Madras High Court
Nesamony Transport Corporation Ltd. vs Kochammal (Minor) Rep. By Father And ... on 22 October, 1991
Equivalent citations: I(1995)ACC601
JUDGMENT Ratnam, J.
1. These appeals have been preferred against the common award of the Motor Accidents Claims Tribunal (Sub Court), Padmanabhapuram, in M.A.C.P. Nos. 4, 5 and 16 of 1985. On 14.6.1984, at about 5.30 p.m. near Chunkkankadai near Kalliancadu Road, an accident took place involving the bus TMN 2690 belonging to Nesamony Transport Corporation plying on route No. 8 and a tourist bus bearing registration No. DEP 6111. Kochammal and Prema Sudha who are sisters, were returning from school to their house at Aloor in the bus TMN 2690 when the accident took place and both of them sustained several injuries. According to them, the bus TMN 2690 belonging to Nesamony Transport Corporation was proceeding from east towards west, while the bus DEP 6111 was driven from west towards east and the drivers of both the vehicles drove their buses rashly and negligently and that had caused the accident resulting in their sustaining injuries. In respect of the injuries so sustained by them in that accident, Kochammal and Prema Sudha claimed that compensation in a sum of Rs. 50,000/- each should be awarded to them. To the claim petitions filed by Kochammal and Prema Sudha in M.A.C.P. Nos. 4 and 5 of 1985 they impleaded the driver, owner and insurer of the bus DEP 6111 as respondents 1 to 3, the driver of the bus TMN 2690 as the fourth respondent and Nesamony Transport Corporation as the fifth respondent. In the counter filed by the driver and the owner of the bus DEP 6111, they put forward the plea that the accident took place only due to the rash and negligent driving of the bus TMN 2690 belonging to Nesamony Transport Corporation by its driver and that they were not in any manner responsible either for the accident or for the payment of compensation in respect of the injuries sustained by Kochammal and Prema Sudha. Besides, it was also claimed that the injuries sustained by the claimants were simple in nature and the compensation claimed by them was excessive and on the high side. In the counter filed by the Insurance Company, which had insured he tourist bus DEP 6111, it raised the plea that the rash arid negligent driving of the bus TMN 2690 belonging to Nesamony Transport Corporation by its driver caused the accident and that no liability could be fastened on it for the payment of compensation. It was also the further plea of the Insurance Company that as Kochammal and Prema Sudha were only school going children, the quantum of compensation claimed was excessive and on the high side. The driver of the bus TMN 2690 in his counter attributed the accident to the rash and negligent driving of the tourist bus DEP 6111 by its driver and stated that no liability could be fastened on him for the payment of compensation. Besides, it was also stated that the amount of compensation claimed was excessive. Nesamony Transport Corporation in its counter resisted the claim for compensation made by Kochammal and Prema Sudha on the ground that the bus TMN 2690 was being driven carefully and cautiously and at a normal speed observing all the traffic rules and the accident took place only due to the rash and negligent driving of the tourist bus DEP 6111 by its driver and a criminal case had been registered only against him. Disputing its liability to pay compensation, the Transport Corporation also stated that the injuries sustained by Kochammal and Prema Sudha were simple in nature and the compensation claimed was also excessive and on the high side. It would be necessary at this stage to refer to the filing of yet another claim petition in M.A.C.P. No. 16 of 1985 by Nesamony Transport Corporation, the owner of the bus TMN 2690, one of the vehicles involved in the accident, against the driver, owner and insurer of the tourist bus DEP 6111. In that claim petition, Nesamony Transport Corporation stated its bus TMN 2690 was proceeding from east towards west at a normal speed and driven carefully and cautiously and at the place of accident, the bus DEP 6111 came driven from the opposite direction rashly and negligently and dashed against the bus TMN 2690 as a result of which it sustained damage and the accident resulting in the damage to the bus TMN 2690 was due to the rash and negligent driving of the bus DEP 6111 by its driver. In respect of the damage sustained by the bus TMN 2690 and the loss of collection, estimated at Rs. 33,000/- M.A.C.P. No. 16 of 1985 was filed. In the counter filed to that claim petition by the driver and the owner of the tourist bus DEP 6111, they reiterated that the accident was only due to the rash and negligent driving of the bus TMN 2690 by its driver and not owing to the rash and negligent driving of the tourist bus DEP 6111. According to them, no damage at all was caused to the bus TMN 2690 by the rash and negligent driving of the tourist bus DEP 6111 and, therefore, no amount need be paid by way of compensation. Besides, it was also stated that they could not be made liable for loss of collection as there were spare buses to be plied on the route and no loss as such could have been sustained by Nesamony Transport Corporation. In any event, it was stated that the compensation claimed was excessive. The Insurance Company in its counter adopted the stand of the driver and the owner of the tourist bus DEP 6111 and in addition stated that while the driver of the bus DEP 6111 was driving it slowly and cautiously on the northern side of the road from west towards east, the accident had taken place and that would clearly indicate that the driver of the tourist bus DEP 6111 was not in any manner responsible for the accident and, therefore no liability could be fastened on it for payment of damages as claimed by Nesamony Transport Corporation. Since all the three claims arose out of the same accident they were dealt with together by the Tribunal on common evidence.
