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2022 DIGILAW 2677 (MAD)

Pethanna v. P. Krishnasamy

2022-08-12

J.NISHA BANU

body2022
JUDGMENT (Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, to set aside the Decree and Judgment made in MCOP No.414 of 2010 on the file of the Motor Accident Claims Tribunal Cum Fast Track Court No.4, Bhavani, Erode District dated 08.03.2012.) 1. The injured claimant has filed this Civil Miscellaneous Appeal seeking enhancement of compensation. The main ground raised in this appeal is that 50% negligence fixed on the injured claimant and thereby reducing the Compensation to that extent by the Tribunal, is not sustainable. 2. As per the averments in the claim petition, on 08.05.2010, at about 01.00 P.M, the claimant boarded in the TNSTC Bus at Erode bearing Reg.No.TN-33-N-1821 and when he tried to get down from the said bus at Savidipalayam Pudur, Maligai Kadai Bus stop, the 1st respondent moved the bus even before the claimant got down from the bus. Due to which, the claimant fell down from the bus and sustained fracture and bleeding injuries. Therefore, the claimant filed MCOP No.414 of 2010 seeking compensation for a sum of Rs.10,00,000/-. 3. Before the Tribunal, P.W.1 to P.W.4 were examined on the side of the claimant and twenty one (21) documents were marked as Exs.P1 to P21. On the side of the respondents, no oral evidence was let in, but one document was marked as ExR1 on the side of the Transport Corporation. 4. The Tribunal, considering the pleadings, oral and documentary evidence, arrived at a sum of Rs.3,43,636/- as total compensation. However on a finding that the injured was also equally negligent for the cause of accident, fixed the contributory negligence at the ratio of 50:50 and awarded Rs,1,71,818/- as compensation and directed the first respondent/driver and the second respondent/Tamil Nadu Transport Corporation Ltd, to pay the compensation jointly and severally to the claimant. 5. As against the said findings of the Tribunal, the claimant is before this court. 6. The learned counsel appearing for the appellant/claimant submitted that due to the said accident, the appellant suffered head injuries and sustained 40% permanent disability. The Tribunal failed to consider the deposition of eye witnesses viz., P.W.1 and P.W.4 who deposed that there is no negligence on the part of the claimant. P.W.1 in her testimony clearly stated that the accident occurred only due to sudden brake applied by the driver of the bus. The Tribunal failed to consider the deposition of eye witnesses viz., P.W.1 and P.W.4 who deposed that there is no negligence on the part of the claimant. P.W.1 in her testimony clearly stated that the accident occurred only due to sudden brake applied by the driver of the bus. The accident had occurred only due to the negligence on the part of the driver of the bus. The Police without properly investigating the case, closed the F.I.R. as mistake of fact and in such circumstances, the Tribunal erred in coming to the conclusion that the claimant also have contributed 50% negligence to the accident. 7. The learned counsel appearing for the 2nd respondent/Tamil Nadu Transport Corporation Ltd submitted that the 1st respondent/driver operated the bus with utmost care and caution. The claimant alighted from the bus before the bus stop, hence the accident occurred. Therefore, the claimant is solely responsible for the accident. F.I.R. lodged against the driver of the bus belonging to the second respondent, was closed as mistake of fact. As such, the findings of the tribunal needs no interference. 8. This Court carefully considered the submissions of the learned counsel for the appellant/claimant and the learned counsel appearing for the second respondent/Tamil Nadu Transport Corporation Ltd and perused the materials available on record. 9. Due to the accident, the claimant sustained permanent disability of 40% as evidenced by Doctor's disability certificate marked as Ex.P.17. Further it transpires from the evidence that the claimant was not able to walk, sit, stand and lift any weight and often suffering from his avocation viz. head ache. He was also not able to move his right leg and not able to do agricultural work. The learned Judge has granted only a sum of Rs.10,000/- under the head 'Pain and Suffering'. Considering the injury, treatment and other attendant factors, this Court deems it fit to enhance a sum of Rs.10,000/- under the head 'Pain and Suffering', so the modified sum under the head “Pain and suffering” is Rs.20,000/-. . The Tribunal granted a sum of Rs.2,000/- under the head 'Transportation', the same is enhanced to Rs.7,000/-. 10. In the light of the above modifications in respect of quantum of award, totally 15,000/- is enhanced by this court and accordingly, the compensation amount now comes to Rs. 3,58,636/-. 11. . The Tribunal granted a sum of Rs.2,000/- under the head 'Transportation', the same is enhanced to Rs.7,000/-. 