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2008 DIGILAW 1509 (MAD)

The Managing Director v. Marathal

2008-05-06

M.VENUGOPAL

body2008
Judgment :- This appeal is directed against the judgment and decree dated 05.07.2002 passed in M.C.O.P.No.416 of 1995 on the file of the Motor Accidents Claims Tribunal (Sub Court), Tiruppur. 2. The Civil Miscellaneous Appeal is filed by the Tamil Nadu State Transport Corporation, represented by its Managing Director, Coimbatore as against the award of the Motor Accidents Claims Tribunal, viz. Sub Court, Tirupur dated 05.07.2002 passed in M.C.O.P.No.416 of 1995, granting a compensation of Rs.2,50,000/-. 3. The Respondent / Claimant has filed the M.C.O.P.No.1124 of 1995 and later renumbered as 416 of 1995 on the file of Claims Tribunal, Tirupur, claiming a total compensation of Rs.8,15,000/- and restricted to Rs.5 Lakhs. 4. The brief facts of the claim are summarized as follows:- On 06.04.1995, at about 14.30 hrs. the claimant was traveling in a bus bearing Registration No.TN 37 N 0400 from Kovilpalayam to Annur. When the bus arrived at the Annur bus stand, the driver of the bus stopped the vehicle so as to enable the passengers to get down from the bus. Without noticing the claimant getting down from the bus, the claimant at the time of getting down from the bus, the bus driver drove the bus in a rash and negligent manner. As a result thereof, the claimant sustained grievous injuries at right femur, right thigh and injuries all over the body. The claimant immediately was taken to Dr.Balachandar Hospital and later to Ellen Hospital, Coimbatore and was admitted as an inpatient. The claimant spent huge amount towards medical treatment. The claimant was employed in tailoring work and earning a sum of Rs.2,400/- per month. A Criminal Case was registered against the driver of the bus by the Annur Police in Crime No.145 of 1995 under Section 279, 338 of IPC. The accident took place because of the rash and negligence driving of the bus by its driver. The claimant therefore claims a modest sum of Rs.5 Lakhs as compensation. 5. The Appellant / Transport Corporation pleaded that the claimant was not at all a passenger of the bus bearing Registration No.TN 37 N 0400 and that the bus did not involve in any accident and denied the occurrence on the said date. 6. The claimant therefore claims a modest sum of Rs.5 Lakhs as compensation. 5. The Appellant / Transport Corporation pleaded that the claimant was not at all a passenger of the bus bearing Registration No.TN 37 N 0400 and that the bus did not involve in any accident and denied the occurrence on the said date. 6. The further stand of the Appellant / Transport Corporation was that a false case was foisted against the driver of the bus later and that the claimant was traveling in the bus along with her daughter get down from the vehicle and went away and at that place for expansion of the road, stones were put in heaps and after getting down from the vehicle, they began to walk upon those heaps of stones and resultantly the claimant fell down on the stones and got injured and therefore the driver of the bus was not at all responsible for the carelessness of the claimant and as such the Transport Corporation is not liable to pay any amount much less a sum of Rs.5 Lakhs. In any event, the compensation claim is highly excessive. 7. The Tribunal examined witnesses P.W.1 to 2 on the side of claimant and marked Ex.A.1 to 6 and on the side of the Appellant/respondent, no witnesses were examined and no documents were marked. On appreciation of the oral and documentary evidence on record, the Tribunal awarded a sum of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand Only) as compensation with interest @ 9% per annum from the date of petition till the date of deposit. Challenging the same, the State Transport Corporation has filed the present appeal. 8. Though the Tribunal in its award has mentioned that the claimant in her evidence as P.W.1, in detail deposed as to how the accident took place, yet surprisingly, it has not rendered a finding determining the negligent act of driving of the bus by its driver and in short, there is no determination that the driver of the bus has been solely responsible for causing the accident. Therefore, this court is perforced to determine whether the accident took place on account of negligent driving of the driver of the bus? 9. Therefore, this court is perforced to determine whether the accident took place on account of negligent driving of the driver of the bus? 9. P.W.1 Marathal (claimant) in her evidence has deposed that on 06.04.1995 at about 2.30 p.m in the bus stand, before she could get down from the bus while alighting, the bus took place and as a result thereof, she fell down and sustained injuries and that the driver of the bus is responsible for