Madras High Court
The Managing Director vs R.Abdul Kalam Asad @ Abdul Kulam Asad on 15 March, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.03.2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.1059 of 2013 and M.P.No.1 of 2013 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Coimbatore. .. Appellant vs 1.R.Abdul Kalam Asad @ Abdul Kulam Asad 2.N.Devaraj .. Respondents (Given Up) Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Decree and Judgment in M.A.C.T.O.P.No.198 of 2005 dated 16.12.2006 passed by the Motor Accident Claims Tribunal cum Principal Sub-Ordinate Court, Gobichettypalayam. For Appellant : Mr.N.Anand JUDGMENT
The appellant / 2nd respondent has preferred the present appeal in C.M.A.No.1059 of 2013, against the Decree and Judgment passed in M.C.O.P.No.198 of 2005, on the file of the Motor Accident Claims Tribunal cum Principal Subordinate Court, Gobichettypalayam.
2.The short facts of the case are as follows:-
The petitioner has filed the claim in M.C.O.P.No.198 of 2005, claiming compensation of a sum of Rs.10,00,000/- from the respondents for the injuries sustained by him in a Motor Vehicle Accident. It was submitted that on 24.01.2005, the petitioner, along with his friend Radha Thondaiman travelled in the 2nd respondent's bus bearing Registration No.TN-33-N-1777 from Gobichettypalayam to Sathyamangalam. At 11.45 p.m., when the bus was stopped at the Ariyappampalayam bus stand on the Gobichettypalayam-Sathyamangalam east west road and when the petitioner was in the process of alighting the bus, the 1st respondent started the bus in a rash and negligent manner and at a high speed, due to which the petitioner fell down from the bus and the rear tyre of the bus ran over the right leg of the petitioner. As a result, the petitioner sustained grievous injuries and was initially admitted at Sathyamangalam Viswanathan Hospital and subsequently admitted at Datshin Hospital, Gobichettypalayam, wherein he received treatment. At the time of accident, the petitioner was aged 44 years and was working as an Agarbati seller and earning Rs.9,000/- per month. Due to disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed the claim against the respondents 1 and 2, who are the driver and owner of the bus.
3.The 1st respondent, in his counter adopted by the 2nd respondent has submitted that he had driven the bus in a careful and cautious manner and that when the bus was stopped at Ariyappampalayam bus stand, the petitioner, while alighting the bus, had slipped down and sustained injuries in his leg. It was submitted that there is a delay in filing the complaint before the police. It was submitted that as the accident was caused by the negligence of the petitioner, this 2nd respondent is not liable to pay any compensation. The averments in the claim regarding age, income and occupation of the petitioner was not admitted. It was submitted that the claim was excessive.
4.The Motor Accident Claims Tribunal framed two issues for consideration in the case namely: (1) Due to whose negligence was the accident caused? and (2) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation which the petitioner is entitled to get?
5.On the petitioner's side, two witnesses were examined and 12 documents were marked as Exhibits: P1 to P12 namely Ex.P1-Copy of F.I.R.; Ex.P2-Hospital bill; Ex.P3-Wound Certificate; Ex.P4-Lab bill; Exs.P5 & P6-Medical bills; Ex.P7-Car and Auto hire receipts; Ex.P8-X-ray receipt; Ex.P9-Discharge summary; Ex.P10-X-rays; Ex.P11-Copy of rough sketch and Ex.P12-Copy of return petition. On the respondents' side, one witness was examined and no document was marked.
6.PW1, the petitioner had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exhibits P1 to P12. RW1, Devaraj, the driver of the bus had adduced evidence that on 24.01.2005, he had driven the bus bearing Registration No.TN-33N-1777 from Erode to Sathyamangalam, in a careful and cautious manner. He deposed that on hearing the whistle of the Conductor, he had stopped the bus at Ariyappampalayam bus stand, near Puliyampatti Pirivu, in order to facilitate passengers to alight and that even before the bus was stopped, the petitioner tried to alight through the front entrance of the bus and in the process had lost his balance and fallen down and sustained injuries. He deposed that the accident was caused only due to the negligence of the petitioner and as such neither he nor the 2nd respondent is liable to pay any compensation.
