Judgment The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decreetal Order dated 17.09.2003, made in M.C.O.P.No.523 of 2002, on the file of the Motor Accidents Claims Tribunal (Sub Judge), Thiruvallur, awarding a compensation of Rs.2,43,985/-with 9% interest from the date of filing the petition to till the date of deposit of compensation. 2. Aggrieved by the above award, the appellant/respondent, Tamil Nadu State Transport Corporation Ltd., Vellore-9 has filed the above appeal praying to set aside the Order. 3. The short facts of the case are as follows: The petitioner is a Photographer, employed in Anand Photos & Videos and earning a sum of Rs.4,500/- per month. On 04.07.2002, at 16.00 hours, when the petitioner was riding his Suzuki Motorcycle, bearing registration No.TN 07 H329, on the left side of the Pallipattu to Nagari Road, near Janammalpattarai and was proceeding from Pallipattu to Nagari, a passenger State Carriage Bus bearing registration No.TN 22 N 0538 coming on the same road, but on the opposite direction, driver in a rash and negligent manner, hit the petitioners Suzuki Motorcycle. Consequently, the petitioner was thrown away from his motorcycle, as a result of which, the petitioner sustained a grievous and multiple injuries all over the body. The petitioner was treated at Government Hospital, Tiruttani, on 04.07.2002 and on the same day, he was admitted at MR Hospital and was discharged on 08.08.2002 and still taking treatment privately. The petitioner is unable to move and to do normal work as before. The petitioner has stated that the accident had been caused only because of the rash and negligent driving of the bus and so, the respondent, being the owner of the bus is statutorily and vicariously liable to pay compensation to the petitioner with interest and costs. As such, the petitioner has claimed a compensation of Rs.3,00,000/- under various heads with interest and costs. 4. A criminal case regarding the said accident has been registered at the D-5, Pallipattu Police Station, Pallipattu, as Crime No.100/2002, dated 05.07.2002, under Sections 279 and 338 of I.P.C. 5. The respondent/The Tamil Nadu State Transport Corporation, Vellore, its Counter has resisted the claim stating that the respondents bus was taken by its driver at Poddaturpettai and was proceedings towards Pallipattu. When the bus had proceeding beyond Kariampedi and before reaching Gnanambalpattadai, there was a circular path to be negotiated. The respondent/The Tamil Nadu State Transport Corporation, Vellore, its Counter has resisted the claim stating that the respondents bus was taken by its driver at Poddaturpettai and was proceedings towards Pallipattu. When the bus had proceeding beyond Kariampedi and before reaching Gnanambalpattadai, there was a circular path to be negotiated. Hence, the bus driver, being experienced, drove the bus at a slow speed and on a careful and diligent manner and observing all traffic rules and regulations and was proceeding on the left side of the road. At that time, he observed a motorcyclist, coming on the opposite direction at highspeed and without observing traffic rules and regulations in the circular road and in front of the path of the bus. On seeing this, the bus driver took the bus to the extreme left side of the sand road, but in spite of this, the motorcyclist dashed his vehicle on the front right bumper of the bus and invited the accident. As such, the accident was caused only by the rider of the motorcycle. Though a report of the said accident was given to the Police, they had filed an FIR as against the driver of the bus. Further, the respondent has submitted that the petitioner should prove his age, income, nature of injuries, disability suffered by documentary evidence. The claim of the petitioner was also said to be excessive. Further, the non-inclusion of the owner and insurer of the motorcyclist renders the claim not maintainable. As such, the respondent had prayed for dismissal of the petition. 6. Based on the above pleadings, the Tribunal framed two issues for consideration namely .(i) Was the accident caused by the rash and negligent driving of the driver of the respondents bus bearing registration No.TN22 N0538? .(ii) Is the petitioner entitled to receive compensation? If so, what is the quantum of the compensation? 7. It has been alleged by the petitioner that on 04.07.2002, at about 4 p.m. when he was proceeding in the Suzuki Motorcycle, bearing registration No.TN 07 H5297 from Pallipatti to Nagari road and when he was nearing Gnanambalpattadai, the bus bearing registration No.TN 22 N0538, driven by its driver with highspeed and in a rash and negligent manner had dashed against the petitioners motorcycle, as a result of which, the petitioner had sustained grievous injuries and so the petitioner had claimed a compensation of Rs.3,00,000/- from the respondent. But, the respondents driver had stated that on seeing the motorcyclist, who was riding the motorcycle in a rash and negligent manner, he had stopped the bus on the extreme leftside of the sand road and that in spite of this the motorcyclist had dashed his vehicle on the right side of the bumper in front of the bus and so the driver of the bus was not responsible for the accident. 