2. Before the Tribunal, on behalf of the claimants Kochammal and Prema Sudha, Exhibits A-1 to A-22 were marked and P.Ws. 1 to 4 were examined, while, on behalf of the contesting respondents, Exhibits B-1 to B-5 were filed and the driver of the tourist bus and three others gave evidence as R.Ws. 1 to 4. On a consideration of the evidence relating to the manner in which the accident took place, the Tribunal found that the accident was due to the rash and negligent driving of the drivers of TMN 2690 belonging to Nesamony Transport Corporation and the tourist bus DEP 6111 and was thus the outcome of the composite negligence of both the drivers of the two buses. Dealing with the claims for compensation made by Kochammal and Prema Sudha, the Tribunal, on a consideration of the medical evidence, determined the compensation awardable to them at Rs. 19,000/- and Rs. 7,500/- respectively and passed awards accordingly against the respondents in M.A.C.P. Nos. 4 and 5 of 1985. Regarding the claim made by Nesamony Transport Corporation with reference to the damage sustained by the bus TMN 2690, the Tribunal found that to set right the damage sustained by the bus TMN 2690 in the accident, a total sum of Rs. 6,502/- had been spent and that owing to the detention of the bus for repairs for 35 days, Nesamony Transport Corporation had sustained loss of collection during that period in a sum of Rs. 26,893.63. The Tribunal thus computed the total amount lost to Nesamony Transport Corporation at Rs. 33,395.66 and in view of its finding on the question of negligence, halved that amount and awarded to Nesamony Transport Corporation Rs. 16,697.83 against the driver, owner and the Insurance Company of the tourist bus DEP 6111. C.M.A. Nos. 324 and 325 of 1986 have been preferred by Nesamony Transport Corporation against the awards in M.A.C.P. Nos. 4 and 5 of 1985, while the owner and the insurer of the tourist bus DEP 6111 have preferred C.M.A. Nos. 391 to 393 of 1986 against the awards in M.A.C.P. Nos. 4, 5 and 16 of 1985. In C.M.A. Nos. 391 and 392 of 1986, the claimants Kochammal and Prema Sudha have also preferred memoranda of objections praying for enhanced compensation. The fifth respondent in C.M.A. Nos. 324 and 325 of 1986, viz. the driver of TMN 2690 belonging to Nesamony Transport Corporation has been given up as unnecessary party in the above appeals. Likewise, the second respondent in C.M.A. Nos. 391 to 393 of 1986 the driver of the tourist bus DEP 6111 has been given up, vide endorsement made by Counsel on 17.9.1991.
3. Learned Counsel for the appellant in C.M.A. Nos. 324 and 325 of 1986 first contended that the Tribunal fell into an error in holding that the composite negligence of the drivers of both the vehicles TMN 2690 and DEP 6111 had caused the accident and that the evidence clearly established that it was the rash and negligent driving of the tourist bus DEP 6111 by its driver that was exclusively responsible for the same, so that no liability could be fastened on Nasamony Transport Corporation for payment of compensation. On the other hand, learned Counsel for the appellants in C.M.A. Nos. 391 to 393 of 1986 maintained that the bus TMN 2690 belonging to Nasamony Transport Corporation had been driven carelessly and negligently by its driver and at a high speed and that had caused the accident and, therefore, the driver, owner or the insurer of the tourist bus DEP 6111 could not be made responsible for the compensatory payments. Counsel for the claimants, however, submitted that the driver of both the vehicles, by their rash and careless driving, were equally responsible for the accident and the Tribunal was also right in holding so.
