Madras High Court
The Managing Director vs Chellamuthu ..R1 In Cma 2415/2011 And on 25 September, 2012
Bench: R.Banumathi, R.Subbiah
In the High Court of Judicature at Madras
Dated 25.09.2012
Coram
The Honourable Mrs.Justice R.BANUMATHI
and
The Honourable Mr.Justice R.SUBBIAH
Civil Miscellaneous Appeal No.2415 of 2011
and M.P.Nos.1 and 2 of 2011 and
Cross Objection No.5 of 2012
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
No.3/137, Salamedu,
Vazhuthreddy,
Villupuram. ..Appellant in CMA 2415/2011 and
R1 in Cross Objection
..vs..
1. Chellamuthu ..R1 in CMA 2415/2011 and
Cross Objector
2. The Managing Director,
M/s.State Transport Corporation Ltd.,
Division-II,
Pallavan Salai,
Chennai-2. ..R2 in both matters
Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988, against the award and decree dated 31.12.2009 made in MCOP.No.5179 of 2005 on the file of Motor Accidents Claims Tribunal (II Small Causes Court), Chennai.
CMA: For Appellant : Mr.N.Anand
For Respondents : Ms.M.Malar for R1
Mr.M.Krishnamurthy for R2
COMMON JUDGMENT
R.SUBBIAH, J., Challenging the Award dated 31.12.2009 passed by the Motor Accidents Claims Tribunal (II Judge, Court of Small Causes), Chennai, in M.C.O.P.No.5179 of 2005, Transport Corporation, Villupuram has filed the present Appeal.
Being not satisfied with the quantum of compensation awarded by the Tribunal in M.C.O.P.No.5179 of 2005 on the file of Motor Accidents Claims Tribunal (II Judge, Court of Small Causes), Chennai, Claimant has filed the Cross Objection.
2. Brief facts are as follows:
1st respondent herein - Claimant, has filed a claim petition before the Tribunal stating that on 11.12.2004 at about 5.15 hours, while he was travelling in a State Express Transport Corporation (2nd respondent herein) bearing registration No.TN-07-N-9412 from Ulundurpet to Trichy, near Asnoor, a bus belonging to the Appellant Corporation, namely, TNSTC bearing registration No.TN-32-N-2034 came in a rash and negligent manner and dashed against the 2nd respondent bus and thus, caused the accident. In the said accident, the claimant, who was travelling in the 2nd respondent bus, had sustained grievous injuries. Hence, he filed a petition as against both the Transport Corporation claiming a sum of Rs.20 lakhs as compensation.
3. Resisting the said case, Appellant Transport Corporation filed a counter stating that the accident had occurred only due to the rash and negligent driving of the driver of the bus belonging to the 2nd respondent Corporation. Likewise, 2nd respondent filed a counter stating that on the date of accident, while the 2nd respondent bus was proceeding at moderate speed, the bus belonging to the appellant Corporation came in a rash and negligent manner from the opposite direction overtaking a lorry and in the said process it came to the wrong side of the road and dashed against the 2nd respondent Corporation bus and thus, caused the accident. Hence, the driver of the 2nd respondent Corporation cannot be held responsible for the accident.
4. Before the Tribunal, Claimant examined himself as P.W.1 besides examining one Dr.N.Sai Chandran as P.W.2 and marked Exs.P-1 to P-25. Drivers of both buses were examined as R.Ws.1 and 2, but no document was marked. The Tribunal after going through the evidence both oral and documentary, came to the conclusion that the accident is the result of rash and negligent driving of the driver of the Appellant Corporation bus. By coming to such a conclusion, the Tribunal has assessed compensation under different heads and passed an award for a sum of Rs.14,83,040/-, directing the Appellant Corporation to pay the same.
5.Heard both sides and perused the materials available on record.
6. Submission of the Appellant Transport Corporation is two folds;
(i) accident is the result of head on collision of both Transport Corporation vehicles and, hence, the Tribunal ought to have fixed contributory negligence on both drivers and thereby ought to have directed both Transport Corporations to pay the compensation equally; and
(ii) the quantum of compensation awarded under the head of "loss of earning power" is extremely on the higher side. Therefore, the amount awarded under the head of "loss of earning power" needs proper reduction.
