The Managing Director vs R.Suresh
2021 Latest Caselaw 4938 Mad

                                                                          C.M.A.No.461 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 25.02.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                               C.M.A. No.461 of 2020
                                             and C.M.P. No.2649 of 2020

                   The Managing Director,
                   Tamil Nadu State Transport Corporation
                         (Coimbatore Division) Limited,
                   Having its office at No.37,
                   Mettupalayam Road,
                   Coimbatore 43.
                   Branch office at,
                   Chennimalai Road,
                   Erode 2, Erode Taluk,
                   Erode District.                                               .. Appellant

                                                        Vs.

                   1.R.Suresh

                   2.Sathiyavelu                                                .. Respondents
                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                   Vehicles Act, 1988, against the judgment and decree dated 13.12.2018, made
                   in M.C.O.P. No.358 of 2018, on the file of the Special District Court, (Fast
                   Track Court to deal with MCOP cases), Erode.

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https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.461 of 2020

                                         For Appellant      : Mr.K.J.Sivakumar

                                         For Respondents : Ms.V.Revathy
                                                           for M/s.R.Nalliyappan (For R1)

                                                  JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant-

Transport Corporation to set aside the judgment and decree dated 13.12.2018,

made in M.C.O.P. No.358 of 2018, on the file of the Special District Court,

(Fast Track Court to deal with MCOP cases), Erode.

2.The appellant is the 2nd respondent in M.C.O.P. No.358 of 2018, on

the file of the Special District Court, (Fast Track Court to deal with MCOP

cases), Erode. The 1st respondent/claimant filed the said claim petition,

claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained

by him in the accident that took place on 28.11.2017.

3.According to the 1st respondent, on the date of accident, when he was

riding a Motorcycle bearing Registration No.TN-38-AR-2647 on the Kovai to

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Sathy road, from South to North direction, in a normal speed, cautiously and

adhering the traffic rules and regulations, keeping to the left side of the road,

near Bharathi Nagar, Anbu Mess, the 2nd respondent, driver of a Bus bearing

Registration No.TN-38-N-1994 belonging to the appellant-Transport

Corporation coming from opposite direction in a rash and negligent manner,

dashed against one pedestrian and then on the Motorcycle rode by the 1st

respondent and caused the accident. The accident occurred only due to rash

and negligent driving by 2nd respondent, driver of the Bus. In the accident, the

1st respondent sustained bone fracture and grievous injuries. Hence, he filed

the above claim petition, claiming compensation against the 2nd respondent as

driver and appellant as owner of the Bus involved in the accident.

4.The appellant-Transport Corporation filed counter statement, denying

all the averments made by the 1st respondent in the claim petition and the

same was adopted by the 2nd respondent. According to the appellant, on the

date of accident, when the Bus belonging to them was driven by the 2 nd

respondent from Saravanapatti to Gandhipuram, near Bharathi Nagar, a

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Motorcycle rode by the 1st respondent was coming in the opposite direction in

a rash and negligent manner at a high speed in uncontrollable speed in his

extreme right of the main road by overtaking other vehicles of the road which

was going ahead. On seeing this, the 2nd respondent hooted horn and suddenly

applied the brake and stopped the Bus at extreme left side of the road to avoid

any accident. In spite of this, the 1st respondent proceeding in the same

manner, hit at front right side body of the Bus and fell down on the road and

sustained injuries. The accident occurred due to rash and negligent riding by

the 1st respondent. Hence, the 2nd respondent is not liable to pay any

compensation to the 1st respondent even under 'No fault liability'. FIR was

registered against the 2nd respondent based on false averments with a view to

claim compensation from the appellant. In any event, the 1st respondent has to

prove his age, avocation and income, injuries sustained and treatment taken

to claim compensation. The total compensation awarded by the Tribunal is

meagre and prayed for dismissal of the claim petition.

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5.Before the Tribunal, the 1st respondent examined himself as P.W.1,

examined Dr.Senthilkumar as P.W.2 and marked 18 documents as Exs.P1 to

P18. The appellant examined the 2nd respondent/driver of the Bus involved in

the accident as R.W.1, but did not mark any document.

6.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to rash and negligent

driving by 2nd respondent, driver of the Bus belonging to the appellant-

Transport Corporation and directed the appellant to pay a sum of

Rs.8,94,400/- as compensation to the 1st respondent.

7.To set aside the award dated 13.12.2018, made in M.C.O.P. No.358

of 2018, the appellant – Transport Corporation has come out with the present

appeal.

8.The learned counsel appearing for the appellant-Transport

Corporation contended that the Tribunal erred in relying on uncorroborated

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evidence of P.W.1, FIR and fixed negligence on the 2nd respondent, driver of

the Bus belonging to the appellant. The 1st respondent has not suffered any

functional disability or loss of earning power. The 1st respondent has not

proved that his income is reduced. In the absence of any materials, the

Tribunal erroneously accepted 30% of the disability as assessed by P.W.2

Doctor, adopted multiplier method and granted excess amount for disability.

The total compensation granted by the Tribunal is excessive and prayed for

setting aside the award of the Tribunal.

9.Per contra, the learned counsel appearing for the 1st

respondent/claimant contended that the accident has occurred only due to

rash and negligent driving by the 2nd respondent, driver of the Bus belonging

to the appellant-Transport Corporation. To prove the same, he has examined

the 1st respondent as P.W.1 and marked the FIR registered against the 2nd

respondent as Ex.P1. It is the further contention of the 1st respondent that he

was a Mason at the time of accident. Due to the injuries and fracture, he

suffered disability, he could not continue his work as he was doing earlier and

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he suffered loss of earning power. The Tribunal considering the evidence of

P.W.2 Doctor, nature of injuries and avocation of the 1st respondent, awarded

compensation by adopting multiplier method. The total compensation

awarded by the Tribunal is not excessive and prayed for dismissal of the

appeal.

