IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3214 of 2007 and M.P.Nos.2 of 2007 & 1 of 2009 The Managing Director Tamil Nadu State Transport Corporation Ltd., Dharmapuri .. Appellant / Respondent Vs K.B.Manokaran .. Respondent / Petitioner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 22.03.2007, made in M.C.O.P.No.1310 of 2006, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri. For appellant : Mrs.B.Vijayalakshmi For respondent : Mr.V.R.Shanmughanathan 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 22.03.2007, made in M.C.O.P.No.1310 of 2006, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri, awarding a compensation of Rs.1,94,912/- 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, the Managing Director, Tamil Nadu State Transport Corporation Ltd., Dharmapuri, 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 07.05.2005 morning, the petitioner along with his friend Srinivasan were proceeding in the Bajaj Boxer motorcycle bearing registration No.TN24 1149 from Bargur to Oppathavadi. The petitioner https://hcservices.ecourts.gov.in/hcservices/ was driving the motorcycle and his friend Srinivasan was the pillion rider and the petitioner was driving the motorcycle slowly and cautiously, on the left side mud portion of the road. At about 14.00 hrs, when they were nearing the teashop near Diginkottai bus stop on Bargur-Oppathavadi road, the respondent's town bus bearing registration No.TN29 N1338, on route No.44, came in the opposite direction and driven by its driver in a rash and negligent manner and at high speed, dashed against the motorcycle of the petitioner. Due to the sudden impact, the petitioner and his friend were thrown out from the motorcycle and the petitioner sustained injuries in his shoulder, laceration of right little finger phalanx 2 cm X 2 cm and swelling of right dorsum foot. Immediately, after the accident, the petitioner was taken to the Government Head Quarters Hospital, Krishnagiri and after first aid, he was taken to St.John's Medical College Hospital, Bangalore and received treatment under Dr.Ashok Kumar. 4.The accident occurred due to the rash and negligent driving of the driver of the TNSTC Bus. 5.Due to the accident and the injuries, the petitioner is unable to walk, stand, sit and squat and not able to do any work as before, because of fracture of his right ankle. The respondent, as the owner-cum-insurer of the bus is solely liable to pay compensation as claimed by the petitioner. Therefore, the petitioner has claimed a compensation of Rs.3,00,000/- with interest at the rate of 12% per annum from the date of petition till the date of payment with costs from the respondent, under Section 166 of the Motor Vehicles Act. 6.The Bargur Police have registered a case against the driver of TNSTC Bus in Crime No.335/2006, under Sections 279 and 337 of I.P.C. 7.The respondent, in his counter, has resisted the claim denying the averments made in the claim regarding the manner of accident. It was submitted that on 09.06.2006, the driver of the Corporation Bus bearing registration No.TN29 N1338 drove the bus slowly and carefully and while it was nearing the tea shop near Diginkottai bus stop on Bargur-Oppathavadi road, the Bajaj Boxer Bike bearing registration No.TN24 7149 was driven by the petitioner on the opposite direction of the bus on the same road. As the said road was not wide enough to accommodate two vehicles, the driver of the bus slowed down the bus and gave a way to the motorcycle, but as the motorcyclist was coming at a high speed, he lost his control while crossing the bus and so hit against the bus and caused the accident. As such, the accident had occurred only due to the rash and negligent driving of the Bajaj Boxer vehicle by the rider and hence the respondent cannot be held liable to pay any compensation to the petitioner. 8.It was also submitted that as the accident was a head on collision of two vehicles, the owner and the insurance company of the said bike are also necessary parties to the claim petition, as such, the petition is liable to be dismissed for non-joinder of necessary https://hcservices.ecourts.gov.in/hcservices/ parties. It was also submitted that the rider of the Bajaj Boxer bike did not have a valid driving licence to drive the vehicle. 9.The respondent has also denied the averments in the claim as regards the age, occupation and income of the petitioner, the nature of injuries sustained by him and disability caused to him in the accident. As such, the respondent has submitted that the claim is excessive and has prayed for dismissal of the petition with costs. 10.