Madras High Court
The Managing Director vs N.Ajithkumar on 2 February, 2021
C.M.A.No.3593 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3593 of 2019
and
C.M.P.No.20782 of 2019
The Managing Director,
Tamil Nadu State Transport Corporation
(Coimbatore Division) Limited,
Having Office at 37, Mettupalayam Road,
Coimbatore. .. Appellant
Vs.
1.N.Ajithkumar
2.V.K.Prabakaran (Driver) .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
05.10.2018 made in M.C.O.P.No.365 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Erode.
For Appellant : Mr.K.J.Sivakumar
For R1 : Mr.R.Nalliyappan
JUDGMENT
The matter is heard through "Video Conferencing".
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C.M.A.No.3593 of 2019
2.This Civil Miscellaneous Appeal has been filed against the award
dated 05.10.2018 made in M.C.O.P.No.365 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Erode.
3.The appellant is the 2nd respondent in M.C.O.P.No.365 of 2017 on
the file of the Motor Accidents Claims Tribunal, Special Sub Court, Erode.
The 1st respondent filed the said claim petition claiming a sum of
Rs.8,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 14.09.2016.
4.According to 1st respondent, on 14.09.2016 at about 04.30 P.M.,
while the 1st respondent was riding in a motorcycle bearing Registartion
No.TN 38 BX 4932 on the extreme left side of the Annadasampalayam –
Sirumugai road from East to West direction in a slow speed by adhering the
road traffic rules near Annadasampalayam cremation ground, the driver of the
bus bearing Registration No.TN 38 N 1271 belonging to appellant, drove the
bus from the opposite direction in a rash and negligent manner without
adhering the road traffic rules, attempted to overtake the vehicle which was
proceeding in front of the bus, resulted in entering into wrong side of the road
and dashed against the motorcycle rode by the 1st respondent and caused the
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C.M.A.No.3593 of 2019
accident. In the accident, the 1st respondent fell down from the motorcycle
and sustained bone fracture and grievous injuries. Immediately after the
accident, the 1st respondent was taken to Srinivas Hospital, Sirumugai.
Thereafter the 1st respondent was referred to Coimbatore Medical College
Hospital, Coimbatore, where he took treatment as inpatient from 14.09.2016
to 16.09.2016. Further the 1st respondent was admitted at One Care Medical
Centre, Coimbatore and he took treatment as inpatient from 16.09.2016 to
21.09.2016. Therefore, the 1st respondent filed the said claim petition
claiming a sum of Rs.8,00,000/- as compensation for the injuries sustained by
him against the appellant-Transport Corporation.
5.The 2nd respondent-driver of the bus belonging to appellant-Transport
Corporation remained exparte before the Tribunal.
6.The appellant-Transport Corporation filed counter statement and
denied all the averments made by the 1st respondent. According to the
appellant, at the time of accident, the driver of the bus drove the same very
slowly and carefully on the left side of the road by observing the road traffic
rules. At about 04.40 P.M., while nearing Annathasampalayam burial ground,
the 1st respondent rode his motorcycle in a rash and negligent manner at a
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C.M.A.No.3593 of 2019
hectic speed, suddenly turned into the centre of the road and slipped on the
tar road. On seeing this, the 2nd respondent-driver of the bus sounded horn,
applied sudden brake and stopped the bus to the extreme left side of the road
to avoid the accident. In spite of best efforts taken by the 2nd respondent, the
1st respondent fell down from the motorcycle, slipped on the road and hit on
the rear right side of the bus, invited the accident and sustained injuries.
Therefore, the accident has occurred only due to negligence on the part of the
1st respondent. Hence, the appellant is not liable to pay any compensation to
the 1st respondent. Based on a false complaint, the case was registered against
the 2nd respondent-driver of the bus. The owner and insurer of the motorcycle
rode by the 1st respondent have to be impleaded as necessary parties in the
claim petition. The appellant denied the age, avocation, nature of injuries,
disability, medical bills and period of treatment taken by the 1st respondent. In
any event, the quantum of compensation claimed by the 1st respondent is
highly excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, the 1st respondent examined himself as P.W.1
and 18 documents were marked as Exs.P1 to P18. On behalf of the appellant,
the 2nd respondent, driver of the bus belonging to appellant-Transport
Corporation was examined as R.W.1 and no documentary evidence was let in.
