IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1745 of 2008 and M.P.No.1 of 2008 The Managing Director Tamil Nadu State Transport Corporation Salem Division-2 Ltd., Bharathipuram Dharmapuri-5 .. Appellant/ Respondent Vs K.Kaliappan .. Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 06.12.2005, made in M.C.O.P.No.781 of 2002, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. For appellant : Mr.P.Jagadeeswaran For respondent : Mr.V.Kumaravelan 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 06.12.2005, made in M.C.O.P.No.781 of 2002, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, awarding a compensation of Rs.37,000/- 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/respondent, The Managing Director, Tamil Nadu State Transport Corporation, 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: The petitioner was a hale and healthy and very active in his work, having good and appreciable physique at the time of accident. He was a building mason, and he was thus earning more than Rs.4,500/- per month and maintaining his family. He is the only breadwinner of his family. https://hcservices.ecourts.gov.in/hcservices/ 4.On 20.04.2002, at about 19.00 hrs, when the petitioner and others were standing on the extreme left side portion of the Krishnagiri to Mathur road, at Vettiyampatti Village, the TNSTC bus bearing registration No.TN29 N0721 belonging to the respondent, driven by its driver in a rash and negligent manner without sounding horn and at a high speed, coming from Mathur towards Krishnagiri, suddenly hit on the petitioner and others, who were standing there. In the result, the petitioner and others sustained grievous injuries. The Krishnagiri Town Police Station have registered a case against the driver of the TNSTC bus in Crime No.837/2002 under Sections 279, 332 and 304(A) of I.P.C. 5.Immediately, the petitioner was taken to Government Hospital, Krishnagiri and thereafter he had taken treatment at a private hospital. After the accident, he gets frequent chest pain and is unable to raise, bend, lift or carry any weight with his right hand, unable to sit, stand, squat, bend, walk, ride any two wheeler and is unable to do any work as he used to do before the accident. He has sustained permanent disablement and loss of earning power. 6.The respondent being the owner-cum-insurer of the TNSTC bus bearing registration No.TN29 N0721 is solely liable to pay the compensation. The petitioner has claimed a compensation of Rs.50,000/- from the respondent with interest at the rate of 12% per annum from the date of petition till the date of payment, with costs, under Section 166 of the Motor Vehicles Act. 7.The respondent, in his Counter has resisted the claim denying the version of accident as alleged in the claim. It has been submitted that on 20.04.2002, the driver of the TNSTC bus bearing registration No.TN29 N0721, was driving the said bus and proceeding from Ikoncham towards Krishnagiri, slowly and cautiously and observing all the rules of the road, on the left side of the road. At about 19.20 hrs, while thus proceeding near Vettiyampatti Village next to Lake Bund, one unknown vehicle, driven by its driver in a rash and reckless manner and at high speed come in the opposite direction. On seeing this, the driver of the said bus swerved the bus towards extreme left side of the road and applied brake, whereby the bus hit behind one Tempo Van bearing registration No.TN29 P4050, which was parked on the left side of the road, without any parking light and the petitioner and two others, who were standing near the rear door of the Tempo, sustained simple injuries. As such, the respondent has submitted that the accident had occurred only due to the negligence of the driver of the said Tempo, which was parked, without parking lights during night hours. As such, the respondent has claimed that there had been no fault on the part of the driver of the said bus and hence, he is not liable to pay any compensation to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 8.Further, the age, occupation and income of the petitioner, the nature of injuries sustained, disability and medical expenses claimed by the petitioner have not been admitted. It has also been alleged that the claim is excessive and hence it has been prayed that the claim petition should be dismissed with costs. 9.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who was responsible for the accident? (ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, which the petitioner is entitled to? 10.The petitioner was examined as PW1. The PW1 in his evidence has adduced that the accident was caused by the negligence of the said bus driver and has claimed that he had sustained injuries in the said accident and in support of this had marked two documents as Exs.P1 and P2. On the respondent's side the conductor of the said bus involved in the accident was examined as RW1. The RW1, in his evidence has deposed that at the time of accident, the bus driver was driving the bus towards Krishnagiri and nearing Vettiyampatti Village and that the petitioner was standing on the middle of the road and so on seeing this, the bus driver had turned the bus but could not avert the accident and as such the RW1 has stated that the accident did not happened because of the fault of the bus driver. But, the Tribunal were not inclined to accept the evidence of the RW1, as it has been stated in the Counter of the respondent that the bus driver had taken the bus to the extreme left side of the road and dashed against a stationery tempo, which had been parked their without parking lights and that it had hit against the petitioner, who was standing near the door of the tempo. As such, the evidence given by the RW1 and the counter statements given by the respondent in his written counter, were contradictory. Further, the respondent has not examined the driver of the bus involved in the accident. But, it is seen from Ex.P1, the FIR that a criminal case has been filed only as against the driver of the said bus. As such, the Tribunal, on considering the oral and documentary evidence advanced by the parties concerned held that the accident had been caused by the negligence of the bus driver and so held the respondent liable to pay compensation to the petitioner. 