Madras High Court
Tamil Nadu State Transport Corporation vs Antony Xavier Rayer on 26 March, 2010
Equivalent citations: AIRONLINE 2010 MAD 3
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 26/03/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1263 of 2008 and Cros.Obj.(MD)No.53 of 2009 and M.P.(MD)No.1 of 2008 M.P.(MD)No. 3 of 2009 and M.P.(MD)No.1 of 2010 Tamil Nadu State Transport Corporation, Kumbakonam Limited, Trichy, Division II, represented by its Managing Director, Trichy. ... Appellant / Respondent Vs Antony Xavier Rayer, K. ... Respondent/Petitioner Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and award made in M.C.O.P.No.2938 of 2002 dated 27.09.2007, on the file of the Motor Accident Claims Tribunal, Additional District Court/Fast Track Court No.II, Trichy. !For Appellant ... Mr.Royce Emmanuel ^For Respondent ... Ms.J.Maria Roseline * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against the judgment and award made in M.C.O.P.No.2938 of 2002 dated 27.09.2007, on the file of the Motor Accident Claims Tribunal, Additional District Court/Fast Track Court No.II, Trichy.
2. The appellant is the Transport Corporation. On 03.04.2002 at about 8.00 p.m., the respondent rode a two wheeler namely TVS XL on Trichy-Dindigul main road. The bus bearing Registration No.TN-45-N-1655 of the appellant Corporation hit the respondent behind the two wheeler. The respondent was thrown out and he got grievous injuries at the head, on the right eye and all over the body. He was admitted in Maruthi Hospital, Trichy on 03.04.2002 as in patient. He was treated upto 22.07.2002. The respondent was employed as Office Superintendent in Southern railways. He was aged about 53 years at the time of the accident. Due to severe injuries, his vision in right eye was seriously affected. He also suffered giddiness, loss of memory and head ache due to the head injuries. In these circumstances, he opted to go under voluntary retirement as he could not continue in the employment. He voluntarily retired from service on 01.08.2004.
3. He filed M.C.O.P.No.2938 of 2002, claiming Rs.7,00,000/- as compensation. His son, the owner of the two wheeler filed M.C.O.P.No.2939 of 2002, claiming damages for the vehicle. Both M.C.O.Ps were tried together before the Tribunal. Five witnesses were examined on the side of the claimants. Documents Ex.A.1 to A.15 were marked. On the side of the appellant, the driver of the bus was examined and no document was marked. The Tribunal passed an award dated 27.09.2007 granting Rs.2,50,000/- as compensation with 7.5% interest and costs to the claimant.
4. This appeal has been filed by the Transport Corporation questioning the award on the ground that the Tribunal erred in holding that the driver of the bus was rash and negligent in causing the accident and that the Tribunal awarded excessive amount.
5. The respondent filed cross objection seeking for enhancement of the award amount upto Rs.9,75,000/-
6. Heard the learned Counsel for both sides.
7. The learned Counsel for the appellant submits that the driver of the bus was not responsible for the accident and that the road where the accident took place was a crowded road and that the respondent on seeing a pit, came to the right side of the road and hit against the bus. Since the respondent came to the right side of the road to avoid a pit on the road, he should be held responsible for the accident. He relies on the deposition of R.W.1, the driver of the Transport Corporation in this regard.
8. On the other hand, the learned Counsel for the claimant submits that the driver of the bus was solely responsible for the accident and that he came rashly and negligently and hit behind the two wheeler.
The learned Counsel submits that F.I.R. was registered against the driver and that three witnesses including the claimant who witnessed the accident spoke consistently that the driver of the bus drove rashly and negligently and caused the accident. Therefore, the Tribunal could not be found fault in its finding as to the rash and negligent driving of the driver of the Transport Corporation.
9. The learned Counsel for the claimant submits that nowhere the appellant stated in the counter statement that was filed in M.C.O.P. that there was a pit on the road and that the claimant came to the right side to avoid the pit and hit against the bus. It is submitted that it was an after thought and the story was invented by the driver to escape his responsibility.
