Madras High Court

K. Elumalai vs The Managing Director on 5 January, 2024

                                                                                     C.M.A. No. 2927 of 2021


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 05.01.2024

                                                             CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                    C.M.A. No. 2927 of 2021

                     K. Elumalai                                       ... Appellant / Petitioner

                                                                Vs.

                     1.           The Managing Director,
                                  Metropolitan Transport Corporation Ltd.,
                                  Pallavan House, Anna Salai,
                                  Chennai - 600 002.                  ... Respondent / Respondent

                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 28.01.2020
                     passed in M.C.O.P. No. 3736 of 2015 on the file of the Principal Special
                     Judge (under E.C & NDPS Act), Motor Accident Claims Tribunal, Chennai.



                                  For Appellant     :       M/s. K. Varadhakamaraj

                                  For Respondent    :       M/s. M. Murali Vinodh




                     1/13
https://www.mhc.tn.gov.in/judis
                                                                                    C.M.A. No. 2927 of 2021


                                                         JUDGMENT

This Civil Miscellaneous appeal has been filed by the claimant

challenging the dismissal of claim petition in M.C.O.P. No. 3736 of 2015,

dated 28.01.2020 on the file of the Principal Special Judge (under E.C &

NDPS Act), Motor Accident Claims Tribunal, Chennai.

2. For the sake of convenience, the parties are referred herein

according to their litigative status and rank before the Tribunal.

3. The case of the claimant is that, on 07.12.2014, at about 20:00

hours, while he was walking in Sathyamoorthi Nagar main road opposite to

44th Block from East to West direction, a MTC bus bearing Registration

No.TN-01-N-7947 driven by its driver in a rash and negligent manner came

from South to North, hit on the claimant, causing grievous injuries. A

criminal case was registered in Cr.No.305/P3/2014 on the file of G3

Kilpauk Traffic Investigation Police Station. For the injuries sustained, the

claimant has filed this claim petition seeking compensation for a sum of

Rs.15,00,000/- under section 166 of the Motor Vehicles Act.

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4. The respondent – Transport Corporation filed a counter and

contended that the bus driver has driven the bus with due care and caution,

the accident has taken place only due to the negligence on the part of the

claimant, who has suddenly entered of the road, who was standing as a

pedestrian, on seeing this, the driver of the bus had stopped the bus, but the

claimant’s right leg was slipped by a small stone on the road and lost his

balance and hit on the bus, thereby, invited the accident. The Transport

Corporation also disputed the age, income, occupation, injuries and

disability sustained by the claimant and contended that the compensation

claimed under various heads are on the higher side, hence prays to dismiss

the claim petition.

5. Before the Tribunal, the claimant himself examined as P.W.1

and the Doctor, who examined the claimant was examined as P.W.2 and

through them Exs.P.1 to P.11 were marked. On the side of the respondent,

the driver of the MTC bus was examined as R.W.1 and no exhibits were

marked.

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6. After appreciating the evidences placed on record, more

particularly Ex.P.3 – Accident Register and Ex.P.4 – discharge summary,

the Tribunal has held that it is the case, that the claimant while getting down

from the bus has fell down and he was under the influence of alcohol at the

time of occurrence, hence there is no negligence on the part of the driver of

the bus and the respondent – Transport Corporation is not liable to pay any

compensation to the claimant and thereby rejected the claim petition filed by

the claimant herein.

7. Aggrieved over the dismissal of claim petition, the claimant has

filed this appeal to set aside the award of the Tribunal and to grant

compensation.

8. The learned counsel appearing for the claimant submitted that

the entries in the Ex.P.3- Accident Register has been made by the Medical

Officer of the Casualty on the information given by the person, who has

taken the claimant to the hospital and that person was not examined before

the Tribunal and submitted that the claimant was not conscious and in fit

state of mind, while admitted in the hospital, hence he could not have given

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information, regarding the manner in which the accident was taken place.

The learned counsel further submitted that the reliance made by the Tribunal

based on the Accident Register is not proper and other connected records

shows that the claimant has sustained grievous head injury, hence he was

not in fit state of mind to state the manner in which the accident has taken

place, however, the respondent has also admitted the fact that the accident

was taken place, while the claimant was crossing the road, hence prays to set

aside the award of the Tribunal and to grant compensation to the claimant.

9. Per contra, the learned counsel for the Transport Corporation

submitted that the Tribunal after careful examination of the entries made in

the Accident Register and based on the evidences placed on record, which

corroborates the fact that the claimant has sustained self injury, hence the

Tribunal held that the claimant is not entitled to claim any compensation,

hence prays to dismiss the appeal.

10. Heard the submissions made on both sides and perused the

materials available on record:

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11. The major contention raised by the claimant is that, the entries

made in the Ex.P.3- Accident Register alone is not sufficient to consider the

case of the claimant, since the Ex.P.3, was recorded by the Casualty Doctor

based on the information given by a person, who has admitted the claimant

after the accident. On perusal of Ex.P.3, it has been recorded that the

claimant has sustained injuries, while getting down from the bus and it is

silent about the person, who has brought the claimant to the hospital, since,

in the medico-legal cases, the person, who admits the injured has to be

recorded. The Ex.P.4 – discharge summary, shows that the claimant was

under the influence of alcohol at the time of occurrence and states that the

claimant has sustained head injury, which is warranted, taking CT scan of

the brain and surgery was conducted on his head.

