Madras High Court
Managing Director, Rani Mangammal ... vs K.M. Raju on 19 August, 1999
Equivalent citations: 2(2000)ACC324
JUDGMENT K.P. Sivasubramaniam, J.
1. This appeal is directed against the award passed by the IV Addl. Sub-Judge, Motor Accident Claims Tribunal, Madurai in M.C.O.P. No. 1218 of 1992 dated 4.11.1993. Transport Corporation is the appellant, in the above appeal.
2. According to the claimant, on 24.3.1992 at about 16.15 hours the respondent's bus TN-57-N-0137 was stopped in the Chockalingapuram bus stop. When the petitioner was getting into the bus, the respondent's driver suddenly took the bus as a result of which the petitioner fell down and that the left rear wheel ran over the petitioner's right leg which was completely crushed in the accident. The accident was caused only due to the rash and negligent driving of the first respondent's driver. He has sustained multiple injuries and he was taken to Government Rajaji Hospital, Madurai and admitted as inpatient on 24.3.1992 and discharged on 3.7.1992 with the direction to continue the treatment as an outpatient. He had sustained permanent disability of shortening of right leg, restricted movement of right ankle causing limping of walk and he cannot stand and walk for a long time and he had suffered untold pain and sufferings at the time of undergoing treatment as an in patient: His wife and father were present for assisting at the time of undergoing treatment as an inpatient. He was hale and healthy and looking after his family before the accident. His family consists of wife, 2 female children, father and he is the only bread winner of his family. He was a sweet master at Nellai Parwathi Bhavan and he used to earn Rs. 40/- per day and as a result of the accident, he was unable to work due to the disability caused to him. The claimant claimed the total compensation of Rs. 4,15,200/-.
3. In the counter filed by the respondent, the manner of accident as stated in the claim petition was denied. According to the respondent on the particular day, he was driving the bus from Natham to Singampunari and the bus was being driven slowly and when the bus was nearing Chockanathapuram bus stop, the bus was stopped for alighting passengers. After getting proper signal from the conductor the driver slowly moved the bus, and after reaching 50 yards from the bus stop, the petitioner tried to getting into the moving bus in front of the doorway and slipped down from the bus. Therefore, the accident took place on account of the negligent act of the petitioner alone. The quantum of compensation was also disputed by the respondent.
4. On a consideration of the said pleadings and evidence, the Tribunal held that the accident had resulted only due to the negligence on the part of the driver of the bus. A sum of Rs. 79,000/- was fixed as compensation payable to the claimant. Hence, the present appeal.
5. Learned Counsel for the respondent contends that the evidence of P.W. 1 clearly establishes that the accident occurred only as result of the claimant trying to get into the bus, while the bus was in motion and, therefore, the driver of the bus cannot be responsible for the accident. I hare considered the evidence pertaining to the claimant and the reasons given by the Tribunal. The Tribunal has taken note of the evidence of P.W. 1, who was inside the bus as eye witness as well as FIR and on detailed analysis of the evidence, has fixed the responsibility for the accident on the driver of the bus. I find no reason to interfere' with the said finding.
6. With reference to the quantum of compensation and as against the disability, which was certified by the doctor as 41%, the Tribunal had awarded Rs. 25,000/- towards disability and loss on income at Rs. 24,000/-. A further sum of Rs. 15,000/- awarded towards medical expenses and another sum of Rs. 15,000/- awarded towards pain and sufferings. The learned Counsel for the appellant objected mainly to the grant of Rs. 24,000/- towards loss on future income and Rs. 15,000/- towards medical expenses, since there was absolutely no supporting material to prove that the claimant had spent the amount towards medical expenses.
7. Learned Counsel for the respondent contends that there was no prohibition toward specific sum towards disability and also loss on income separately and for the said purpose, learned Counsel relies on the judgment of this Court reported in 1995 (2) LW 685 The managing Director, Thiruvallur Transport Corporation, Madras v. Thangavelu and Anr. Reliance is placed on the observation that the compensation towards permanent disability and loss of earning power are two distinct and separate claims and, therefore, there was no prohibition towards considerable amount on the said two claims. Learned Counsel for the appellant relies on judgment of Division Bench of this Court National Insurance Co. Ltd. v. A. Kala Mohan. In that case the Division Bench held that it will be a double compensation to award considerable amounts under the head of disability and under the head of loss of earning power.
8. It cannot be disputed that both loss of earning power and disability are two separate heads. The claimant in order to prove that he is entitled to loss of earning power, even apart from the amount awarded towards loss on disability, he has to establish that as a result of the accident, he was disabled from performing his normal duties and that he was thrown out of the job, as a result of disability sustained by him.
9. In this case, the claim of the petitioner is that he was employed as sweet master. The doctor has been examined as P.W. 2 and the doctor does not state that either he was thrown out of the job or that he cannot carry on with his duties as a sweet master. All that the doctor states is that he cannot walk faster continuously and he cannot stand continuously for a long time. There is absolutely no evidence to prove that he was thrown out of the job after the accident. It is true that disability certificate as 41%, the Tribunal has awarded only Rs. 25,000/- which is no doubt on the lesser side. It is also in evidence that the claimant was not able to attend to his office duties for about three months. On his own claim, he was earning a sum of Rs. 40/- per day. Therefore, his monthly earning was only Rs. 1,200/-.
10. With reference to the medical expenses, it is seen that without any basis, the Tribunal has awarded a sum of Rs. 15,000/- towards medical expenses, nutrition and transport. The award of the Tribunal cannot be sustained. In the present case, the claimant had undergone treatment before the Government Hospital and, therefore, there is no justification to award the said amount, that too, without any evidence. Therefore, I am inclined to hold that the claimant would be entitled to the following amounts:
(1) Towards disability a sum of Rs. 41,000/-.
(2) Towards pain and sufferings, a sum of Rs. 15,000/-. (3) Loss on income during the period of treatment a sum of Rs. 4,000/-. (4) Towards medical expenses, transport and nutritions, a sum of Rs. 5,000/-.
Total sum Rs. 65,000/-.
Therefore, I hold that the claimant is entitled to a total compensation of Rs. 65,000/-.
11. Learned Counsel for the appellant also points out that the interest has been awarded at the rate of 15% per annum. Considering that the appellant is a public transport corporation, it would be reasonable to fix the interest at the rate of 12% per annum.
12. With the result, the claimant is entitled to a compensation of Rs. 65,000/- (Rupees sixty five thousand only) with interest at the rate of 12% per annum from the date of claim petition. This appeal is allowed on the above terms. No costs.