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2013 DIGILAW 282 (MAD)

Branch Manager, Theni District v. Balasubramaniam

2013-01-10

C.S.KARNAN

body2013
Judgment 1. The appellant/4th respondent has preferred the present appeal in C.M.A. (MD).No.947 of 2005, against the judgment and decree passed in M.C.O.P.No.1862 of 1998, on the file of the Motor Accident Claims Tribunal, Additional District Sessions Court, Fast Track Court No.2, Madurai. 2. The petitioner, has filed the present claim in M.C.O.P.No.1862 of 1998, claiming a compensation of a sum of Rs.3,00,000/-from the respondents, for the injuries sustained by him in a motor vehicle accident. It was submitted that on 05.06.1998, at about 24.15 hours, when the petitioner was travelling in the 1st respondents bearing registration No.TN-59N-0772 and when the bus was proceeding on the Madurai to Cumbam road, near Kannampalayam, the driver of the bus drove the bus in a rash and negligent manner and dashed against the 2nd respondent's bus bearing registration No.TN-60A-2437, coming in the opposite direction, which was also driven in a rash and negligent manner by its driver. In the impact, the petitioner sustained fractures in his right hand and injuries all over his body. He was immediately admitted in Uthamapalayam Government Hospital and subsequently, sent to Madurai Rajaji Hospital, wherein he took treatment, as an inpatient from 06.06.1998 to 11.06.1998. Subsequently, he took treatment as an inpatient at A.R. Hospital, from 12.06.1998 to 29.06.1998. Prior to occurrence of accident, the petitioner was running a photo and Video shop and earning Rs.5,000/- per month, but after the injuries sustained by him in the accident, he is not able to do his work as he used to do before the occurrence of the accident. Hence, the petitioner has filed the claim against the respondents, the 1st respondent is the owner of the bus bearing registration No.TN-59N-0772, the 2nd respondent is the owner of the bus bearing registration No.TN-60A-2437 and the 3rd respondent is the insurer of the bus bearing registration No.TN-60A-2437. The 4th respondent was subsequently added as a necessary party as it was found that they are the insurer of the bus bearing registration No.TN-60A-2437. 3. The 1st respondent in his counter has submitted that the driver of the 1st respondent's bus had not been rash and negligent in his driving as alleged in the claim and that the accident was caused only due to the rash and negligent driving of the 2nd respondent's bus bearing registration No.TN-60A-2437. 3. The 1st respondent in his counter has submitted that the driver of the 1st respondent's bus had not been rash and negligent in his driving as alleged in the claim and that the accident was caused only due to the rash and negligent driving of the 2nd respondent's bus bearing registration No.TN-60A-2437. It was also submitted that the accident had occurred only because the petitioner had negligently stretched his hand outside the window of the bus. It was submitted that the claim was excessive. 4. The 2nd respondent, in his counter has submitted that the 2nd respondent's bus bearing registration No.TN-60A-2437 had not been involved in any accident as alleged in the claim. It was submitted that the petitioner has stated in his claim that the F.I.R was registered as against the driver of the 1st respondents bus. It was submitted that no criminal case has been filed against the 2nd respondent's bus driver regarding the accident. It was submitted that the 2nd respondent's bus had been insured only with the 4th respondent, i.e., United India Insurance Company Limited, Theni Branch and not with the 3rd respondent i.e., New India Assurance Company. It was prayed to dismiss the claim against the 2nd respondent. 5. The 3rd respondent, in his counter has submitted that on the date of occurrence of accident, the driver of the bus bearing registration No.Tn-59N-0772, had driven the bus in a rash and negligent manner and at a high speed and dashed it against the bus coming in the opposite direction. It was submitted that the complaint had been registered only as against the 1st respondent's bus driver. It was submitted that on the day of accident, as the 2nd respondent's bus had not been insured with them, the 3rd respondent cannot be held liable to pay any compensation. It was submitted that the claim was excessive. 