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2008 DIGILAW 1552 (MAD)

The Managing Director v. Govindaraj

2008-06-02

M.VENUGOPAL

body2008
Judgment :- The Civil Miscellaneous Appeal is preferred by the appellant/Tamil nadu State Transport Corporation, Kumbakonam Division No.I Limited, Kumbakonam/respondent as against the award dated 11.07.2002 passed by the Motor Accidents Claims Tribunal viz., the Additional District Judge, Nagapattinam in M.C.O.P.No.51 of 2002 granting a total compensation of Rs.90,000/- along with interest at 9% per annum from the date filing of the petition till date of payment. 2. The respondent/claimant has filed the claim petition claiming a total compensation of Rs.3,00,000/- under various heads for the injuries sustained by him in a road accident. 3. Aggrieved against the award passed by the Tribunal as exorbitant, the appellant/Transport Corporation has filed the present appeal before this Court. 4.The short facts leading to the filing of the claim are as follows:- On 04.09.2001 at about 14.30 hours the respondent/ claimant went in the motorcycle bearing Registration No.TN 22 4590 in the Chettichatthiram main road with great care and caution with observing the traffic rules. At that time, the bus bearing registration No.TN 49 N 0346 which came in a rash and negligent manner dashed against the respondent/ claimant, as a result of which the respondent/claimant sustained injuries. Immediately after the accident, respondent/claimant was taken to the Government Hospital, Mannargudi. After first aid treatment, the respondent/ claimant was transferred to Thanjavur Medical College Hospital wherein the respondent/claimant was admitted as inpatient. After getting treatment for some days, the claimant got himself discharged and got treated in a private hospital for best treatment. A criminal case was registered in Cr.No.153 of 2001 under Section 279 and 337 IPC by the Needamangalam police against the bus driver. The accident occurred due to the rash and negligent driving of the bus driver TN 49 N 0346 at the time of accident. The respondent is vicariously liable to pay the compensation of Rs.3,00,000/- to the claimant with interest and costs. The accident occurred due to the rash and negligent driving of the bus driver TN 49 N 0346 at the time of accident. The respondent is vicariously liable to pay the compensation of Rs.3,00,000/- to the claimant with interest and costs. The appellant/respondent in the counter has taken the pleas that the driver of the appellant/respondent is an experienced driver and that he had a valid driving licence to drive heavy passenger vehicle and that there was no rashness or negligence on the part of the driver and that the respondent/claimant has to prove that he had licence to ride a two wheeler and that on 04.09.2001 the bus belonging to the Transport Corporation bearing registration No.TN 49 N 0346 was and at Chettichatthiram bus stand and that after Anumar Temple, the bus was stopped and and that time M.80 Motor Cycle came from west to proceed to northern side and at that time, the driver of Bajaj M.80 did not take note of the approaching curve and even though the driver of the bus was sounding the horn and driving it very slowly and in that process, the motorcycle hit against the left headlight and that the bus was immediately stopped as the motorcyclist fell down and sustained injury. It is the stand of the appellant/respondent that the accident was the result of the callous, reckless attitude of the rider of Motorcyclist i.e. the claimant herein. Before the Tribunal, on the side of respondent/claimant witnesses P.W.1 and P.W.2 were examined and Exs.P.1 to P.6 were marked. On the side of appellant/respondent, no witness was examined and no documents were marked. After contest, on an appreciation of oral and documentary evidence, the Tribunal has awarded a total compensation of Rs.90,000/-along with interest at 9% per annum from the date of filing of the petition till date of payment. 5. To prove the issue of negligence, the claimant has examined himself as P.W.1. After contest, on an appreciation of oral and documentary evidence, the Tribunal has awarded a total compensation of Rs.90,000/-along with interest at 9% per annum from the date of filing of the petition till date of payment. 5. To prove the issue of negligence, the claimant has examined himself as P.W.1. In his evidence he has deposed that on 04.09.2001 at about 2.30 in the afternoon he was riding the motorcycle TN 22 4590 in the Chettichatthiram main road slowly and was proceeding on the left side of the road observing the traffic rules and at that time in the opposite direction bus TN 49 N 0346 was driven in high speed and negligently by its driver, who dashed against him as a result of which he sustained bone fracture on his left hand, left cheek, lower jaw and that he received first aid treatment at the Mannargudi Government Hospital and later for further treatment he was referred to Thanjavur Medical College Hospital and he was admitted as inpatient for one month and later he took treatment in a private hospital. 6. Ex.P.1 is the certified copy of FIR. Ex.P.2 is the certified copy of Motor Vehicle Inspectors Report. Ex.P.3 is the certified copy of Accident Register in respect of the respondent/claimant. Ex.P.4 is the certified copy of Charge Sheet filed in C.C.No.17 of 2002 before the Judicial Magistrate Court No.1, Mannargudi. 