The Managing Director Tamil Nadu State Transport Corporation vs Sundarajan

R. Karuppiah, J.—This civil miscellaneous appeal is filed by the appellant/respondent Transport corporation challenging the award and

decree of the Motor Accidents Claims Tribunal, Additional District Judge, Tiruchirapalli, dated 05.09.2005 made in MCOP No. 997 of 2001.

The respondent/claimant filed claim petition for compensation of Rs. 2,00,000/- and in which it is stated that on 11.03.2001 at about 07.30 p.m.

the respondent/claimant had travelled in the appellant/ respondent Transport corporation bus bearing registration No. TN-45 N 1274 along with

his wife and daughter and the said vehicle has been driven by its driver in the rash and negligent manner with high speed and when the vehicle was

nearing Aalathur, the driver of the said vehicle overtook a lorry in a rash and negligent manner and dashed against a motor cycle bearing

registration No. TN-57-D-2068 which was coming on the opposite direction by keeping his extreme left side. As a result of which, the bus was

capsized on the left side of the road and in the said accident the claimant sustained fracture of left hand and dislocation of the left shoulder and

several injuries all over the body. The claimant was taken to Government Headquarters Hospital, Tiruchirappalli, where he took treatment from

11.03.2001 to 12.03.2001 and then, he was taken to Hindu Mission Hospital, Anna Nagar, Thennur, Tiruchirapalli, wherein he took treatment

from 13.03.2001 to 15.03.2001 and then he was undergoing treatment at Arjun Clinic, III Cross Thillainagar, Trichy under Dr. V.R. Ravi. In view

of the said accident, the respondent/claimant is not able to use his left hand and sustained permanent disability. At the time of the accident, the

respondent/claimant is 45 years old and he was working as sales representative in Ruba Enterprises, earning a sum of Rs. 4,000/- per month and

therefore, he claimed compensation of Rs. 2,00,000/- from the appellant/respondent transport corporation.

The appellant/respondent Transport corporation filed a counter, in which they denied the averments made in the claim petition and stated that on

11.03.2001 the appellant/respondent corporation bus bearing No. TN 45 N 1274 driven by its driver with all care and caution and the said bus

was proceeding from Dindigul to Trichy and at about 07.30 pm the said bus was proceeding near Aalathur. At that time a lorry came behind the

bus in a rash, negligent and speedy manner and without considering the vehicle coming in opposite direction, the lorry overtook the

appellant/respondent Transport corporation bus. In this circumstances, a motor cyclist with a pillion rider came in the opposite direction in a rash

and negligent manner. In order to avert a collision with lorry, the motor cyclist crossed the centre line of the tar road at his right side and lost his

balance and fell down on the right side of the road and in front of the appellant/respondent Transport corporation bus. On seeing this, the driver of

the appellant/respondent Transport corporation bus slowed down and turned on the left side of the road and gone away from the road but could

not avert the unexpected falling of motor cycle on the right side of the bus. However, in order to avoid the major accident, the

appellant/respondent Transport corporation bus driver slowed down the bus and turned on the left side of the road in that process, the bus went

off the road and capsized and therefore, the rider of the motor cycle and the driver of the lorry were solely responsible for the accident. The owner

and the insurer of the above said vehicles are necessary party to the proceedings. Further, the age, income occupation, nature of injuries are all

denied by the appellant/respondent Transport corporation. Further, it is stated that the compensation claimed is excessive and on the higher side.

Before the Tribunal, on the side of the claimant, 4 witnesses were examined as PW1 to PW4 and marked 11 documents as Ex. P1 to Ex. P11.

On the side of the appellant/respondent Transport corporation bus, the driver of the appellant/respondent Transport corporation bus, alone is

examined as RW1 and no document was marked.

Considering the oral and documentary evidence, the Tribunal has discussed in detail and held that the accident has occurred only due to the rash

and negligent driving of the appellant/respondent Transport corporation bus driver and awarded Rs. 67,500/- as compensation under the following

heads:-

Aggrieved over the above said award passed by the Tribunal, the appellant/respondent Transport corporation has filed this civil miscellaneous

appeal.

With regard to the negligence aspect, on the side of the claimant, the claimant himself has deposed as PW2 along with two other claimants in

connected claim petitions and considering the above said oral and documentary evidence, the Tribunal has held that the accident has occurred only

due to the rash and negligent driving of the appellant/respondent corporation bus driver i.e. RW1. Further, the Tribunal has not accepted the oral

testimony of RW1, since his evidence are unbelievable. From the oral evidence of PW1 to PW3 it is clear that the accident had occurred only due

to the rash and negligent driving of RW1 and therefore, the Tribunal is correct in holding that the accident had occurred due to the rash and

negligent driving of the driver of the appellant/respondent Transport corporation bus i.e. RW1.

A perusal of the oral testimony of PW4, Doctor Rajendran, and also disability certificate Ex. P10, issued by the Doctor reveals that the doctor

has assessed the disability sustained by the claimant at 35%, but the Tribunal has reduced the percentage of the disability from 35% to 25%. A

perusal of the award reveals that no satisfactory reason has been stated for not accepting the disability percentage as it is issued by the doctor,

who is the competent authority to assess the disability.

In the above said circumstances, the disability percentage reduced by the Tribunal from 35% to 25% is not sustainable, as rightly contended by

the learned counsel for the respondent/claimant. By taking the disability at 35%, a sum of Rs. 35,000/- is to be awarded towards permanent

disability. At the same time, the Tribunal has awarded Rs. 25,000/- under the head of loss of earning capacity. As rightly contended by the learned

counsel for the appellant/respondent Transport corporation, the award under the said head is not correct, since absolutely there is no sufficient oral

and documentary evidence to prove that the respondent/claimant has lost earning capacity in view of the accident. A perusal of the oral and

documentary evidence on the side of the respondent/claimant would go to show that he did not produce any document to show that after the

accident, he was not working as sales representatives in the above said Rupa Enterprises. In the above said circumstances and considering the

nature of the injuries sustained by the respondent/claimant and other factors, Rs. 25,000 fixed under the head of loss of earning capacity is not

correct.

The learned counsel for appellant has not seriously objected the award passed by Tribunal in other heads. Further, it is just and reasonable

compensation and hence, no need to interfere with the findings.

Therefore, the award passed by the Tribunal is modified as under:

Thus, a sum of Rs. 52,500/- is to be awarded as compensation to the respondent/claimant.

In the result, the Civil Miscellaneous Appeal is partly allowed and the award passed by Tribunal is reduced as Rs. 52,500/- from Rs. 67,500/-

with 9% interest from the date of petition and with proportionate cost.