Madras High Court
The Managing Director vs K.Rajini on 8 December, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
C.M.A(MD)No.1057 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A(MD)No.1057 of 2022
and
C.M.P.(MD) No.10566 of 2022
The Managing Director,
Tamil Nadu State Transport Corporation
(Kumbakonam Division)
Periyamilaguparai,
Trichy-1. ... Appellant
.vs.
K.Rajini ... Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicle Act, to set aside the award made in M.C.O.P.No.114 of
2020, dated 20.04.2022, on the file of the Motor Accident Claims
Tribunal/Special Sub Court, Trichirappalli.
For Appellant : Mr.P.Prabhakaran
For Respondent : Mrs.R.Yamuna
1/10
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.1057 of 2022
JUDGMENT
This appeal is filed challenging the award passed in M.C.O.P.No.
114 of 2020 on the ground of liability to pay the compensation.
2. The respondent filed the claim petition in M.C.O.P.No.114 of
2020 seeking compensation of Rs.10,00,000/- for the injuries and
disability suffered in a road accident. It is claimed that on 15.01.2019, at
about 3.40 p.m., the petitioner was riding his TVS Motorcycle bearing
Registration No.TN-48-AJ-2298 from east to west near Kulithalai ACT
Nagar Junction, opposite to Balaji Show Room. At that time, the
appellant Corporation bus bearing Registration No.TN-45-N-3542 had
come from the opposite direction in a rash and negligent manner and
dashed against the petitioner. As a result, he suffered Comminuted Supra
Intercondylar fracture in right leg femur and fracture dislocation in right
hand, metacarpal bones, swelling and tenderness over right thigh and
right knee and right hand fingers. Due to the injuries, he suffered
disability. He was working as an accountant and doing collection work
in UKS Vegetables Shop, Gandhi Market, Trichy and earning a sum of
Rs.15,000/- per month. Due to the disability suffered, he is not able to
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work as he was used to work. Thus, this petition has been filed.
3. The appellant filed counter stating that the appellant
Corporation bus driver was not responsible for the accident. When the
bus was proceeding from west to east near Kulithalai ACT Nager
Junction on left side of the road, the petitioner came from opposite
direction in a rash and negligent manner and in the wrong side of the
road laden with carrot bag on the motorcycle. On seeing the two wheeler,
the appellant Corporation bus driver sounded horn, switched on the head
lights of the bus on and off and alerted the motorcyclist. He stopped the
bus on the extreme left side of the road and despite that, the motorcyclist
lost balance and dashed against the front right side of the bus. The two
wheeler rider was mainly responsible for the accident. The compensation
claimed is excessive.
4. During the enquiry before the Tribunal, on the side of the
claimant, P.W1 and P.W.2 were examined and Ex.P.1 to Ex.P.8 were
marked. On the side of the appellant Corporation, R.W1 was examined
and no document was marked. Ex.C.1 was also marked.
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5. On the basis of oral and documentary evidence, the learned
Tribunal found that the accident had happened due to the rash and
negligent driving of the Transport Corporation bus driver and awarded a
compensation of Rs.9,29,320/-.
6. Challenging this award, the appellant filed the present civil
miscellaneous appeal on the ground that when there is evidence available
that the injured had ridden the two wheeler with load on the top of the
petrol tank and that it could have been the probable and possible reason
for his loosing the control and dashing against the bus. The learned
Tribunal had not considered this aspect and fastened the entire liability
for the accident on the Transport Corporation bus driver. This is against
the evidence. That apart, the injured has suffered only 40% of disability.
For this disability, instead of awarding compensation as per percentage
basis, the learned Tribunal had wrongly adopted multiplier method and
awarded a sum of Rs.6,45,000/- towards disability on the basis of
multiplier method, which is excessive.
7. In response, the learned counsel for the respondent submitted
that the injured had taken only a small bag, which would no way cause
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imbalance. From the oral and documentary evidence produced, the
leaned Tribunal rightly found that the Transport Corporation bus driver
was alone responsible for the accident. The injured had also suffered
functional disability because of 40% disability suffered by him. He is
not able to work as used to work earlier. Therefore, he prayed for
confirming the award passed by the learned Special Sub Judge,
Trichirappalli and dismissal of this appeal.
8. Considered the rival submissions and perused the records.
9. From the submissions made above, the points which arose for
considerations are:
(i) Whether the respondent/injured had contributed to
the accident?
(ii) Whether the compensation awarded is excessive?