6. The 4th respondent, in his counter has submitted that the petitioner himself had stated in his claim that the accident was caused only due to the rash and negligent driving of the 1st respondent's bus driver and that the 2nd respondent had been added as a necessary party only after the 1st respondent had filed the impleading petition and subsequently the petitioner had made the corrections in his claim. It was submitted that the petitioner has never laid any charges against the 2nd respondent's bus driver in his claim or during his enquiry by Police Officers. It was submitted that as the 2nd respondent's bus was not involved in the accident, the 4th respondent cannot be held liable to pay any compensation. It was submitted that the claim was excessive. 7. The Motor Accident Claims Tribunal had framed two issues for consideration in the case namely: (1) Which of the drivers of the respondent's buses had been rash and negligent in their driving and caused the accident?; Who is liable to pay compensation?; (2) What is the quantum of compensation, which the petitioner is entitled to get?. 8. On the petitioners side, two witnesses were examined and twenty three documents were marked as exhibits P1 to P23 namely: Ex.P1-F.I.R dated 06.06.1998; Ex.P2-A.R.Hospital bills dated 29.06.1998; Ex.P3-Amir Nursing Home medical bills dated 16.06.1999; Ex.P4-receipt given by doctor dated 02.09.1998; Ex.P5-medical bills; Ex.P6-x ray bills; Ex.P7-bills for blood test; Ex.P8-medical prescriptions; Ex.P9-case sheet of Bose clinic dated 22.01.1999; Exs.P10 and P11-lab test reports; Ex.P12-discharge summary of A.R. Hospital; Ex.P13-rent agreement for shop dated 23.12.1997; Ex.P14-ID card; Exs.P15 and 16-income tax receipts dated 31.03.1997 and 21.03.1997; Ex.P17-medical bill dated 08.06.1999; Ex.P18-receipt issued at blood bank dated 13.06.1996; Ex.P19-photo with negative of petitioner; Ex.P20-disability certificate; Ex.P21-x rays; Ex.P22-medical report of Rajaji Government Hospital; Ex.P23-X ray (series) taken driving treatment. On the respondents side, three witnesses were examined and four documents were marked as exhibits R1, R2, R3 and R4 namely: Ex.R1-F.I.R dated 06.061998; Ex.R2-evidence given by PW.1 during 161(3) of Cr. P.C., questioning; Ex.R3-Motor Vehicle Inspector's Report; Ex.R4-charge sheet and Ex.R5-investigation report dated 27.11.2002. 9. PW.1, Balasubramanian had adduced evidence that on 05.06.1998 at about 12.15 a.m., in the night, when he was travelling in the 1st respondent's bus bearing registration No.TN-59N-0772, which was proceeding on the Madurai to Kumbum road and when it was nearing Kannambalpuram near Chinnamanur, the driver, who had not seen the bus coming on the opposite side, suddenly swerved the bus towards the left of the road but inspite of this, the rear right side of the 1st respondent's bus dashed against the bus coming on the opposite side. He deposed that in the impact, he had sustained injuries on his right forearm and fractures of bone in his upper right arm. He deposed that in the impact, he had sustained injuries on his right forearm and fractures of bone in his upper right arm. He deposed that he was initially taken to Uthamapalayam Government Hospital and subsequently was sent to Rajaji Hospital, Madurai. In support of his evidence, he had marked as Ex.P1, the F.I.R. 10. RW.1, the driver of the 1st respondent's bus had deposed that on the date of accident, when he was driving the bus bearing registration No.TN-59N-0772 from Madurai to Kambam and when the bus was nearing Kannambalpuram, he had seen the 2nd respondents bus bearing registration No.TN-60A-2437 coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner and that on seeing this, he had swerved the bus on to the left side of the road but inspite of this, the 2nd respondent's bus had grazed against the front right side of his bus. He deposed that as one of the passengers in the bus driven by him had kept their hand outside the window, the 2nd respondent's bus had brushed against that passengers hand. He deposed that he was not negligent in his driving in his driving and had not caused the accident. 