Judgment:
(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree passed in M.C.O.P.No.1282 of 2014, dated 30.09.2015 on the file of the Motor Accident Claims Tribunal cum Special Sub Court, Tirunelveli.)
1. This Civil Miscellaneous Appeal has been preferred by the appellant-Transport Corporation against the award of Rs.6,47,800/- (Rupees Six Lakhs Forty Seven Thousand and Eight Hundred only) to the respondent/claimant as compensation for the disability sustained by him out of the accident occurred on 28.10.2014, when he was riding his bicycle on the left hand side of Tirunelveli Courtrallam main road, near Akbar Hospital and knocked by the appellant-Transport Corporation bus driven in a rash and negligent manner. Therefore, the claim petition.
2. On contest, the Tribunal found that the accident occurred because of the rash and negligent driving of the driver of the appellant-Transport Corporation bus and awarded a sum of Rs.6,47,800/- (Rupees Six Lakhs Forty Seven Thousand and Eight Hundred only). Challenging the same, the present appeal.
3. Mr.P.Prabhakaran, learned Counsel for the appellant-Transport Corporation would submit that the accident occurred because of the fact that when the respondent was riding his bicycle on the left hand side of the road, without any sign, suddenly he turned right side and fell down and therefore, the driver of the appellant-Transport Corporation bus is not responsible for the accident.
4. Secondly, he would submit that the amount awarded by the Tribunal is on the higher side, taking into consideration the disability at 70% and moreover, the amounts awarded under the heads, viz., a sum of Rs.75,000/- (Rupees Seventy Five Thousand only) towards pain and sufferings and a sum of Rs.1,00,000/- (Rupees One Lakh only) towards loss of amenities, are on the higher side and therefore, he seeks to set aside the award of the Tribunal.
5. On the other hand, Mr.V.Sasikumar, learned Counsel for the respondent supported the award and in fact, he sought for enhancement.
6. Heard both sides and perused the records.
7. Even though the appellant, based on the evidence of R.W.1, submitted that because of the negligence of the respondent/claimant, the accident occurred, the same was not relied upon by the Tribunal as such plea was not taken in the counter statement. In the absence of any pleading, the Tribunal rightly did not consider the evidence of R.W.1.
8. Moreover, there was a contradiction in the evidence and also the pleadings and the same was also taken into consideration by the Tribunal. If really, the respondent/claimant dashed against the parked vehicle, the injuries caused to the right hand of the respondent/claimant would not have been sustained by him. The muscle portion of the right arm of the respondent/claimant was entirely destructed and it was crushed and this kind of injuries would have been caused, only when the bus runs over a person. Therefore, the Tribunal rightly believed P.W.1 and disbelieved R.W.1 and found that the accident occurred due to the rash and negligent driving of the driver of the appellant-Transport Corporation bus.
9. Further, the Tribunal also took into consideration the filing of the F.I.R against the driver of the appellant-Transport Corporation bus and therefore, the finding of the Tribunal that the accident occurred because of the rash and negligent driving of the driver of the appellant-Transport Corporation bus is confirmed.
10. The respondent/claimant was aged 53 years at the time of the accident. He was stated to be earning a sum of Rs.6,000/- (Rupees Six Thousand only) per month as a salesman. The respondent/claimant sustained a crush injury over the right hand and it would only happen when the bus runs over a person. Therefore, based on medical records and the evidence of P.W.3 -Doctor, the Tribunal rightly determined the disability at 70%.
11. Even the respondent/claimant was present before this Court and this Court was asked to see the condition of the respondent/claimant where his right hand was almost crushed and 90% of the movement of the right hand is almost restricted and he is, in fact, stated to be using his left hand. When the right hand is not active, it is not possible to lead a normal life.
12. The Tribunal also noted that there was no sensation in the right hand and hence, the Tribunal rightly determined the disability based on the evidence on record as well as the medical records at 70%, even though P.W.3 - Doctor determined the disability at 79%.
