Madras High Court
Marimuthu vs The Managing Director on 25 January, 2022
C.M.A.No.3183 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3183 of 2014
Marimuthu .. Appellant
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation,
Salem Division I Limited,
Ramakrishna Road,
Salem – 636 007. .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
09.07.2014 made in M.C.O.P.No.90 of 2013 on the file of the Motor
Accident Claims Tribunal, Sub Court, Tiruchengode.
For Appellant : Mr.T.S.Arthanareeswaran
For Respondent : Mr.D.Venkatachalam
1/14
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C.M.A.No.3183 of 2014
JUDGMENT
[The matter is heard through “Video Conferencing”]
This Civil Miscellaneous Appeal has been filed against the award
dated 09.07.2014 made in M.C.O.P.No.90 of 2013 on the file of the Motor
Accident Claims Tribunal, Sub Court, Tiruchengode.
2.The appellant is the claimant in M.C.O.P.No.90 of 2013 on the file of
the Motor Accident Claims Tribunal, Sub Court, Tiruchengode. He filed the
above said claim petition, claiming a sum of Rs.5,00,000/- as compensation
for the injuries sustained by him in the accident that took place on
11.01.2013.
3.According to the appellant, on 11.01.2013 at about 08.00 P.M., while
he was riding the XL Super motorcycle bearing Registration No.TN 34 A
6804 on the left side Tiruchengode – Namakkal Road, near
Kumaramangalam Santhai to go for Kumaramangalam, the driver of the bus
who was driving the bus behind the motorcycle from East to West, drove the
same in a rash and negligent manner and dashed against the motorcycle
driven by the appellant and caused the accident. In the accident, the appellant
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C.M.A.No.3183 of 2014
sustained multiple grievous injuries all over the body. Immediately after the
accident, the appellant was taken to Government Hospital, Tiruchengode,
where he has taken first aid treatment. Thereafter, he was shifted to Mohan
Kumaramangalam Hospital, Salem, where he has taken treatment as inpatient
for more than one month. Therefore, the appellant filed the above said claim
petition claiming a sum of Rs.5,00,000/- as compensation against the
respondent-Transport Corporation.
4.The respondent-Transport Corporation filed counter statement and
denied all the averments made by the appellant. The respondent denied the
manner of accident as alleged by the appellant. According to respondent, the
driver of the bus was driving the same in a careful manner at a moderate
speed by following the rules and regulations and while he was proceeding to
Kumaramangalam Sandhai, the appellant who was riding the motorcycle in a
rash and negligent manner, suddenly crossed the road without any signal and
invited the accident. Therefore, there is no negligence on the part of the
driver of the bus belonging to respondent. Further, the appellant was not
possessing valid driving license to drive the motorcycle on the date of
accident. The respondent denied the age, avocation, income and nature of
injuries sustained by the appellant. In any event, the quantum of
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C.M.A.No.3183 of 2014
compensation claimed by the appellant is highly excessive and prayed for
dismissal of the claim petition.
5.Before the Tribunal, the appellant examined himself as P.W.1,
Dr.R.Krishnasamy was examined as P.W.2, Dr.Saravanan was examined as
P.W.3 and one M.Sekar, eyewitness to the accident was examined as P.W.4
and 10 documents were marked as Exs.P1 to P10. The respondent-Transport
Corporation examined one C.Babu as R.W.1 and no document was marked.
6.The Tribunal considering the pleadings, oral and documentary
evidence, held that both the appellant as well as the driver of the bus
belonging to respondent are equally responsible for the accident, fixed 50%
negligence on both of them, awarded a sum of Rs.90,559/- as compensation
to the appellant and directed the respondent-Transport Corporation to pay a
sum of Rs.45,280/- being 50% of the award amount as compensation to the
appellant.
7.Challenging the portion of the award fixing 50% negligence on the
part of the appellant as well as for enhancement of compensation granted by
the Tribunal in the award dated 09.07.2014 made in M.C.O.P.No.90 of 2013,
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C.M.A.No.3183 of 2014
the appellant has come out with the present appeal.
8.The learned counsel appearing for the appellant contended that the
Tribunal erroneously fixed 50% negligence on the part of the appellant only
on assumption and presumptions. The Tribunal ought to have fixed entire
negligence on the part of the driver of the bus belonging to respondent as
there is no negligence on the part of the appellant. The appellant sustained
grievous injuries in the accident and underwent surgery. Artificial hip joint
was implanted and proved the same by examining himself as P.W.1,
Dr.R.Krishnasamy as P.W.2 & Dr.Saravanan as P.W.3 and by marking
documents. P.W.2/Doctor examined the appellant and certified that the
appellant suffered 23% disability and issued Ex.P8/disability certificate to
that effect. The Tribunal erroneously reduced the percentage of disability
from 23% to 20% and awarded a meagre sum of Rs.40,000/- as compensation
for 20% disability at the rate of Rs.2,000/- per percentage of disability. The
Tribunal ought to have applied multiplier method and awarded compensation
for disability. The appellant has taken first aid treatment at Government
Hospital, Tiruchengode and thereafter he was shifted to Mohan
Kumaramangalam Hospital, Salem, where he has taken treatment as inpatient
for more than one month. The amounts awarded by the Tribunal towards
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C.M.A.No.3183 of 2014
transportation, extra nourishment, loss of income and damages to clothes are
meagre. At the time of accident, the appellant was a Mason Centring Worker,
was aged 50 years and was earning a sum of Rs.10,000/- per month. But, the
Tribunal has fixed a meagre sum of Rs.5,000/- per month as notional income
of the appellant and granted compensation towards loss of income only for
three months. The Tribunal failed to award any amount towards attendant
charges, loss of amenities and future medical expenses and prayed for setting
aside the portion of the award fixing 50% negligence on the part of the
appellant as well as for enhancement of compensation.
