Full Judgment
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 as against the award and decree dated 28.10.2005 made in MCOP.No.517 of 2002 on the file of the Motor Accidents Claims Tribunal (1st Addl. Sub Court), Gobichettipalayam.
JUDGMENT
1. The appellant/second respondent-Transport Corporation has filed this civil miscellaneous appeal as against the quantum of award, passsed on 28.10.2005, in MCOP.No.517 of 2002 on the file of the Motor Accidents Claims Tribunal (1st Additional Sub Court), Gobichettipalayam.
2. The first respondent/petitioner has filed claim petition before the Tribunal for compensation of Rs.5 lakhs for the injuries sustained by him in motor accident occurred on 14.5.2002. Briefly, the case of the first respondent/petitioner is that on 14.5.2002, at about 10.45 pm, while the petitioner was riding his motor cycle bearing Regn.No.TN 39 T 3497 on Tirupur to Avanashi main road from south to north on the extreme left side, adhering the traffic rules and when he was nearing railway upper bridge, the second respondent/first respondent in O.P, who is the driver of the appellant/second respondent in O.P bus bearing Regn.No.TN 33 N 1012, drove the bus on the same direction in a rash and negligent manner and suddenly hit on the motor-cycle and due to the accident, the petitioner sustained severe injuries on his right leg, right hand, hip, chest, back and all over the body and he was taken to Government Hospital, Tirupur and first-aid treatment was given and then referred to hospital at Coimbatore and he was admitted at Ganga Hospital, Coimbatore as an in-patient for 17 days and till the date of filing the petition, he was taking treatment as an out-patient and operations were conducted on his hip and leg. It is further contended that Tirupur North Police has registered a case in Crime No.816/2002 against the driver of the bus, under Sections 279 and 337 IPC and the accident was occurred only due to rash and negligent driving of the driver of the bus and at the time of accident, the petitioner was 29 years and he was working as sweeper in Tirupur Municipality and was earning Rs.4000/- pm and hence he claimed compensation of Rs.5 lakhs from the appellant/second respondent.
3. The appellant/second respondent filed counter, adopted by 2nd respondent/first respondent in O.P, in which, denied the allegations in the petition and stated that the petitioner should prove the allegations made in the petition and also stated that the driver of the bus drove the bus carefully and slowly observing the road rules since the bus had to cross the narrow railway upper bridge and unfortunately the petitioner had driven the motor cycle in a rash and negligent manner and tried to overtake the bus on the left side and that was the main reason for the accident and if the petitioner would have followed the road rules, the accident could not have occurred and further stated that the accident was occurred only due to the rash and negligent manner of riding of the petitioner and the driver of the bus was in no way responsible for the accident and also stated that the compensation claimed is excessive.
4. Before the Tribunal, on the side of the petitioner, the injured petitioner himself has deposed as PW.1 and also examined one Dr.Periyasamy as PW.2 and marked 10 documents as Exs.P1 to P10 and on the side of the respondents, the driver of the bus was examined as RW.1 and no document was marked. On perusal of the oral and documentary evidence, the Tribunal held that the accident was occurred only due to rash and negligent driving of the 2nd respondent/first respondent in the O.P, who is the driver of the appellant/second respondent bus and with regard to quantum of compensation, the Tribunal has passed award for loss of income as Rs.1,75,824, for medical expenses as Rs.34,933/-, for pain and suffering as Rs.85,000/-, for extra-nourishment as Rs.5,000/- and totally Rs.3,00,757/- was awarded. Aggrieved over the above said award, the second respondent in the O.P (i.e) Transport Corporation alone has filed this appeal and the petitioner has not filed any appeal. Before this Court, the second respondent herein (i.e) driver of the bus was given up.
5. Heard the learned counsel on both sides and perused the material records.
6. The learned counsel for the appellant has not seriously objected to the finding of the Tribunal regarding negligence aspect and only challenged the quantum of compensation.
7. On perusal of the oral evidence of PW.1 and Ex.P1-copy of FIR and Exs.P2 and P3-copies of M.V. Reports of two vehicles reveal that the accident was occurred due to rash and negligent driving of the driver of the bus as stated in the petition and RW.1, the first respondent in O.P-driver has deposed falsely to escape from criminal proceedings. Therefore, the Tribunal has discussed in detail and correctly held that the accident was occurred only due to rash and negligent driving of RW.1 who is the driver of the appellant/second respondent bus.
