Tamil Nadu State Transport Corporation Ltd. vs Padiyan

M. Venugopal, J.—Challenge in this Civil Miscellaneous Appeal is against the award dated 18.06.2003 in M.C.O.P. No. 80 of 1999

passed by the Motor Accident Claims Tribunal - Principal Sub Court, Dindigul, awarding a total compensation of Rs. 70,000/- (Rupees Seventy

Thousand only) together with interest at 9% p.a from the date of filing of the petition till date of payment.

The respondent/claimant has filed the claim petition claiming a total compensation of Rs. 1,36,000/- (Rupees One Lakh and Thirty Six

Thousand only) and restricting the same to a sum of Rs. 1,00,000/- (Rupees One Lakh only).

Aggrieved against the award passed by the Tribunal, the appellant/State Transport Corporation has preferred this appeal before this Court.

The factual matrix of the claim are as follows: On 09.12.1998, the respondent/claimant was walking along the left side of the Madurai - Dindigul

main road from south to north and at that time, at 02.00 p., the bus belonging to the Tamil Nadu State Transport Corporation Limited bearing

Registration No. TN-57-0815 was driven by its driver in a fast speed, negligently and without sounding horn and dashed against him, as a result of

which he sustained fracture of his right collar bone and bleeding injuries on the back portion of the right side head and bone fracture of right side rib

and immediately, the bus conductor and the driver took him in the same bus to Ammaiyanayakanur Primary Health Centre where he was given first

aid and later on, he was admitted into Dindigul Head Quarters Hospital for further treatment and that he remained as inpatient for twenty five days

and took treatment as an outpatient for two months and that a case was registered by the Ammaiyanayakanur Police Station in Cr. No. 8 of 1999

about the accident. The accident took place because of the negligent driving of the bus belonging to the State Transport Corporation bearing

Registration No. TN-57-0815 by its driver.

The appellant/State Transport Corporation took a stand that on 09.12.1998, the driver of the bus bearing Registration No. TN-57-0815 took

the bus at Madurai at 09.28 hours trip and was proceeding to Salem, driving carefully, cautiously and in a moderate speed and following the traffic

rules and near Pallapatti Section, when the bus came near a Tractor Company, on the left side of the tar road, the respondent/claimant was

walking along the road and at that time, the driver of the bus saw a vehicle coming in the opposite direction and therefore, reduced the speed of his

bus fully and drove the bus on the left side of the road by sounding horn in order to give way to the vehicle which was coming in the opposite side

and at that time, the respondent/claimant while stepping down from tar road to sand road, lost his balance and fell down and invited the accident

and therefore, the respondent/claimant was responsible for the happening of the occurrence and that the driver of the bus was not responsible to

pay any compensation to the respondent/claimant. Further, the compensation amount claimed by the respondent/claimant was excessive and

exorbitant. The respondent/claimant had to prove his age, occupation, income, injuries sustained and the treatment he received and the expenditure

incurred thereto.

On the side of the respondent/claimant, before the Tribunal, witnesses P.W. 1 and P.W. 2 were examined and Exs. P.1 to P.4 were marked

and on the side of the appellant/respondent, witness R.W. 1 was examined and no document was marked.

On an oral and documentary evidence, the Tribunal has awarded a total compensation of Rs. 70,000/- (Rupees Seventy Thousand only) along

with interest at 9% p.a from the date of filing of the petition till date of payment.

The Tribunal has determined the lawyer''s fee at Rs. 3,125/-.

In order to prove the negligence, the respondent/claimant has examined himself as P.W. 1 and has deposed that four years ago, on one day, in

order to proceed from Elanthakulam to Sempatti, he was walking along the left side of the road and at that time, the said bus came from behind

and dashed against him, as a result of which, he sustained injuries on his right shoulder and all over the body and on his head and he was admitted

into the Government Head Quarters Hospital, Dindigul, where he remained as inpatient for twenty five days and later on, he took treatment with

the private Doctor and that the accident took place because of the negligence of the driver.

R.W. 1, the driver of the said bus, in his evidence, has stated that he was the driver on the date of accident and took the bus on 09.12.1998 at

09.28 a.m, trip from Madurai and was proceeding towards Salem slowly observing the traffic rules and the accident took place near Pallapatti

Section and at that time, on the left side of the tar road, the claimant was walking along and that in order to give way to the bus which was coming

in the opposite direction, he drove his vehicle into a corner and at that time, the respondent/claimant who came walking on the left side of the road,

stepped down from tar road to sand road, and at that time, the sand slided, as a result of which, the respondent/claimant fell down and sustained

injury and that the accident took place because of the negligence of the respondent/claimant.

In Ex. P.1, F.I.R., the name of the complainant is mentioned as Padiyan who is the claimant in the case. The name of the accused is mentioned

as the driver of the bus bearing Registration No. TN-57-0815 belonging to the State Transport Corporation. It is evident from Ex. P.1, F.I.R. that

in Ammaiyanayakanur Police Station Cr. No. 8 of 1999, a case has been registered under Sections 279 and 337 I.P.C.

As a matter of fact, P.W. 1/respondent/claimant has clearly mentioned about the manner and happening of the occurrence in Ex. P.1, F.I.R.,

complaint to the police. In short, the evidence of P.W.1/claimant is clear, cogent and convincing in regard to the manner and happening of the

occurrence.

