Madras High Court

Tamil Nadu State Transport ... vs (At The Time Of Filing on 28 April, 2023

    2023/MHC/2273




                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED: 28.04.2023

                                                    CORAM:

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                        C.M.A(MD)No.441 of 2023
                                                  and
                                        C.M.P(MD)No.5465 of 2023


                     Tamil Nadu State Transport Corporation
                     (Kumbakonam) Limited,
                     represented by its Managing Director,
                     Periyamilaguparai,
                     Tiruchirappalli.            :Appellant/Respondent


                                             .vs.


                     P.Saravanan

                     (At the time of filing, the Petitioner is a minor and as per
                     order in I.A.No.747 of 2019, dated 3.2.2020, he was declared
                     major)                           :Respondent/Respondent

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act against the    judgment and award      made in
                     M.C.O.P.No.216 of 2019, dated 26.10.2021, on the file of the Motor
                     Accidents Claims Tribunal(The Chief Judicial Magistrate Court),
                     Karur.


                                  For Appellant        :Mr.D.Sivaraman

                                  For Respondent       :Mr.K.Suresh




                     1/10
https://www.mhc.tn.gov.in/judis
                                                   JUDGMENT
                                                   *************

Challenging the liability and quantum, the present Civil

Miscellaneous Appeal came to be filed by the appellant/Insurance

Company.

2.The parties are referred to herin as per their ranking

before the Tribunal.

3.The brief facts leading to the filing of the appeal is as

follows:

The injured is aged about 15 years, a student, travelled in

ther bus belonging to the appellant-Transport Corporation

bearing Registration NO.TN 45 N 2346. When the bus crossed the

speed breaker at Uppidamangalam to Puliyur road under the bye-

pass bridge, the Petitioner fell down from the bus and sustained

greivous injuries on the left great toe and also sustained fracuture

on the second toe of the left leg. He has been admitted in

Coimbatore K.G.Hospital and thereafter in Ganga

Hospital,Coimbatore and was treated as inpatient from 29.1.2016

to 2.3.2016. Hence he claimed compensation of Rs.10 lakhs.

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

4.It is the contention of the appellant before the Tribunal

that the bus was proceeding in a normal speed, however the

Petitioner boarded into the bus and travelled in the foot-board and

despite the warning given by the Conductor, the Petitioner

travelled in the rear foot-board by keeping his left leg dangling.

When the bus was near Uppidamangalam to Puliyur road under

Bye pass bridge, in order to tide over the speed braker, driver of

the bus slowed down the bus and at that time the left leg of the

petitioner hit against the speed braker and got injured as stated

above.

5.Before the Tribunal, on the side of the Petitioner, P.W.1 and

P.W.2 were marked and Ex.P1 to Ex.P12 were marked. On the side

of the respondent, R.W.1 was examined and no documents were

marked.

6.On a perusal of the evidence of P.W.1 and P.W.2, the trial

Court has found that the driver of the offending vehicle drove the

vehicle in a rash and negligent manner and awarded the

compensation as follows:

1.for permanent disability - Rs.4,53,600/-

2.for temporary disability -Rs.35,000/-

3.for pain and suffering -Rs.70,000/-

4.for transport expenses - Rs.20,000/-

https://www.mhc.tn.gov.in/judis including Ambulance bills

5.for attendant charges -Rs.10,000/-

                     6.for nutrition               -Rs.10,000/-
                     7.for medical bills           -Rs.28,710/-
                     8.for marital prospects       -Rs.1,00,000/-
                     9.for loss of amenities      -Rs.10,000/-
                     10.for loss of damage to clothes
                                                   -Rs.2,000/-
                                                   --------------------
                                  total            -Rs.7,39,310.50
                                                   ---------------------


                                  7.The   learned   counsel   for   the    appellant    Transport

                     Corporation would submit             that the evidence of P.W.l clearly

indicate that the petitioner was travelling in footboard and despite

the warning given by the Conductor of the bus, the Petitioner has

not gone into the bus and continued to travel in the foot board and

invited the accident.Thus there is contributory negligence on the

part of the injured and therefore, some amount has to be deducted

for the same.The Tribunal has also awarded compensation for the

temporary disability despite the fact that already mulitiplier

method for permanent disability is adopted. Hence the learned

counsel seeks interference of this Court in the award of the

Tribunal.