7. In Ex.P.1, the respondent/claimant is the complainant. The bus driver TN 49 N 0346 belonging to T.N.S.T.C. is shown as accused. A perusal of Ex.P.1-FIR clearly indicates that the respondent/complainant on the date of occurrence on 04.09.2001 when he was riding his motorcycle M.80 TN 22 4590, proceeding from west to east and at that time, the town bus TN 49 0346, which was proceeding to Iyyampattai, driven by its driver in high speed and before he could take a side, the said bus dashed against his bike and that he fell down along with his bike, as a result of which, he sustained blood injuries on his left cheek, chin portion, above the upper portion of left hand wrist and that he also suffered an injury on his left side of the head. It is also evident from Ex.P.1-FIR that the Needamangalam police has registered a criminal case in Cr.No.153 of 2001 under Section 297 and 337 IPC. It is also evident from Ex.P.1-FIR that the Needamangalam police has registered a criminal case in Cr.No.153 of 2001 under Section 297 and 337 IPC. From Ex.P.2-Motor Vehicle Inspectors Report, it is clear that the accident was not due to any mechanical defect in the bus. In Ex.P.3-certified copy of Accident Register, it is mentioned that the respondent/claimant has suffered 1) Lacerated wound in left wrist hand back near wrist measuring 10 cm x 2 cm x 1 cm; 2) Contusion over left wrist; 3)Deep abrasion in the left side of face near LD; 4)Deep abrasion in the .... In the said Accident Register Copy-Ex.P.3, it is also stated ? # wrist meaning thereby a fracture of the wrist is suspected and the claimant has been referred to Thanjavur Medical College Hospital and that x-ray of the left wrist has been taken and it is found # - fracture of lower end of radius and that the first injury is grievous, second and third injuries are simple in nature. The claimant has been admitted on 04.09.2001 and has been discharged on 25.09.2001, as seen from Ex.P.3. As seen from Ex.P.4-Charge Sheet, Arivazhagan, driver of the bus TN 49 N 0346 has been charge sheeted under Section 279 and 338 I.P.C. before the Judicial Magistrate No.1, Mannargudi. 8. To disprove the version of P.W.1, the claimant in regard to the happening of occurrence, no evidence on the side of appellant/respondent Corporation has been let in before the Tribunal. The evidence of P.W.1, the claimant in regard to the manner of occurrence is quite clear and the same is unimpeachable and worthy of acceptance, in the considered opinion of this Court. Hence, this Court agrees with the evidence of P.W.1/claimant in regard to the manner of the happening of accident and accepts the same in toto and therefore, comes to the conclusion that the accident took place because of the rash and negligent driving of the bus bearing Registration No.TN 49 N 0346 by its driver in high speed and that the driver of the bus is squarely responsible for causing the accident and the point is answered accordingly. 9. The Tribunal has awarded a sum of Rs.15,000/- under the head pain and suffering, assistant assistance and towards nourishment expenses and medical expenses. Towards permanent disability sustained by the claimant a sum of Rs.70,000/- has been awarded by the Tribunal. 9. The Tribunal has awarded a sum of Rs.15,000/- under the head pain and suffering, assistant assistance and towards nourishment expenses and medical expenses. Towards permanent disability sustained by the claimant a sum of Rs.70,000/- has been awarded by the Tribunal. A sum of Rs.5,000/- has been awarded for conducting a surgery to remove the plate etc. fixed on the complainant. Thus, the Tribunal has awarded a total compensation of Rs.90,000/- to the claimant payable by the appellant/Transport Corporation. 10. According to the learned counsel for the appellant/ Transport Corporation, the Tribunal has committed an error in placing reliance on the evidence of P.W.1/claimant and P.W.2-Doctor, who has given the disability certificate and that in any event, the sum of Rs.90,000/- awarded by the Tribunal is an astronomical figure on the facts and circumstances of the present case and therefore, prays for setting aside the exorbitant award passed by the Tribunal. 11. P.W.2-Doctor in his evidence has deposed that he has not given the treatment to the claimant/P.W.1 and that he has assessed the disability of the P.W.1/claimant as permanent at 37% and that he has given the certificate Ex.P.6 in this regard and that for removing the inside plate another operation is to be performed, for which the expense of Rs.50,000/- is to be spent. P.W.2, the doctor in his evidence has also further opined that the claimant/P.W.1 has sustained a radius bone fracture on his left front hand wrist and that a surgery has been performed by fixing a plate and over the left hand upper portion 11 cm x ½ cm size a wound scar is seen in front portion of the left hand upper portion and that the left hand is seen has slightly bent and that in the left hand tissue loss and weakness are found and that the movement capacity in fingers, left hand wrist are seen at low level and because of this, the claimant finds it difficult to perform his day to day activities and to grip and lift the objects and that the operated bone has wrongly united, as seen from the x-ray and that the metal plate etc. are seen and further that the gap between the bone and marrows are seen at narrow level. 