11. The Assistant Officer, in the 4th respondents company namely Rajan was examined as RW.2. RW.2 had adduced evidence that the petitioner had filed the claim initially against the 1st respondent only and that the 2nd and 3rd respondents had been subsequently added as necessary parties on 09.10.2002 after the admission of an impleading petition filed by the 1st respondent and that the 4th respondent had been added as necessary party after admission of an impleading petition as per order dated 07.01.2003 and that the impelading petition allowed on the condition that on interest should be charged against the 4th respondent on the compensation assessed, for the period between 24.04.1998 and 07.01.2003. RW.2, deposed that there was no evidence to show that the bus bearing registration No.TN-60A-2437 was involved in the accident and that on investigation made by their Investigation Officer it was found that the 2nd respondent's bus was not involved in the accident and as such the 2nd, 3rd and 4th respondents are not necessary parties in the claim. In support of his evidence, he had marked exhibits listed as R2 to R5. 12. In support of his evidence, he had marked exhibits listed as R2 to R5. 12. RW.3, Jacob, Investigation Officer, of the 4th respondent's firm had also adduced evidence on similar lines to that given by RW.2. 13. The tribunal, opined that the 2nd respondent and 4th respondent had not taken any steps to examine the driver of the 2nd respondent's bus to prove their contentions that the driver of the bus bearing registration No.TN-60A-2437 had not been negligent in his driving and caused the accident. The tribunal further observed that the petitioner had not joined the 2nd respondent as a necessary party as he had admitted that he had not seen the registration number of the bus which dashed against the 1st respondent's bus. The tribunal further observed that the petitioner had added the 2nd, 3rd and 4th respondents as necessary parties only after they have been mentioned as necessary parties in the counter filed by the 1st respondent. 14. The tribunal on scrutiny of Ex.P1, observed that the petitioner had stated that only because the driver of the 1st respondent's bus had suddenly swerved the bus to the left side, he was forced to stretch out his arm outside the window and that he had received injuries in his arm as the 1st respondent's right rear side of the bus had grazed against the 2nd respondent's bus coming on the opposite side. The Tribunal, therefore opined that the accident had been caused by the rash and negligent driving by the drivers of the 1st and 2nd respondents bus. The tribunal further observed that no rough sketch had been marked to determine which of the two drivers had been negligent. Hence, the tribunal held that the accident had been caused due to the negligence of the 1st and 2nd respondent's driver and hence apportioned the liability equally amongst the 1st and 4th respondents. 15. PW.1, had further adduced evidence that he was running a Photo studio at Melur in the name and style of "Balaji Video" and earning Rs.5,000/- per month. In support of his evidence, he had marked the exhibits listed as P13 to P16. 15. PW.1, had further adduced evidence that he was running a Photo studio at Melur in the name and style of "Balaji Video" and earning Rs.5,000/- per month. In support of his evidence, he had marked the exhibits listed as P13 to P16. He deposed that after the accident, he received treatment at Rajaji Government Hospital, Madurai, for seven days i.e., and that he had taken treatment at A.R. Hospital, Madurai, as an inpatient, from 12.06.1998 to 28.06.1998 and subsequently took treatment at Berry Housing Home from 03.07.1998 to 14.07.1998. In support of his evidence, he had marked the exhibits listed as P2 to P12,P17 to P19. 16. PW.2, Dr. Chidambaran had adduced evidence that due to the accident, the petitioner had sustained fracture in the bottom of the sumerus bone in his right forearm and that two other bones had also been fractured in his right arm and that a surgery had been conducted and a steel pin had been fixed in the fractured area. He deposed that he had taken x rays of the petitioner's arm on 24.03.2001 and observed that the fractured sumerus bones had not joined and that the movements of the petitioners right forearm had become restricted and that the movements of the petitioners right wrist had been reduced 15" and that the petitioner is not able to lift his right shoulder. He deposed that the muscles in the petitioners upper forearm and lower forearm had shrunk by 1 ½ cms. He deposed that 1 of 2 more surgeries have to be performed on the petitioners right forearm to set right the fractures. He deposed that the petitioner had sustained 45% disability in the accident and in support of his evidence, he had marked Ex.P20-disability certificate; Ex.P21-x rays; Ex.P22-medical records issued by Rajaji Hospital and Ex.P23-X rays (series). He deposed that even if surgery is done, there is little scope for improvement of the movements of the petitioners right forearm and that he would not be able to do his work as before. 