Madras High Court

M.Ashok Kumar vs The Managing Director on 22 August, 2023

                                                                                       C.M.A.No.4 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 22.08.2023

                                                            CORAM:

                                   THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                      C.M.A.No.4 of 2022

                     M.Ashok Kumar                                                ... Appellant

                                                               Vs

                     The Managing Director,
                     TamilNadu State Transport Corporation Ltd.,
                     Kumbakonam, Trichy Region.                                  ... Respondent

                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                     Vehicles Act, 1988, to set aside the award dated 10.02.2020 made in
                     M.C.O.P.No.8615 of 2015 on the file of the Principal Special Judge, Special
                     Court under E.C & NDPS Act, Chennai.
                                           For Appellant       : Mrs.A.Subadra
                                                                 for Ms.M.Malar
                                           For Respondent      : M/s.M.Murali Vinoth

                                                       JUDGMENT

This Civil Miscellaneous Appeal has been filed against the order of

dismissal dated 10.02.2020 passed in M.C.O.P.No.8615 of 2015 on the file

of the Principal Special Judge, Special Court under E.C. & NDPS Act,

Chennai.

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2. The appellant filed M.C.O.P. No.8615 of 2015 on the file of the

Principal Special Judge, Special Court under E.C. & NDPS Act, Chennai

claiming a sum of Rs.40,00,000/- as compensation for the injuries sustained

by him in the accident that took place on 30.09.2015.

3. According to the appellant, on the date of accident, i.e. 30.09.2015

while he was riding the motorcycle bearing Registration No.TN-46-M-4410,

from Perambalur to Bommanapaddy, the driver of the bus bearing

Registration No. TN-45-N-1951 belonging to the respondent, drove the

same in a rash and negligent manner, hit against the motorcycle and caused

the accident. In the above said accident, the appellant / Ashok Kumar

sustained grievous injuries and hence filed claim petition claiming

compensation against the respondent.

4. The respondent filed counter statement denying all the averments

made by the appellant in the claim petition. According to the respondent,

accident occurred only due to the negligent act of the motorcyclist who

drove the vehicle in a rash and negligent manner without wearing helmet at

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the time of accident and also did not possess a valid two wheeler license and

invited the accident. Hence, prayed for dismissal of the appeal.

5. Before the Tribunal, the appellant examined himself as PW.1 and

examined two other witnesses as PW.2 and PW.3 and marked Ex.P1 to

Ex.P23. The respondent, did not examine any witness or marked any

document.

6. The Tribunal after considering the evidence and documents filed on

the side of the appellant, dismissed the claim petition against the appellant.

7. Aggrieved by the said order, the appellant has preferred the present

appeal.

8. The learned counsel for the appellant submitted that though the

appellant and other eye witness PW.2 were examined on his side to prove

that the accident took place on account of the rash and negligent driving of

the driver of the bus belonging to the respondent, the Tribunal had

erroneously considered the FIR and dismissed the claim petition. The

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learned counsel submitted that the driver of the bus was not examined

before the Tribunal. In such circumstances, the tribunal ought not to have

disbelieved the evidence of PW.1 and PW.2 on the basis of the FIR. The

learned counsel for the appellant submitted that it was proved before the

Tribunal that the appellant suffered the following injuries:-

(i) Grade III A Open depressed fracture frontal bone and sinus with intra cerebral haemorrhage.

(ii) Grade III B Open comminuted fracture right foot.

(iii) Right hand and right knee laceration.

PW.3, Doctor, assessed the disability at 40%. The appellant had also

undergone two surgeries on 30.09.2015 and 27.11.2015. Hence, the

appellant is entitled to compensation by adopting percentage method, as per

the evidence of PW.3 and Ex.P.20, disability certificate.

9. The learned counsel for the respondent / Transport Corporation per

contra, submitted that the appellant was guilty of rash and negligent riding

and the Tribunal was right in dismissing the claim petition of the appellant.

