Judgment:
S. Manikumar, J.
1. The claimant sustained injuries in an accident, which occurred on 05.03.1997. He claimed compensation of Rs. 11,00,000/-. The Tribunal awarded compensation of Rs. 5,46,100/- with 12% interest per annum. Aggrieved by the quantum of compensation, the claimant has preferred an appeal in C.M.A. No. 154 of 2001. Aggrieved by the finding of negligence and the quantum of compensation, the Transport Corporation has filed an appeal in C.M.A. No. 83 of 2001. As both the appeals arise out of the common judgment in M.C.O.P. No. 1591 of 1997, both the appeals are heard and disposed of by a common judgment. For the sake of convenience, parties are hereinafter referred to as 'claimant' and 'Transport Corporation' respectively.
2. Heard Mr. S. Ramachandran, learned Counsel appearing for the Transport Corporation and Mr. M. Swamikkannu, learned Counsel appearing for the claimant.
3. Learned Counsel appearing for the Transport Corporation submitted that when the bus owned by the Transport Corporation was proceeding to Lakshmi Koil bus stop to alight the passengers, the claimant, hurriedly got down from the moving bus, lost control, fell down and sustained injuries.
Learned Counsel further contended that the Tribunal erred in holding that the driver of the bus was responsible for the accident, solely on the basis of the evidence of the claimant and in the absence of the First Information Report and Sketch. He further contended that the Tribunal ought to have found that the claimant was equally responsible for the accident.
4. Before the Tribunal, the claimant examined himself as P.W.1 and deposed that when the bus stopped at Lakshmi Koil Bus stop, Tondiarpet, about five passengers got down from the bus and when the claimant tried to get down, the Conductor gave whistle without noticing him and the driver started the bus. The claimant lost control, fell down and the wheel ran over his left leg. He sustained grievous injuries in the left leg and other parts of the body. He also deposed that immediately after the accident, he was treated in Stanley Government Hospital, Chennai. P.W.2, eye-witness to the accident has narrated the manner, in which the accident had taken place.
The Tribunal, relying on the judgments reported in 1989 ACJ 371 (Venkatasami Motor Service v. C.K. Chinnsamy and Ors.) and 1997 (1) L.W. 226 (M. Jaganathan v. Pallavan Transport Corporation Ltd.) held that the driver of the Transport Corporation bus was responsible for the accident.
5. In Bhaskaran v. Ravindran and Ors. reported in , this Court has held that 'It is the duty of the Conductor to see that the bus is set in motion only after all alighting passengers have alighted and passengers intending to travel in the bus board the bus. Boarding a bus does not mean merely entering the foot board.'
In M. Jaganathan v. Pallavan Transport Corporation, Chennai reported in 1997 (1) L.W. 226 a Division Bench of this Court has held that it is the duty of the Conductor or driver to take care of the passengers in not allowing them to get injured in any way and to verify whether any passenger has got down, irrespective of the fact whether the place is a bus stop or not.
6. R.W.1, driver of the Transport Corporation bus has deposed that the claimant attempted to get down from the moving bus and sustained injuries. Even if he had attempted, it is the duty of the Conductor and the driver to see that all passengers get down from the moving bus and that no passenger alights from the moving bus and that the passenger ought to have been instructed or warned suitably. There is no independent evidence let in by the Transport Corporation to prove that inspite of warning or instruction, the claimant attempted to alight from the moving bus. The evidence of P.W.2, eye-witness to the accident supports the case of the claimant and it is not shattered in the cross-examination. It is settled law that in matters relating to Motor Accidents Claims, it is sufficient that there is preponderance of probability to the manner of accident and strict proof of evidence is not required. In the instant case, no concrete material is available to reverse the order of the Tribunal. On the other hand, there is ample evidence to conclude that the accident had occurred in the manner as detailed by the claimant. Therefore, the finding of the Tribunal regarding negligence is confirmed.
7. Learned Counsel for the Transport Corporation contended that in the absence of proof of income, the Tribunal has erred in determining the monthly income of the claimant as Rs. 3,000/-. On the other hand, learned Counsel for the claimant contended that the claimant was a Fisherman and to support his claim, he had produced Ex.P3-Identity Card issued by the Fisheries Department. He further submitted that in the absence of any rebuttal evidence, the avocation of the claimant cannot be disputed.
8. The claimant has deposed that he was earning Rs. 300/- to Rs. 400/- per day, as fisherman. In the absence of any proof of income, the Tribunal determined his income as Rs. 3,000/- per month.
The Supreme Court in a decision reported in State of Haryana and Anr. v. Jasbir Kaur and Ors. 2004 (1) L.W. 1 was pleased to consider that an agriculturist, though has not produced any proof of income from agriculture, but had source namely, lands, determined that he would earn atleast Rs. 3,000/- per month. In the instant case, the accident has occurred in 1997. Considering the nature of avocation, viz., Fisherman, he would have earned atleast Rs. 100/- per day. Therefore, the determination of monthly income can be justified.