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C.M.A.No.3593 of 2019
The disability certificate issued by the District Medical Board, Erode was
marked as Ex.C1.
8.The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by the driver of the bus belonging to appellant-Transport Corporation
and directed the appellant to pay a sum of Rs.5,56,800/- as compensation to
the 1st respondent.
9.Against the said award dated 05.10.2018 made in M.C.O.P.No.365 of
2017, the appellant-Transport Corporation has come out with the present
appeal.
10.The learned counsel appearing for the appellant contended that the
Tribunal erred in accepting the evidence of P.W.1, whose evidence was not
corroborated by any other independent witness. The Tribunal ought not to
have fixed entire negligence on the part of the 2nd respondent-driver of the
bus based on the F.I.R. that was registered against the driver of the bus. The
1st respondent failed to prove his avocation and income. In the absence of any
material evidence with regard to avocation and income, the monthly income
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C.M.A.No.3593 of 2019
fixed by the Tribunal at Rs.12,800/- is excessive. The 1 st respondent has not
proved that he suffered functional disability and the multiplier method
adopted by the Tribunal for awarding compensation towards loss of earning
capacity is erroneous. The amounts awarded by the Tribunal towards
disability and pain and sufferings are highly excessive and prayed for setting
aside the award passed by the Tribunal.
11.Per contra, the learned counsel appearing for the 1st respondent
contended that the Tribunal considering the evidence of P.W.1 and
Ex.P1/F.I.R., which was registered against the 2nd respondent-driver of the
bus, held that accident has occurred only due to rash and negligent driving by
the 2nd respondent-driver of the bus. There is no error in the said finding of
the Tribunal. In the accident, the 1st respondent sustained grievous injuries in
neck and femur fracture of right hip. The District Medical Board, Erode
examined the 1st respondent and certified that 1st respondent suffered 30%
disability. But the Tribunal reduced the percentage of disability to 10% and
awarded compensation only for 10% of loss of earning capacity. At the time
of accident, the 1st respondent was a Mason and was earning a sum of
Rs.20,000/- per month. Due to the injuries and disability suffered by him in
the accident, he could not continue his avocation as Mason. Hence, the
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C.M.A.No.3593 of 2019
Tribunal ought to have awarded compensation for 100% loss of earning
capacity. The compensation awarded by the Tribunal under different heads
are not excessive and prayed for dismissal of the appeal.
12.Heard the learned counsel appearing for the appellant-Transport
Corporation as well as the learned counsel appearing for the 1st respondent
and perused the entire materials on record.
13.From the materials available on record, it is seen that it is the case
of the 1st respondent that accident has occurred only due to rash and negligent
driving by the 2nd respondent-driver of the bus belonging to appellant-
Transport Corporation. To prove the said contention, the 1st respondent
examined himself as P.W.1 and marked F.I.R., which was registered against
the driver of the bus as Ex.P1. On the other hand, it is the case of the
appellant-Transport Corporation that the 1st respondent only rode his
motorcycle in a rash and negligent manner at a hectic speed, turned into the
centre of the road, slipped on the road and hit on the rear right side of the bus,
invited the accident and sustained injuries. To prove the said contention, the
appellant examined the 2nd respondent-driver of the bus as R.W.1. R.W.1 in
his chief examination has deposed that the 1st respondent rode the motorcycle
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C.M.A.No.3593 of 2019
by wearing headset without noticing the oncoming bus in a rash and negligent
manner, dashed on the front right of the bus, fell down and invited the
accident. The deposition of R.W.1 in his chief examination is contrary to the
averments made by the appellant in the counter statement. Further in
Ex.P5/MVI report of the bus bearing Registration No.TN 38 N 1271, it was
mentioned that “FR mud guard damaged, FL bumper damaged” and there is
no mention about the damage of rear side of the bus as mentioned in the
counter statement. The appellant-Transport Corporation or the driver of the
bus did not lodge any complaint against the 1st respondent or did not file any
objection to the F.I.R., which was registered against the driver of the bus. The
Tribunal considering the evidence of P.W.1, Ex.P1/F.I.R., the contradictory
statement of R.W.1 in chief examination and failure on the part of the
appellant for not filing any objection to F.I.R. and not lodging any complaint
against the 1st respondent, held that the accident has occurred only due to rash
and negligent driving by the driver of the bus belonging to appellant-
Transport Corporation. There is no error in the said finding of the Tribunal
warranting interference by this Court.
