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Judgment
C.M.A(MD)No.1025 of 2005 has been filed by the appellant/claimant against the liability to pay a sum of Rs.1,75,172/- (Rupees One Lakh Seventy Five Thousand One Hundred and Seventy Two only) out of Rs.3,50,344/- (Rupees Three Lakhs Fifty Thousand Three Hundred and Forty Four only) awarded by the Tribunal, for the injuries sustained by the first respondent/claimant, aged 54 years, working as Headquarters Deputy Tahsildar, allegedly earning a sum of Rs.10,161/- (Rupees Ten Thousand One Hundred and Sixty One only) per month, in the accident occurred on 16.11.2002, when he was travelling in the bus bearing Registration No.TN-29-N-0969 belonging to the first respondent-Transport Corporation, the bus bearing Registration No.TN-65-3666 came in the opposite direction in a rash and negligent manner and dashed against each other and it is a case of ''head on collision'', due to which, the appellant/claimant sustained injuries all over his body. Therefore, the claim petition was filed in M.C.O.P.No.155 of 2004 on the file of the Motor Accident Claims Tribunal - cum ? Additional District Judge cum Fast Track Court, Virudhunagar.
For the sake of convenience, the parties are referred to according to their litigative status in C.M.A(MD)No.1025 of 2005.
According to the appellant/claimant, he was travelling in the bus bearing Registration No.TN-29-N-0969 belonging to the first respondent-Transport Corporation from Virudhunagar to Thiruchuli and the said bus was driven by its driver in a rash and negligent manner and at about 09.30 a.m., when the bus was nearing Sanavoorany, the bus bearing Registration No.TN-65-3666 came in the opposite direction in a rash and negligent manner and both the buses dashed against each other and there was a head on collision, in which, the appellant/claimant sustained injuries all over his body and he was immediately taken to the Government Hospital, Aruppukkottai and on reference, he was admitted in Jawahar Hospital, Madurai on 16.11.2002 and he took treatment as inpatient till 04.12.2002 and thereafter, he voluntarily got discharged on 04.12.2002. Thereafter, he took treatment at Chidambaram Nagammal Hospital, Virudhunagar, for sometime. The appellant/claimant also underwent a surgery and due to the injuries sustained by him, his lower limbs could not be properly used and he could not walk without the help of others and he could not attend to the nature''s call independently and further, he was confined to a wheel chair and the appellant/claimant was working as Headquarters Deputy Tahsildar and due to the injuries sustained by him, his promotion had also been affected. He suffered a loss of income to the tune of Rs.91,110/- (Rupees Ninety One Thousand One Hundred and Ten only) and therefore, he claimed a sum of Rs. 9,80,064/- (Rupees Nine Lakhs Eighty Thousand and Sixty Four only), however, restricted to a sum of Rs.7,00,000/- (Rupees Seven Lakhs only). According to the appellant/claimant, both the drivers of the buses drove the vehicles in a rash and negligent manner and caused the accident.
The respondents 1 and 3 filed the counter statements and blamed the driver of the other vehicle. The third respondent submitted that the F.I.R was registered against the driver of the first respondent.
Before the Tribunal, a joint trial was held in respect of the claim petitions filed by the injured persons in the same accident. P.W.1 to P.W.7 were examined and Exs.P.1 to 43 were marked on the side of the claimants. On the side of the respondents, D.W.1 to D.W.5 were examined and Exs.R.1 to R.3 were marked.
On contest, the Tribunal, based on the pleadings, oral and documentary evidence, rejected the evidence of D.W.1 to D.W.5 and held that D.W.3 and D.W.4 who are the conductors, are interested witnesses and the Tribunal did not accept the same and further found that D.W.1 has no direct knowledge about the accident and rejected his evidence. The Tribunal further held that the evidence of D.W.1 to D.W.5 are not much useful to decide the issue as to who is responsible for the accident.
The Tribunal considering the evidence of one of the eyewitnesses, who was an injured person, held that the F.I.R was lodged against the driver of the bus belonging to the first respondent mainly due to the death of the driver of the other bus and further held that the accident took place only due to the rash and negligent driving of both the drivers. Accordingly, the Tribunal directed the first respondent to pay 50% of the compensation and the respondents 2 and 3 to pay the remaining 50% of the compensation to the appellant/claimant. Challenging the same, the third respondent-Insurance Company filed C.M.A(MD)No.1789 of 2010.