11.The PW1, in his evidence has deposed that due to the accident, he had sustained injuries in his left chest, lower lip and right shoulder; that he was working as a mason at the time of accident and earning a sum of Rs.5,000/- per month and that he is not able to do any work as he used to do before the accident; that https://hcservices.ecourts.gov.in/hcservices/ he had undergone pain and suffering, incurred loss of earning, disability and medical expenses due to the accident. The Tribunal, on scrutiny of the document marked as Ex.P2, Wound Certificate, was of the view that the petitioner had sustained four simple injuries in the accident. So, the Tribunal, on consideration of evidence of the PW1 and documentary evidence produced in support of evidence, granted a compensation of Rs.5,000/- to the petitioner, under the head of injuries; Rs.7,000/- under the head of partial loss of income during period of treatment; Rs.2,000/- under the head of transport expenses; Rs.3,000/- under the head of nutrition; Rs.5,000/- under the head of medical expenses and Rs.5,000/- under the head of loss of earning capacity. In total, the Tribunal awarded a sum of Rs.37,000/- as compensation to the petitioner and directed the respondent to deposit the above said award together with interest at the rate of 9% per annum, into the credit of the M.C.O.P.No.781 of 2002, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, with cost and that the above award granted is inclusive of any interim award, which has been granted to the petitioner, and the said award with accrued interest has to be paid by the respondent within two months from the date of its Order. Further, after such deposit has been made, the award has to be deposited in a nationalised bank, as fixed deposit, for three years and the petitioner was permitted to receive interest on such deposit, once in six months, directly from the bank. The Advocate fees was fixed at Rs.1,500/- and the respondent was directed to pay costs of Rs.1,578/- to the petitioner. 12.The learned counsel for the appellant has contended in his appeal that the award granted under the various heads by the Tribunal is erroneous and that the Tribunal ought to have held that the injured respondent/claimant was entirely responsible for the accident. Further, it has been contended that the Tribunal had erred in granting 9% interest on the award granted under the head of future medical expense. As such, it has been contended that the decision of the Tribunal in fixing the compensation as Rs.37,000/- is highly excessive and arbitrary. 13.The learned counsel for the respondent argued that the injured claimant is a mason and he has to use physical force of doing his work. Due to the said accident, he sustained injuries on his chest and right shoulder and as such he is unable to work with his Trowel. He is the only breadwinner of his family and after the said accident, his future life has been affected. Even though, there is no Doctor's evidence, it is an admitted fact that he had sustained grievous injuries. To prove the same, the claimant had marked the Wound Certificate as Ex.P2. The Tribunal's award is on the lower side. https://hcservices.ecourts.gov.in/hcservices/ 14.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side, the Court is of the view that the Tribunal's finding on two issues ie. negligence and quantum of compensation is correct. But, the head under which the award has been given has to be redefined. 1.The Tribunal awarded a sum of Rs.5,000/- for pain and suffering. This Court enhances the award granted under this head to Rs.10,000/-. 2.The Tribunal awarded a sum of Rs.5,000/- for future medical expenses. This Court sets aside the award under this head as it has been granted without medical proof. 3.The Tribunal had awarded a sum of Rs.5,000/- towards injuries. This Court sets aside the award under this head and grants an award of Rs.10,000/- under the head of disability. 4.The Tribunal awarded a sum of Rs.5,000/- for loss of future earning. This Court sets aside the award granted under this head as it is found to be not pertinent. 5.This Court confirms the award of Rs.5,000/- granted by the Tribunal towards transport and nourishment expenses. 6.The Tribunal awarded a sum of Rs.5,000/- for medical expenses. This Court confirms the award under this head, as it is found reasonable. 7.The Tribunal awarded a sum of Rs.7,000/- towards loss of income and this Court confirms the same as the claimant being a mason has necessarily got to use his physical strength. With the above observations, the award granted by the Tribunal is confirmed. 15.Therefore, the Court directs the appellant/State Transport Corporation to comply with the Tribunal Order passed in M.C.O.P.No.781 of 2002, dated 06.12.2005, within a period of four weeks, from the date of receipt of this Order, if it has not been complied so far. 16.As the accident happened in the year 2002, it is open to the claimant to withdraw the entire compensation amount, lying in the credit of the M.C.O.P.No.781 of 2002, on the file of the Motor https://hcservices.ecourts.gov.in/hcservices/ Accident Claims Tribunal, Sub Court, Krishnagiri, after filing necessary payment out application in accordance with law. 17.In the result, the Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 06.12.2005, made in M.C.O.P.No.781 of 2002, passed by the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.Motor Vehicles Accident Claims Tribunal, Sub Court, Krishnagiri. 2. The Section Officer, VR Section, High Court, Madras. C.M.A.No.1745 of 2008 TEJ (CO) kk 23/2 https://hcservices.ecourts.gov.in/hcservices/