10. I have considered the submissions made on either side and perused the records.
11. As rightly contended by the learned Counsel for the claimant that the Transport Corporation nowhere stated in the counter that the claimant came to the right side of the road to avoid a pit on the road and in that process, he hit against the bus. Paragraph 3 of the counter statement of the appellant is relevant in this regard and the same is extracted here:
"3. The allegations in para 23 of the petition are all denied as false and the accident did not happen in the manner as set out in the petition. On 03.04.2002, this respondent's vehicle bearing Reg.No.TN-45-N-1655 driven by its driver with all care and caution was proceeding from Trichy to Palani. At about 20.00 hrs. the above said vehicle was proceeding near National College, Trichy. At that time, ahead of this respondent bus a moped rider was proceeding in the same direction. The driver of this respondent sounded horn and made his intentions clear to overtake the moped rider. When actually 3/4th of this respondent's bus has passed the moped rider in the process of overtaking, the moped rider turned his moped to its right side and the moped dashed against the left side rear body of this respondent bus. Thus the driver of this respondent was in no way responsible for the accident. The petitioner was solely responsible for the accident."
12. But the driver spoke differently when he deposed before the Tribunal. The following is the discussion of the Tribunal that is found in paragraph 9 of the award. The following passage is extracted hereunder:
"v.k.rh.1 muR Bghf;Ftuj;J fHf BgUe;jpd; Xl;Leh; uj;jpdk; jd; rhl;rpaj;jpy;, 03.04.2002 md;W nut[ Rkhh; 8.15 kzpf;F Berdy; fy;Yhp mUBf Bghf;Ftuj;J mjpfkhf nUe;jjhy; kpf epjhdj;Jld;, ftdkhft[k; bkJthft[k; BgUe;ij naf;fp bry;Yk;BghJ Berdy; fy;Yhp jpUr;rp-jpz;Lf;fy; rhiyapy; jdf;F Kd;dhy; brd;w o.tpv!;. 50I Ke;jp bry;Yk;BghJ jFe;j Mud; moj;J vr;rhpf;if bra;J bfhz;L o.tp.v!; 50I Ke;jp bry;Yk;BghJ o.tp.v!; 50 Xl;Ldh; rpwpa gs;sk; nUe;jjhy; rlhbud;W o.tp.v!; 50 bkhbghl;il jpUg;gpajhy; jhd; BgUe;jpd; nlJg[wk; irL ghoapy; noj;Jtpl;ljhf Fwpg;gpl;L.."
13. It is clearly seen that the driver of the bus came with a different version. His deposition before the Tribunal is not consistent with the statement in the counter. Further three witnesses including the claimant spoke consistently that the driver of the bus was responsible for the accident. In these circumstances, I do not find any infirmity in the award of the Tribunal as to its finding that the driver was rash and negligent in causing the accident.
14. The learned Counsel for the appellant submits that the Tribunal ought not to have awarded Rs.70,000/- towards disability compensation when the Tribunal awarded Rs.50,000/- towards loss of earning. The learned Counsel further submits that the Tribunal also committed error in awarding Rs.25,000/- towards pain and suffering.
15. The learned Counsel for the claimant submits that the Tribunal failed to adopt the multiplier method as per clause 5(b) of the Second Schedule of the Motor Vehicles Act for assessing the loss of income. The learned Counsel submits that though the doctor assessed at 35% permanent partial disability, it should be taken as 100% loss, as the claimant left the employment and opted to retire voluntarily. The learned Counsel also submits that the claimant is entitled to be compensated towards his loss of income until his retirement.
16. In this regard, clause 5(b) of the Second Schedule of the Motor Vehicles Act, which is relevant for the purpose of the case, is extracted hereunder:
"5.Disability in non-fatal accidents:
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.
Plus either of the following:-
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item(a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."
17. In view of Clause 5(b) of the Second Schedule of the Motor Vehicles Act, the Tribunal ought to have applied multiplier method and should have worked out the compensation payable to the claimant. The learned Counsel for the claimant states that though the doctor certified that the claimant suffered 35% partial permanent disability, since he left the employment due to the injuries, it should be taken that he suffered 100% disability. That is, the learned Counsel argues that the loss of earning was 100%.
