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Judgment
S. Palanivelu, J.—Aggrieved by the award of the Motor Accident Claims Tribunal, Second Additional Subordinate Court,
Gobichettipalayam, passed in M.C.O.P. No. 44 of 1999 dated 5.10.2001, the Tamil Nadu State Transport Corporation has filed this appeal
against the award of Rs. 3,41,290/-.
The background facts leading to the filing of the above said C.M.A. are as follows:
a. On 17.8.1999 at about 9.00 a.m., the first respondent, who is the claimant, while travelling in a State Transport Corporation Bus, bearing
registration No T.N. 38 N 0110, along with her sister one Loganayaki, the driver of the bus drove it in a rash and negligent manner and lost its
control, thereby, the bus dashed against a tree near Pethikuttai Village on Sathymangalam-Mettupalayam main road. In the said accident, the
claimant, who sat near the driver seat, suffered a fracture in her right leg apart from other injuries.
On the basis of oral and documentary evidence, the Tribunal fixed the responsibility for having caused the said accident on the driver of the
Appellant Transport Corporation Bus.
It is argued that the Tribunal should not have relied upon the averments made in the First Information Report and oral accounts of the crew of
the bus, namely, the conductor and the driver of the bus, who deposed as R.W. 1 and R.W. 2.
In such circumstances, it is necessary for this Court to scrutinise the evidence of the witnesses.
P.W. 1, who is the claimant, in her evidence, has deposed that the driver drove the, bus in a reckless manner. thereby, he lost its control and
dashed against the tree.
The Conductor, R.W. 1, has stated, in his evidence, that at the time of accident, he was issuing tickets to the passengers in the bus. He has
further stated that since the driver of the bus tried to avert the collision with a lorry, which was coming from the opposite direction, in a hectic
speed, he turned the bus towards right side, thereby, the bus dashed against the tree.
The Driver, R.W. 2, has spoken in his evidence that at the time of accident he was working as a driver temporarily in the Transport
Corporation. At the time of occurrence, while he was overtaking a scooter, on seeing a lorry, which was coming from opposite direction in a
reckless manner, he turned the bus to avoid accident, thereby, the bus hit against the tree.
From his evidence, it transpires that the driver turned the bus to avert the catastrophe. While his testimony is analysed, it comes to light that the
attempt to overtake a scooter led to the accident. Even before overtaking the scooter, the driver might have definitely seen the lorry, which was
coming from the opposite side. In that event, he should have slowed down the speed of the bus and allowed the lorry to pass the bus. In the above
circumstances, the evidence of R.W. 2 offering an unreasonable explanation or lame excuse that while overtaking the scooter, to avoid the accident
with the lorry, he turned the bus and the bus hit against the tree, would not find any support.
In the above said background of the factual scenario, it is clear that the driver of the bus drove the vehicle in a rash and negligent manner and
caused the accident in which the claimant suffered fracture on her right leg and therefore, I am of the view that the conclusion of the Tribunal fixing
the liability for the accident on the driver of the bus cannot be interfered with.
The learned Counsel for the appellant very much assails the quantum of compensation awarded by the Tribunal to the claimant.
The claimant was aged about 25 years and was carrying for four months at the time of accident. Her wound certificate shows that she suffered
a fracture in her right leg, which is grievous, a 3 c.m. long cut injury on her forehead, which is simple.
She has further stated that at the outset she received treatment at Mettupalayam Government Hospital and thereafter, she was admitted to
Coimbatore Medical College Hospital and then she took treatment in Sheela Hospital at Coimbatore as an inpatient for a period of one month.
In her cross examination, she says that after five months from the date of accident, she gave birth to a child by normal delivery. She has also
stated that she has undergone a Training for dress making under the scheme of Training of Rural Youth for Self Employment imparted by the
Department of Rural Development for a period from 1.9.1991 to 31,8.1992. She also produced a xerox copy of the Certificate, Ex. A.4, to that
effect.
She has also deposed that she is a tailor by profession and she was earning a sum of Rs. 2500/- per month through the said avocation.
The Doctor P.W. 4, who examined the claimant, has stated in his Disability Certificate, Ex. A.15,, dated 18.8.2001, that the claimant even
cannot not squat on the floor to take food and attend daily routine work; she cannot walk for a long time and carry heavy objects; there was loss
of muscles of 1"" in right thigh and 3/4"" in right calf; she has restriction of movements of right knee to an extent of 40 degree; x-ray report shows
that the plates & screws are intact and fracture is united; she cannot climb stairs; and therefore, he assessed the disability of the claimant as
permanent to an extent of 55%.
As regards the amount of compensation, the Tribunal has taken into account her income as Rs. 2500/- per month and Rs. 30000/- as annual
income. It applied multiplier of 18 and assessed total income as Rs. 540000/-. Though the disability certificate was given fixing the permanent
disability to the extent of 55%, the Tribunal has taken as 52% and calculated and fixed the loss of income at Rs. 2,80,800/-.
Further, the Tribunal awarded Rs. 42190/- towards medical expenses, Rs. 7800/- towards car rental charges, Rs. 5000/- towards pain and
suffering and Rs. 5000/- towards nourishment and in toto, the Tribunal awarded Rs. 3,41,290/- as compensation to the claimant to be paid by the
first and third respondents.
It is stated that at the time of accident, she was four months'' pregnant and gave birth to a child by normal delivery. Hence, it is clear that no
harm was caused to her body and her child due to the accident except the said injury in her right leg.
The learned Counsel for the first respondent has submitted that since she was a tailor by profession after underwent a training in dress making,
she could not utilise her right leg for sewing clothes and switch over to some other avocation.
This contention cannot be accepted for the reason that as the claimant was not suffering from permanent total disability. It is not the case of the
claimant that she could not do the tailoring work in toto and the only case is that she could not do that work as she did in the past. Further, now a
days, for sewing clothes, electric machines have entered into the tailoring field. So, if she buys and utilizes that machine by utilising the
compensation amount, she could do more work than in the past and therefore, I am of the view that the loss of income fixed by the Tribunal as Rs.
2500/- per month is on the higher side and hence the loss of income is restricted and fixed as Rs. 1500/- per month, which would meet the ends of
justice. So, the annual loss of income would come to Rs. 18000/-. If the multiplier of 18 is applied, then the total income would come to Rs.
3,24,000/-.
Though the disability certificate was given fixing the permanent disability to the extent of 55%, the Tribunal has taken as 52% and calculated
and fixed the loss of income at Rs. 2,80,800/- without any reason. However, this Court does not incline to reduce the percentage of permanent
disability as no reason has been assigned by the appellant. Taking into account the disability rate at 55%, the total loss of income would come to
Rs. 1,78,200/-
Further, the Tribunal awarded Rs. 42190/- towards medical expenses, Rs. 7800/- towards car rental charges, Rs. 5000/- towards pain and
suffering and Rs. 5000/- towards nourishment, which in the opinion of this Court are not abnormal but just and proper and therefore, the amount
awarded under the above heads are confirmed without any change.
Now, the total amount of compensation would come to Rs. 2,38,690/- which has to be paid to the claimant by the first and third respondents.
In fine, the C.M.A. is allowed partly to the extent as indicated above. No costs.