The learned counsel further submitted that the appellant was not examined

by the Medical Board and hence, PW.3’s assessment cannot be the basis to

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determine compensation. The learned counsel also submitted that the award

of the tribunal is well considered and hence, no interference is called for.

10. Heard the learned counsel for the appellant/claimant and the

learned counsel appearing for the respondent/Transport Corporation.

11. This Court on perusal of the records and the finding of the

Tribunal finds that the Tribunal found that the claim petition is not

maintainable on the basis of the FIR lodged by the driver of the bus

belonging to the respondent corporation. The respondent corporation had

not examined the driver or any other witnesses to rebut the evidence let in

on the side of the appellant. The appellant had examined himself as P.W.1

and another eyewitness as P.W.2. Both P.W.1 and P.W.2 have deposed that

the accident took place due to the rash and negligent driving of the driver of

the Bus. The evidence adduced before the Tribunal through P.W.1 and

P.W.2 are substantive in nature. The FIR is not substantive evidence. The

Tribunal ought not to have rejected the claim petition on the basis of the

FIR alone. Therefore, this Court is of the view that the finding of the

Tribunal dismissing the claim petition on the ground that the accident took

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place on account of rash and negligent driving of the appellant is erroneous

and set aside.

12. Further, on the point of quantum of compensation, on perusal of

the records, this Court finds that admittedly, the appellant had suffered the

above referred injuries. Though the appellant was not examined by Medical

Board, in the facts of the case, considering that the appellant had undergone

two surgeries; that the respondent-Transport Corporation has not let in any

evidence to disbelieve the evidence of PW.3, this Court is of the view that

the evidence of PW.3 assessing the disability at 40% can be accepted.

However, the appellant has not established any functional disability, hence,

it would be just and reasonable to award compensation by percentage

method. Since the accident is of the year 2015, a sum of Rs.4,000/- per

percentage can be awarded. Hence, Rs.1,60,000/- (Rs.4,000/-x40) is

awarded towards permanent disability.

13. Considering the nature of injuries, the appellant would have

suffered loss of income for three months. Hence, the notional income can be

fixed at Rs.12,000/- per month, taking into consideration, the appellant’s

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avocation and the year of accident. Hence, loss of income has to be

Rs.36,000/- (12,000x3). It is also seen that the appellant had produced

Ex.P14 / medical bills to show that he had incurred Rs.2,21,545/- towards

medical expenses and the same is confirmed. The appellant is also entitled

to compensation under other heads viz., Pain and suffering and mental

agony, Extra nourishment, Transport expenses, Attender charges and loss of

amenities at Rs.25,000/-, Rs.25,000/-, Rs.10,000/-, Rs.10,000/- and

Rs.25,000/- respectively.

14. Hence, the total compensation payable in this case is

Rs.5,12,545/- and the break-up is as follows -

                                                         Head                 Amount (Rs.)
                                        Permanent disability                      1,60,000/-
                                        Loss of income                              36,000/-
                                        Pain and suffering and mental agony         25,000/-
                                        Extra nourishment                           25,000/-
                                        Transport expenses                          10,000/-
                                        Attender charges                            10,000/-
                                        Medical expenses                          2,21,545/-
                                        Loss of amenities                           25,000/-
                                        Total                                     5,12,545/-

15. In the result, this Civil Miscellaneous Appeal is allowed and the

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order passed in MCOP.No.8615 of 2015 on the file of the Principal Special

Judge, Special Court under E.C. & NDPS Act, Chennai is set aside. The

respondent is directed to deposit the award amount, now determined by this

Court along with interest at 7.5% and costs, to the credit of MCOP.No.8615

of 2015 on the file of the Principal Special Judge, Special Court under E.C.

& NDPS Act, Chennai, within a period of six (6) weeks from the date of a

receipt of copy of this Judgment. On such deposit, the appellant/claimant is

permitted to withdraw the award amount along with interest and costs. The

appellant is directed to pay the necessary Court Fee, if any, on the award

amount. No costs.