17. He deposed that even if surgery is done, there is little scope for improvement of the movements of the petitioners right forearm and that he would not be able to do his work as before. 17. Hence, the tribunal on scrutiny of oral and documentary evidence awarded a compensation of Rs.3,000/- towards loss of income sustained by the petitioner from date of accident till date of filing of the petition; Rs.1,000/- towards transport expenses; Rs.1,000/- towards nutrition; Rs.1,000/- towards damage to clothes and articles; Rs.64,000/- towards medical expenses as per Exs.P2 to P7 and P17; Rs.5,000/-towards pain and suffering; Rs.45,000/- under the head of disability of 45%; In total, the tribunal awarded a sum of Rs.1,20,000/-as compensation to the petitioner and directed each of the 1st and 4th respondents to deposit a sum of Rs.60,000/- together with interest at the rate of 9% per annum from the date of filing the petition till date of deposit within two months from the date of order. The tribunal further held that no interest should be charged on the 4th respondent apportioned share of liability for the period between 24.08.1998 to 07.01.2003. 18. Aggrieved by the award passed by the tribunal, the 4th respondent/United India Insurance Company Limited, has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the tribunal has failed to consider the exhibits R1-F.I.R; Ex.R2-161(3) statement of the claimant; Ex.R3-Motor Vehicle Inspector's Report and Ex.R4-charge sheet, which clearly shows that the vehicle bearing registration No.TN-60A-2437, is not at all involved in the said accident. It was contended that the learned tribunal has not considered the cross examination of the claimant, wherein he was specifically admitted that the 2nd respondent's vehicle is not involved in the accident and hence he had not impleaded them as a party and has further stated that the entire negligence is on the part of the driver of the Tamil Nadu State Transport Corporation Bus bearing registration No.TN-59N-0772 alone. It was also pointed out that the tribunal has not considered that the claimant has also contributed to the accident. It was contends that the award is excessive and hence it was prayed to set aside the award passed by the tribunal. 19. The learned counsel for the claimant submitted that the tribunal had decided the liability after recording evidence on both sides and fastened the liability equally. It was contends that the award is excessive and hence it was prayed to set aside the award passed by the tribunal. 19. The learned counsel for the claimant submitted that the tribunal had decided the liability after recording evidence on both sides and fastened the liability equally. Further, in order to prove the liability, rough sketch had not been marked. Therefore, the tribunal had fixed the liability on the basis of F.I.R. 20. The learned counsel for the 2nd respondent/Tamil Nadu State Transport Corporation Bus submitted that the quantum of compensation is on the higher side, since the claimant had sustained simple injuries. The doctor had assessed the disability at 45% which is also on the higher side. 21. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the tribunal, this Court does not find any discrepancy in the said award. Further both sides have not marked the rough sketch to determine the tyre marks of both the vehicles. But, it was an admitted fact that both the vehicles had grazed against each other. As such, this Court is not inclined to interfere with the impugned order of the tribunal. On 25.10.2005, this Court had directed the appellant to deposit 50% of the award amount with proportionate interest. Now, this directs the appellant to deposit the balance compensation amount with accrued interest thereon, as per the tribunal order, within a period of four weeks from the date of receipt of this order. 22. After such deposit has been made, it is open to the claimant to withdraw the entire compensation amount lying in the credit of M.C.O.P.No.1862 of 1998, on the file of Motor Accident Claims Tribunal, Additional District and Sessions Court, Fast Track Court No. II, Madurai, after filing a memo, along with a copy of this order, subject to deduction of withdrawals, if any made already. 23. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.1862 of 1998, on the file of Motor Accident Claims Tribunal, Additional District and Sessions Court, Fast Track Court No. II, Madurai, is confirmed, dated 18.02.2005.No costs.