9.Per contra, the learned counsel appearing for the respondent-
Transport Corporation contended that the accident has occurred only due to
the negligence on the part of the appellant as he only suddenly crossed the
road without any signal. There is no negligence on the part of the driver of
the bus, but the Tribunal erroneously fixed 50% negligence on the part of the
driver of the bus. Therefore, the Tribunal ought to have fixed entire
negligence on the part of the appellant. The Tribunal reduced the percentage
of disability assessed by P.W.2/Doctor from 23% to 20% on the ground that
P.W.2/Doctor is not the Doctor who treated the appellant and also assessment
of disability by P.W.2/Doctor appears to be excessive. Hence, the appellant is
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C.M.A.No.3183 of 2014
not entitled to compensation for 23% disability. The appellant has not proved
his avocation and income by producing valid documents. In the absence of
any documentary evidence with regard to avocation and income of the
appellant, a sum of Rs.5,000/- per month fixed by the Tribunal as notional
income of the appellant is not meagre. The Tribunal considering entire
materials on record, has awarded compensation under different heads which
is not meagre and prayed for dismissal of the appeal.
10.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondent-Transport Corporation and
perused the entire materials on record.
11.From the materials on record, it is seen that the appellant filed claim
petition claiming a sum of Rs.5,00,000/- as compensation for the injuries
sustained by him in the accident that took place on 11.01.2013. According to
the appellant, on 11.01.2013 at about 08.00 P.M., while he was riding the XL
Super motorcycle bearing Registration No.TN 34 A 6804 on the left side of
Tiruchengode – Namakkal Road, near Kumaramangalam Market, he crossed
the main road and went to left side of the road. At that time, the bus bearing
Registration No.TN 30 N 0563 belonging to respondent-Transport
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C.M.A.No.3183 of 2014
Corporation driven by its driver in a rash and negligent manner, dashed on
the motorcycle and appellant was thrown out and thus, the accident has
occurred. According to appellant, the accident occurred only due to rash and
negligent driving by the driver of the bus belonging to respondent-Transport
Corporation. To substantiate this, the appellant examined himself as P.W.1
and examined one M.Sekar as P.W.4, who is an eyewitness to the accident
and marked F.I.R., which was registered against the driver of the bus as
Ex.P1. The appellant also contended that in the accident he sustained
grievous injuries and suffered fracture. He has taken treatment as inpatient at
Mohan Kumaramangalam Hospital, Salem for 11 days from 11.01.2013 to
21.01.2013 and at Krishna Hospital, Tiruchengode for 8 days from
21.01.2013 to 28.01.2013. At the time of accident, the appellant was a Mason
Centering Worker, was aged 50 years and was earning a sum of Rs.10,000/-
per month. Due to the injuries sustained by the appellant in the accident, he
could not do the work as he was doing earlier. To substantiate the injuries
sustained by him, the appellant examined P.W.2 & P.W.3/Doctors and
marked Exs.P5 to P10 to that effect. On the other hand, it is the case of the
respondent that while the driver of the bus was driving the bus slowly, the
appellant without seeing the bus, suddenly crossed the road and invited the
accident. The appellant did not possess any driving license and without
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C.M.A.No.3183 of 2014
knowing to drive the motorcycle, he drove the motorcycle and caused the
accident. The injuries sustained by the appellant are simple in nature. The
appellant is not entitled for any enhancement. In support of their case, they
have examined the Conductor of the bus as R.W.1. P.W.1 in his cross
examination has admitted that he did not possess driving license at the time
of accident. P.W.4 has deposed that the accident occurred while the appellant
was crossing the road. The Tribunal considering the evidence of P.W.1,
P.W.4 and Ex.P3/Rough Sketch, held that accident occurred in the middle of
the road and appellant also contributed to the accident. Further, the Tribunal
also held that the place of occurrence is a busy road and had the driver of the
bus noticed the appellant, he could have avoided the accident. On these
findings, the Tribunal held that the accident occurred due to negligence of
both the appellant and driver of the bus and fixed 50% negligence each on
appellant and driver of the bus. There is no error in fixing negligence on the
part of the appellant as well as driver of the bus.