Considering the nature of the injuries sustained by the appellant/claimant and the evidence of the Doctor and other documentary evidence marked on the side of the appellant/claimant, the Tribunal awarded a sum of Rs.1,75,172/- (Rupees One Lakh Seventy Five Thousand One Hundred and Seventy Two only). Aggrieved over the quantum of compensation, the appellant/claimant filed C.M.A(MD)No.1025 of 2005 for enhancement of compensation.
Mr.D.Venkatesh, learned Counsel for the appellant/claimant contended that the appellant/claimant has proved that he has suffered 75% disability and the Tribunal, without any valid reason, reduced the same to 50% and awarded only a sum of Rs.1,00,000/- (Rupees One Lakh only) towards 50% disability and hence, the Tribunal ought to have awarded the compensation for 75% disability.
Further, he contended that the appellant/claimant suffered the loss of income to the tune of Rs.91,110/- (Rupees Ninety One Thousand One Hundred and Ten only), however, the Tribunal without considering the documentary evidence, awarded only a sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) and also rejected the claim of the appellant/claimant for physiotherapy expenses on the ground that the bills were appeared to be written on the same day and that the Tribunal, on assumption and presumption, reduced the claim of the appellant/claimant on various heads and therefore, prayed for enhancement.
The learned Counsel for the first respondent-Transport Corporation supported the award of the Tribunal.
Whereas the learned Counsel for the third respondentInsurance Company, by placing reliance on the judgment of this Court in P.T.Mahalingam and another v. G.Jagannathan and others [C.M.A(MD)Nos.1133 of 2005, etc., batch of cases, decided on 29.03.2012], submitted that the negligence fixed by the Tribunal at 50% each on the drivers of both the vehicles is not tenable and therefore, he prayed for modification to the effect that the driver of the Transport Corporation bus is responsible for 70% negligence and the driver of the insured vehicle is responsible for 30% negligence.
Heard the learned Counsel for all the parties and perused the materials available on record.
From the materials available on record, it is seen that the appellant/claimant has proved that he suffered 75% disability and he also deposed that even now, he could move only with the help of others and also confined to a wheel chair and not able to attend for the nature''s call independently. Further, the respondents have not produced any evidence to disprove the claim of the appellant/claimant. The Tribunal without assigning any reason, reduced the percentage of disability from 75% to 50% and the same is erroneous. Therefore, this Court holds that the appellant/claimant is entitled to the compensation for 75% disability
and accordingly, a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) is awarded towards 75% disability, by fixing a sum of Rs.2,000/- (Rupees Two Thousand only) towards 1% disability.
The appellant/claimant claimed a sum of Rs.91,110/- (Rupees Ninety One Thousand One Hundred and Ten only) towards loss of income, however, the Tribunal awarded only a sum of Rs.25,000/- (Rupees Twenty Five Thousand only). Admittedly, the appellant/claimant was working as Headquarters Deputy Tahsildar and due to the injuries sustained by him in the accident, he was taking continuous treatment in various hospital and therefore, a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) awarded by the Tribunal towards loss of income is enhanced to a sum of Rs.91,110/- (Rupees Ninety One Thousand One Hundred and Ten only).
The Tribunal awarded a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards pain and sufferings and the same is enhanced to a sum of Rs.25,000/- (Rupees Twenty Five Thousand only).
The Tribunal also awarded a sum of Rs.1,45,994/- (Rupees One Lakh Forty Five Thousand Nine Hundred and Ninety Four only) towards medical expenses and the same is confirmed.
A sum of Rs.4,000/- (Rupees Four Thousand only) awarded by the Tribunal towards transportation charges, is enhanced to a sum of Rs.10,000/- (Rupees Ten Thousand only).
The appellant/claimant was taking treatment as inpatient for a considerable period in various hospitals and therefore, this Court awards a sum of Rs.10,000/- (Rupees Ten Thousand only) towards attendant''s charges.
The Tribunal awarded a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards physiotherapy treatment underwent by the appellant/claimant and the same is confirmed.
A sum of Rs.5,350/- (Rupees Five Thousand Three Hundred and Fifty only) awarded by the Tribunal towards medical expenses is also confirmed.