8. On the petitioners side, the petitioner was examined as PW1 and the Doctor, who had given Disability Certificate to the petitioner was examined as PW2. Further, eight documents were marked as Exs.P1 to P8. On the respondents side, the driver of the bus was examined as RW1 and one document was marked as Ex.R1. 9. The petitioner, PW1, in his evidence has stated that on 04.07.2002, at about 4.30 p.m. the accident occurred near Gnanambal Workshop on the Pallipatti-Nagari Road and that which he was travelling in the Suzuki Motorcycle bearing registration No.TN07 H5297, and proceeding towards Nagari, on the leftside of the road, the bus, bearing registration No.TN23 N0538, coming in the opposite direction had dashed against the said motorcycle and that as a result of this the layer of skin from his left knee till his heels had been torn off and that he was treated in Tiruttani Hospital initially and subsequently, he was treated at M.R.Hospital and remained there at in-patient for 35 days. On the respondents side, RW1, the driver of the respondents bus, on his evidence has submitted that when he was driving the bus carefully in the circular road, near the Gnanambalpattarai, on the extreme sand side of the road, the motorcyclist, who was riding the motorcycle at a highspeed had dashed against the front right side bumper of the bus. Further, RW1, has submitted that he had given a written complaint of the said accident at the Police Station and marked Ex.R1, the Photograph of the accident. But, the petitioner has marked a certified copy of the FIR as Ex.P1, from which it is evident that the complaint to the Police has been given by the brother of the petitioner. It, the driver of the bus had given the complaint, only his name would have been mentioned as the complainant. But, the petitioner has marked a certified copy of the FIR as Ex.P1, from which it is evident that the complaint to the Police has been given by the brother of the petitioner. It, the driver of the bus had given the complaint, only his name would have been mentioned as the complainant. Further, the Tribunal, on considering Ex.R1, the photograph of the accident, could not come to a conclusion that the accident happened only after the bus was brought to a near stationary or halting condition. It was held by the Tribunal that the photograph could have been taken even after the accident and the bus could have been moved to the extreme leftside of the road, after the accident took place and then such photographs taken. Further, only with the photograph as evidence, it could not be said with certainty that the accident occurred as depicted in the photograph. Further, the police on investigation of the accident had registered a criminal case only as against the driver of the bus and issued a Charge Sheet against the driver. If the accident had occurred as per the version given by the driver of the bus, the Police, even if they had filled the name of the complainant wrongly in the FIR, would have corrected it at the time of filing the Charge Sheet and as this has not been done, the Tribunal decided that the accident had been caused only due to the rashness and negligence of the driver of the respondents bus and as such held the respondent liable to pay the compensation to the petitioner. .10. The PW1, in his evidence has stated that due to the accident, his left leg from the knee joint to the heels had been affected and due to this he had taken treatment at Tiruttani Government Hospital and then at M.R. Hospital for 35 days as inpatient. Further, it was submitted that three to four surgeries were done on his leg and after this he had remained as inpatient for five days. Further, he has submitted that before the accident, he was working as a Photographer and earning a sum of Rs.4,500/-per month. Further, it was submitted that three to four surgeries were done on his leg and after this he had remained as inpatient for five days. Further, he has submitted that before the accident, he was working as a Photographer and earning a sum of Rs.4,500/-per month. But, subsequent to the accident, he is not able to stand for a long-time and that he has difficulty in sitting and that he has recurrent pain in his left leg and that he had spent a sum of Rs.1,25,000/- for medical expenses at M.R.Hospital and also spent a sum of Rs.10,000/- for transportation. On scrutiny of the Ex.P3, it is evident that the petitioner has suffered injuries in his left leg. As per Ex.P4, it is clear that the petitioner had received Medical Treatment from 04.07.2002 to 08.08.2002. From an examination of Ex.P5, Discharge Summary, it is established that the petitioner had been an inpatient from 