12. At this stage, it is to be pointed out that in the decision Madhavan Vs. are seen and further that the gap between the bone and marrows are seen at narrow level. 12. At this stage, it is to be pointed out that in the decision Madhavan Vs. Managing Director, Marudhupandiyar Transport Corporation 2001 ACJ at page 873 for the operation undergone by the injured in regard to a fracture of left elbow and for the disability suffered at 25%, a sum of Rs.25,000/-for pain and suffering, medical expenses and loss of earning capacity has been awarded with interest at 12% per annum from the date of petition till realisation. 13. In Ex.P.6-Disability Certificate dated 08.07.2002 issued by P.W.2-doctor, it is mentioned as 1)loss of movement in LD wrist joint and NCP joint (70 x 0.30) = 21%. 2) loss of RON and muscle strength 18.3 (90-21)/90 = 6% 3)loss of co-ordination 5(90-27)/90 = 4% and that the total combined disability value is 31% (Thirty one percent). 14.The age of the claimant at the time of accident is mentioned as 31 years in the petition. The claimant/P.W.1 has actually suffered a total combined disability value at 31%, as assessed by the P.W.2-Doctor in his disability certificate-Ex.P.6. Bearing in mind of the fact that the age of the claimant at the time accident is 31 years, this Court grants a sum of Rs.46,500/- (calculated at the rate of Rs.1,500/- for 1% disability) towards disability sustained by the claimant. The permanent disability sustained by the claimant mentioned as 37% in the award at para 10 by the lower Court is not factually correct as seen from Ex.P.6-the disability certificate issued by P.W.2, the doctor. On the other hand, the actual disability assessed by the doctor-P.W.2 in his Ex.P.6-disability certificate comes to 31% in all. Therefore, this Court comes to the inevitable conclusion that the permanent disability suffered by the claimant is at 31%. In the absence of necessary proof, the award of Rs.15,000/-towards pain and suffering, assistant assistance, nourishment expenses, medical expenses awarded by the lower Court is sustained by this Court. Since P.W.2, the doctor in his evidence has opined that to perform another operation in order to remove the plate fixed already on the claimant a further expense of Rs.50,000/- is to be incurred, in the absence of adequate and necessary proof, this Court grants a sum of Rs.28,500/-in this regard. Since P.W.2, the doctor in his evidence has opined that to perform another operation in order to remove the plate fixed already on the claimant a further expense of Rs.50,000/- is to be incurred, in the absence of adequate and necessary proof, this Court grants a sum of Rs.28,500/-in this regard. Thus, the respondent/claimant is awarded in all a total compensation of Rs.90,000/- (Rs.46,500 + Rs.15,000 + Rs.28,500/-). 15. Accordingly, this Court awards a sum of Rs.90,000/-(Rupees Ninety thousand only) along with interest at 9% per annum from the date of filing of the petition till date of payment, as compensation payable by the appellant/Transport Corporation for the grievous injury and other injuries and disability sustained by the claimant and therefore, this Court is of the considered opinion that a sum of Rs.90,000/-granted by the Tribunal as compensation to the respondent/ claimant is fair and proper and not an astronomical or exorbitant one. 16. Earlier in C.M.P.No.12166 of 2003 this Court on 27.08.2003 has passed an order to the effect that "there will be an interim stay as prayed for subject to the condition that the petitioner/appellant deposits the entire compensation amount awarded including interest and costs to the credit of M.C.O.P.No.51 of 2002 on the file of Motor Accidents Claims Tribunal (Additional District Court), Nagapattinam within a period of eight weeks from today, failing which the stay shall stand automatically vacated. Moreover, on 23.03.2004 this Court has permitted the respondent/claimant to withdraw 50% of the award amount with entire accrued interest and costs without furnishing security and that the Tribunal has been directed to invest the balance amount in Indian Bank, Nagapattinam, initially for a period of three years and to renew the deposit till the disposal of the appeal and that the respondent/claimant has been permitted to withdraw the accrued interest every quarter directly from the Bank. It is open to the respondent/claimant to receive the balance amount lying to the credit of M.C.O.P.No.51 of 2002 by filing a necessary application for payment out as per Civil Rules of Practice in accordance with law. 17. In view of the foregoing discussions, the Civil Miscellaneous Appeal fails and the same is hereby dismissed to promote substantial cause of justice. 17. In view of the foregoing discussions, the Civil Miscellaneous Appeal fails and the same is hereby dismissed to promote substantial cause of justice. Resultantly, the award passed by the Motor Accidents Claims Tribunal viz., the Additional District Judge, Nagapattinam in M.C.O.P.No.51 of 2002 dated 11.07.2002 is affirmed for the reasons assigned by this Court in this appeal. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.