner has sustained 40% permanent disability in the said accident as per Ex.P18, awarded a compensation of Rs.60,000/- under the head of disability and grievious injuries; Rs.40,000/- under the head of pain and suffering; Rs.40,000/- under the head of loss of earning capacity, as the petitioner is not able to continue doing the work, which he used to do before the accident as a result of the injuries sustained by him in the said accident; Rs.4,000/- under the head of transport expenses. The Tribunal further awarded a sum of Rs.40,000/- under the head of transport expenses incurred by the petitioner for taking medical treatment at Salem, Vellore C.M.C.Hospital and Kovai. The Tribunal also awarded a sum of Rs.50,000/- as compensation to the petitioner under the head of loss of income. The Tribunal, on scrutiny of the two receipts marked as Ex.P5, wherein it has been shown that the petitioner had purchased https://hcservices.ecourts.gov.in/hcservices/ medicines while at Palaniandi Memorial Hospital, awarded a compensation of Rs.1,278/- for medical expenses to the petitioner. The Tribunal after scrutiny of Ex.P7, the medical expenses incurred for treatment while at Kovai Medical Centre and Hospital, as an inpatient, awarded a compensation of Rs.46,112.87 to the petitioner under the head of medical expenses. Further, on scrutiny of Ex.P9, the Medical Bills, which had been issued for purchase of medicines while the petitioner was taking treatment at Kovai Hospital and also the expenses incurred while taking treatment as an outpatient, in the Kovai Hospital granted an award of (Rs.70/- + Rs.250/-) = Rs.320/- as compensation to the petitioner. After scrutiny of Ex.P13, the charges incurred for taking photos, the Tribunal awarded a sum of Rs.50/- as compensation to the petitioner. On scrutiny of Ex.P14, the payment made by the petitioner to the Doctor, who had done the surgery on his leg and to the Doctors, who had given him anaesthesia, while he was taking treatment at Kovai Hospital, the Tribunal awarded a sum of Rs.24,400/- as compensation under the head of medical expenses. In total, the Tribunal awarded a compensation of Rs.3,42,160/- to the petitioner and directed the respondent to deposit the above said award together with interest at the rate of 7.5% 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, (Additional District and Sessions Court, Fast Track Court) Tiruppattur, within a period of 60 days from the date of its order. Further, after such deposit was made into the Court, the petitioner was permitted to withdraw the entire amount as the case has been pending since 2003. The excess Court fee paid by the petitioner was directed to be refunded to him. The Advocate fees was fixed at Rs.2,000/-. 15.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal erred in relying upon the evidence of the PW1, the claimant, in respect of the manner of accident, nature of injury, period of treatment, disability, age and occupation and monthly income. It has been contended that the Tribunal failed to note that no Police Officer or independent eye witness was examined to prove negligence on the part of the driver of the appellant Corporation. It has also been contended that the Tribunal failed to consider the evidence of the RW1 and Ex.R1-Criminal Court Judgment and ought to have dismissed the entire claim petition on the basis of available evidence on record. It was also pointed out that the Tribunal failed to note that the claimant, without having a valid driving licence, rode the TVS50 motorcycle in a rash and negligent manner, overtook a lorry, came in the wrong side of the road and dashed against the bus and as such, the Tribunal ought to have fixed the entire or atleast contributory negligence on the part of the claimant. It has also been contended that the Tribunal erred in relying upon Exs.P2 to P10, treatment records, which were marked through the claimant without examining the author of the documents. It was pointed out that the Tribunal erred in relying upon the https://hcservices.ecourts.gov.in/hcservices/ evidence of the PW2, the Doctor, who had not treated the claimant and as such the Disability Certificate issued by him as Ex.P12 should have been registered by the Tribunal. 16.It has also been contended that the Tribunal erred in awarding a sum of Rs.40,000/- for loss of earning power and Rs.50,000/- for loss of income. It was also contended that the Tribunal erred in awarding Rs.40,000/- for transport expenses as no oral or documentary evidence was let in to establish the claim towards transport expenses. 