Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
30. 08.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.3998 of 2008 S.Arumugham ... Appellant Vs. Metropolitan Transport Corporation (Chennai Division) Ltd., rep. by its Managing Director, Pallavan Salai, Chennai - 600 002. ... Respondent PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 01.09.2008 made in M.A.C.T.O.P.No.440 of 2004, on the file of the VI Small Causes Court, Motor Accidents Claims Tribunal, Chennai. For Appellant : Mr.R.Kalaiarasan For Respondent : Mr.M.Deivanandan - - -
JUDGMENT
The appellant / petitioner has preferred the present appeal against the judgment and decree passed in M.A.C.T.O.P.No.440 of 2004, on the file of the VI Small Causes Court, Motor Accidents Claims Tribunal, Chennai.
2. The short facts of the case are as follows:- The petitioner has filed the claim in M.C.O.P.No.440 of 2004, claiming compensation of a sum of Rs.13,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 28.06.2003, the petitioner was standing near the Periyar Road bus stop, Kodambakkam, Chennai in order to go to Thousand lights. At about 08.55 hours, when the petitioner was in the process of boarding the bus bearing registration No.TN-01-N-3163, at the said bus stop, the conductor of the bus blew the whistle, in a rash and negligent manner, without seeing the passengers boarding the bus and driver of the bus also started the bus in a rash and negligent manner, due to which, the petitioner fell down and sustained injuries. He was admitted at Government Royapettah Hospital, wherein first aid was given and subsequently took treatment at Government General Hospital and at Vijaya Health Centre. Hence, the petitioner has filed the claim against the respondent / Transport Corporation.
3. The respondent, in his counter has submitted that on 28.06.2003, when the driver of the bus bearing registration No.TN-01-N-3163, started the bus from Periyar Road bus stop, after hearing the sound of the whistle given by the conductor, the petitioner tried to board the moving bus and consequently had fallen down and sustained injuries. The averments in the claim regarding age, income and occupation of the petitioner, nature of injuries, period of treatment, medical expenses and disability was also not admitted. It was submitted that the claim was excessive.
4. On the petitioner's side, three witnesses were examined and 22 documents were marked as Exs.P1 to P22, viz., Ex.P1-F.I.R., Ex.P2-rough sketch, Ex.P3-charge sheet, Ex.P4-discharge summary, Exs.P5 to P7-medical bills, Ex.P8-discharge summary, Ex.P9-medical bills, Ex.P10-discharge summary, Ex.P11-medical bills, Ex.P12-discharge summary, Ex.P13-receipt cum bill, Exs.P14 to P16-medical bills, Ex.P17-cash receipt, Ex.P18X-rays, Ex.P19-photo with C.D., Exs.P20 and P21-X-rays, Ex.P22-disability certificate. On the respondent's side, one witness was examined and no documents were marked.
5. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz., ".(i) Who is responsible for the accident?. (ii) Whether the petitioner is entitled for compensation, if so, how much?.".
6. P.W.1., Arumughan had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P22. R.W.1., the driver of the bus had adduced evidence that he had driven the bus slowly and carefully and started the bus at the Periyar Road bus stop, after getting the whistle sound from the conductor and that the accident was caused only due to the negligence of the petitioner, who had tried to board the moving bus.
7. On scrutiny of Exs.P1 and P3, it is seen that the F.I.R. has been registered against the driver of the bus based on the complaint given by one K.Muruganathan, who is a relative of the petitioner and that the police, after investigation has filed the charge sheet against him. Hence, the Tribunal, on scrutiny of evidence of P.W.1 and Exs.P1, P2 and P3, held that the accident had been caused by the rash and negligent driving by the driver of the respondent's bus and hence, held the respondent liable to pay compensation to the petitioner.
8. P.W.1. had further adduced evidence that due to the accident, he had sustained degloving injury in his left leg and that he had received treatment at Vijaya Health Centre, as an inpatient from 30.06.2003 to 06.08.2003, wherein he was treated with sutures, wound debridement and skin grafting was done. He deposed that he had received further treatment at BRS Hospital, as an inpatient form 18.02.2008 to 27.02.2008. P.W.2, Dr.K.J.Mathizhagan had adduced evidence on similar lines to the evidence of P.W.1. regarding nature of injury and mode of treatment. He deposed that the petitioner's legs below his hip had been disfigured and he has difficulty in walking fast, climbing stairs, squatting and certified that the petitioner had sustained 50% disablement and in support of his evidence, he had marked Exs.P22 and P18.
