The Managing Director State Express Transport Corporation (Tamil Nadu Dn. I) Ltd. vs Anandan and Vedi

C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree,

dated 23.10.2000, made in M.C.O.P. No. 305 of 1999, on the file of the Motor Accident Claims Tribunal, III Additional District Court,

Krishnagiri, awarding a compensation of Rs.65,000/- with 12% interest per annum, from the date of filing petition till the date of payment of

compensation.

Aggrieved by the said Award and Decree, the appellant/second respondent, The Managing Director, State Express Transport Corporation

(Tamil Nadu Dn. I) Ltd., Chennai-2 has filed the above appeal praying to set aside the award and decree passed by the Tribunal.

The short facts of the case are as follows:

On 14.01.1999, the petitioner aged about 19 years old, was proceeding in a Bullock Cart belonging to his paternal uncle to unload the turmeric in

Krishnagiri Market. When both of them were proceeding in the Bargur to Krishnagiri main road and were nearing Amaravathi Hotel, at 05.00

a.m., the Corporation bus bearing registration No. TN01 N0997, route No. 400, coming from Bargur towards Krishnagiri, driven in a rash and

negligent manner by its driver, dashed against the said bullock cart from behind and caused the accident. Due to the impact, the petitioner sustained

grievous injuries. He was taken to the Government Hospital, Krishnagiri and then to a private nursing home at Krishnagiri and took treatment. Due

to the injuries sustained in the accident, the petitioner is not able to sit, stand or walk freely as before. He is also not able to bend his body for

doing any manual work. He finds it difficult to lift any articles with his right hand. His face also has been disfigured.

As the accident had been caused by the rash and negligent driving by the driver, first respondent and as the said bus is owned by the second

respondent, both the respondents are liable to pay compensation to the petitioner. The petitioner was doing business in seasonal goods and earning

an income of Rs.2,500/- per month. Hence, the petitioner has claimed a compensation of Rs.2,00,000/- together with interest and costs from the

respondents u/s 166 of the Motor Vehicles Act.

Regarding the said accident, a criminal case has been registered at Krishnagiri Police Station in Crime No. 98 of 1999 as against the driver of

the bus under Sections 279 and 337 of I.P.C.

The second respondent, in his counter statement, has resisted the claim, denying the averments in the petition regarding the manner of accident.

It has been submitted that the driver of the bus, on seeing a lorry coming in the opposite direction at a high speed, attempted to turn the bus to the

left side to avoid collision with the lorry and applied brakes. But, in spite of his best effort, the bus had dashed behind the bullock cart. It was also

submitted that the cart was not fitted with a reflector or indicator light and as it was dark, in the early hours of morning, the cart was not visible due

to the blinding lights emanating from the vehicle coming in the opposite direction. However, on seeing the lorry, the driver of the bus immediately

applied the brakes and tried his level best to stop the bus. But, in spite of his best effort, the bus did not stop due to the slippery condition of the

road, on account of seepage of oil on the road. As such, it has been submitted that the second respondent cannot be held liable to pay any

compensation amount to the petitioner.

The second respondent, has also not admitted the averments in the claim regarding the age, income and occupation of the petitioner, as well as

the nature of injuries, treatment taken and disability sustained. The second respondent has stated that as the claim is excessive and without any

basis, it has to be dismissed with costs.

The Motor Accident Claims Tribunal framed two issues for the consideration namely:

(i) Was the accident caused due to the high speed and rash and negligent manner of driving by the driver of the bus?

(ii) What is the quantum of compensation, which the petitioner is entitled to get?

The uncle of the petitioner, who had travelled in the bullock cart had also sustained injuries in the said accident and he had filed a claim petition

in M.C.O.P. No. 306 of 1999 before the Tribunal.

On the petitioner''s side, the petitioner himself was examined as PW1, the other petitioner in M.C.O.P. No. 306 of 1999 was examined as

PW2, the Doctor, who had assessed the disability of the petitioner was examined as PW3 and nine documents were marked as Exs. P1 to P9. On

the respondents'' side, the driver of the bus was examined as RW1 and no documents were marked.