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i)Who is responsible for the accident? (ii)Is the petitioner entitled to receive compensation? If so, what is the quantum of compensation, which he is entitled to get? 11.On the petitioner's side three witnesses were examined as PW1 to PW3 and 15 documents were marked as Exs.P1 to P15. On the respondent's side one witness was examined as RW1 and no documents were marked. 12.The petitioner was examined as PW1. The PW1, in his chief examination, had deposed that on 09.06.2006, when he and his friend Srinivasan were proceeding on the motorcycle, with the petitioner driving the motorcycle and his friend seated on the pillion, at about 2.00 a.m. in the afternoon and when they were nearing the Diginkottai bus stop, the respondent's bus driver driving in a rash and negligent manner and at a high speed, the driver, had dashed against the motorcycle and caused the accident. Further, the pillion rider, Srinivasan, who was examined as PW2 had adduced evidence regarding the manner of the accident and the Tribunal found that the evidence of the PW1 was in consonance with the evidence given by the PW2. The Tribunal, on scrutiny of Ex.P1, the FIR, found that the evidence of PW1 and PW2 as regards the manner of the accident was true. As such, the Tribunal held that the accident had been caused only by the rash and negligent driving of the bus driver and held the respondent liable to pay compensation to the petitioner. 13.It has been stated by PW1 that in the accident, he had received injuries on his shoulder, right ring finger and right heel; that he head initially taken treatment at Government Hospital, Krishnagiri and subsequently taken treatment at St.Johns Hospital, Bangalore for a period of one week. He had further stated that he is not able to carry on doing the iron business, which he was involved in before the accident and that he was earning a sum of Rs.8,500/- in the said business prior to the accident. On scrutiny of Ex.P2, the Wound Certificate, it is seen that the petitioner has sustained grievious injury in the accident. The Doctor, who had inspected the petitioner was examined as PW3. The PW3, in his evidence, deposed https://hcservices.ecourts.gov.in/hcservices/ that on 26.02.2007, he had examined the petitioner and found that the petitioner had sustained injuries on his right ring-finger and metacorpal bone; that on taking X'rays of these injured portions, it was found that the bone in fractured right ring finger had joined, but in a curved manner and the metacorpal bone had also joined in a curved manner and that due to this, the petitioner would not be able to do intricate work as before and that he would not be able to lift heavy loads with his right hand. As such, the Doctor had stated that the permanent disability sustained by the petitioner on this count was 12% and has accordingly marked Ex.P12, the Disability Certificate. The Tribunal therefore, held that the petitioner had sustained permanent disability in the accident and so is entitled to receive compensation from the respondent. The petitioner has stated in his evidence that before the accident, he was engaged in manufacture of furniture and earning an income and in support of this, he has marked Ex.P4, the work order. As such, the Tribunal, considering that the monthly income of the petitioner was Rs.8,250/- assessed the yearly income of the petitioner as Rs.99,000/-. Adopting a multiplier of 16 as was relevant to the age of the petitioner ie. 37 years, at the time of accident, the Tribunal assessed total income of the petitioner as Rs.15,84,000/-. The Tribunal on considering that the disability of 12% assessed by the Doctor was on the higher side, fixed the disability sustained by the petitioner as 11%, and accordingly assessed his total loss of income due to the disability in future as Rs.15,84,000/- X 11/100 = Rs.1,74,240/- and accordingly granted this award as compensation to the petitioner under the head of loss of future income due to disability. The Tribunal awarded a sum of Rs.5,000/- under the head of pain and suffering; Rs.5,000/- under the head of nutrition and Rs.200/- for damage to clothes and articles. The Tribunal also awarded a sum of Rs.2,800/- under the head of transport expenses, as was evident on scrutiny of Ex.P5. On scrutiny of medical bills, marked as Ex.P3, the Tribunal granted a sum of Rs.7,672/- under the head of medical expenses. In total, the Tribunal awarded a sum of Rs.1,94,912/- as compensation 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, with costs, into the credit of the M.C.O.P.No.1310 of 2006, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri, within a period of two months from the date of its Order. Further, after such deposit was made, the petitioner was permitted to withdraw 50% of the award amount together with total accrued interest on the entire award and costs. The balance award amount was to be invested in a nationalised bank, as fixed deposit, for a period of