Madras High Court
The Managing Director vs Zarina on 29 January, 2007
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29 .01.2007 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.(NPD-B) No.429 of 2001 The Managing Director, The Tamilnadu State Transport Corporation, (Villupuram Division III) Ltd., Kancheepuram 631 501. ... Appellant vs. Zarina residing at No.15, Vasuki Street, Raja Kilpakkam, Chennai. ... Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree, dated 28.04.2000 in M.C.O.P.No.603 of 1996 on the file of the Motor Accidents Claims Tribunal, Chief Judge, Court of Small Causes, Chennai. For Appellant : Mr.A.Arumugham For Respondent : Mr.T.G.Balachandran J U D G M E N T
The Transport Corporation has preferred this appeal aggrieved by the award of the Tribunal, dated 28.04.2000 in M.C.O.P.No.603 of 1996 on the file of the Motor Accidents Claims Tribunal, Chief Judge, Court of Small Causes, Chennai.
2. On 09.10.1995, when the respondent/claimant was travelling as a pillion rider in a scooter with her husband on Anna fly-over, a bus owned by the appellant Transport Corporation, driven rashly and negligently by the driver, hit the scooterist. The respondent/claimant sustained fracture of right leg and left clavicle, multiple injuries all over the body including avulsion injury and deformity of right limb. She claimed compensation of Rs.2,75,000/-. Her husband also sustained injuries in the same accident.
3. The appellant Transport Corporation resisted the claim, contending inter alia that when the bus was proceeding on Anna Flyover, the scooterist, who came on the right side of the bus, suddenly crossed the road, lost his balance, as a result both the scooterist and the pillion rider fell down and sustained injuries. On seeing this, to avoid an accident, the driver turned the bus to the left side of the road and applied brake. The Transport Corporation contended that the accident occurred due to the rash and negligent driving of the scooterist and therefore, they are not liable to pay compensation. They disputed the age, avocation, income, nature of injuries and the period of treatment of the respondent/claimant.
4. Before the Tribunal, the respondent/claimant examined herself as P.W.2 and her husband was examined as P.W.1. Claim petitions filed by the husband and wife were taken up together and common evidence was let in. The Doctor, who has issued the Disability Certificate was examined as P.W.3. P.W.4 is the Senior Section Engineer of I.C.F. Exs.P1 to P39 were marked on the side of the respondent/claimant. On the side of the Transport Corporation, the Conductor was examined as R.W.1 and the Driver was examined as R.W.2. No documents were marked on the side of the appellant Transport Corporation. The Tribunal on evaluation of pleadings and evidence held that the accident occurred due to the negligence of the driver of the bus and awarded compensation of Rs.2,38,893/-.
5. Heard Mr.A.Arumugham, learned Counsel appearing for the appellant and Mr.T.G.Balachandran, learned Counsel appearing for the respondent.
6. Learned Counsel for the appellant Transport Corporation submitted that when the bus was moving in a normal speed on Anna Flyover, the scooterist suddenly crossed to the right side of the road without any signal, lost his balance, fell down and the respondent/claimant also fell down. He contended that the Tribunal ought not to have relied on the evidence of P.Ws.1 and 2, in the absence of any independent eyewitness. He further contended that even the sketch was not marked to prove that the accident occurred in the manner as set out in the petition. Learned Counsel further contended that the accident had occurred only due to the rash and negligence of the motorcyclist, while crossing the road and therefore, the motor-cyclist has contributed to the accident.
7. The respondent/claimant examined herself as P.W.2 and reiterated the averments made in the claim petition. The suggestion to P.W.1 that all of a sudden, the motor-cyclist had crossed the road and that only due to his negligence, the accident had occurred was specifically denied. Though R.W.1-Conductor and R.W.2-Driver of the bus have deposed that the scooterist suddenly crossed to the right side of the road, their evidence is not supported by any independent witness.
It is expected that vehicles plying on a flyover should observe traffic rules and maintain discipline. There is no reason for the scooterist to suddenly cross to the right side of the road and that too when a heavy vehicle is coming in the opposite direction. Evidence of R.W.1 and R.W.2 that the scooterist suddenly crossed to the right side of the road is unbelievable. There is preponderance of probability that the accident would have occurred only in the manner set out in the claim petition. The evidence of the respondent/claimant is acceptable to hold that the driver of the bus was responsible for the accident. The finding of the Tribunal regarding negligence cannot be termed as perverse and therefore, it is confirmed.