8. With regard to quantum of compensation, the learned counsel for the appellant has mainly contended that the Tribunal has erred in adopting the multiplier method in determining the compensation and the Tribunal ought not to have awarded Rs.1,75,824/- for loss of income without any documentary proof of the same. Per contra, the learned counsel for the 1st respondent/petitioner has contended that the petitioner has sustained grievous injuries and the doctor has assessed 32% disability and the Tribunal on considering the nature of injuries and disability, correctly applied the multiplier and awarded Rs.1,75,824/- for loss of income and further contended that the Tribunal has not awarded any amount for loss of earning during the treatment period and damage to clothes and other articles and therefore the total amount of compensation awarded by the Tribunal is just compensation and there is no need to interfere with the above said finding.
9. A perusal of oral evidence of PW.1, Ex.P4-wound certificate and Ex.P6-discharge summary reveal that the petitioner has sustained the following injuries:
"1.Swelling, tenderness over (L) iliac region and (L) hip, joint and pubic region. Movements of both hip joints painful.
2. 3 x 2 cm abrasion over (R) foot region
3. Tenderness over L3 4 region.
4. Tenderness over (R) chest wall and inferior mammary region."
and the doctor has opined that the injury No.1 is grievous and injury Nos.2, 3 and 4 are simple in nature. A perusal of Ex.P6-discharge summary reveals that two operations were made on 16.5.2002 and 20.5.2002 and also reveals that the petitioner was admitted in the hospital on 14.5.2002 and discharged on 31.5.2002.
10. A perusal of oral evidence of PW.2-doctor and the above said documents reveal that the petitioner sustained grievous injuries and due to the same, he sustained 32% disability. In the petition itself, it is stated that the petitioner was working as sweeper in Tirupur Municipality and earning Rs.4000/- pm and on the side of the petitioner, he has not stated that after the accident, he had resigned or was dismissed from service and not working as before the accident and to prove the same, no document was marked on the side of the petitioner. As rightly contended by the learned counsel for the appellant the Tribunal has wrongly applied the multiplier method for calculating the compensation since the petitioner was working as before.
11. In the above circumstances, considering the disability of 32%, the amount of Rs.64,000/- (32 x 2000) is awarded towards 'disability' so as to arrive at just and reasonable compensation. With regard to medical bills produced by the petitioner, the award of the Tribunal ie. Rs.34,933/- for medical expenses is rounded off to Rs.35,000/-. For pain and suffering, the Tribunal has awarded Rs.85,000/-. As already stated, the petitioner has sustained 32% disability and was taking treatment as in-patient only from 14.5.2002 to 31.5.2002 and therefore the award of the Tribunal for 'pain and suffering' is highly excessive as rightly contended by learned counsel for appellant and therefore the amount of Rs.85,000/- is reduced as Rs.20,000/- for pain and suffering. The Tribunal has awarded Rs.5000/- for extra-nourishment. Considering the nature of injuries and period of treatment and other factors, the above said amount is to be increased as Rs.10,000/-. Further, the Tribunal has not passed the usual award under the head of damage to clothes and other articles. Therefore, Rs.1000/- is to be awarded for damage to clothes and other articles as claimed in the petition.
The Tribunal has not passed any award for loss of earning during treatment period. Considering the monthly salary of the petitioner and period of treatment, Rs.10,000/- is to be awarded for loss of earning during the treatment period. The Tribunal has not passed any award for transportation. Therefore, Rs,10,000/- is to be awarded towards 'Transportation'.
12. Thus, the award of the Tribunal is modified and reduced from Rs.3,00,757/- to Rs.1,50,000/- as under:-
"Loss of earning during treatment
period - Rs.10,000.00
Pain and suffering - Rs.20,000.00
Extra-nourishment- Rs.10,000.00
Medical expenses - Rs.35,000.00
Permanent disability - Rs.64,000.00
Transportation- Rs.10,000.00
Damage to clothes and
other articles - Rs. 1,000.00
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Rs.1,50,000.00
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13. In the result, the appeal is partly allowed and the award passed by Tribunal is modified and reduced from Rs.3,00,757/- to Rs.1,50,000/- with 7.5% interest and proportionate costs. It is reported that the appellant/2nd respondent already deposited the entire award amount of the Tribunal and the petitioner has withdrawn part of the amount. The petitioner is permitted to withdraw the remaining amount in the modified award and the appellant/2nd respondent is permitted to withdraw the excess amount deposited. No costs.