12.As far as quantum of compensation is concerned, the appellant
sustained grievous injuries in the accident and the appellant examined P.W.2
& P.W.3/Doctors to prove the injuries and disability suffered by him.
P.W.2/Doctor on examining the appellant and medical records, assessed the
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C.M.A.No.3183 of 2014
disability suffered by the appellant at 23%. The Tribunal reduced the
percentage of disability from 23% to 20% on the ground that P.W.2/Doctor is
not the treated Doctor and percentage of disability assessed by P.W.2/Doctor
appears to be excessive one. In the absence of any contra evidence to the
evidence of P.W.2 and Ex.P8/disability certificate by the respondent,
reduction of 3% of disability by the Tribunal is not correct. Therefore, the
appellant is entitled for 23% disability. The appellant has not proved that he
suffered loss of earning capacity and functional disability. Hence, he is not
entitled to compensation for loss of earning capacity by adopting multiplier
method. The accident is of the year 2013 and a sum of Rs.2,000/- per
percentage of disability awarded by the Tribunal is meagre. Considering the
year of accident, the appellant is entitled to a sum of Rs.3,000/- per
percentage of disability. Thus, the compensation awarded by the Tribunal
towards disability is enhanced to Rs.69,000/- (Rs.3,000/- X 23% of
disability).
13.It is the further case of the appellant that at the time of accident, he
was working as Mason Centering Worker and was earning a sum of
Rs.10,000/- per month. He has not filed any document to prove the avocation
and income. In the absence of any evidence with regard to avocation and
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C.M.A.No.3183 of 2014
income, the Tribunal fixed a sum of Rs.5,000/- per month as notional income
of the appellant and awarded compensation towards loss of income for three
months. The accident occurred in the year 2013 and the monthly income
fixed by the Tribunal is meagre. Considering the year of accident and nature
of work done by the appellant, a sum of Rs.10,000/- per month as claimed by
the appellant is fixed as his notional income. Due to the injuries sustained by
the appellant in the accident, he would not have attended his work atleast for
a period of four months. Thus, the compensation awarded by the Tribunal
towards loss of income is enhanced to Rs.40,000/- (Rs.10,000/- X 4 months).
The appellant has taken treatment as inpatient at Mohan Kumaramangalam
Hospital, Salem for 11 days from 11.01.2013 to 21.01.2013 and at Krishna
Hospital, Tiruchengode for 8 days from 21.01.2013 to 28.01.2013. The
Tribunal has not awarded any amount towards attendant charges and loss of
amenities. Hence, the appellant is entitled to a sum of Rs.20,000/- towards
attendant charges and Rs.15,000/- towards loss of amenities respectively.
Considering the nature of injuries, disability and period of treatment taken by
the appellant, the amounts awarded by the Tribunal towards transportation
and extra nourishment are enhanced to Rs.5,000/- and Rs.15,000/-
respectively as the amounts awarded by the Tribunal are meagre. The
appellant has not produced any medical records to show that he requires
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further medical treatment. Hence, he is not entitled to any amount towards
future medical expenses. The amounts awarded by the Tribunal under other
heads are just and reasonable and hence, the same are hereby confirmed.
Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 40,000/- 69,000/- Enhanced
2. Pain and suffering 10,000/- 10,000/- Confirmed
3. Medical expenses 18,059/- 18,059/- Confirmed
4. Loss of Income 15,000/- 40,000/- Enhanced
5. Transportation 1,500/- 5,000/- Enhanced
6. Extra nourishment 5,000/- 15,000/- Enhanced
7. Damages to clothes 1,000/- 1,000/- Confirmed
6. Attendant charges - 20,000/- Granted
7. Loss of amenities - 15,000/- Granted
Total Rs.90,559/- Rs.1,93,059/- Enhanced by
Rs.1,02,500/-
50% of the award Rs.45,279/- Rs.96,529/- (Rs.1,93,059/-
amount rounded off to rounded off to -
Rs.45,280/- Rs.96,530/- Rs.90,559/-)
14.In the result, this Civil Miscellaneous Appeal is partly allowed and
the total compensation awarded by the Tribunal at Rs.90,559/- is hereby
enhanced to Rs.1,93,059/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The respondent-
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C.M.A.No.3183 of 2014
Transport Corporation is directed to deposit 50% of the award amount,
(i.e., Rs.96,530/-) now determined by this Court, along with interest and
costs, less the amount already deposited, if any, 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.90 of 2013 on the file of the Motor Accident Claims Tribunal,
Sub Court, Tiruchengode. On such deposit, the appellant is permitted to
withdraw the award amount, now determined by this Court, along with
interest and costs, less the amount if any, already withdrawn by making
necessary applications before the Tribunal. No costs.
25.01.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The learned Subordinate Judge,
Motor Accident Claims Tribunal,
Tiruchengode.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.3183 of 2014
V.M.VELUMANI, J.
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C.M.A.No.3183 of 2014
25.01.2022
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