Madras High Court

The Managing Director vs Mr.Shekar on 20 January, 2021

                                                             1                    CMA No.799 of 2017




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 20.01.2021

                                                         CORAM:

                                   THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                                                 C.M.A.No.799 of 2017
                                                        and
                                                 CMP No.8825 of 2017

                     The Managing Director,
                     Karnataka State Road Transport Corporation,
                     K.H.Road, Shanthi Nagar,
                     Bangalore.                                                      ...Appellant
                                                       Vs

                     Mr.Shekar                                             ...Respondent
                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor

                     Vehicles Act, 1988, against the judgment and decree dated 16.12.2015 made

                     in O.P.No.170 of 2014 on the file of the Motor Accidents Claims Tribunal,

                     Additional District and Sessions Court, at Hosur.

                                     For Appellant           : Mr.T.Thyagarajan
                                     For Respondents         : Mr.Mukund R.Pandian




https://www.mhc.tn.gov.in/judis/
                                                              2                      CMA No.799 of 2017


                                                     JUDGMENT

The Transport Corporation challenging the liability fastened on it to

pay compensation to the claimant/accident victim has filed C.M.A.No.799

of 2017. Pending appeal, CMP No.8825 of 2020 is filed to receive

additional document viz., the final report of the Traffic Investigation Wing

concluding the case against the bus driver as mistake of facts.

2. As per the claim petition, on 27.05.2013 at 10 p.m., while the

claimant was riding his Yamaha Crux Motor Cycle bearing Registration

No.TN-29-P-6076 on Hosur to Bangalore National Highway road, the bus

owned by the appellant Corporation bearing Registration No.KA-42-F-028

overtook the motor cycle and suddenly turned to the right side

unexpectedly. Hence, the motor cyclist dashed on the backside of the bus

and fell down in which, he sustained injuries. The claim petition for

Rs.16,00,000/- was filed before the MACT, Hosur. The Tribunal awarded

Rs.5,35,580/- as compensation which is under challenge in this appeal.

3. According to the claim petition, in the said accident, the claimant

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sustained fracture of right ulna, laceration over right knee joint and injury in

the other parts of the body. He was treated as inpatient for two days at

Sparsh Hospital, Bangalore and then for another two days at Vijay Hospital

at Hosur. Thereafter, he took treatment as outpatient for mal united ulna

fracture. He underwent treatment at Srinivasa Speciality Hospital, Hosur

and surgery was conducted. The laceration on the right knee had caused

difficulty in walking and lead a normal life. Contending that the accident

injury has caused impairment in earning capacity, the claim petitioner has

adduced evidence before the Tribunal, substantiated his claim through

medical records and disability certificate.

4.The liability was contested by the Transport Corporation alleging

that the accident occurred purely due to the negligence of the claimant, who

rash and negligently dashed against the bus on the right rear side of the bus,

when the bus slow down to take right turn near Hosur Dhurga.

5. The Tribunal, on considering the evidence held that the accident

occurred due to the negligence of the bus driver. The injury sustained by

the claimant has caused 40% functional disability. Hence, taking his

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income at Rs.6000/- per month notionally, applying the multiplier '14', a

total sum of Rs.5,35,580/- was awarded under conventional and non

conventional heads.

6. In the appeal, both the quantum of compensation and the liability

challenged as excessive and contra to evidence. The miscellaneous petition

is filed to receive additional documents which is the final report filed by the

Hosur Police on completion of the investigation regarding the motor

accident. As per the final report, the police has closed the F.I.R. as mistake

of fact holding that the accident has occurred due to the negligence of the

motor cyclist and not due to the negligence of the bus driver.

7. The learned counsel for the appellant submitted that based on the

final report closed as mistake of fact, the appellant should be totally

exonerated from its liability. Further, learned counsel for the appellant

point out that the Tribunal has not only erred in fixing the liability on the

Transport Corporation but while arriving at compensation, has applied

wrong multiplier. The age of the injured claimant was about 50 years.