9. Learned Counsel for the Transport Corporation contended that the compensation of Rs. 18,000/- for loss of income for six months is without any proof and it is excessive.
P.W.1 has deposed that he was treated as inpatient for two months and two surgeries were done. P.W.2, Doctor, who examined the claimant with reference to medical records has deposed that the claimant sustained severe injuries in his left leg and he is not able to stretch or bend his leg. It could be reasonably presumed that a person, who had been operated twice will not be able to attend to his employment or avocation, immediately after discharge from the hospital. A person, who is operated has to be careful that the place of injury is not infected. Needless to say, that being a fisherman, the life of the claimant is only on water. Therefore, I find that the compensation awarded for loss of income is just and reasonable.
10. Learned Counsel for the Transport Corporation further contended that the Tribunal has erred in fixing the permanent disability at 80% on the basis of the assessment made by the Doctor. He further contended that even in the case of loss of limb, the disability can be assessed only at 50% as per Workmen's Compensation Act. He also contended that the stiffening of knee is only due to the injury sustained in the left leg, for which there cannot be any separate assessment.
11. The claimant has deposed that immediately after the accident, he was treated as inpatient in Stanley Medical College Hospital for two months. Two surgeries were performed and skin grafting was also done. The left leg below knee was crushed and the same was required to be amputated. Since the claimant was not able to stretch or bend his leg due to the injuries, even the artificial limb could not be fitted. He has further deposed that he is not able to lift his leg and the injury in the left leg has resulted in permanent disablement.
P.W. 3, Doctor has deposed that due to amputation of left leg below knee, the claimant has suffered 50% disability. The Doctor has further deposed that due to the stiffness on the left leg below knee, the claimant is not able to bend his knee for which, he has assessed 20% disability. The Doctor has assessed the disability in his right shoulder at 10% and in all, assessed the disability at 80% and issued Ex.P4-Disability Certificate.
12. Considering the nature of injuries and the expected loss of income, the Tribunal has awarded compensation of Rs. 1,00,000/- for 80% disability. Since the amputation is below knee, the assessment of disability could only be 50% as per the Workmen's Compensation Act. But, in the absence of any cross-examination of the Doctor regarding the functional disability of the knee due to the injury and in the shoulder, it may not be appropriate to interfere with the finding of the fact based on expert evidence.
Following the Full Bench judgment of this Court reported in : (2006)4MLJ362 (Cholan Roadways Corporation Ltd., Kumbakonnam v. Ahmed Thambi and Ors.), the separate compensation for disability is liable to be deducted and accordingly compensation of Rs. 1,00,000/- for permanent disability is deducted from the final award.
13. The next contention of the learned Counsel for Transport Corporation is that the Tribunal has erred in awarding compensation of Rs. 75,000/- for pain and suffering and it is excessive. Placing reliance on decisions reported in : 2003(3)CTC106 (S. Achuthan v. M. Gopal and Anr.) and (New India Assurance Company Limited v. K. Kartheeswaran and Anr.), learned Counsel for the claimant submitted that the compensation for pain and suffering has to be sustained.
14. In a decision reported in : 2003(3)CTC106 (S. Achuthan v. M. Gopal and Anr.), the injured suffered compound fracture of left tibia and fibula, closed fracture shaft of left femur, compound fracture of 3rd proximal phalanx of left middle finger, fracture in left temporal region, fracture of 7th and 8th ribs left side and cruciate ligament injury of left knee. He was hospitalised twice and remained inpatient for six months and underwent 10 surgeries. There was skin grafting, muscle grafting, plates were fixed in left thigh and outer ring on knee. The injured suffered from renal failure and 6 sittings of dialysis were done. He cannot squat and would need assistance in walking, climbing stairs. He lost his memory due to depression on the left temporal bone and that he was found unfit to practice his profession as a lawyer. Therefore, the Tribunal awarded compensation of Rs. 3,00,000/- for pain and suffering.
In a decision reported in (New India Assurance Co. Ltd. v. K. Kartheeswaran and Anr.), the injured was aged 17 years. He suffered amputation of right leg above knee. He was inpatient for several months in three hospitals. More than half-a-dozen surgeries were performed and skin grafting was also done. There was evidence to show that no artificial limb could be fixed and his movement was totally impaired. Due to the disability in shoulder, he could not swing his hand and use crutches so that his body weight could be thrown on crutches. He cannot sit, stand, lie down or walk without the assistance of others. Therefore, there is evidence to show that he cannot use his right hand. Even for bare necessities, he had to seek the assistance of others. Therefore, considering the evidence on record, the compensation of Rs. 1,00,000/- for pain and suffering awarded by the Tribunal was sustained.
In the instant case, for the loss of left leg below knee and for the period of treatment, the Tribunal has awarded compensation of Rs. 75,000/- for pain and suffering. The facts of the reported cases (above cited decisions) are entirely different from the facts of the present case, as the claimant has lost his left leg below knee, by amputation. Each case has to be decided on its own merits. Therefore, compensation of Rs. 50,000/- would be reasonable for the pain and suffering experienced by the claimant and therefore, the excess amount of Rs. 25,000/- is liable to be deducted from the final award.