8. Learned Counsel for the appellant Transport Corporation contended that the Tribunal ought not to have relied on Ex.P35, Disability Certificate and determined the disability at 75% . He further contended that the award of Rs.75,000/- as disability compensation is excessive. He also contended that there is no proof regarding the avocation of the respondent/claimant as Tailor and therefore, the award towards future loss of earning is liable to be deducted. In any event, the Tribunal ought to have made deduction for personal expenses, while calculating the future loss of income.
9. The respondent/petitioner deposed that immediately after the accident, she was admitted in Royapettah Government Hospital on 09.10.1995. Thereafter, she was admitted in St. Isabella Institute of Orthopaedics and Trauma on 11.10.1995. The Orthopaedic Surgeon found the following injuries.
"Fracture shaft of right femur with fracture left clavicle and avulsion injury of C6 C7 level."
Three surgeries were performed on 17.10.1995, 19.10.1995 and 29.10.1995. It is evident from Ex.P25-Report of Neuro Electro diagnosis and intraoperative monitoring, that the respondent was also examined by Neuro Surgeon on 26.02.1996 and he has mentioned as follows :
"The distal latency and conduction velocity and the F wave latency were within normal limits on the left side. Stimulation on the right side at maximum current strength did not yield any perceptible electrical activity. Stimulation at Erb's point showed good activity in the Rt.Trapezius muscle."
It is evident from Ex.P23-Discharge summary that the respondent/claimant was admitted in St.Isabel Hospital on 18.03.1996, a surgery was performed on 20.03.1996 and she was discharged on 27.03.1996.
10. The respondent/claimant has deposed that she has paid a sum of Rs.13,100/- for the surgery and Ex.P27 is the Medical expenses certificate, marked to support the claim. Ex.P28 is the document to prove that the respondent/claimant has incurred Rs.7,450/- for another surgery. Exs.P29 and P30 are the series of Medical Bills to prove that the respondent/claimant incurred Rs.18,205/- for purchase of medicines. The Tribunal has awarded compensation of Rs.43,892.98 for medical expenses. The Tribunal on the basis of disability certificate awarded Rs.75,000/- as disability compensation. The disability compensation awarded is in confirmity with the decision of this Court reported in 2005 (5) CTC 745 (M.Bhagavathy vs. Thiruvalluvar Transport Corporation).
11. The respondent/claimant has further deposed that she was a Tailor, earning Rs.1,500/- per month and due to the accident, she is unable to continue her avocation. The Tribunal in the absence of proof of income determined her income as Rs.1000/- per month and awarded compensation of Rs.1,20,000/- towards loss of earning capacity for 10 years.
12. Placing reliance on a decision reported in 2002 (1) L.W. 782 (R.Kalavathi vs. G.Murali and another), learned Counsel for the respondent/claimant submitted that multiplier method can be applied for awarding compensation towards loss of earning capacity.
Admittedly, in the instant case, the respondent/claimant suffered fracture in shaft of right femur with fracture left clavicle and avulsion injury of C6 C7 level. I do not find any reason to reject the evidence of the respondent/claimant that she was a Tailor. Her husband, working in the Indian Bank also sustained severe injuries due to the accident. It can be reasonably presumed that the respondent herein would have contributed some portion of her income to the family.
13. The notional income for non-earning members as per Second Schedule of Section 163(A) is Rs.15,000/- per annum. The injury sustained due to the accident would have certainly disabled the respondent/claimant from engaging herself in Tailoring work. If the notional income of Rs.15,000/- is taken for computation of compensation and if structured formula is applied, then the compensation for future loss of earning will certainly be on the higher side.
The Tribunal has failed to consider that the respondent/claimant would have experienced pain and suffering, mental agony and also incurred considerable expenses for transportation and extra nourishment. The Tribunal has not awarded any compensation for loss of amenities, though there is medical evidence. Considering all these aspects, the award of Rs.2,38,893/- as compensation towards pecuniary and non-pecuniary loss cannot be termed as excessive.
14. In the circumstances, there is no ground to interfere with the award passed by the Tribunal and it is confirmed. The interest aspect is not questioned in the Memorandum of Grounds and therefore, it remains unaltered. In the result, the Civil Miscellaneous Appeal is dismissed. No costs.
Sd/-
Asst. Registrar.
/true copy/ Sub Asst. Registrar.
abe To
1. The Motor Accidents Claims Tribunal, (Chief Judge, Court of Small Causes), Chennai.
2. The Section Officer VR Section, High Court, Madras.
1 cc to Mr.A.Arumugham, Advocate, sR. 5212 1 cc to the Mr.T.G.Balachandran, Advocate, sr. 5432 C.M.A.(NPD-B) No.429 of 2001 MS (CO)
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