Madras High Court
Sivaprakasam vs The Managing Director on 22 January, 2021
CMA No.2653 of 2007 and
CMA No.1599 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.01.2021
Coram
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CMA No.2653 of 2007 and
CMA No.1599 of 2008 and
M.P.No.1 of 2008, 1 of 2009 and CMP 19766 of 2018
In CMA No.2653 of 2007
Sivaprakasam ... Appellant/Claimant
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.
Dharmapuri. ... Respondent /Respondent
Vs.
In CMA No.1599 od 2008
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.
Dharmapuri. ... Appellant / respondent
Vs.
Sivaprakasam ... Respondent/Claimant
Prayer in both the appeals: Civil Miscellaneous Appeals filed under
Section 173 of the Motor Vehicles Act against the order passed in MCOP
No.98 of 2004 dated 13.11.2006 by the Motor Accident Claims Tribunal,
Additional District Judge, Darmapuri.
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CMA No.2653 of 2007 and
CMA No.1599 of 2008
CMA 2653 of 2007
For Appellant : Mr.P.Jagadeesan
For Respondent : Mr.D. Raghu for T.N.S.T.C.
CMA 1599 of 2008
For Appellant : Mr.D. Raghu for T.N.S.T.C.
For Respondent : Mr.P.Jagadeesan
COMMON JUDGMENT
The appellant in CMA No.2653 of 2007 is the claimant in
MCOP No.98 of 2004 on the file of the Additional District Judge, Motor
Accident Claims Tribunal, Dharmaprui and the appellant in CMA
No.1599 of 2008 is the respondent in the above MCOP.
2. For the sake of convenience, the parties herein are referred
to as per their ranking in the MCOP No.78 of 2004.
3. The claimant has filed the above said MCOP seeking
compensation of Rs.20,00,000/- for the injuries sustained by him in a
road accident that took place on 22.05.2003.
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CMA No.2653 of 2007 and
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4. The case of the claimant is as follows.
On 22.05.2003, at 7.40 a.m. while the claimant, who was
working as a conductor in the respondent Corporation was going to the
Cash Counter of the Krishnagiri Depot to pay the amount, a bus bearing
registration No.TN-29-N-0950 was started by a driver and was moved
reverse in a rash and negligent manner and hit the claimant, thereby he
sustained grievous injuries and he was admitted to Krishnagiri
Government Hospital and thereafter, he took treatment in a private
hospital. According to the claimant, the rash and negligent act of the
driver of the bus was the cause of accident, and since the respondent
corporation is the owner of the bus, they are liable to pay compensation
to the claimant.
5. The respondent resisted the claim petition by filing counter
affidavit.
6. Before Tribunal, on the side of the claimant, the claimant
and one Dr.Thiruvengadam were examined as PW1 and PW2
respectively and Ex.P1 to Ex.P7 were marked and on the side of the
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CMA No.2653 of 2007 and
CMA No.1599 of 2008
defendant, three witnesses were examined as RW1 to RW3 and no
documentary evidence was adduced on their side.
7. After analysing the evidence on record, the Tribunal had
awarded a sum of Rs.1,53,442/- under various heads, as extracted here
under.
Heads Amount in Rs.
Transportation charges 1,000
Extra nourishment 2,000
Medical expenses 86,590
Pain and sufferings 20,000
Loss of amenities 25,000
Loss of happiness 25,000
PermanentDisability (45x1000) 45,000
Total 2,04,590
After deducting 25% for 1,53,442
Contributory negligence
8. Aggrieved over the Award passed by the Tribunal, the
claimant has filed the appeal in CMA No.2653 of 2007 to enhance the
compensation, whereas, the respondent has filed the appeal in CMA
No.1599 of 2008 to scale down the compensation.
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CMA No.2653 of 2007 and
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9. The learned counsel appearing for the claimant submitted
that the findings of the Tribunal clearly shows that the negligence is only
on the part of the driver of the bus and there is no evidence to prove that
the negligence on the part of the claimant is also the cause of accident.
He further submitted that only on presumption, the Tribunal had
erroneously fixed 25% contributory negligence on the part of the
claimant, which is unfair and without considering the facts and
circumstances of the case and the documents filed by the claimant, the
Tribunal has awarded very meager amounts as compensation and hence,
the same is liable to be enhanced.
10. The learned counsel appearing for the respondent/Tamil
Nadu State Transport Corporation Limited submitted that the accident
was occurred only due to the negligence of the claimant and he had not
suffered any grievous injuries and the compensation of Rs.25,000/- each
towards " Loss of comfort" and " Loss of Happiness" is an excessive and
therefore, the orders passed by the Tribunal is liable to be set aside.