causing the accident. Ex.A.1 is the carbon copy of F.I.R. dt.26.04.1995. Ex.A.2 dt.24.04.1995 is the certificate issued by the Doctor of Ellen Hospital, Coimbatore in respect of the claimant wherein it is clearly mentioned that she was admitted in their hospital from 07.04.95 to 17.04.95 and was suffering from fracture neck of right femur and that she was operated on 09.04.95 and that the said injury is grievous. Ex.A.3 is the discharge summary. Ex.A.5 is the disability certificate dated 10.09.2000. Ex.A.6 is the X-Ray. 10. It is to be pointed out that the date of accident is on 06.04.95 at 14.30 hrs. (2.30 p.m.). A perusal of the Ex.A.1 -F.I.R indicates that the claimant is the complainant. Even though the accident has taken place on 06.04.95, at 14.30 hrs., the information about the occurrence of accident is lodged only on 26.04.95 at 17.45 hrs. Though there was a delay of 20 days in lodging the information to the police about the accident and this is not fatal to the claim of the claimant, considering the fact that the claimant was admitted in Ellen Hospital from 07.04.95 to 17.04.95, as seen from Ex.A.2. The cursory glance of Ex.A.1 - F.I.R in candid terms clearly indicates that the claimant while alighting from the bus on 06.04.95 at 2.30 p.m., the bus was driven by its driver in a negligent manner and consequently she fell down from the bus and sustained injuries on the hip, etc. It also transpires that in Crime No.145 of 1995, a crime case under Section 338 IPC has been registered by the Annur police. Because of the injuries sustained by the claimant arising out of the accident, the disability sustained by her is 70% as per Ex.A.5 - disability certificate. The evidence of P.W.1, the claimant is unimpeachable as to the manner of accident. The evidence of P.W.1 is quite natural, convincing and trust worthy. Because of the injuries sustained by the claimant arising out of the accident, the disability sustained by her is 70% as per Ex.A.5 - disability certificate. The evidence of P.W.1, the claimant is unimpeachable as to the manner of accident. The evidence of P.W.1 is quite natural, convincing and trust worthy. On the side of the appellant / Transport corporation, no one was examined, mush less the driver of the bus involved in the accident. Therefore, this court accepts the evidence of P.W.1, complainant in regard to the happening of the accident and therefore out rightly rejects the version of the Appellant / Transport Corporation that the driver of the bus is not responsible for the accident. Suffice it to state that in view of the unassailable evidence of P.W.1 as to the happening of the accident and bearing in mind of the fact that a criminal case has been registered by the police in Crime No.145 of 1995 under Section 338 of IPC and in lieu of the fact that the claimant has sustained grievous injuries arising out of the accident resulting in partial permanent disability, this court comes to the inevitable conclusion that the accident took place on account of the negligent driving of the driver of the bus and that the driver of the bus has not taken due care to see that the passenger alights from the bus carefully and resultantly, the driver of the bus is held primarily responsible for causing the accident and the finding is rendered accordingly. 11. Dealing with the issue of quantum of compensation, the Tribunal has fixed the monthly income of the claimant as Rs.2,400/-per month and per year it works out to Rs.28,800/-. The tribunal has determined the age of the claimant as 50 years. The Tribunal has adopted a multiplier of 13 and calculated the amount at Rs.3,74,400/-(Rs.28,800 x 13). Out of Rs.3,74,400/-, for the permanent disability of 70%, the calculation arrived at by the Tribunal is at Rs.2,62,080/- (Rs.3,74,400/- x 70%). The Tribunal has calculated the medical expenses as per Ex.A.4 as Rs.21,146.13 but the exact amount as per Ex.A.4, medical bills (24) comes to Rs.21,0463. Towards pain and suffering, the tribunal has granted Rs.5000/-to the claimant. While rounding of the compensation, the tribunal has determined at Rs.2,50,000/-. 12. The Tribunal has calculated the medical expenses as per Ex.A.4 as Rs.21,146.13 but the exact amount as per Ex.A.4, medical bills (24) comes to Rs.21,0463. Towards pain and suffering, the tribunal has granted Rs.5000/-to the claimant. While rounding of the compensation, the tribunal has determined at Rs.2,50,000/-. 