8.The learned counsel for the respondent would submit that

the Tribunal has appreciated the evidence properly and merely

because the respondent travelled in the footboard the appellant

https://www.mhc.tn.gov.in/judis cannot be absolved from its liability. If any one travelled in the

board, it is the duty of the Conductor and Driver to warn them to

go inside the bus.Thus the Tribunal has correctly awarded the

compensation and it needs no interference and prayed for dismissal

of the appeal.

9.In the light of the above facts, now the point that arose for

consideration is as follows:

1.Whether the Tribunal is right in awarding the compensation

fixing the liability on the appellant Transport Corporation and

whether the quantum fixed by the Tribunal is correct?

10.It is not in dispute that the injured travelled in the bus in

footboard and on 29.2.2016, when the bus crossed the speed

breaker and when the bus was slow down, the left leg of the injured

hit the speed breaker and got crushed and then amputated besides

the second great toe of the left leg has also got fractured. The

evidence of P.W.l itself indicates that he was travelling in the

footboard.Though it is the duty of the driver and conductor to

warn the passengers to go inside the bus to avoid footboard

travelling, now a days, even the college students travelled in the

https://www.mhc.tn.gov.in/judis footboard continuously despite the warning given by the

Conductor and this fact cannot be ignored altogether. Hence, this

Court is of the view that the minor travelling in footboard and got

injured when the bus was slowed down in the speed breaker, some

negligence also to be fixed on the part of the injured. Considering

the nature of the injury, this Court is of the view that 10%

contributory negligence is to be fixed on the injured and the same

will meet the ends of justice. Accordingly 10% of the contributory

negligence is fixed on the injured and the Tribunal has adopted

multiplied taking note of the fact that the left second toe of the

respondent/petitioner got amputated. Having adopted multiplier

method, the Tribunal has also awarded a sum of Rs.35,000/- for

temporary disability at the rate of Rs.5000/- per percentage of

injury for the fracture on the great toe of the left leg. This Court is

of the view that adopting Rs.5000/- per percentage of injury is also

excesssive and accordingly, the same is reduced to Rs.3000/- for

every percentage of temporary disability and the same will come to

Rs.21,000/- and other awards awarded by the Tribunal under other

heads stand confirmed and thus the compensation is arrived is

arriaved as follows:

https://www.mhc.tn.gov.in/judis S.No Name of the Awarded by Awarded by Remarks heads the Tribunal this Court 1 For permanent Rs. Rs. same disability 4,53,600/- 4,53,600/-

2 For temporary Rs.35,000/- Rs.21,000/- reduced disability 3 For pain and Rs.70,000/- Rs.70,000/-

suffering 4 For transport Rs.20,000/- Rs.20,000/- same expenses including ambulance bills

5. For attendant Rs.10,000/- Rs.10,000/- Same charges

6. For nutrition Rs.10,000/- Rs.10,000/- Same 7 For medical bills Rs. Rs. same 28,710.50/- 28,710.50/-

                      8           For       marital Rs.             Rs.           Same
                                  prospects         1,00,000/-      1,00,000/-
                      9           For    loss      of Rs.10,000/-   Rs.10,000/-   Same
                                  amenities
                      10          For     loss     of Rs.2,000/-    Rs.2,000/-    Same
                                  damage           to
                                  clothes
                      11          Total               Rs.          Rs.          reduced
                                                      7,39,310.50/ 7,25,310,50/
                                                      -            -

from the above award amount, if 10% of the amount is deducted

towards the contributory negligence on the part of the injured as

fix by this Court, the total compensation payable to the Petitioner is

Rs.6,52,779/-(Rs.7,25,310.50 – Rs.72,531/-) rounded off to Rs.

6,53,000/- with interest at the rate of 7.5% from the date of claim

https://www.mhc.tn.gov.in/judis petition till the date of realization.

11.In the result,the Civil Miscellaneous Appeal is partly

allowed reducing the compensation from Rs.7,39,310.50/-to Rs.

6,53,000/- with interest at the rate of 7.5%p.a., from the date of

claim petition till the date of realization. The appellant Transport

Corporation is directed to deposit the above said modified award

amount with proportionate accrued interest and costs, less the