15.08.2002 to 26.08.2002. During the period of his treatment, surgical operations had been done on his left leg knee joint and this has been evident after examining Ex.P7, the photograph of the wounds suffered by the petitioner. Further, the Doctor, who was examined as PW2 and who had given the Disability Certificate, had in his evidence submitted that the petitioner had sustained skin and flesh loss in his left leg knee and thigh and that plastic surgery had been done to fix skin and flesh in his left leg and that due to surgery, this had hardened as a result of which, the petitioner would be able to bend his left leg only by about 80 Degrees and further the muscle strength is only 60% and as such the disability on this count is 40%. Further, as the flesh had hardened, the petitioner would have difficulty in moving his toes in his left leg and as such a 20% disability has been suffered by him. In total, the Doctor had stated that the petitioner had suffered 60% disability and marked as Ex.P8, the Disability Certificate. .11. Hence, the Tribunal concluded that due to this disability, the petitioner would have difficulty in walking fast and squatting due to reduced muscle strength and inability to bend his toes. As such, the Tribunal was of the opinion that the petitioner would not be able to do his work as well as he used to do before the accident. .11. Hence, the Tribunal concluded that due to this disability, the petitioner would have difficulty in walking fast and squatting due to reduced muscle strength and inability to bend his toes. As such, the Tribunal was of the opinion that the petitioner would not be able to do his work as well as he used to do before the accident. He may have difficulty in sitting and standing for long-time and carrying on photographic work. Further, the petitioner had stated that he had suffered loss of income during his period of medical treating from 04.07.2002 to 03.01.2003 and had claimed Rs.18,000/-. Though, the petitioner had stated that his salary was Rs.4,500/-per month, no documentary evidence has been produced to prove this claim. As such, the Tribunal considered that only a salary of Rs.3,000/- per month would have been earned by the petitioner and accordingly fixed the loss of income suffered during the period of medical treatment as Rs.12,000/-. For medical expenses, the Tribunal granted a sum of Rs.3,000/-. For nutrition, the Tribunal awarded a sum of Rs.2,000/-. Further, on examination of Ex.P7, Medical Bills and receipts and considering that the petitioner had two surgical operations done on his leg while he was an inpatient at M.R. Hospital, the Tribunal granted a sum of Rs.95,985/- as per the bills submitted by the petitioner. For permanent disability of 60%, the Tribunal granted a sum of Rs.60,000/-. Further, the Tribunal also granted a sum of Rs.50,000/- towards loss of earning capacity in future due to the disability. Further, for pain and suffering suffered by the petitioner, the Tribunal granted a sum of Rs.20,000/-. In total, the Tribunal granted a sum of Rs.2,42,985/-as total compensation to the petitioner and directed the respondent to pay the above said compensation with interest at 9%, from the date of filing of the petitioner to till the date of payment of compensation, within a period of one month from the date of its Order. Further, the said award after deposit to the credit of M.C.O.P.No.523 of 2002, on the file of the Motor Accident Claims Tribunal (Sub-Court), Thiruvallur had to be deposited in a Nationalised Bank for a period of three years. The excess Court fees paid by the petitioner was to be refunded. The Advocate fees was fixed as Rs.7,859/-. 12. Further, the said award after deposit to the credit of M.C.O.P.No.523 of 2002, on the file of the Motor Accident Claims Tribunal (Sub-Court), Thiruvallur had to be deposited in a Nationalised Bank for a period of three years. The excess Court fees paid by the petitioner was to be refunded. The Advocate fees was fixed as Rs.7,859/-. 12. The learned counsel appearing for the appellant in his appeal, has contended that the Tribunal had erred in relying upon the evidence of PW1, the claimant in respect of manner of accident, nature of injuries, period of treatment, disability, age, occupation and income of the claimant. Further, no police officer or independent eyewitness was examined to prove negligence on the part of the driver of the appellant Corporation. The Tribunal had also failed to consider the evidence of RW1, the driver of the appellant/Tamil Nadu State Transport Corporation and Ex.P1-Photos. The Tribunal should have atleast fixed contributory negligence on the part of the claimant. Further, the Tribunal had erred in relying on Exs.A3 to A5 and A7, which are treatment records and have been marked through the claimant without examining the another of the documents. The Tribunal had also erred in relying upon the evidence of PW2, the Doctor, who had not treated the claimant and Ex.A8, Disability Certificate issued by him. 13. Further, no documentary evidence was produced to prove the occupation and income of the claimant. As such, the award granted under various heads are erroneous and excessive and needs to be reconsidered. The learned counsel appearing for the appellant has strongly objected that the loss of earning capacity of Rs.50,000/- awarded by Tribunal is not pertinent. Hence, the award granted under the said head should be set aside. 