7. It is the submission of Cross Objector Claimant that the Tribunal ought not to have fixed the monthly income as Rs.9,800/- per month considering his age and future prospects. Further, the amounts awarded under other heads are on the lesser side and they have to be enhanced.
8. With regard to the first submission, it is the contention of the appellant that the 2nd respondent Corporation has not chosen to file site sketch before the Tribunal. In the absence of which, the Tribunal ought to have fixed the liability equally on the part of both drivers since the accident is the result of head on collision.
9. On the contrary, inviting the attention of this Court to the Award passed in connected claim petition M.C.O.P.No.196 of 2005 by the Motor Accidents Claims Tribunal, Perambalur, which was marked as Ex.P-21, learned counsel for 2nd respondent submitted that even in the said Award, entire negligence was fixed only as against the driver of the Appellant Corporation. Challenging the same, no appeal was filed. Hence, now they cannot question the finding rendered by the Tribunal in fixing liability on the part of the Appellant Corporation.
10. We find some force in the submission made by the 2nd respondent. When appellant has not chosen to file an appeal against the Award passed in the connected claim petition, wherein entire liability was fixed on the part of the Appellant Corporation, now, they cannot question the finding rendered by the Tribunal in the present appeal stating that 50% liability has to be fixed on the part of the driver of the 2nd respondent Corporation. No explanation is forthcoming from the Appellant Corporation for not filing an appeal against that Award and as such, the defence of contributory negligence is not available to them in the present appeal. Therefore, we have no other option but to confirm the finding rendered by the Tribunal in respect of liability aspect.
11. With regard to the next submission, namely, quantum of compensation, by a perusal of the evidence on record, it is seen that on account of the accident, the victim had sustained the following injuries:
a) Grade III B compound fracture in the right femur
b) Comminuted Inter Tracnontric Fracture
b) Fracture of both bones in right forearm
c) Acute Gastrro Enteritis/ Diabetes Mellitus.
In order to prove the nature of injuries sustained by him, 1st respondent had marked Exs.P-2 to P-16, P-19, P-22 to P-25. That apart, he had also examined Dr.N.Sai Chandran as P.W.2 to speak about the disability suffered by him. P.W.2 had categorically stated in his evidence that @/////// mtUf;F tyJ bjhil vYk;g[ Kwpt[ Vw;gl;L btspf;fk;gpfshy; bghUj;jg;gl;L gy;ntW kUj;Jtkidfspy; rpfpr;ir bgw;Ws;shh;/ jw;bghGJ. fjphpaf;fg;glj;jpYk;. ghpnrhjid bra;jjpYk; bjhil vYk;g[ Tltpy;iy/ bghUj;jg;gl;l btspf;fk;gpfs; btspna cs;sd/ nkw;fz;l bghUz;ikapd; mog;gilapy; ehd; nkw;fz;l egUf;F gFjpahft[k;. epue;jukhft[k; Cdk; Vw;gl;Ls;sJ vd;W jPh;khdpj;J mtUila Cdj;jpid 80rjtPjk; vd;W fzpj;J rhd;W tH';fpa[s;nsd;////@
12. A perusal of discharge summary marked as Exs.P-2 and P-3, we find that 1st respondent had taken treatment as in-patient at Kilpauk Medical College Hospital, Chennai from 13.12.2004 to 24.02.2005 i.e.for 77 days and he had also undergone a surgery and plate and screws were fixed on his right thigh. Again, two surgeries were performed in the same hospital. Thereafter, he was admitted as in-patient at D.R.J.Hospitals (P) Ltd., Kolathur for 8 days from 02.03.2005 to 12.03.2005 for further treatment. Subsequently, he took native treatment at Puthur. It is clear from the above that the nature of injuries sustained by the victim is grievous. Therefore, we do not find any infirmity in the multiplier method adopted by the Tribunal while arriving at compensation.