15. Apart from the compensation towards pain and suffering, the Tribunal has also awarded compensation of Rs. 30,000/- for mental agony. The said award is reasonable and it is confirmed.
16. Learned Counsel for the Transport Corporation contended that the Tribunal has erred in awarding lumpsum compensation of Rs. 3,00,000/- towards loss of future earning capacity and it is excessive.
At the time of accident, the claimant was aged 49 years. The multiplier applicable to persons above 45 years but, not exceeding 50 years, as per Second Schedule to Section 163(a) is '13'. The principles laid down in United India Insurance Ltd. v. Veluchamy and Anr. reported in : 2005(1)CTC38 can be applied for ascertaining the loss of future income. Considering the nature of injuries sustained by the claimant, I find that the award of Rs. 3,00,00/- towards loss of future earning capacity is reasonable.
17. The claimant has sought Rs. 35,000/- for pain and suffering, labour and loss of income to the family members in attending him. There is no evidence to show that the family members have lost their earning during the period of hospitalisation of the claimant. However, considering the fact that there is amputation of leg, the claimant would have required the attendance of somebody during the period of hospitalisation and thereafter. The Tribunal has awarded compensation of Rs. 15,000/- as against the claim of Rs. 35,000/-. The said award is not disturbed.
18. Placing reliance on a decision reported in (New India Assurance Co. Ltd. v. K. Kartheeswaran and Anr.), learned Counsel for the claimant submitted that the claimant be awarded future transportation expenses. In the reported case, a leading Orthopaedic surgeon had given a Certificate that though there was an attempt to fix an artificial limb at the cost of Rs. 1,25,000/-, it was not successful. In the instant case, there was no documentary evidence to prove that there was an attempt to fix the artificial limb and it failed. Therefore, the said judgment is not applicable to the facts of this case. However, considering the fact that there is amputation of left leg below knee, certainly, the claimant would require a vehicle for transportation. Therefore, Rs. 10,000/- is awarded as future transportation charges. This award is in addition to the compensation towards transportation expenses already granted by Tribunal.
19. As against the claim of Rs. 12,000/- for extra nourishment, the Tribunal has awarded Rs. 6,000/-, which is reasonable and it does not require further enhancement.
20. Though the claimant has deposed that he incurred Rs. 14,750/- towards private medical treatment, no document was filed to prove the same. However, it could be reasonably presumed that he could have taken further treatment after the surgery, for which compensation of Rs. 5,000/- can be awarded.
21. Learned Counsel for the appellant Transport Corporation contended that the Tribunal has erred in awarding compensation at 12% interest per annum. For which, the learned Counsel appearing for the claimant placing reliance on the decision reported in AIR 2006 SC 2472 (National Insurance Co. Ltd. v. Swaroopa and Ors.), submitted that the said interest need not be reduced. In the above decision, the accident took place in the year 1988. The Tribunal decided the claim petition in March 1993 and awarded compensation at the rate of 12% per annum. Since the litigation was extended for 18 years, the Supreme Court was pleased to confirm the interest rate awarded by the Tribunal. The said judgment is not applicable to the facts of this case. In the present case, the accident had occurred in the year 1997. Hence, the rate of interest is scaled down to 9% per annum. Insofar as future expenses is concerned, the Supreme Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd and Ors. reported in : [1995]1SCR75 , in paragraph 18 has held as follows:
18. ...interest shall not be payable over the amount directed to be paid to the appellant in respect of future expenditures under different heads. It need not be pointed out that interest is to be paid over the amount, which has become payable on the date of award and not for which is to be paid for expenditure to be incurred in future
The award of Rs. 10,000/- for future transportation expenses shall not carry any interest.
22. In all, the claimant would be entitled to Rs. 4,36,100/- as compensation, with 9% interest per annum from the date of claim petition till the date of realisation, as apportioned hereunder:
(i) Loss of income : Rs. 18,000.00(ii) Pain and suffering : Rs. 50,000.00(iii) Mental agony : Rs. 30,000.00(iv) Loss of future earning capacity : Rs. 3,00,000.00(v) Pain and suffering, labourloss of income of attendants : Rs. 15,000.00(vi) Transportation charges : Rs. 2,000.00(vii) Future transportation charges : Rs. 10,000.00(viii) Extra nourishment : Rs. 6,000.00(ix) Private medical treatment : Rs. 5,000.00(x) Damages to clothes : Rs. 100.00-----------------Total : Rs. 4,36,100.00-----------------
It is evident from the records that the Transport Corporation has deposited the entire amount and on such deposit, the claimant was permitted to withdraw 50% with accrued interest. The Tribunal is directed to refund the balance amount with proportionate accrued interest to the Transport Corporation within a period of two months from the date of receipt of a copy of this order.
In the result, the award of the Tribunal is reduced. C.M.A. No. 83 of 2001 is allowed and C.M.A. No. 154 of 2001 is dismissed. No costs.