10.Heard the learned counsel appearing for the appellant-Transport

Corporation as well as the 1st respondent and perused the materials available

on record.

11.It is the case of the 1st respondent that due to rash and negligent

driving by driver of the Bus belonging to the appellant-Transport

Corporation, the accident occurred and he suffered injuries and fracture. To

substantiate the same, the 1st respondent examined himself as P.W.1 and

marked FIR which was registered against the 2nd respondent, driver of the

Bus. On the other hand, it is the case of the appellant that he drove the

Motorcycle in rash and negligent manner, overtaking other vehicles which

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was going in front of him. On seeing the rash and negligent riding by the 1st

respondent, the 2nd respondent stopped the Bus. While so, the 1st respondent

dashed against the stationary Bus. To prove the said contention, the appellant

examined 2nd respondent, driver of the Bus as R.W.1. FIR was registered

against the driver of the Bus. The appellant or R.W.1 did not lodge any

complaint against the 1st respondent or did not file any objection to the FIR

being registered against the driver of the Bus. The Tribunal considering the

evidence of P.W.1, R.W.1 and FIR, has held that the accident occurred only

due to rash and negligent driving by driver of the Bus. There is no error in the

said finding of the Tribunal warranting interference by this Court.

12.As far as the quantum of compensation is concerned, it is the case of

the 1st respondent that at the time of accident, he was working as a Mason and

was earning a sum of Rs.15,000/- to Rs.18,000/- per month. In the accident,

he suffered injuries and fracture and has taken treatment as in-patient at

Coimbatore Medical College Hospital, Coimbatore, from 8.11.2017 to

16.12.2017. A surgery was conducted on 14.12.2017 and subsequently, plates

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were removed. P.W.2 Doctor examined the 1st respondent and assessed that

the 1st respondent suffered 30% disability. The Tribunal accepted the

disability certificate and evidence of P.W.2 Doctor and fixed disability of the

1st respondent as 30%. The Tribunal has held that in view of the fracture of

radius bone and fixing of wire and removal, the 1st respondent would have

suffered several disability and fixed functional disability at 30% and adopted

multiplier method. The Tribunal failed to see that 30% disability assessed by

P.W.2 Doctor is only for a particular part of the body and P.W.2 Doctor did

not depose that the 1st respondent lost his earning power. In the absence of

any evidence, the Tribunal fixed 30% as functional disability. In view of the

same, the disability assessed by P.W.2 Doctor is converted to whole body and

fixed at 10% as functional disability. The 1st respondent was aged 42 years at

the time of accident. Hence, the Tribunal rightly applied the multiplier '14'.

The amounts granted by the Tribunal towards permanent disability is

modified to Rs.2,68,800/- [Rs.16,000/- x 10% x 12 x 14]. Considering the

period of treatment taken by the 1st respondent, nature of injuries and

inconvenience suffered by him due to the injuries sustained in the accident, a

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sum of Rs.15,000/- is awarded towards loss of amenities, Rs.10,000/- towards

pain and sufferings and Rs.1,000/- towards damage to clothes. The amounts

granted by the Tribunal under other heads are just and reasonable and hence, the

same are confirmed. Thus, the compensation awarded by the Tribunal is

modified as follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Disability 8,06,400/- 2,68,800/- Reduced

2. Extra nourishment 15,000/- 15,000/- Confirmed

3. Loss of income 48,000/- 48,000/- Confirmed

4. Transportation 10,000/- 10,000/- Confirmed

5. Attendant charges 15,000/- 15,000/- Confirmed

6. Loss of amenities - 15,000/- Granted

7. Damage to clothes - 1,000/- Granted

8. Pain and sufferings - 10,000/- Granted Total 8,94,400/- 3,82,800/- Reduced by Rs.5,11,600/-

13.In the result, the appeal is partly allowed and the amount awarded

by the Tribunal at Rs.8,94,400/- is modified to Rs.3,82,800/- together with

interest at the rate of 7.5% per annum from the date of petition till the date of

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deposit. The appellant-Transport Corporation is directed to deposit the award

amount, now determined by this Court, along with interest and costs, within a

period of six weeks from the date of receipt of a copy of this judgment, to the

credit of M.C.O.P. No.358 of 2018. On such deposit, the 1st respondent is

permitted to withdraw the award amount, now determined by this Court,

along with interest and costs, after adjusting the amount, if any, already

withdrawn, by filing necessary applications before the Tribunal. The

appellant-Transport Corporation is permitted to withdraw the excess amount,

lying in the deposit to the credit of M.C.O.P. No.358 of 2018, if any already

deposited by them. It is made clear that if the 1st respondent has already

withdrawn the entire award amount, the appellant/Transport Corporation is

not entitled to recover the same from the 1st respondent. Consequently,

connected Miscellaneous Petition is closed. No costs.

25.02.2021

Index : Yes/No gsa

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https://www.mhc.tn.gov.in/judis/ C.M.A.No.461 of 2020

V.M.VELUMANI, J.,

gsa

To

1.The Special District Judge, (Fast Track Court to deal with MCOP cases), Erode.

2.The Section Officer, V.R Section, High Court, Madras.

C.M.A. No.461 of 2020

25.02.2021

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https://www.mhc.tn.gov.in/judis/