14. For the foregoing reasons and considering the facts of the case, grounds of the appeal and arguments of the learned counsel appearing for appellant and the award of Rs.2,42,985/- passed by the Tribunal under the following heads i.e. 1. For loss of earning : Rs.12,000/- 2. For transport : Rs. 3,000/- 3. For nutrition : Rs. 2,000/- 4. For medical bills : Rs.95,985/- 5. For disability of 60% : Rs.60,000/- 6. For loss of earning capacity : Rs.50,000/- 7. For loss of earning : Rs.12,000/- 2. For transport : Rs. 3,000/- 3. For nutrition : Rs. 2,000/- 4. For medical bills : Rs.95,985/- 5. For disability of 60% : Rs.60,000/- 6. For loss of earning capacity : Rs.50,000/- 7. For pain and suffering : Rs.20,000/-together with 9% interest, the Court is of the view that the claimant underwent four surgical operation for, which, he was in hospital for 35 days and when he had undergone treatment, he had travelled by Car. His treatment period, as inpatient, as per Ex.P4 is from 04.07.2002 to 08.08.2002. Again, he was an inpatient from 15.08.2002 to 26.08.2002. To prove the same, Ex.P5 has been marked. Supporting of these injuries and operation, Ex.P7, XRays were marked. For ascertaining the nature of injuries and mode of treatment, one Dr.Thiagarajan had been examined, who had adduced evidence that the disability sustained by the petitioner is 60%. Further, as per evidence of PW1, a piece of bone was missing in the left leg below the knee due to the accident. Further, the claimant had undergone skin grafting surgery on this left thigh and so his skin and tightened. Due to repeated surgical treatment and nature of injuries, missing of bone, the overall strength of the petitioner has been substantially affected. Hence, the Court does not want to interfere with the quantum of compensation awarded by the Tribunal. But, in the award granted by the Tribunal, there are minor discrepancies. So, the same award has been restructured as follows: 1. For loss of income during treatment, the Tribunal awarded a sum of Rs.12,000/-, the same is confirmed by this Court. 2. For transport expenses, the Tribunal awarded a sum of Rs.3,000/- and the same has been enhanced by this Court to Rs.5,000/-. 3. The Tribunal awarded a sum of Rs.2,000/-for nutrition and the same has been enhanced by this Court to Rs.5,000/-. 4. The Tribunal awarded a sum of Rs.95,985/-towards medical expenses and the Court confirms the same. 5. The Tribunal awarded a sum of Rs.60,000/-for disability of 60%. This Court, taking into consideration, Rs.1,500/- for 1% disability awards a sum of Rs.90,000/- under this head. 6. The Tribunal had awarded a sum of Rs.50,000/-for future loss of earnings. This Court sets aside the same as not pertinent. 7. The Tribunal had awarded a sum of Rs.20,000/-for pain and suffering. This Court, taking into consideration, Rs.1,500/- for 1% disability awards a sum of Rs.90,000/- under this head. 6. The Tribunal had awarded a sum of Rs.50,000/-for future loss of earnings. This Court sets aside the same as not pertinent. 7. The Tribunal had awarded a sum of Rs.20,000/-for pain and suffering. This Court, on considering four surgeries undergone by the petitioner as also the loss of bone pieces in the accident awards a sum of Rs.35,000/- under this head. 15. In total, the award of Rs.2,42,985/-awarded by the Tribunal together with 9% interest from the date of filing the petition to till the date of payment is confirmed as per the restructured compensation observed by this Court. This, the Court feels, is equitable, fair and prudent too, payable by the appellant/State Transport Corporation. 16. This Court directed the appellant corporation on 24.01.2005 to deposit the entire compensation amount including interest and cost to the credit of M.C.O.P.No.523 of 2002, on the file of the Motor Accidents Claims Tribunal (Sub Judge), Thiruvallur. This Court also permitted the claimant to withdraw 50% of the award amount along with the proportionate interest. 17. It is open to the respondent/claimant to receive the balance amount lying to the credit of M.C.O.P.No.523 of 2002, on the file of the Motor Accidents Claims Tribunal (Sub Judge), Thiruvallur, by filing necessary payment out application in accordance with law. 18. In the result, the Civil Miscellaneous Appeal is dismissed and the award passed by the Motor Accident Claims Tribunal (Sub Judge), Salem, in M.C.O.P.No.523 of 2002, Dated 17.09.2003 is confirmed. Consequently, connected miscellaneous petition is also closed. No costs.