12. P.W.2, the Doctor who issued the disability certificate, in his evidence has deposed that he has not given treatment to the claimant and he has perused the hospital notes and issued the disability certificate Ex.A.5 and that he has fixed the permanent disability at 70% and that because of the disability, the claimant cannot operate the sewing machine and the disability certificate issued by him as Ex.A.5 and with the X-Ray taken in respect of the claimant as Ex.A.6. In Ex.A.5, the disability certificate, it is stated that the claimant was admitted in Ellen Hospital, Coimbatore on 07.04.95 and got discharged on 17.095. Because of the permanent disability, the claimant cannot walk and sit, as mentioned by the Doctor in Ex.A.5, disability certificate and it is categorically stated by the Doctor, P.W.2 in the said certificate that there is difficulty to walk and to bear weight. It is significant to point out that P.W.2, Doctor has mentioned that there is a fracture of neck of femur(R). 13. According to Lord Morris in 1963 (2) ALL ER 625, money may be awarded so that something tangible may be procured to replace of light nature which has been destroyed or lost. But, the money cannot renew a physical frame that has been battered and shattered. 14. In the words of Lord Halsbury LC in (1900) AC 113, Nobody can suggest that you can, by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as pain and suffering which a person has undergone by reason of an accident. It is not out of place to makefr a mention that it is the primary duty of the Tribunal to award as perfect an amount as is within its ambit in the considered opinion of this court. The claimant has mentioned her age as 50 years in the claim petition. No document has been filed on behalf of the claimant as to know about the exact age. But in Ex.A.5, disability certificate, the age of the claimant is mentioned as 50 years. The claimant has mentioned her age as 50 years in the claim petition. No document has been filed on behalf of the claimant as to know about the exact age. But in Ex.A.5, disability certificate, the age of the claimant is mentioned as 50 years. In Ex.A.3, discharge summary, the claimants age is mentioned as 50 years. Even though there is no clear cut proof as to the exact age of the claimant at the time of accident, the fact that the Tribunal has fixed the age of the claimant as 50 years, on the basis of appreciation of facts cannot be found fault with and this court is not interfering with the same. Moreover, in preamble to P.W.1s evidence under the caption occupation, it is mentioned as Nil. But P.W.1, the claimant in her evidence has deposed that she is doing tailoring work by owning sewing machine and getting a monthly income of Rs.2,400/- per month. The fixation of monthly income of the claimant at Rs.2,400/- per month by the Tribunal cannot be said to be incorrect and per contra, the same is just and prudent in the facts and circumstances of the case in the considered opinion of this court. 15. In view of the above, this court concludes that the compensation of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand only) arrived at by the Tribunal by means of rounding of for the injuries sustained by the claimant is fair and proper and equitable too. The Advocate fee fixed at Rs.8000/-by the tribunal is not altered by this court. No case is made out for reduction of rate of interest at 9% per annum fixed by the Tribunal and therefore the interest determined at 9% per annum from the date of filing of the petition till the date of deposit is confirmed. 16. It appears that the Appellant / Transport Corporation has deposited the entire amount to the credit of M.C.O.P petition before the tribunal. On 21.08.2002, in C.M.P. No.4729 of 2002, this court has permitted the respondent / claimant to withdraw 50% of the amount deposited and that the Claims Tribunal has been directed to deposit the balance amount in any one of the Nationalised Bank at Tirupur in cumulative deposit initially for a period of three years and renew the deposit till the appeal is disposed of, making the interim stay already granted as absolute. 17. 17. In fine, in view of the foregoing discussions and on consideration of material evidence on record and considering the facts and circumstances of the case in an integral fashion, this court is of the considered opinion that the appeal has no merits and the same is dismissed for the reasons ascribed in the instant appeal to prevent aberration of justice. Consequently, the award passed by the Motor Accidents Claims Tribunal, Sub Court, Tirupur dated 05.07.2001 in M.C.O.P.No.416 of 1995 is affirmed. 18. Liberty is given to the respondent/claimant to withdraw the balance amount due to her, lying to the credit of M.C.O.P.No.416 of 1995, on the file of Motor Accident Claims Tribunal, viz. Sub Court, Tirupur by filing necessary payment out application as per Civil Rules of Practice in the manner known to law. Moreover, the tribunal is directed to make sure that the requisite court fee is collected from the respondent/claimant (if not collected already) before disbursing the balance amount. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected Civil Miscellaneous Petition No.4729 of 2002 is closed.