12. The evidence of R.W.1 – driver of the bus, shows that he

admits the case of the claimant that while claimant crossing the road, he has

sustained injuries, but it is not the respondent case that the claimant fell

down from the bus accidentally, under the influence of alcohol. This

evidence of R.W.1, supports the case of the claimant that the accident was

taken place only when the claimant was crossing the road.

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13. In view of the facts, that the name of the person, who has

brought the claimant at the time admitting him in the hospital in not

mentioned and also there is no mentioning regarding about the orientation

and state of mind of the claimant in the Accident Register and the evidence

of R.W.1, which corroborates the case of the claimant, this Court is of the

view that the reliance placed on the Accident Register is not proper and the

Tribunal ought to have appreciated the case of the claimant, more

particularly considering the evidences of P.W.1 and R.W.1.

14. In the cross examination of P.W.1, it is elicited that the

claimant was crossing the road, which is not pedestrian area earmarked for

crossing the road and he has suddenly crossed the road and came opposite to

the bus. Similarly, in the cross examination of R.W.1, it is elicited that the

accident was taken place in the market area and busy road, where there was

a speed brake near the place of occurrence, hence the bus was driven only in

low speed. The evidence of P.W.1 shows that he has entered into the middle

of the road, and invited the accident. After the accident, the claimant was

immediately admitted in the Railways Hospital for first aid.

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15. There is no evidence placed on record to show that the claimant

was fell down from the bus under the influence of alcohol and invited the

accident. However, on perusal of the evidence of R.W.1, it shows that on

seeing the claimant, who was waiting to cross the road, he has applied horn

and warned the claimant to stop, however the accident had taken place. This

Court is of the view that, having seen the injured, who was waiting to cross

the road, he could have taken extra care and he has not applied brake, even

after the injured entered into the road.

16. Ex.P.2 - Rough sketch shows that the accident was taken place

on the left hand side of the road, and the place of occurrence is a market area

and the road is having a width of 40 feet on each direction of the road. If

the driver of the bus has driven the bus in the middle of the road, he could

have avoided the accident. Ex.P.4 - discharge summary shows that the

claimant was under the influence of alcohol at the time of occurrence.

Considering all the above aspects, this Court is of the view that both the

claimant and the driver of the bus are responsible to the accident in the ratio

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of 50:50, hence this Court is inclined to fix the contributory negligence of

50% to the claimant.

17. With regard to quantum of compensation is concerned, the

claimant was examined by P.W.2 - Doctor, who has assessed the disability

of the claimant as 35% permanent disability and stated that the claimant has

sustained head injury such as Left Frontal contusion, Lt. Fronto temporo

Parietal Sub Dural Hematoma, Occipital Bone fracture and also

Decompressive Craniotomy and Evacuation of Extradural Hematoma and

Cranioplasty. Considering the above injury, this Court is of the view that

the disability assessed by the Doctor is acceptable. Considering the date of

accident, this Court is inclined to grant Rs.4,000/- per percentage of

disability and accordingly, Rs.1,40,000/- (4,000/- X 35% disability) is

awarded as compensation under the head disability.

18. Ex.P.4 - discharge summary shows that the claimant was

admitted in the I.C.F. Hospital on 07.12.2014, undergone surgery on

11.12.2014 and discharged on 23.12.2014, further he was undergone in-

patient treatment from 02.02.2015, undergone surgery on 04.02.2015 and

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discharged on 12.02.2015 and again from 23.04.2015 to 25.04.2015. This

shows the gravity of injuries sustained and the claimant has undergone

continuous treatment. Considering the nature of injuries, period of treatment

and date of accident, this Court is of the view that the claimant is entitled to

two months loss of income for his treatment period and fixing Rs.10,000/-

as his monthly income is proper. Accordingly, this Court is inclined to

award Rs.20,000/- (10,000/- X 2) as compensation under the head loss of

income during the treatment period, Rs.50,000/- towards pain and suffering,

Rs.15,000/- towards attender charges, Rs.20,000/- towards extra

nourishment and Rs.5,000/- towards transportation expenses and

Rs.25,000/- towards loss of amenities.

19. Since the claimant has taken his entire treatment in Railways

Hospital, no medical bills were adduced on the side of the claimant and also

the injuries sustained by the claimant have been healed and there is no

necessity for future treatment, this Court is not inclined to award

compensation under the head medical and future medical expenses.

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20. Accordingly, the compensation awarded under various heads

by this Court is as follows:

                                    S.No                Description          Compensation
                                                                               awarded
                                                                                 (Rs)
                                    1.     Disability                              1,40,000/-
                                    2.     Loss of income during the                 20,000/-
                                           treatment period
                                    3.     Pain and Suffering                        50,000/-
                                    4.     Transportation Charges                     5,000/-
                                    5.     Extra Nourishment                         20,000/-
                                    6.     Attender Charges                          10,000/-
                                    7.     Loss of amenities                         25,000/-
                                           Total                                   2,70,000/-
                                           Deduction of 50% towards                1,35,000/-
                                           Contributory negligence
                                           Total Compensation                      1,35,000/-

21. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by this Court is Rs.1,35,000/- [Rupees One

Lakh and Thirty Five Thousand only] together along with interest at the

rate of 7.5% per annum from the date of filing of Claim Petition till the

date of realization, excluding the default period, if any. The Respondent -

Transport Corporation is directed to deposit the amount awarded by this

Court along with interest and costs, within a period of six weeks from the

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date of receipt of a copy of this judgment to the Savings Bank account of the

claimant. On such deposit, the claimant/ appellant herein is permitted to

withdraw the award amount determined by this Court along with interest

and costs. Since this Court has awarded the compensation, the