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2009 DIGILAW 3397 (MAD)

The Managing Director, Tamil Nadu State Transport Corporation Ltd. , Erode v. Nanjammal & Another

2009-08-27

P.P.S.JANARTHANA RAJA

body2009
Judgment :- The appeal is preferred by the claimant against award dated 23.09.2005 made in MCOP No.157 of 2002 by the Motor Accident Claims Tribunal (Fast Track Court No.II, Additional District Judge), Gobichettipalayam. 2. Background facts in a nutshell are as follows: The first respondent/claimant met with motor vehicle accident that took place on 06.08.2001 at about 9.30p.m. One Palanisamy as a rider and the first respondent/claimant as pillion rider proceeding in the TVS-50 bearing registration No.TN-36-A-9741 from Elchipalayam to Poothimadai on the Nambiyur-Gobi main road. When they were nearing Konnamadai Karupatti Society, a bus belonging to the appellant-Transport Corporation bearing registration No.TN-36-A-974, which came in an opposite direction, driven by the second respondent-driver in a rash and negligent manner and dashed against TVS-50, due to which, both the rider and the claimant were thrown away on the road and had sustained injuries all over the body. Both of them were immediately admitted in the Government Hospital, Gobi, where the rider was found dead. Later, the claimant was referred to Government Hospital, Erode. She claimed a sum of Rs.3,00,000/- as compensation. The appellant-Transport Corporation resisted the claim. On pleadings the Tribunal framed the following issues:- "1.Whether the accident had occurred due to the rash and negligent driving of the bus driver or not? 2.What is the compensation the claimant is entitled to? If so, what is the amount and from whom?" After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the appellant-Transport Corporation and awarded a compensation of Rs.1,11,300/-with interest at 9% per annum from the date of petition and the details of the same are as under:- TABLE Aggrieved by that award, the appellant-Transport Corporation has filed the present appeal. 3. The learned counsel appearing for the appellant/Transport Corporation questioned only the quantum of compensation awarded by the Tribunal and contended that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification. He further contended that the Tribunal has erred in awarding interest at 9% per annum, which is on the higher side and that therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside. 4. Inspite of notice, there is no representation on behalf of the respondents. 5. Heard the counsel. 4. Inspite of notice, there is no representation on behalf of the respondents. 5. Heard the counsel. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P10 were marked. On the side of the appellant-Transport Corporation RW1-V.K.Venkateswaran was examined and no document was marked to support their claim. P.W.1 is the claimant. PW2 is the Doctor Periyasamy. Ex.P1 is the First Information Report. Ex.P2 is the wound certificate. Exs.P3 and P4 are the Motor Vehicle Inspectors reports. Ex.P5 is the rough sketch. Ex.P6 is the charge sheet. Ex.P7 are the series of medical bills and medical receipts. Ex.P8 is the discharge summary. Ex.P9 is the disability certificate. Ex.P10 are the series of X-ray. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the appellant-Transport Corporation bus and the finding is based on valid materials and evidence. 6. At the time of accident, the claimant was aged about 50 years old. She claimed that she was earning Rs.3,000/-by doing milk vending business and agricultural cooly. Due to the accident she sustained following injuries: "Fracture of left leg below the knee, severe injuries on head, hands, chest, hip nose and all over the body." PW1-claimant has deposed that immediately after the accident, she was admitted in Government Hospital, Gobi and later referred to Government Hospital Erode, where she took treatment for a period of five days. Thereafter, she took treatment at Seethalakshmi Private Hospital for a period of 15 days. She further deposed that a case has been registered against the driver of the bus in Crime No.147 of 2001 under Sections 279, 337 and 304(A) IPC. PW2-the Doctor has deposed that he examined the claimant and issued Ex.P9 Disability Certificate, in which, he assessed the disability to the extent of 32%. Ex.P2 wound certificate also corroborated the same. He further deposed that because of the head injury, she was suffering from headache and giddiness and she could not walk or stand for a long time. Though the claimant has stated that she was earning Rs.3,000/-per month, she has not produced any documentary evidence to prove the same. Therefore, the Tribunal has fixed the annual income of the claimant at Rs.15,000/-as per Schedule II of the Motor Vehicles Act. Though the claimant has stated that she was earning Rs.3,000/-per month, she has not produced any documentary evidence to prove the same. Therefore, the Tribunal has fixed the annual income of the claimant at Rs.15,000/-as per Schedule II of the Motor Vehicles Act. Considering the evidence of PW2-doctor and other documents, the Tribunal has taken the disability at 32% and fixed a sum of Rs.4,800/- (Rs.15,000/-x 32/100) towards lose of earning power. Taking into consideration the age of the claimant at 50 years, the Tribunal adopted the multiplier of 11 and awarded a sum of Rs.52,800/- (Rs.4,800/-x 11) towards loss of earning due to disability. The learned counsel vehemently contended that the Tribunal ought not to have adopted the multiplier method for determining the loss of earning due to disability. Normally the Courts award Rs.1,000/-to Rs.2,000/- per percentage of disability. Considering the facts and circumstances of the case, I feel that it is just and proper to award Rs.1,650/-for 1% disability and the award towards loss of income would be Rs.52,800/-(1650x32). There is no difference between the amount fixed by this Court and the amount awarded by the Tribunal by adopting multiplier method and hence, a sum of Rs.52,800/-awarded by the Tribunal under the head loss of income due to disability is confirmed. The Tribunal has awarded a sum of Rs.8,500/- towards medical expenses. The claimant spent Rs.8,331/-towards medical expenses and has also produced Ex.P7-series of medical bills. It is an actual expenditure incurred by the claimant. Hence, the amount awarded by the Tribunal under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs.50,000/- towards pain and suffering. The learned counsel appearing for the appellant-Transport Corporation vehemently contended that the amount awarded under this head is excessive and without basis and justification. Considering the nature of injuries sustained, I feel that it would be appropriate to award a sum of Rs.15,000/-under this head as against Rs.50,000/-awarded by the Tribunal. The details of modified compensation as per the above discussion are as under:- TABLE Therefore, the claimant is entitled to the modified compensation of Rs.76,300/-as against the compensation of Rs.1,11,300/-awarded by the Tribunal. The Tribunal has fixed the rate of interest at 9% p.a from the date of petition. The accident has occurred on 06.08.2001. The details of modified compensation as per the above discussion are as under:- TABLE Therefore, the claimant is entitled to the modified compensation of Rs.76,300/-as against the compensation of Rs.1,11,300/-awarded by the Tribunal. The Tribunal has fixed the rate of interest at 9% p.a from the date of petition. The accident has occurred on 06.08.2001. Keeping in view the prevailing rate of interest is 7.5%, the same is modified to 7.5% p.a. instead of 9% p.a. 7. The learned counsel appearing for the appellant-Transport Corporation has submitted that already entire award amount has been deposited as per order of this Court dated 05.06.2007. The claimant is permitted to withdraw the modified award amount of Rs.76,300/- with interest at 7.5% p.a. from the date of petition after adjusting the amount if any, already withdrawn. The appellant-Transport Corporation is also permitted to withdraw the balance amount on making proper application. 8. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, M.P.No.1 of 2007 is closed.