14.As far as quantum of compensation is concerned, it is the case of the
1st respondent that in the accident he sustained grievous injuries in neck and
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C.M.A.No.3593 of 2019
femur fracture of right hip. The District Medical Board, Erode examined the
1st respondent and certified that 1st respondent suffered 30% disability and
issued Ex.C1/disability certificate to that effect. The Tribunal considering the
Gazette notification issued by the Ministry of Social Justice and
Empowerment, Government of India dated 13.06.2001, nature of injuries and
disability suffered by the 1st respondent and the nature of work done by the 1st
respondent, fixed functional disability of the 1st respondent at 10% and the
same is proper. The 1st respondent claimed that he was a Mason and was
earning a sum of Rs.20,000/- per month at the time of accident. The appellant
has not produced any material evidence to prove his avocation and income.
The Tribunal considering the judgment of Division Bench of this Court
passed in C.M.A.No.2895 of 2017 dated 06.07.2018 in the case of Royal
Sundaram Alliance Vs. E.Sulochena, fixed monthly income of the 1st
respondent at Rs.12,800/- per month and the same is not excessive. The
Tribunal granted 40% enhancement towards future prospects, adopted
multiplier '18' and awarded a sum of Rs.3,87,000/- as compensation to the 1 st
respondent for 10% loss of earning capacity.
15.From the materials on record, it is seen that immediately after the
accident, the 1st respondent was taken to Srinivas Hospital, Sirumugai.
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C.M.A.No.3593 of 2019
Thereafter he was referred to Coimbatore Medical College Hospital,
Coimbatore, where he took treatment as inpatient from 14.09.2016 to
16.09.2016. Further the 1st respondent was admitted at One Care Medical
Centre, Coimbatore and he took treatment as inpatient from 16.09.2016 to
21.09.2016. The Tribunal considering the nature of injuries, disability,
medical bills and period of treatment taken, awarded a sum of Rs.50,000/-
towards pain and sufferings and Rs.82,700/- towards medical expenses. The
Tribunal considering the entire materials on record, has awarded a sum of
Rs.5,56,800/- as compensation to the 1st respondent and the same is not
excessive warranting interference by this Court.
16.In the result, this Civil Miscellaneous Appeal is dismissed and a
sum of Rs.5,56,800/- awarded by the Tribunal as compensation to the 1st
respondent, along with interest and costs is confirmed. The appellant-
Transport Corporation is directed to deposit the award amount along with
interest and costs, less the amout if any already deposited, within a period of
twelve weeks from the date of receipt of a copy of this judgment to the credit
of M.C.O.P.No.365 of 2017 on the file of the Motor Accidents Claims
Tribunal, Special Sub Court, Erode. On such deposit, the 1st respondent is
permitted to withdraw the award amount along with interest and costs, after
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C.M.A.No.3593 of 2019
adjusting the amount, if any already withdrawn, by filing necessary
applications before the Tribunal. Consequently, the connected Miscellaneous
Petition is closed. No costs.
02.02.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Erode.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.3593 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.3593 of 2019
02.02.2021
https://www.mhc.tn.gov.in/judis/