Per contra, the evidence of R.W.1, the bus driver to the effect that at the time of the accident, the respondent/claimant stepped down from tar

road to sand road and at that time, the sand slided as a result of which the claimant sustained injury etc, cannot be believed and the same is a self-

serving one and therefore, this Court rejects the same.

Inasmuch as the evidence of the claimant/P.W. 1 is unimpeachable as to the manner and happening of occurrence and taking note of the fact

that the respondent/claimant has sustained injury in the accident and bearing in mind the facts and circumstances of the case, this Court comes to

the conclusion that the accident has taken place because of the negligent driving of the bus belonging to the State Transport Corporation bearing

Registration No. TN-57-0815 by its driver and that the driver of the said bus is squarely responsible for causing the accident and the point is

answered accordingly.

Coming next to the quatum of compensation, it is significant to point out that the Tribunal has granted Rs. 2,000/- towards loss of income, it

has granted Rs. 5,000/- towards additional nourishment expenses, it has awarded a sum of Rs. 13,000/- towards pain and sufferings, it has

awarded a sum of Rs. 40,000/- towards partial and permanent disability and towards loss of earning capacity, it has granted a sum of Rs.

10,000/- and in all, it has awarded a compensation of Rs. 70,000/- (Rupees Seventy Thousand only) to the respondent/claimant, directing the

appellant/State Transport Corporation to pay the same.

P.W. 2, Dr. Vijayakumaran, in his evidence, has stated that he examined Ex. P.4, X-ray of the claimant and found that the bone fracture was

malunited and shortened and, that since the shoulder bone was seen outside and since his right shoulder movements were reduced to 50%, the

claimant was facing hardship in his day-to-day work because of pain and that the partial and permanent disability sustained by the claimant was

assessed at 25% by him as per Ex. P.3, the disability certificate.

Bearing in mind of the fact that the respondent/claimant has suffered a disability of 25% and considering the difficulties experienced/likely to be

experienced by the claimant and taking note of another important fact that the age of the claimant at the time of the accident is 60 years, this Court

awards a sum of Rs. 43,750/- (Rs. 1,750/- X 25 = Rs. 43,750/-) (Rupees Forty Three Thousand Seven Hundred and Fifty only) (calculating at

the rate of Rs. 1,750/- for 1% of disability) towards disability sustained by the claimant. For pain and sufferings, this Court grants a sum of Rs.

5,000/-. Though the respondent/claimant has claimed a sum of Rs. 35,000/- towards additional nourishment expenses, this Court grants a sum of

Rs. 5,000/-. As a Global compensation for the injuries sustained and the consequent disability suffered by the claimant, this Court grants a sum of

Rs. 5,000/-. Thus, the respondent/claimant is awarded a total compensation of Rs. 58,750/- [Rs. 43,750/- + Rs. 5,000/- + Rs. 5,000/- + Rs.

5,000/- = Rs. 58,750/-] (Rupees Fifty Eight Thousand Seven Hundred and Fifty only) together with interest at 9% p.a from the date of filing of the

petition till date of payment, payable by the appellant/State Transport Corporation and therefore, this Court opines that a sum of Rs. 70,000/-

(Rupees Seventy Thousand only) awarded by the Tribunal as compensation to the respondent/claimant is on the excessive side.

This Court fixes the lawyer''s fee is fixed at Rs. 1,938/- (Rupees One Thousand Nine Hundred and Thirty Eight only), payable by the

appellant/State Transport Corporation.

For the foregoing reasons and on consideration of the facts and circumstances of the case, this Court opines that an award of Rs. 70,000/-

passed by the Motor Accident Claims Tribunal - Principal Sub Court, Dindigul, in M.C.O.P. No. 80 of 1999 dated 18.06.2003, is excessive and

instead, this Court awards a sum of Rs. 58,750/- (Rupees Fifty Eight Thousand Seven Hundred and Fifty only) together with interest at 9% p.a.

from the date of filing of the petition till date of payment, which is equitable, fair and prudent too, payable by the appellant/State Transport

Corporation.

Before parting, it is pertinent to point out that in M.P. No. 1 of 2007, this Court has passed an order on 26.04.2007, inter alia permitting the

respondent/claimant to withdraw 50% of the award amount lying to the credit of M.C.O.P. No. 80 of 1999 on the file of the Motor Accident

Claims Tribunal - Principal Sub Court, Dindigul, with accrued interest and costs without furnishing security and further, has directed to deposit the

balance amount in any one of the Nationalised Banks in reinvestment scheme for three years, renewable thereafter till the disposal of the appeal.

It is open to the respondent/claimant to receive the balance amount lying to the credit of M.C.O.P. No. 80 of 1999 on the file of the Motor

Accident Claims Tribunal - Principal Sub Court, Dindigul, by filing necessary payment out application in accordance with law. Likewise, liberty is

given to the appellant/State Transport Corporation to receive the balance amount from the Tribunal in the manner known to law.

Resultantly, the Civil Miscellaneous Appeal is allowed in above terms and consequently, the award passed by the Motor Accident Claims

Tribunal - Principal Sub Court, Dindigul, in M.C.O.P. No. 80 of 1999, is modified. Accordingly, connected Miscellaneous Petition is closed. The

parties are directed to bear their own costs in this appeal bearing in mind the facts and circumstances of the case.