In the evidence of the PW1 and PW2, it has been stated that while they were proceeding in a bullock cart, loaded with turmeric, from Bergur

towards Krishnagiri and when they were nearing Amaravathi Hotel on the National Highway, the second respondent''s bus, coming from behind

the bullock cart, driven at a high speed and in a rash and negligent manner, had dashed against the bullock cart. It has been deposed by the PW1

that he had been injured in the said accident and that the bullock cart was also damaged and the bullocks also sustained injuries. He has further

deposed that the accident had been caused only by the rash and negligent manner of the driving by the first respondent. In support of his evidence,

the FIR has been marked as Ex.P1. In the FIR, it has been stated that at the time of the said accident, the first respondent had driven the bus at a

high speed and in a rash and negligent manner without sounding of horn and dashed against the bullock cart and caused the accident. It is also seen

that a criminal case has been registered as against the first respondent. No contra evidence has been produced on the respondents'' side to refute

the above evidence produced by the petitioner''s side. Though the first respondent during his evidence as RW1 had deposed that he had not been

driving the bus in a rash and negligent manner, it is seen from his evidence, that he had tried to overtake a lorry going ahead of him and had then

seen another lorry coming at a high speed in the opposite direction. The first respondent in order to avoid collision with the lorry coming in the

opposite direction had tried to turn the bus to the left side of the road and in the process had dashed the bus against the bullock cart. But, no

documentary evidence had been furnished on the respondents'' side to prove the evidence given by the RW1. The Tribunal were of the opinion

that if the lorry coming in the opposite direction had been driven at a high speed and in a rash and negligent manner by its driver, then the bus driver

ie.RW1 herein, could have given a complaint regarding the accident at the Police Station. But, no documentary evidence had been furnished on the

respondents'' side to establish this contention. The Tribunal were of the opinion that if the driver of the bus had driven the bus in a careful manner,

he could have controlled the speed of the bus or stopped the bus, on seeing the oncoming lorry coming at him at a high speed and could have

prevented the bus from dashing against the bullock cart. The Tribunal, therefore, was not able to find the contentions of RW1 acceptable regarding

the manner of the accident. The Tribunal found the evidence let in by the petitioner''s side acceptable and hence held that the second respondent

being the owner of the bus involved in the accident, liable to pay compensation to the petitioner for the injuries sustained by him, as well as for

damages caused to the bullocks and bullock cart.

The petitioner has stated that in the accident, he had sustained injuries in his left shoulder, left leg and face; that he had taken first aid at

Krishnagiri Government Hospital and then taken treatment at a private hospital; that after the said accident, he has not been able to use his left

hand; that he had spent a sum of Rs.15,000/- towards medical expenses and that he had claimed a compensation of Rs.2,00,000/-.

On scrutiny of the Ex.P2, the Wound Certificate, issued at the Government Hospital, it is seen that the petitioner has sustained soft tissue injury

in his left leg and join as well as fracture of bone in his left leg and had also sustained a soft tissue and swelling injury in his right leg and joint and

that one of his teeth had also been damaged. It is further seen that he had sustained a soft tissue injury in his thigh. It is seen that he had sustained

seven injuries and that only the fracture sustained in his left arm joint is a grievous one and all the other injuries are simple in nature. Though the

petitioner has stated that he had taken treatment at the Government Hospital and also at a private hospital and had spent a sum of Rs.15,000/-

towards medical expenses, no documentary proof in the form of the medical certificates or medical prescriptions had been marked to establish his

claim. The petitioner has also stated that even after the treatment, he is not able to use his right hand.

The Doctor, who had assessed the disability of the petitioner was examined as PW3. The PW3, in his evidence deposed that he had examined

the petitioner and found that the bone in the left leg of the petitioner, which had been fractured and malunited and joined in a crooked manner and

that due to this the movements of the petitioner''s left shoulder has been reduced by 48 Degrees. He has deposed that due to this, the petitioner

would not be able to raise his hands and could not lift heavy weights; that he experiences pain while riding a cycle. The Doctor deposed that the

petitioner had sustained a permanent disability of 20% and in support of his evidence has marked the Disability Certificate issued by him as Ex.P9.

The Tribunal, on considering the nature of injuries sustained by the petitioner in the accident awarded a compensation of a sum of Rs.15,000/-

to the petitioner under the head of pain and suffering. The Tribunal on considering that the petitioner had taken treatment at the Government

Hospital as well as at a private hospital opined that he would have incurred medical expenses for treatment awarded a compensation of

Rs.10,000/- under the head of medical expenses. The Tribunal, on considering that the movements of the petitioner''s right hand had been affected

due to the injuries sustained by him in the accident and holding that this was indicative of the disability, which the petitioner would have to live with

in his future and considering that the petitioner was aged only 20 year5s awarded a sum of Rs.25,000/- as compensation under the head of

permanent disability. Further, the Tribunal holding that this permanent disability sustained by him would affect his future earning capacity awarded a

compensation of Rs.15,000/- to the petitioner under the head of loss of earning capacity and loss of expectation of life. In total, the Tribunal

awarded a compensation of Rs.65,000/- to the petitioner and directed the second respondent to deposit the above said award together with

interest at the rate of 12% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.