9. P.W.1. had further adduced evidence that he was working as a partner in Almas Printer and earning Rs.10,000/- per month. P.W.3 had adduced evidence that he, P.W.1 and another person were partners in the 'Alams printer' and earned a sum of Rs.30,000/- to Rs.40,000/- as profits and that this profit was shared amongst them. He deposed that after the accident, P.W.1. was paid only Rs.4,000/- as salary. The Tribunal, however, observed that no documentary evidence had been marked to prove the income of the petitioner.
10. The Tribunal, on taking the notional income of the petitioner as Rs.5,000/- per month, awarded a sum of Rs.15,000/- for loss of earning for three months during medical treatment and convalescence period; Rs.50,000/- was awarded for disability; Rs.10,000/- was awarded for pain and suffering and Rs.5,000/- was awarded under each of the heads of nutrition and transport; Rs.1,98,400/- was awarded for medical expenses. In total, the Tribunal awarded a sum of Rs.2,83,400/- as compensation to the petitioner and directed the respondent to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within eight weeks from the date of its order.
11. Not being satisfied by the award passed by the Tribunal, the claimant has preferred the present appeal.
12. The learned counsel for the appellant has contended in his appeal that the appellant suffered degloving injury on his left leg, crush injury in his left foot and injury in chest and treated as an inpatient at Vijaya Health Centre and BRS Hospital, on 4 occasions, extending to a period of 60 days and during the course of treatment, several surgeries were conducted and SSG were done, and that most part of his left leg are without muscle. As such, the Tribunal erred in awarding a meagre sum of Rs.10,000/- for pain and suffering as against the claim of Rs.1,50,000/-. It was also contended that the award for disability is also on the lower side. It was contended that the Tribunal failed to note that the appellant was paid a sum of Rs.10,000/- per month as per evidence of P.W.3, who had also marked the copy of partnership deed and certificate of registration and that subsequent to the accident, he is being paid only a sum of Rs.4,000/- per month and as such, the Tribunal ought to have applied multiplier theory for arriving at compensation for loss of earning power. It was contended that the award passed under the heads of Transport, nutrition and loss of earning during medical treatment period is on the lower side as the appellant was under treatment for five years and extensive surgeries were conducted on him. It was also contended that the Tribunal failed to grant any award for attender charges. Hence, it was prayed for grant of additional compensation of Rs.10,00,000/-.
13. The very competent counsel, Mr.N.Deivanandan for the Transport Corporation submits that the claimant had attempted to board the running bus and invited the accident and as such, contributory negligence has to be attributed in the instant case. Further, the Tribunal had granted an adequate compensation to the claimant under the relevant heads.
14. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However, the quantum of compensation is on the lower side. Hence, this Court is inclined to grant additional compensation as follows:- Rs.1,98,400/- is awarded for medical expenses; Rs.1,00,000/- is awarded for disability; Rs.30,000/- under the head of pain and suffering; Rs.15,000/- for transport expenses; Rs.15,000/- for nutrition; Rs.15,000/- for attender charges; Rs.1,50,000/- towards loss of amenities and loss of comfort since the muscles on the claimants' left leg had been totally affected and the claimants legs had been disfigured and this is permanent in nature. In total, this Court awards Rs.5,23,400/- as total compensation. After subtracting initial compensation of a sum of Rs.2,83,400/-, this Court awards Rs.2,40,000/- as additional compensation, as it is found to be appropriate in the instant case. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation.
15. This Court directs the State Transport Corporation to execute this Court's award within a period of six weeks from the date of receipt of a copy of this order. After such deposit having been made, it is open to the claimant to withdraw the deposited amount, with added interest thereon, lying in the credit of M.A.C.T.O.P.No.440 of 2004, on the file of the VI Small Causes Court, Motor Accidents Claims Tribunal, Chennai, after filing a Memo, along with a copy of this oder.
16. In the result, the above appeal is partly allowed. Consequently, the order and decree passed in M.A.C.T.O.P.No.440 of 2004, on the file of the VI Small Causes Court, Motor Accidents Claims Tribunal, Chennai, dated 01.09.2008 is modified. There is no order as to costs. 30.08.2013 Index : Yes. Internet : Yes. r n s C.S.KARNAN, J.
r n s To The VI Small Causes Court, Motor Accidents Claims Tribunal, Chennai. C.M.A.No.3998 of 2008 30.08.2013