The rate of interest awarded by the Tribunal is reduced from 9% per annum to 7.5% per annum.
Accordingly, the award of the Tribunal is enhanced from Rs.3,50,344/- (Rupees Three Lakhs Fifty Thousand Three Hundred and Forty Four only) to a sum of Rs.4,87,454/- (Rupees Four Lakhs Eighty Seven Thousand Four Hundred and Fifty Four only).
Accordingly, the appellant/claimant is entitled to a sum of Rs.4,87,454/- (Rupees Four Lakhs Eighty Seven Thousand Four Hundred and Fifty Four only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs.
Insofar as C.M.A(MD)No.1789 of 2010 filed by the Insurance Company is concerned, this Court, in an earlier occasion, by order dated 29.03.2012, passed in C.M.A(MD)Nos.1133 of 2005, etc., batch of cases, in P.T.Mahalingam and another v. G.Jagannathan and others held as follows: "7. Keeping the submissions made by the counsel appearing on either side, I have carefully gone through the entire materials available on record and I find that the Tribunal by placing reliance on the evidence of eyewitness has come to the conclusion that the accident is the result of rash and negligent driving of both the drivers. But, on a perusal of the accident sketch, which was marked as Ex.P.2, I find
that the insured vehicle was shown on the left extreme side of the East to West road. On a further perusal of the sketch, it would reveal that it is the appellant Corporation bus, which had entered into the wrong side of the road and dashed against the front side of the insured vehicle. Therefore, from Ex.P.2, I am of the opinion that the negligence contributed by the driver of the Corporation bus is of a greater extent than the negligence contributed by the driver of the insured vehicle. But the Tribunal without considering Ex.P.2 fixed the negligence equally on the part of the driver of both the vehicles. Hence, I am of the opinion, by considering the accident sketch, the negligence could be fixed at 70% on the part of the driver of the Transport Corporation and 30% on the part of the insured vehicle. Hence, the negligence fixed by the Tribunal at 50% each on the driver of the both the vehicles is hereby modified to the effect that the driver of the Transport-Corporation is responsible for 70% negligence and the driver of the insured vehicle is responsible for 30% negligence."
Following the same, this Court modifies the award of the Tribunal to the effect that the driver of the Transport-Corporation bus is responsible for 70% negligence and the driver of the insured vehicle is responsible for 30% negligence.
In the result, (i) C.M.A(MD)No.1025 of 2005 is partly allowed, enhancing the award of the Tribunal from Rs.3,50,344/- (Rupees Three Lakhs Fifty Thousand Three Hundred and Forty Four only) to a sum of Rs.4,87,454/- (Rupees Four Lakhs Eighty Seven Thousand Four Hundred and Fifty Four only). The appellant/claimant is entitled to a sum of Rs.4,87,454/- (Rupees Four Lakhs Eighty Seven Thousand Four Hundred and Fifty Four only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs. The appellant/claimant is directed to submit his Savings Bank Account Detail along with the copy of his passbook to the Tribunal forthwith;
(ii) C.M.A(MD)No.1789 of 2010 is partly allowed, modifying the award of the Tribunal to the effect that the driver of the Transport-Corporation bus is responsible for 70% negligence and the driver of the insured vehicle is responsible for 30% negligence. Accordingly, the first respondent-Transport Corporation and the third respondent-Insurance Company are directed to deposit the respective shares in the entire award amount along with accrued interest and costs, less the amount deposited, if any, at the ratio of 70 : 30 respectively, to the credit of M.C.O.P.No.155 of 2004 on the file of the Motor Accident Claims Tribunal - cum ? Additional District Judge cum Fast Track Court, Virudhunagar, within a period of eight
weeks from the date of receipt of a copy of this judgment;
(iii) On such deposit, the Tribunal is directed to transfer the entire award amount along with accrued interest and costs directly to the Personal Savings Bank Account Number of the appellantclaimant, through RTGS/NEFT system, after getting his Account Details, within a period of two weeks thereafter;
(iv) The appellant-claimant is directed to pay the additional Court Fees, if any, within a period of two weeks from the date of receipt of a copy of this judgment; and
(v) In the facts and circumstances of the case, there shall be no order as to costs in both the appeals. Consequently, the connected miscellaneous petition is closed.