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2007 DIGILAW 2975 (MAD)

The Managing Director v. Murugan & Others

2007-09-12

P.P.S.JANARTHANA RAJA

body2007
Judgment :- These Civil Miscellaneous Appeals are filed by the Transport Corporation against the Judgment and Award dated 011. 1999 made in MCOP Nos.17 of 1999 and 87 of 1998 on the file of the Motor Accidents Claims Tribunal (Additional District Judge-cum-Chief Judicial Magistrate), Tiruvannamalai. 2. The background facts in a nutshell are as follows:- On 012. 1996 at about 5.30 a.m., an auto-rickshaw vehicle bearing Registration No.TN-04-A-0716 belonging to one Krishnamoorthy was proceeding from east to west. The auto-rickshaw was driven by one Murugan. In that auto, one Thandapani was the passenger. The said auto-rickshaw was also insured with the Insurance Company. The driver of the auto-rickshaw while proceeding from east to west, a bus bearing Registration No.TN-32-0557 belonging to the appellant Transport Corporation, driven by its driver in a rash and negligent manner, dashed against the said auto-rickshaw. Due to the accident, both the passenger Thandapani as well as the auto-driver Murugan have sustained injuries all over the body. They have also sustained fractures. Immediately they were rushed to the Tiruvannamalai Government Hospital. Both of them have taken treatment in the hospital. They claimed a compensation of Rs.1,00,000/- each before the Tribunal. On the side of the claimants, P.W.1 to P.W.3 were examined and documents Ex.P1 to Ex.P10 were marked. On the side of the Transport Corporation, R.W.1 was examined and no documents were marked. After considering the oral and documentary evidence, the Tribunal awarded a compensation of Rs.52,100/-for the auto-driver Murugan, the first respondent in CMA No.708 of 2000 and Rs.40,200/-for the passenger Thandapani, the first respondent in CMA No.709 of 2000. Aggrieved by the awards, the Transport Corporation has filed the present appeals. 3. Learned counsel appearing for the appellant Transport Corporation submitted that the accident had occurred only due to the negligence on the part of the driver of the auto-rickshaw and hence the appellant is not liable to pay any compensation. It is also alternatively submitted that, as there was a head-on-collision of the vehicles, there is a contributory negligence and hence the Tribunal ought to have granted the compensation on the basis of contributory negligence. Hence the compensation amounts granted by the Tribunal are without basis and justification. 4. It is also alternatively submitted that, as there was a head-on-collision of the vehicles, there is a contributory negligence and hence the Tribunal ought to have granted the compensation on the basis of contributory negligence. Hence the compensation amounts granted by the Tribunal are without basis and justification. 4. Learned counsel appearing for the claimants submitted that the Tribunal had considered all the relevant materials and evidence and come to the right conclusion that the accident had occurred due to the rash and negligent driving of the driver of the bus belonging to the appellant Transport Corporation. The compensation amounts awarded by the Tribunal are just, fair and reasonable and the order passed by the Tribunal is in accordance with law. 5. Heard the counsel. On the side of the claimants, P.W.1 to P.W.3 were examined and documents Ex.P1 to Ex.P10 were marked. On the side of the Transport Corporation, R.W.1 was examined and no documents were marked. P.W.1 is the passenger of the auto-rickshaw. P.W.2 is the driver of the auto-rickshaw. P.W.3 is the Doctor Tmt.Ravindran. Ex.P1 is the certified copy of F.I.R. Ex.P2 is the certified copy of wound certificate. Ex.P3 is the certified copy of Motor Vehicle Inspectors Report. Ex.P4 is the certified copy of the charge sheet. Ex.P5 is the Driving Licence. Ex.P6 is the certified copy of wound certificate. Ex.P7 and Ex.P9 are the permanent disability certificates. Ex.P8 and Ex.P10 are the X-rays. After considering the materials and evidence on record, the Tribunal awarded a compensation of Rs.52,100/- for the auto-driver Murugan, the first respondent in CMA No.708 of 2000 and Rs.40,200/-for the passenger Thandapani, the first respondent in CMA No.709 of 2000, with 12% interest p.a. from the date of petition. The details of the compensation are as under:- CMA No.708 of 2000 (MCOP No.17 of 1999): Rupees Pain and suffering 5,000/-Permanent disability 15,000/-Loss of earning power 30,600/- Medical expenses 1,500/- 52,100/-============== CMA No.709 of 2000 (MCOP No.87 of 1998): Rupees Pain and suffering 5,000/-Permanent disability 15,000/-Loss of earning power 19,200/- Medical expenses 1,000/- 40,200/- ============== 6. CMA No.708 of 2000 (MCOP No.17 of 1999: The claimant has been examined as P.W.2 and he has sustained fracture at left shoulder, injury at forehead, leg and chest, and immediately he was admitted in the Tiruvannamalai Hospital and he underwent treatment for 25 days. The wound certificate has been marked as Ex.P6. CMA No.708 of 2000 (MCOP No.17 of 1999: The claimant has been examined as P.W.2 and he has sustained fracture at left shoulder, injury at forehead, leg and chest, and immediately he was admitted in the Tiruvannamalai Hospital and he underwent treatment for 25 days. The wound certificate has been marked as Ex.P6. He has sustained fracture at left clavical bone and he has also sustained four injuries. The second injury is grievous in nature and other injuries are simple in nature. His driving licence has been marked as Ex.P5. The Doctor has been examined as P.W.3. He has deposed before the Court that the claimant has sustained fracture at left shoulder and now it is mal-united. The disability was assessed at 25% and the disability certificate has been marked as Ex.P7. X-ray has been marked as Ex.P8. Taking into consideration of the grievous injuries, the Tribunal awarded a sum of Rs.5,000/- towards pain and suffering. It would be reasonable and appropriate to award a sum of Rs.7,100/-under this head. The Tribunal has awarded only a sum of Rs.15,000/- towards permanent disability. The disability certificate issued by the Doctor shows that the claimant had suffered disability to the extent