18. On the other hand, the learned Counsel for the appellant Corporation seriously objects for taking that the claimant suffered 100% loss of earning capacity. The learned Counsel submits that there is no evidence placed before the Tribunal that he left the employment due to the injury. Further, it is stated that he went under voluntary retirement and he is in receipt of pension and other benefits. Both Counsel relies on the evidence of the doctor in support of their contentions. The evidence of the doctor who was examined as P.W.4 is extracted hereunder:
"kDjhuUf;F ehd; Behpilahf rpfpr;ir mspf;ftpy;iy. fhar;rhd;wpjH; tHA;Fk;BghJjhd; ehd; kDjhuiu ghh;j;Bjd;. 03.04.2002 ypUe;J jw;BghJ tiu kDjhuh; vd;d rpfpr;irfs; Bkw;bfhz;lhh; vd;w tptuk; vdf;F bjhpahJ. kDjhuUf;F jiytyp, kaf;fk; kDjhuh; Twpajhy;jhd; vdf;F bjhpa[k;. ehd; Kis euk;gpay; kUj;Jth; vd;why; rhpjhd;. kDjhuUf;F cjtp bra;a[k; Behf;fj;jpy; Cdj;jpd; msit kpifg;gLj;p TWfpBwd; vd;why; rhpay;y."
The learned Counsel for the claimant also seeks to compensate the loss in actual earning due to voluntary retirement upto the date of the actual retirement.
19. I am not inclined to treat that the claimant suffered 100% loss of earning capacity. Nowhere, the doctor said that he could not do any work. Further no evidence is placed that he opted to go under voluntary retirement due to the injuries. In these circumstances, the submissions of the learned Counsel for the claimant that the claimant is entitled to compensation treating that he has suffered 100% disability, deserves to be rejected. Likewise, the other submissions of the learned Counsel for the claimant that the claimant is entitled to the loss of the salary due to the voluntary retirement upto the date of actual retirement has no force.
20. However, as per clause 5 (b) of the Second Schedule of the Motor Vehicles Act, the claimant is entitled to compensation for 35% of permanent partial disability. The claimant was paid Rs.15,252/- as monthly salary at the time of the accident as per Exs.A.4 and A.5 and the same is not disputed. The multiplier for the age of 53 years is "11" as per the decision of the Honourable Apex Court in Sarala Varma's case reported in 2009(2) TNMAC 1. Hence, the compensation for loss of income payable to the claimant as per clause 5(b) of the Second Schedule of the Motor Vehicles Act is Rs.15,252x12x11x35/100=Rs.7,04,642.40/-
21. As rightly contended by the learned Counsel for the appellant, if the claimant is awarded Rs.7,04,642.40/- as per clause 5(b) of the Second Schedule of the Motor Vehicles Act, the claimant is not entitled to Rs.70,000/- towards disability compensation awarded by the Tribunal, as held by the Full Bench decision of this Court in Cholan Roadways Corporation Limited Vs. Ahamed Thambi and six others reported in 2006(3) L.W.1025. Therefore, the amount of Rs.70,000/- towards disability compensation and Rs.50,000/- towards loss of income are deleted from the award.
22. I am not in agreement that the Tribunal awarded on the higher side towards pain and sufferings.
23. The learned Counsel for the appellant does not dispute the other heads, though grounds were raised in the appeal.
24. In these circumstances, this Court awards compensation to the claimant as follows:
(i) compensation under clause 5(b) of the Second Schedule of the Motor Vehicles Act Rs.7,04,642.40
(ii) for medical expenses Rs. 90,000.00
(iii)for pain and sufferings Rs. 25,000.00
(iv) for transport, extra nourishment and medical attendant Rs. 15,000.00
(v) for loss of amenities and enjoyment in life Rs. 25,000.00
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Rs.8,59,642.40
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25. The appellant is directed to deposit the enhanced amount of compensation within a period of six weeks from the date of receipt of a copy of this order with the same interest as ordered by the Tribunal from the date of application. On such deposit being made, the claimant is permitted to withdraw the same.
26. Accordingly, this Civil Miscellaneous Appeal is disposed of in the above terms. Consequently, the connected Miscellaneous Petitions are closed. No costs.
ssl To The Motor Accident Claims Tribunal, Additional District Court/ Fast Track Court No.II, Trichy.