10. The copy of the first information report is marked as Ex.A1. A
reading of FIR shows that it is specifically stated by the
defacto complainant in the FIR that her husband had ridden the two
wheeler bearing Registration No.TN-48-AJ-2298 with the carrot sack in
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front side of the motorcycle, i.e., possibly on the top of the patrol tank.
This fact is not disputed by the respondent. Certainly keeping the carrot
sack in front side of the motorcycle, i.e., on the top of the petrol tank,
would cause imbalance for the motorcycle rider to ride the motorcycle, in
a proper manner. The case of the appellant is that the Transport
Corporation bus driver was driving the bus from west to east direction
keeping the left side of the road. The respondent/injured, who had come
on the wrong side of the road, lost the control of the vehicle and dashed
against the bus. From the established fact that the respondent had ridden
the two wheeler with carrot sack on the front side of the motorcycle, it is
no doubt that the respondent had also contributed to the accident. This
aspect was totally neglected or not considered by the Tribunal.
Therefore, this Court is of the view that the respondent had contributed
atleast 25% for the accident.
11. With regard to the quantum of the compensation awarded, this
Court finds from medical records, i.e., Ex.P3, that the respondent
suffered the following injuries:-
Comminuted Supra intercondylar fracture
Femur-Right
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Fracture dislocation 2nd, 3rd, 4th CMC joint-Right
Diabetes Mellitus.
12. He was admitted as inpatient in Geethanjali Medical Centre on
15.01.2019 and treated till 26.01.2019. On 16.01.2019, surgery was
performed on him adopting the following surgical method:-
1.Bicondylar plating Right femur with bone
grafting.
Under Spinal Anaesthesia, aseptic Precaution,
Parts scrubbed. Painted and drapes. Through lateral
approach, Vastus elevated. Fracture reduced and eight
hole distal femur LCP kept, fixed with Cortical and
Cancellous screws. Since there is extensive Comminution
in the Medical aspect of the Right Femur, it is planned to
fix the Medial Column.
Through separate Medial incision, Vastus Medialis
elevated, Fracture fixed with five hole Medial femoral
locking plate. Bone graft harvested from the Right Iliac
Crest and kept in the fracture site. Drain kept and wound
closed in layers. Distal pulse present.
2. CRIF with 'K'-wires-Right hand.
Under 'C'-arm guidance, fracture dislocation of 2nd,
3rd, 4th CMC joint Right hand reduced and fixed with
Multiple 'K'-wires. Below elbow slab applied.
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13. He also produced Ex.P4, Prescription and Ex.P5 and
Ex.P6-Medical bills in support of the treatment undergone by him.
Considering the nature of the injuries, surgical treatment, there is no
doubt that the claimant is suffering from disability. This disability would
have certainly resulted in functional disability. Thus, this Court finds the
submissions of the learned counsel for the respondent that due to the
disability suffered, the respondent is not able to perform his
work/function as he was used to perform is correct. Therefore, the
quantum of compensation awarded by the Tribunal, in the considered
view of this Court, was right and appropriate. However, in view of fixing
liability/responsibility at 25% on the respondent for causing the accident,
25% of the compensation has to be deducted and the
remaining amount to be paid to the respondent. After deducting 25% of
the compensation amount, the award amount is arrived at Rs.6,96,990/-
(Rs.9,29,320 – Rs.2,32,330 = Rs.6,96,990/-).
14. In fine, the Civil Miscellaneous Appeal is allowed in part and
the compensation awarded by the Tribunal is reduced from Rs.9,29,320/-
to Rs.6,96,990/- with interest at 7.5% p.a from the date of claim petition
till the date of realisation. The appellant Transport Corporation is
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directed to deposit the compensation amount awarded by this Court i.e.,
Rs.6,96,990/- with accrued interest and costs, within a period of four
weeks from the date of receipt of a copy of this order. On such deposit
being made, the respondent herein is at liberty to withdraw the same,
after following the due process of law. If the appellant had already
deposited the compensation awarded by the Tribunal, then, they are at
liberty to withdraw the balance amount, which is in excess of the amount
awarded by this Court, after following the due process of law. No costs.
Consequently, connected miscellaneous petition is closed.
Index :Yes/No 08.12.2023
Internet :Yes/No
NCC :Yes/No
cp
To
The Motor Accident Claims Tribunal/
Special Subordinate Judge,
Trichirappalli.
https://www.mhc.tn.gov.in/judis
G.CHANDRASEKHARAN,J.
cp
08.12.2023
https://www.mhc.tn.gov.in/judis