of 25%. After taking into consideration of the materials and evidence available on record, i.e., Ex.P7, it would be appropriate and reasonable to award a sum of Rs.30,000/- under this head. The Tribunal has awarded a consolidated sum of Rs.30,600/- towards loss of earning power. A Full Bench decision of this Court in the case of Cholan Roadways Vs. Ahmed Thambi, 2006 (4) CTC 433 , held that whenever compensation towards permanent disability is awarded, further amount towards loss of earning power should not be awarded. Applying the principle enunciated in the above Full Bench decision of this Court, the award of the Tribunal in respect of loss of earning power at Rs.30,600/-is not in accordance with law and is therefore set aside. The Tribunal awarded a sum of Rs.1,500/-towards medical expenses. Taking into consideration the disability and the nature of injuries and also considering the fact that the Tribunal had not awarded any amount towards extra nourishment, it would be reasonable to award a sum of Rs.5,000/-under the head medical expenses. The Tribunal has not awarded any amount towards loss of income for the treatment period. Taking into consideration the disability and the nature of injuries and also considering the fact that the Tribunal had not awarded any amount towards extra nourishment, it would be reasonable to award a sum of Rs.5,000/-under the head medical expenses. The Tribunal has not awarded any amount towards loss of income for the treatment period. The claimant had suffered a fracture at the left shoulder, injury at forehead, leg and chest and immediately he was admitted in the Tiruvannamalai Government Hospital and underwent treatment for 23 days. The Wound Certificate is marked as Ex.P.6. Even though there is no proof filed, it would be appropriate and reasonable to award a sum of Rs.10,000/- towards loss of income for the treatment period. The details of the modified amounts under different heads are as under:- Rupees Pain and suffering 7,100/- Permanent disability 30,000/- Medical expenses 5,000/- Loss of income for the treatment period 10,000/- 52,100/- ============== 7. CMA No.709 of 2000 (MCOP No.87 of 1998): The claimant has been examined as P.W.1. In his evidence he stated that he has sustained fracture at the right shoulder and right forearm and injury at his back and he was also admitted in the Tiruvannamalai Government Hospital for ten days and even now he is unable to shift his shoulder. The wound certificate has been marked as Ex.P2 and there were three injuries. The second injury is grievous in nature and he has sustained fracture at right shoulder. P.W.3 the Doctor has deposed that the claimant has sustained fracture at the right shoulder collar bone and now it was mal-united. So the restriction of movements is only upto 80 degree. Therefore, the disability has been assessed at 30%. The Disability Certificate has been marked as Ex.P9 and the X-ray as Ex.P10. There is restriction of movements upto 30% as well as the grip power. Since the claimant has sustained grievous injuries, the Tribunal has awarded a sum of Rs.5,000/-towards pain and suffering, which is reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.15,000/- towards permanent disability. In view of the restriction of the movements upto 30% as well as the grip power, I feel that the amount awarded towards permanent disability is very meagre and hence it would be appropriate and reasonable to award a sum of Rs.25,000/- under this head. The Tribunal has awarded a sum of Rs.15,000/- towards permanent disability. In view of the restriction of the movements upto 30% as well as the grip power, I feel that the amount awarded towards permanent disability is very meagre and hence it would be appropriate and reasonable to award a sum of Rs.25,000/- under this head. The Tribunal has awarded a sum of Rs.19,200/-towards loss of earning power. A Full Bench decision of this Court in the case of Cholan Roadways Vs. Ahmed Thambi, 2006 (4) CTC 433 , held that whenever compensation towards permanent disability is awarded, further amount towards loss of earning power should not be awarded. Applying the principle enunciated in the above Full Bench decision of this Court, the award of the Tribunal in respect of loss of earning power at Rs.19,200/- is not in accordance with law and is therefore set aside. The Tribunal has awarded a sum of Rs.1,000/- towards medical expenses. The Tribunal has not awarded any amount towards extra nourishment. Taking into consideration of the treatment and other factors, it would be appropriate and reasonable to award a consolidated sum of Rs.5,000/- under the head medical expenses. The Tribunal has not awarded any amount towards loss of income for the treatment period. In this case there is evidence to show that the claimant was admitted in the Tiruvannamalai Government Hospital for ten days and the wound certificate has been marked as Ex.P2. Taking into consideration the facts and circumstances of the case, it would be appropriate and reasonable to award a sum of Rs.5,200/-towards loss of income for the treatment period. The details of the modified amounts under different heads are as under:- Rupees Pain and suffering 5,000/- Permanent disability 25,000/- Medical expenses 5,000/- Loss of income during the treatment period 5,200/- 40,200/- ============== 8. Thus only the amounts awarded by the Tribunal under different heads are modified and the total compensation amounts awarded by the Tribunal in these appeals are confirmed. The interest rate awarded by the Tribunal at 12% p.a. from the date of petition is confirmed as the same was prevailing at that time. 9. It is submitted that the compensation awarded by the Tribunal in both these appeals have been deposited by the appellant Transport Corporation. Hence the claimants are permitted to withdraw their respective award amount from the deposits. 10. 9. It is submitted that the compensation awarded by the Tribunal in both these appeals have been deposited by the appellant Transport Corporation. Hence the claimants are permitted to withdraw their respective award amount from the deposits. 10. The Civil Miscellaneous Appeals are disposed of accordingly. Consequently C.M.P. Nos.7664 and 7665 of 2000 are closed. No costs.