7.The Tribunal observed that even though the 2nd respondent has contended in his counter that the 1st respondent had given the complaint regarding the accident at the police station and that the police, without proper investigation has filed the criminal case against the 1st respondent, no receipts had been produced to show that the complaint given by the 1st respondent had been received by the police. The Tribunal on observing that no documentary evidence had been marked by the 1st respondent to show that he had not been rash and negligent in his driving, rejected the evidence of RW1 regarding manner of accident. Hence, the Tribunal, on scrutiny of Ex.P1 and other documentary exhibits held that the accident had been caused by the rash and negligent driving of the bus by the 1st respondent.
8.PW1 had further adduced evidence that due to the accident his right leg sole had been crushed and in support of his evidence, he had marked Exhibits P3 and P9. PW2, Dr.Sundararajan had adduced evidence that he had examined the petitioner and observed that due to the accident, he had sustained tear injuries measuring 5X2 cms on his 1st, 2nd, 3rd and 4th toe of his right leg and that on taking X-rays, it was found that the petitioner had sustained fracture of bone in his big toe. He deposed that the petitioner had sustained lacerated injuries measuring 4X3 cms on his left toe leg and that he had received treatment as an inpatient from 25.01.2005 to 02.02.2005. He deposed that a surgical operation was carried out on his right leg and K-wire was fixed in the fractured area and in support of his evidence, he had marked Exs.P3 and P9.
9.The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.1,00,000/- for grievous injury; Rs.5,000/- was awarded for simple injury; Rs.10,400/- was awarded for medical expenses, as per medical bills marked as Exhibits P2, P4 to P8; Rs.15,000/- was awarded for pain and suffering; Rs.5,000/- for nutrition; Rs.2,400/- for transport expenses as per Ex.P7; Rs.50,000/- was awarded for loss of income during medical treatment and convalescence period. In total, the Tribunal awarded a sum of Rs.1,87,800/- as compensation to the petitioner and directed the respondents to jointly and severally pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within a period of one month from the date of its order.
10.Aggrieved by the award passed by the Tribunal, the 2nd respondent / Tamil Nadu State Transport Corporation Limited, Coimbatore has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in relying on the evidence of PW1 and PW2 in respect of nature of injuries sustained by the claimant as well as the percentage of disability. It was also contended that the Tribunal erred in concluding that the bus driver should have exercised due care and caution while the claimant alighted from the vehicle and failed to note that the passengers should also exercise care and caution while getting down from the bus. It was contended that the Tribunal failed to note that no police officer was examined to prove the negligence on the part of the appellant's driver and conductor. It was also contended that the Tribunal erred in relying upon the evidence of PW1 in respect of age, occupation and monthly income and medical reports. It was contended that the award passed was excessive and hence it was prayed to scale down the compensation awarded by the Tribunal.
11.On considering the facts and circumstances of the case and arguments advanced by Mr.N.Anand, the very competent counsel for the appellant and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that the criminal case had been levelled against the driver of the bus and a surgical operation had been conducted on the right leg of claimant and a steel plate was fixed. It is seen from the medical records that the claimant had spent a sum of Rs.10,400/-. As such, the quantum of compensation awarded is reasonable and hence award is confirmed. It is seen from the Court records that the entire compensation has been deposited.
12.Now, the claimant is at liberty to withdraw the entire compensation amount, with accumulated interest thereon, lying in the credit of M.C.O.P.No.198 of 2005, on the file of the Motor Accident Claims Tribunal cum Principal Subordinate Court, Gobichettypalayam, after filing a memo along with a copy of this order.
13.In the result, the above appeal is dismissed. Consequently, the Decree and Judgment passed in M.C.O.P.No.198 of 2005, on the file of the Motor Accident Claims Tribunal cum Principal Subordinate Court, Gobichettypalayam, dated 16.12.2006, is confirmed. No costs. Consequently, connected miscellaneous petition is closed.
15.03.2013 ub Index : Yes / No Internet: Yes / No Note: This Court directs the Registry to send a free copy of this order to the claimant's address by R.P.A.D. on Court costs.
To
1.The Motor Accident Claims Tribunal cum Principal Subordinate Court, Gobichettypalayam.
2.The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN.J. ub C.M.A.No.1059 of 2013 and M.P.No.1 of 2013 15.03.2013