13. But it is the contention of the Appellant that the Tribunal, while making calculation, has not deducted any amount towards personal expenses of the deceased. Per contra, it is the submission of the learned counsel for 1st respondent that 1st respondent was working as Senior Engineer, Civil Maintenance in M/s.India Radiators Limited, Mylapore and was drawing Rs.9,800/- per month. Now, he is unable to walk independently and he has also lost his job and even as on today, he has been continuing his treatment. Under such circumstances, the total compensation awarded by the Tribunal under the head of "loss of earning power" needs no interference.
14. By a perusal of Ex.P-20, salary certificate it is seen that the salary of the victim as Rs.9,835.80 per month at the time of accident. The Tribunal, by fixing the annual income at Rs.1,17,600/- (Rs.9,800/- x 12) and apportioned the loss of income to the extent of 80% at Rs.94,080/- and thereafter applied the multiplier of 13, arrived at a sum of Rs.12,23,040/-. Now it is the contention of the Appellant that the Tribunal, while calculating the amount under the head of loss of earning power has failed to deduct amount towards personal expenses, whereas it is the reply of the 1st respondent that when taking into consideration the injuries sustained by the victim, the question of deduction of 1/3rd amount does not arise.
15. But, we are of the opinion, the deduction of amount towards personal expenses of the victim depends upon the facts and circumstances of each case. In the instant case, the disability suffered by the victim on account of injuries is 80%. It cannot be said that claimant has become immobile and for the rest of his life he has to lead his life like a 'vegetable'. When that being the position, we are of the opinion that the Tribunal, while calculating the amount under the head of "loss of earning power" ought to have deducted some expenses. In this regard, an useful reference could be placed in the judgment reported in New India Assurance Co.Ltd., .vs. Charlie and another ((2005) 10 SCC 720), wherein the Hon'ble Apex Court has held as follows:
"What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula by universal application. It would depend upon the circumstances of each case. In the instant case the claimant was nearly 37 ears of age and was married. Therefore 1/3rd deduction has to be made for personal expenditure".
16. Considering the facts and circumstances of the case, 1/4th amount could be deducted towards personal expenses of the deceased to arrive at a just and proper compensation. The Tribunal has awarded Rs.12,23,040/- towards loss of earning power and if 1/4th amount is deducted towards the personal expenses of the claimant, the balance would be Rs.9,17,280/- (Rs.12,23,040/- minus Rs.3,05,760/- being 1/4th amount). Hence, the sum of Rs.12,23,040/- awarded by the Tribunal towards loss of earning power is hereby reduced Rs.9,17,280/-. Other amounts awarded under different heads are proper and as such, they are confirmed. Consequently, Rs.14,83,040/- is hereby reduced to Rs.11,77,280/- and the details are as follows:
Rs.
Loss of earning power 9,17,280.00
Transport expenses 20,000.00
Extra nourishment charges 20,000.00
Medical expenses 1,70,000.00
Pain and suffering 50,000.00
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11,77,280.00
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17. In view of the said finding, we are of the view that the Cross Objection filed by Claimant has to be dismissed.
C.M.A.No.2415 of 2011: In fine, Appeal is partly allowed. however, there is no order as to costs. Connected M.Ps.are closed. Appellant Corporation is directed to deposit the modified compensation amount, namely, Rs.11,77,280/- before the Tribunal within four weeks from the date of receipt of a copy of judgment, after deducting the amount already deposited,if any, and on such deposit, 1st respondent-claimant is permitted to withdraw the entire amount with accrued interest. Appellant Transport Corporation is also permitted to withdraw the amount more than that of the modified award amount with accrued interest, if the entire award amount has already been deposited.
Consequently, Cross Objection is dismissed. There is no order as to costs.
Index: Yes. (R.B.I,J.,) (R.P.S.,J.,) Internet: Yes. 25.09.2012 gl Copy to The Registrar, (Motor Accidents Claims Tribunal), Court of Small Causes, Chennai. R.BANUMATHI, J., and R.SUBBIAH, J., gl
Pre-delivery Common Judgment in CMA.No.2415 of 2011 & Cross Objn.No. 5 of 2012 25.09.2012