13. Though there is no proof regarding the income of the respondent/claimant at Rs.6,000/- (Rupees Six Thousand only) per month, this Court is compelled to take a sum of Rs.6,000/- (Rupees Six Thousand only) as the monthly income of the respondent/claimant as the Honourable Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. reported in 2014 (1) TNMAC 459 (SC), determined the monthly income at Rs.6,500/- (Rupees Six Thousand and Five Hundred only) per month for a vegetable vendor, who sustained injury in the year 2008. Therefore, instead of determining a sum of Rs.6,500/- (Rupees Six Thousand and Five Hundred only) as monthly income as per the above said judgment of the Honourable Supreme Court, this Court determines the monthly income of the respondent/claimant at Rs.6,000/- (Rupees Six Thousand only). However, no amount was awarded towards future prospects and therefore, following the judgment of the Honourable Supreme Court in Raj Singh others reported in (2013) 9 Sup 54, 15% is required to be added.
14. Though Mr.P.Prabhakaran, learned Counsel for the appellant-Transport Corporation relied upon the judgment of the Honourable Supreme Court in Reshma Kumari v. Madan Mohan reported in 2013 (1) TN MAC 481 (SC), it cannot be presumed that a person whose age is just more than 50 years, cannot have any future prospects and in that event, no Government officials will be promoted and no income will be given.
15. Considering the matter in proper perspective, it is appropriate to award 15% towards future prospects in the following manner:
| Monthly income of the respondent/claimant | Rs.6,000/- |
| Addition of 15% towards future prospects | Rs. 900/- |
| Total | Rs.6,900/- |
17. The amounts awarded under the other heads, viz., a sum of Rs.27,000/- (Rupees Twenty Seven Thousand only) towards loss of income for a period of six months; a sum of Rs.75,000/- (Rupees Seventy Five Thousand only) towards pain and sufferings and a sum of Rs.1,00,000/- (Rupees One Lakh only) towards loss of amenities, are confirmed. However, a sum of Rs.30,000/- (Rupees Thirty Thousand only) alone has been awarded towards transportation charges, attendant charges and extra nourishment and the same is required to be enhanced. Accordingly, this Court awards a sum of Rs.10,000/- (Rupees Ten Thousand only) towards transportation charges; a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards attendant charges and a sum of Rs.30,000/- (Rupees Thirty Thousand only) towards extra nourishment.
18. Accordingly, the respondent/claimant is entitled to get the following compensation:
| Sl. No. | Heads | Amount awarded by Tribunal (Rs.) | Amount reduced/ enhanced by this Court (Rs.) | Total (Rs.) |
| 1. | For Partial Permanent Disability | 4,15,800.00 | (+) 2,21,760.00 | 6,37,560.00 |
| 2. | Loss of Income during Treatment Period | 27,000.00 | Nil | 27,000.00 |
| 3. | Pain and Sufferings | 75,000.00 | Nil | 75,000.00 |
| 4. | Loss of Amenities | 1,00,000.00 | Nil | 1,00,000.00 |
| 5. | Transportation Charges | 30,000.00 | 10,000.00 | 10,000.00 |
| 6. | Attendant Charges | 20,000.00 | 20,000.00 | |
| 7. | Extra Nourishment | 30,000.00 | 30,000.00 | |
| Grand Total | 8,99,560.00 | |||
| Rounded off | 9,00,000.00 | |||
20. Insofar as the award of interest is concerned, this Court is of the view that the rate of interest awarded by the Tribunal at 9% per annum is on the higher side and accordingly, the same is reduced to 7.5% per annum.
21. In the result,
(i) this Civil Miscellaneous Appeal is disposed of;
(ii) the respondent/claimant is entitled to a sum of Rs. 9,00,000/- (Rupees Nine Lakhs only) with interest at the rate of 7.5% per annum and proportionate costs, from the date of petition till date of realisation;
(iii) The appellant-Transport Corporation is directed to transfer the award amount, less the amount already deposited, if any, through RTGS/NEFT to the personal Savings Bank Account Number of the respondent/claimant, after getting the Account Details from the claimant by the officials of the appellant-Transport Corporation, on or before 09.02.2017; and
(iv) In the facts and circumstances of the case, there will be no order as to costs. Consequently, the connected civil miscellaneous petition is closed.
List the matters on 10.02.2017 for reporting compliance.