17.As such, it has been contended that the award of Rs.3,42,160/- together with interest at the rate of 7.5% per annum was excessive and unsustainable in law and has to be scaled down. 18.The learned counsel appearing for the respondent vehemently argued that at the time of accident, the claimant was 20 years old. After the said accident, he has become handicapped. To prove the same, the learned counsel has filed additional documents namely handicapped certificate issued by the competent Orthopaedic Doctor. Photographs show that the claimant's left leg has been damaged and that he has undergone surgical operation. The left leg appears to be thin, abnormal and bent. He is unable to keep his left sole of leg on the ground due to the bend in his leg. Skin grafting also has been done. Further, the claimant was a coolie and also a student at the time of accident. His intention was to attain a high status in society. Due to the said accident, he would not be able to achieve his goal. Before the accident, he was a hale and healthy and strong. After the said accident, his left leg has been totally damaged. As such, his normal physical movements have come down to a stop. His prospects for married life has also been reduced. Further, the claimant was sportsman. To prove the same, the learned counsel had filed a Sports Certificate issued to the claimant. The learned counsel further argued that the medical expenses alone amounts to Rs.72,160/-. It is an admitted amount. The rest of the compensation amount awarded ie.a sum of Rs.2,70,000/- is on the lower side, considering the age and nature of injuries, period of hospitalisation in five hospitals. As such, the counsel has submitted that the award of the Tribunal is not excessive as alleged by he appellant. 19.Considering the facts and circumstances of the case and scrutiny of findings of the Tribunal and arguments advanced by the learned counsel on either side, this Court is of the view that the award of Rs.72,160/- granted by the Tribunal under the head of medical expenses is found to be reasonable as it has been done after scrutiny of Exs.P5, P7, P10, P13 and P14. The balance compensation amount of Rs.2,70,000/- awarded by the Tribunal is slightly excessive. Hence, this Court modified the award as follows: https://hcservices.ecourts.gov.in/hcservices/ 1.For 40% disability sustained by the claimant, as the claimant was aged only 20 years at the time of accident, this Court awards a compensation of Rs.80,000/-, 2.For pain and suffering, this Court awards a compensation of Rs.20,000/-, 3.For nutrition, this Court awards a compensation of Rs.10,000/-, 4.For transport expenses, this Court awards a compensation of Rs.10,000/-, 5.For loss of prospects of married life, this Court awards a compensation of Rs.50,000/-, 6.For loss of pleasures of life, considering that the claimant's left leg has been bent and deformed and that he would have difficulty in carrying out his normal routine work, this Court awards a compensation of Rs.70,000/-, In total, this Court awards a compensation of Rs.3,12,160/- to the claimant, together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. 20.Therefore, this Court has scaled down the compensation awarded from Rs.3,42,160/- to Rs.3,12,160/- as it is found to be reasonable and fair in the circumstances of the case. 21.This Court imposed a condition on the appellant on 28.06.2006 to deposit the entire compensation amount including the interest and costs, into the credit of the M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court) Tiruppattur, within a period of eight weeks. After such deposit is made, the respondent/claimant was permitted to withdraw 50% of the award amount together with entire accrued interest and costs. 22.As the accident happened in the year 2003, it is open to the claimant to withdraw the balance compensation amount, with proportionate interest thereon, lying in the credit of the M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court) Tiruppattur, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals, if any, made as per this Court Order dated 28.08.2006. https://hcservices.ecourts.gov.in/hcservices/ 23.The appellant is at liberty to withdraw the excess compensation amount, lying in the credit of the M.C.O.P.No.105 of 2005, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court) Tiruppattur, with accrued interest thereon, after observing necessary formalities of the Tribunal. 24.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 14.11.2005, in M.C.O.P.No.105 of 2005, passed by the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court) Tiruppattur, is modified. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To The Additional District and Sessions Judge, Motor Vehicles Accident Claims Tribunal, Fast Track Court, Tiruppattur. + 1 c.c. to Mr. A. Babu, Advocate. S.R.No.18484. + 1 c.c. to Mr. E. Prakasam, Advocate. S.R.No.18797. C.M.A.No.1847 of 2006 JRG (CO) GSK 12.04.2010. https://hcservices.ecourts.gov.in/hcservices/