three years and the petitioner was permitted to receive interest on such deposit once in six months. The petitioner was directed to pay the Court fee due on the award amount within a period of two months from the date of its Order. The Advocate fees was fixed at Rs.6,898/-. The respondent was directed to pay the cost of Rs.8,238/- to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 14.The learned counsel appearing for the appellant has contended in the appeal that the Tribunal failed to consider that the accident had occurred only due to the negligence of the claimant, who was travelling in the motorcycle along with his friend. It was also contended that the Tribunal wrongly applied the multiplier method and adopted a multiplier of 16 to arrive at the quantum of 11% permanent disability. It was also pointed out that the Tribunal failed to consider that the age and income proof of the claimant was not filed. It was also contended that the Tribunal had failed to consider that the claimant had not impleaded the owner and insurer of the motorcycle. 15.The learned counsel appearing for the appellant has contended that the award of Rs.1,94,912/- passed by the Tribunal was not sustainable under law and has therefore prayed that the award made in M.C.O.P.No.1310 of 2006, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri, should be set aside. 16.The learned counsel appearing for the appellant submitted that the claimant had marked 15 documents and that all were obtained on 26.02.2007 and 27.02.2007 and as such the appellant has questioned the genuineness of the documents. 17.Per contra, the learned counsel appearing for the respondent argued that even though the documents, supportive of the claim case, were obtained on 26.02.2007 and 27.02.2007, this has not been procured prior to the accident, but only after the accident. As such, no ulterior motives or malafide intentions can be attached on the claimants in this aspect. The Tribunal, after considering the Wound Certificate, nature of injuries, mode of treatment and Doctor's evidence had granted the award, which is reasonable. Further, the learned counsel appearing for the respondent pointed out that the metacorpal bone of the claimant's right hand has been bent and deformed and that the disability suffered on this count was permanent in nature. After the accident, the claimant is not able to do his normal work as before. 18.Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal, arguments advanced by the learned counsel appearing on either side, this Court is of the view that the Tribunal assessed the compensation on the basis of the permanent Disability Certificate issued by a competent Doctor and assessed the compensation under the head of loss of income as a sum of Rs.1,74,240/-. This Court finds the above assessment reasonable, since, the metacorpal bone of the claimants right hand had been bent and deformed due to the accident and that he is not able to use his right hand at full strength to do his normal work. The award granted by the Tribunal under various other heads namely pain and suffering (Rs.5,000/-), nutrition (Rs.5,000/-), transport expenses as per Ex.P5 (Rs.2,800/-), medical expenses (Rs.7,672) as per Ex.P3 and damage of clothes (Rs.200/-) are all found to be pertinent and hence this Court https://hcservices.ecourts.gov.in/hcservices/ confirms the above award of the Tribunal granted under the said heads. 19.As this Court confirms the award made in M.C.O.P.No.1310 of 2006, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri, 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.On 02.01.2008, this Court imposed a condition on the appellant/State Transport Corporation to deposit the entire compensation award amount, into the credit of the M.C.O.P.No.1310 of 2006, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri. 21.As the accident happened in the year 2005, it is open to the claimant, to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.1310 of 2006, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri, after filing necessary payment out application, in accordance with law, subject to deduction of withdrawals, if any. 22.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 22.03.2007, in M.C.O.P.No.1310 of 2006, passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri, is confirmed. Consequently, connected miscellaneous petitions are closed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To Motor Vehicles Accident Claims Tribunal, Chief Judicial Magistrate Court No.II, Krishnagiri, Copy to: The Section Officer, VR Section, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 1 cc To Mr.B.Vijayalakshmi, Advocate, SR.11630 1 cc To Mr.V.R.Shanmuganathan, Advocate, SR.12318 C.M.A.No.3214 of 2007 RSM(CO) sra 12/03/2010 https://hcservices.ecourts.gov.in/hcservices/