10. In the light of the above modifications in respect of quantum of award, totally 15,000/- is enhanced by this court and accordingly, the compensation amount now comes to Rs. 3,58,636/-. 11. Learned Judge, Tribunal, has relied on the Police Report in which it has been shown as “closed as mistake of fact” and therefore, arrived at the conclusion that the injured claimant is also responsible for the accident occurred, which finding, in my opinion is not correct. As rightly contended by the learned counsel for the appellant, the Tribunal is expected to peruse the oral and documentary evidence adduced before it and come to an independent conclusion. In this regard, it is relevant to look into the unreported decision of this court in CMA.No.2701 of 2009 dated 03.10.2013, wherein, it is held in paragraph 7.3 and 7.4 as follows:- “7.3. Needless to point out that not even the judgment of the Criminal Court is binding upon the Claims Tribunal. The Tribunal is expected to peruse the oral and documentary evidence that is adduced before it and come to an independent conclusion. The first respondent, having been the Superintendent of Police, anybody, who is investigating the criminal case working under the same respondent, would not have the courage to file the charge sheet against the first respondent herein. Even assuming that the referral of the criminal case as mistake of fact is factually correct, even then, the duty of the Claims Tribunal, as contemplated under Section 168 of the Motor Vehicles Act, is to hold an inquiry into the claim. The Tribunal, Constituted under the Act, is not the regular Court and the Tribunal is expected to adopt a proactive approach. It would be useful to consider the scope of enquiry before the Claims Tribunal and it would be appropriate to quote the decision reported in the case of Mayur Arora v. Amit, 2011 (1) TAC 878:- 10.1. The inquiry contemplated under Section 168 of the Motor Vehicles Act, 1988 is different from a trial. It would be useful to consider the scope of enquiry before the Claims Tribunal and it would be appropriate to quote the decision reported in the case of Mayur Arora v. Amit, 2011 (1) TAC 878:- 10.1. The inquiry contemplated under Section 168 of the Motor Vehicles Act, 1988 is different from a trial. The inquiry contemplated under Section 168 of the Motor Vehicles Act arises out of a complaint filed by a victim of the road accident or an AIR filed by the police under Section 158(6) of the Motor Vehicles Act which is treated as a claim petition under Section 166(4) of the Motor Vehicles Act. These provisions are in the nature of social welfare legislation. Most of the victims of the road accident belong to the lowest strata of the society and, therefore, duty has been cast upon the police to report the accident to the Claims Tribunal and the Claims Tribunal is required by law to treat the Accident Information Report filed by Police as a claim petition. Upon MAC.APP.No.609/2009 Page 52 of 116 receipt of report from the police or a claim petition from the victim, the Claims Tribunal has to ascertain the facts which are necessary for passing the award. “ 12. The evidence of P.W.4 is that due to the negligence of the driver of the bus, the accident occurred. It is the duty of the crew of the bus to prevent accident. The Motor Vehicle Act is a welfare legislation and it has to be applied in favour of the claimant. In the light of the provisions of the Motor Vehicles Act which are in the nature of social welfare legislation, the injured claimant has to be compensated for the injuries sustained by him due to the accident. In such view of the matter, the finding of the Tribunal regarding 50% negligence fastened on the injured claimant is set aside. The award stands modified as follows:- S. No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted 1. Permanent Disability 1,08,000/- - Confirmed 2. Pain and Sufferings 10,000/- 20,000/- Enhanced 3. Extra Nourishment 10,000/- - Confirmed 4. Medical Expenses 2,13,636/- - Confirmed 5. Transportation 2,000/- 7,000/- Enhanced Total 3,43,636/- 3,58,636/- Enhanced by Rs.15,000/- 13. Permanent Disability 1,08,000/- - Confirmed 2. Pain and Sufferings 10,000/- 20,000/- Enhanced 3. Extra Nourishment 10,000/- - Confirmed 4. Medical Expenses 2,13,636/- - Confirmed 5. Transportation 2,000/- 7,000/- Enhanced Total 3,43,636/- 3,58,636/- Enhanced by Rs.15,000/- 13. In the result, the Civil Miscellaneous Appeal is partly allowed and the amount awarded by the Tribunal at Rs.3,43,636/- is enhanced to Rs.3,58,636/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent-Transport Corporation is directed to deposit the award amount now determined by this Court along with interest and costs, less the amount already deposited if any, within a period of six weeks from the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.414 of 2010. No costs.