No. 305 of 1999, on the file of the Motor Accident Claims Tribunal, III Additional District Court, Krishnagiri, within a period of six weeks from

the date of its order. Further, after such deposit was made into Court, the award was to be deposited into a nationalised bank, as fixed deposit, for

a period of three years and the petitioner was permitted to receive the interest on such deposit, once in three months, directly from the bank. The

petitioner was directed to pay the Court fees due on the award amount within a period of two weeks from the date of its order. The Advocate fees

was fixed at Rs.2,810/-. The second respondent was directed to pay the cost of Rs. 3,004.75 to the petitioner.

Learned counsel appearing for the appellant has contended in his appeal that the Tribunal erred in holding that the appellant''s driver was

driving the bus in a rash and negligent manner and was responsible for the accident. It was also pointed out that the Tribunal erred in awarding an

excessive sum of Rs. 65,000/- as compensation for the fracture of left clavicle. It was also contended that the Tribunal erred in awarding an

excessive sum of Rs. 25,000/- as compensation towards permanent disability, which had been assessed by PW3 at 20%. It was also contended

that the Tribunal erred in awarding an excessive sum of Rs. 10,000/- as compensation towards medical expenses in the absence of medical bills. It

was also contended that the award of Rs. 15,000/- granted towards loss of earning power was also excessive. As such, it has been contended that

the Tribunal erred in awarding interest at the excessive rate of 12% per annum and the interest ought to have granted only at the rate of 9%

following the decision of rendered by the Hon''ble Supreme Court reported in 2001 (1) Page 5, Supreme Today. As such, the learned counsel has

prayed to set aside the award and decree.

Learned counsel appearing for the first respondent argued that the injured claimant''s age was 19 years at the time of accident and he was a

student, who was also involved in a seasonal business and that this proved that he is a hard worker. The learned counsel further argued that the

Doctor had issued a Disability Certificate, wherein it has been stated that the disability of the claimant was 20%. The claimant sustained grievous

bone fracture injuries and he underwent treatment in two different hospitals. After the said accident, the injured person is not able to walk, squat

and is not able to resume his normal avocation. The learned counsel further argued that after the said accident, the claimant is unable to pursue his

studies in a normal manner. As such, it has been argued that the quantum of compensation granted by the Tribunal is not on the higher side and that

the appeal is not maintainable, as such, the award granted by the Tribunal is a well considered one.

After considering the facts and circumstances of the case, scrutiny of findings of the Tribunal and the arguments advanced by the learned

counsel appearing on either side, this Court is of the view that the claimant''s age was 19 and his occupation was that of a student, who was also

involved in a seasonal business. Considering the Disability Certificate issued by the Doctor, wherein, disability has been stated as 20%, this Court

is of the view that the award of Rs. 65,000/- granted by the Tribunal is not excessive. But, however there is a minor flaw in the heads under, which

the award has been granted. Hence, this Court grants the compensation to the claimant as under:

The Tribunal had awarded a sum of Rs. 25,000/- as compensation under the head of disability of 20%. This Court enhances the compensation

awarded under this head to Rs. 40,000/-,

The Tribunal had awarded a sum of Rs. 15,000/- under the head of pain and suffering. This Court confirms the award granted under this head,

as it is found proper,

The Tribunal had awarded a sum of Rs. 10,000/- as compensation under the head of medical expenses. This Court confirms the award granted

under the head of medical expenses,

The Tribunal had awarded a sum of Rs. 15,000/- under the head of loss of earning capacity and for affecting his normal life. This Court sets

aside the award granted under this head, as it is found not relevant,

In effect, this Court confirms the award of Rs. 65,000/- granted by the Tribunal, as it is found to be fair and equitable.

On 22.07.2005, this Court imposed a condition on the appellant to deposit the entire compensation amount due under the award in challenge.

The said conditional Order had not been complied with by the appellant. Therefore, this Court hereby directs the appellant to deposit the entire

compensation, with accrued interest thereon, into the credit of the M.C.O.P. No. 305 of 1999, on the file of the Motor Accident Claims Tribunal,

III Additional District Court, Krishnagiri, within a period of four weeks from the date of receipt of a copy of this Order, subject to deduction of

deposits made earlier, if any.

After such deposit is made, it is open to the claimant to withdraw the entire compensation amount with accrued interest and costs, lying in the

credit of the M.C.O.P. No. 305 of 1999, on the file of the Motor Accident Claims Tribunal, III Additional District Court, Krishnagiri, after filing

necessary payment out application, in accordance with law, subject to deduction of withdraw made, if any.

In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 23.10.2000, in M.C.O.P. No. 305 of

1999, passed by the Motor Accident Claims Tribunal, III Additional District Court, Krishnagiri, is confirmed. There is no order as to costs.