Madras High Court
The Managing Director vs R.Balasubramani on 23 December, 2008
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2008 Coram The Hon'ble Mr. Justice R.SUDHAKAR Civil Miscellaneous Appeal (NPD)No.3139 of 2003 The Managing Director, Tamil Nadu State Transport Corporation Limited (Salem Division II), Bharathipuram, Dharmapuri. ... Appellant/Respondent vs. R.Balasubramani. ... Respondent/Petitioner Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 12.12.2002 passed in M.C.O.P.No.460 of 2002 on the file of the Motor Accidents Claims Tribunal (Second Additional District Judge-cum-Chief Judicial Magistrate), Dharmapuri District at Krishnagiri. For appellant : Mr.P.Jagadeeswaran For respondent : Mr.M.Aniruthan ----- JUDGMENT
The Tamilnadu State Transport Corporation is on appeal challenging the award dated 12.12.2002 passed in M.C.O.P.No.460 of 2002 on the file of the Motor Accidents Claims Tribunal (Second Additional District Judge-cum-Chief Judicial Magistrate), Dharmapuri District at Krishnagiri.
2. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 29.10.2001. The injured claimant Balasubramani and his wife were travelling in a bus belonging to the appellant transport corporation. The said bus met with an accident due to rash and negligent driving on the part of the driver of the bus. In that accident, the wife died on the spot and the claimant in this case suffered the following injuries:-
(i) fracture of the left knee joint near the patela and
(ii) fracture of the right wrist at the radius.
He also suffered other injuries all over the body. He was treated at Government Hospital, Denkanikottah, and thereafter at a private nursing home. He claimed a sum of Rs.5 lakhs for the injury suffered stating that he was earning Rs.4,000/- per month at the time of accident.
3. In support of the claim, the injured claimant was examined as P.W.1. Dr.Gandhi, was examined as P.W.2. Exs.A-1 to A-4 were marked, the details of which are as follows:-
Ex.A-1 is the photocopy of FIR, dated 30.10.2001, Ex.A-2 is the wound certificate dated 15.1.2002, Ex.A-3 series are the medical bills and Ex.A-4 is disability certificate dated 29.9.2002.
The driver of the bus was examined as R.W.1. No document was marked on behalf of the appellant transport corporation, the respondent before the Tribunal.
4. The finding of negligence on the part of the driver of the appellant transport corporation bus, who is held responsible for the accident and the injury caused to the claimant, and the liability fixed on the appellant transport corporation to compensate the injured claimant is not seriously disputed by the appellant's counsel and the same is confirmed.
5. As far as the quantum of compensation is concerned, the Tribunal fixed the income of the injured claimant at Rs.2,000/- per month in the absence any document regarding income of the injured. The injured claimant is aged 34 years old at the time of accident. Even though the doctor assessed the disability at 45%, the Tribunal fixed the disability at 40%. Based on the age, income of the injured and the disability fixed as 40%, the Tribunal granted the following amounts as compensation with interest at 9% per annum:-
Sl.No. Head Amount granted by the Tribunal 1 Disability assessed at 45% by the doctor, which is reduced to 40% by the Tribunal Rs. 80,000/-
2 Pain and suffering Rs. 7,500/- 3 Transport and extra nourishment expenses Rs. 2,500/- 4 Loss of earning capacity Rs. 5,000/- 5 Medical bills as per Ex.A-3 Rs. 27,700/- 6 Loss of income for three months Rs. 6,000/- Total Rs.1,28,700/-
6. The only contention raised by the counsel for the appellant is on the quantum of compensation stating that for the 40% disability, the grant of Rs.80,000/- as compensation is on the higher.
7. On going through the award, there is no specific circumstances mentioned as to how for the 40% disability, Rs.80,000/- has been granted. In the view of the decision of a Division Bench of this Court in Bhagavathy.M. vs. Thiruvalluvar Transport Corporation Limited reported in 2005 (5) C.T.C. 745, the order of the Tribunal granting compensation in a sum of Rs.80,000/- for 40% disability is excessive. Accordingly, the same is reduced to Rs.55,000/-.
8. Having granted compensation towards disability, the Tribunal is not justified in granting compensation towards loss of earning capacity. Accordingly, the sum of Rs.5,000/- granted towards loss of earning capacity is set aside. No amount has been granted towards attender charges. Hence, a sum of Rs.3,000/- is granted towards attender charges. The claimant suffered fracture of the left knee joint near the patella and fracture of the right wrist at the radius. The sum of Rs.7,500/- granted towards pain and suffering is very low. The claimant is entitled to a further sum of Rs.7,500/- towards pain and suffering. The sum of Rs.6,000/- granted towards loss of earning for three months is very low. A further sum of Rs.3,000/- is granted towards loss of earning for three months. The other amounts granted by the Tribunal is not disputed and the same is confirmed. Accordingly, the award of the Tribunal is modified as follows:-
Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Disability at 40% Rs. 80,000/-
Rs. 55,000/-
2 Pain and suffering Rs. 7,500/- Rs. 15,000/- 3 Transport and extra nourishment expenses Rs. 2,500/- Rs. 2,500/- 4 Loss of earning capacity Rs. 5,000/- --- 5 Medical bills as per Ex.A-3 Rs. 27,700/- Rs. 27,700/- 6 Loss of income for three months Rs. 6,000/- Rs. 9,000/- 7 Attender charges --- Rs. 3,000/- Total Rs.1,28,700/- Rs.1,12,200/-
9. Since the accident happened in the year 2001 and the award is of the year 2002, the interest granted by the Tribunal at 9% is reduced to 7.5% in view of the Apex Court's decision in Tamil Nadu State Transport Corporation vs. S.Rajapriya reported in 2005 (3) C.T.C. 373.
10. It is stated that entire award amount has been deposited as per order dated 19.12.2003 and the claimant was permitted to withdraw 50% of the award amount with interest and costs as per order dated 29.11.2004.
11. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:-
(i) The Award of the Tribunal is reduced to Rs.1,12,200/- from Rs.1,28,700/-.
(ii) The interest granted by the Tribunal at 9% is reduced to 7.5% per annum.
(iii) The injured claimant is entitled to withdraw the balance award amount with interest as per order of this Court.
(iv) The appellant is entitled to withdraw the excess amount in deposit with interest after settling the claimant.
(v) There will be no order as to costs.
23.12.2008 Index : No Internet: Yes ts To The Second Additional District Judge
-cum-Chief Judicial Magistrate, (The Motor Accidents Claims Tribunal) Dharmapuri District at Krishnagiri.
R.SUDHAKAR,J.
ts Judgment in C.M.A.(NPD)No.3139 of 2003 23.12.2008