Therefore, the multiplier should have been only '13' and not '14'. Further,

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when there is no evidence for future medical expenses, the Tribunal has

erred in awarding Rs.30,000/- towards future medical expenses.

8. Per contra, the learned counsel appearing for the claimant

submitted that the injured claimant is a professional driver having valid

driving license and also running a travel agency. Though his monthly

income is above Rs.25,000/-, the Tribunal has fixed only notional income of

Rs.6,000/- and had wrongly applied multiplier '14' instead of '15' taking into

consideration the age of the claimant, who was 37 years old at the time of

accident. Learned counsel would submit that there was no negligence on

the part of the claimant. The final report now relied as additional document

by the appellant is not admissible and cannot be taken in as evidence at the

appellate stage.

9.Heard the learned counsels appearing on either side and perused the

records.

10. The occurrence of accident was on 27.05.2013. The F.I.R. Which

is relied by the Tribunal is dated 30.05.2013. The first informant is the wife

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of the claimant. The first informant is not the eyewitness to the accident.

At the time of trial before the Tribunal, the appellant was not able to lay its

hand to the final report wherein the police has closed the F.I.R. as mistake

of fact after the investigation. No protest petition has been filed against this

report. In the final report, it is stated that the motor cyclist due to rash and

negligent driving without having any control of the vehicle dashed against

the rear portion of the bus and sustained injury. It is true that the said fact

has not been brought to the notice of the Tribunal and not elicited through

witnesses during the cross-examination. Having come to know about the

true fact regarding the accident, Court cannot refuse to look into it. Hence,

the application to receive additional document is allowed and the said final

report is taken on record as Ex.R1 by consent.

11. For the evidence, this Court note that the accident has occurred

due to involvement of two vehicles. No one vehicle can be totally fixed for

negligence. Material evidence is available to show that the driver of the bus

without proper signal has turned to right and the motor cyclist/claimant has

dashed the bus due to his reckless driving thereby contributed for the

accident. Hence, this Court is of the view that for the negligence and

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reckless driving by the claimant, 30% of responsibility should be fixed on

him and the award amount accordingly has to be modified.

12. Learned counsel for the appellant also submitted that it is not a fit

case to apply multiplier, since there is no impairment of earning capacity or

total disability. This Court is unable to accept it, since there is material to

show that the claimant was running a travel agency as per the F.I.R. and the

fracture injury sustained by him at ulna will necessarily cause impairment in

his earning capacity. Whether the functional disability will be to an extent

of 40% is the point for consideration.

13. In Ex.P7, the Disability Certificate, the Doctor who has given

disability certificate has assessed 40% disability. He is not the doctor who

treated the claimant. His assessment is based on clinical examination. As

per the Disability Certificate, the claimant has sustained swelling and

deformity of right femur, fracture right femur, fracture 1/3 right ulna. The

assessment of disability is not supported with proper table break up except

making a vague reference that the disability has caused 40% impairment.

Whether it relates to earning capacity is not specifically stated in the

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disability certificate. In any event, on considering the nature of injury viz.,

fracture of right femur, fracture 1/3 right ulna and the avocation of the

claimant, this Court is of the view that the injury has caused impairment of

earning capacity and it shall be assessed at 30%.

14.Having considered the evidence and the submissions made in

favour and against the award, the award of the Tribunal is modified as

under:

Compensation under Various Award passed by this Heads Court Loss of Earning Capacity due to Rs.3,24,000/-

                                   30% functional disability
                                   (30/100X6000X12X15)
                                   Pain and Suffering                      Rs. 30,000/
                                   Transport                               Rs. 10,000/-
                                   Attender Charges                        Rs. 10,000/-
                                   Nourishment                             Rs.   5,000/-
                                   Loss of income during treatment Rs. 10,000/-
                                   period
                                   Future Medical Expenses                 Rs. 37,380/-
                                                               Total       Rs.4,26,380/-