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CMA No.2653 of 2007 and
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11. To reply the same, the learned counsel appearing for the
claimant submitted that the claimant had sustained grievous injuries and
in view of the same, he was unable to continue his work as conductor.
He further submitted that pending appeal, the claimant had filed a writ
petition in W.P.No.17858 of 2008 before this court to direct the
respondent to refer the claimant to the Medical Board to ascertain as to
whether he is physically fit to carry out the work as conductor and to
consider his request for alternate duty and this court by its order dated
04.08.2008, has directed the respondent to consider the request of the
claimant and pass orders. He also submitted that based on the above
said order, the claimant was referred to the Medical Board and after
getting report from the Medical Board, the respondent Corporation has
allotted the alternative duty to the claimant as " Assistant" on 02.12.2009.
However, from the date of accident i.e. on 22.05.2003 till 01.12.2009, he
lost his work and therefore, the above said period may be ordered as duty
period and also prayed to enhance the compensation.
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CMA No.2653 of 2007 and
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12. Heard the learned counsel appearing for the claimant and
the learned counsel appearing for the respondent. I have also perused the
entire materials on record.
13. Now the point for determination is
(i) Whether the Award passed by the Tribunal is just and
reasonable or not ?
(ii) Whether the fixation of 25% contributory
negligence on the part of the claimant is just and reasonable?
14. Point No.1
The claimant was examined as PW1 and he has given
evidence with regard to his disability. The Doctor Thiruvengadam was
also examined as PW2 who gave Disability Certificate Ex.P6 in which,
he assessed the disability suffered by the claimant as 45%. Hence, by
taking into consideration the above said evidence of PW1, PW2 and the "
Disability Certificate " Ex.P6, the Tribunal has fixed the permanent
disability suffered by the claimant as 45% and by awarding a sum of
Rs.1000/- per percentage, granted a sum of Rs.45,000/- towards
“Permanent Disability”. The above said compensation does warrant any
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CMA No.2653 of 2007 and
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interference by this court. Further, the Tribunal has also given cogent
reasons for awarding compensation of Rs.2,000/- towards " Extra
Nourishment" and Rs.20,000/- towards " Pain and sufferings. The
compensation of Rs.25,000/- each towards "Loss of Amenities and Loss
of Happiness" and Rs.1,000/- towards " Transportation Charges" is also
just and fair. Therefore, this court is of the view that the compensation
awarded by the Tribunal is just and reasonable and it is not on the higher
side, as stated by the Tamil Nadu State Transport Corporation Limited.
Hence, the contention of the respondent that without any documents, the
Tribunal has awarded huge amounts as compensation cannot be accepted
and the point is answered accordingly.
15. Point No.2.
The Tribunal has fixed 25% contributory negligence on the
part of the claimant. The Tribunal has clearly discussed that no evidence
was adduced to show that while starting and moving the bus by reverse,
the driver of the bus was acted with utmost care and caution and hence
the cause of accident was due to the negligence on the part of the driver
of the bus. Further, The Tribunal has clearly stated that there is no oral
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or documentary evidence to prove the negligence on the part of the
claimant to cause accident. However, without any basis, the Tribunal has
simply come to the conclusion that the claimant is also responsible for the
accident and fixed 25% contributory negligence on the part of the
claimant, which is unaccepted. Therefore, the findings of the Tribunal by
fixing 25% contributory negligence on the part of the claimant is set
aside. The point is answered accordingly. As far as the non working
period from 22.05.2003 to 01.12.2009 is concerned, it is for the claimant
to work out is remedy before the appropriate forum, as per law.
16. In the result,
(i) The appeal in CMA No.2653 of 2007 is partly allowed
and the findings of the Tribunal by fixing 25% contributory negligence
on the part of the claimant is set aside. No costs. Connected
miscellaneous petitions are closed.
(ii) The appeal in CMA No.1599 of 2008 is dismissed. No
cost. Connected miscellaneous petition is closed.
(iii) The respondent/ Tamil Nadu State Transport
Corporation is directed to deposit a sum of Rs.2,04,590/- with interest at
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CMA No.2653 of 2007 and
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the rate of 7.5% p.a. from the date of claim petition till the date of
deposit, within a period of 12 weeks from the date of receipt of a copy of
this order, less the amount if already deposited.
(iv) On such deposit being made by the respondent, the
claimant is at liberty to withdraw the same, after following due process of
law.
22.01.2021
Index : Yes/No
Internet: Yes/No
Speaking order/Non Speaking order
mst
To
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.
Kumbakonam.
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CMA No.2653 of 2007 and
CMA No.1599 of 2008
D.KRISHNAKUMAR, J.
mst
CMA No.2653 of 2007 and
CMA No.1599 of 2008
M.P.No.1 of 2008, 1 of 2009
and CMP 19766 of 2018
22.01.2021
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