4. Regarding the manner in which the accident took place, there is the evidence of one of the claimants, Prema Sudha (P.W. 1), the Driver of the tourist bus DEP 6111 (R.W. 1) and the driver and the conductor of the bus TMN 2690 (R.Ws. 3 and 4). P.W. 1 in the course of her evidence had stated that on the evening of 14.6.1984, after school hours, at about 5 p.m., she boarded the bus TMN 2690 along with her sister and while her bus, which was proceeding from east towards west, was nearing Kalliancadu Road, a tourist bus came from the opposite side driven at a high speed and the buses collided and she sustained injuries. In her cross-examination, she stated that near the place of the accident, the bus in which she travelled was driven at a very high speed and that she did not notice any other vehicle except the two buses. In the course of her further cross-examination, she had stated that the tourist bus which came from west towards east was also driven at a very high speed and both the buses were driven rashly at a high speed and collided. R.W. 1 in his evidence stated that he was the driver of the tourist bus DEP 6111 on the date of the accident and that the bus belonging to Nesamony Transport Corporation which came from the opposite direction came very fast and was swerved to the right side in the process of overtaking a cyclist and that the accident took place only owing to the rash and negligent driving of the driver of the bus TMN 2690. In his cross--examination, R.W. 1 had denied the suggestion that it was the composite negligence of both the drivers that had caused the accident. However, he was obliged to accept that he did not state in his counter that the bus TMN 2690 was overtaking a cyclist and in that process it swerved to the right side of the road. R.W. 1 admitted that he saw the bus TMN 2690 at a distance of about 150 feet and after he had proceeded to 25 to 30 feet, the accident took place and that he had not stated in his counter that the bus TMN 2690 was swerved to the right side. R.W. 1 also admitted that the road at the place of the accident was straight and of a breadth of 30 to 35 feet. R.W. 1 disclaimed any knowledge about any criminal case against him. R.W. 1 admitted that he did not report the accident to the police. R.W.3, who was the driver of TMN 2690 on the date of the accident, stated that he was proceeding at a speed of about 15 kilometres from east towards west and at that time, the tourist bus DEP 6111 which came from west towards east came to the right side of his bus and collided against it. The place of the accident, according to R.W. 3 was at a distance of abut 50 feet from the bus-stop and the road was a straight one with a width of 30 feet of which 18 feet was tarred. R.W. 3 also stated that a criminal case was lodged against the driver of the tourist bus DEP 6111. In his cross-examination, R.W. 3 accepted that he was a casual labourer and that he did not have any order of appointment, but had driven the bus for 57 days before the accident and that nobody made any enquiry regarding the accident. R.W. 3 also stated that while the bus was being slowed down while approaching the bus-stop, the accident took place and he did not inform any one that the accident took place owing to brake failure. R.W. 3 admitted that only the two buses and a cycle were there at the time of the accident and that he saw the tourist bus DEP 6111 even at a distance of about 4 furlong away and that the rear wheels of the bus were along the tar road. R.W. 3 denied that the rear wheels were at a distance of 13 feet away from the southern portion of the east-west road at the time of the accident. R.W. 4 is the conductor who was in duty in the bus TMN 2690 on the date of the accident. According to him, he was near the front foot-board when he saw the tourist bus DEP 6111 which was coming from the opposite direction at a high speed and that bus came and hit against the right side of the bus TMN 2690. R.W. 4 also stated that the accident took place at a distance of 200 feet away from the bus-stop. In his cross--examination, R.W. 4 stated that the bus TMN 2690 was plying on a town bus route and that it was not correct to state that the accident took place at 35 feet east of the bus-stop. A suggestion that the driver of the bus TMN 2690 by his rash and negligent driving had caused the accident was denied by him. Besides the evidence referred to above, there is also other evidence available in the shape of First Information Report, rough sketch, etc., which will be referred to In Exhibit A-1 dated 14.6.1984, which is the copy of the First Information Report given by one Padmanabhan, who was injured in the accident, it had been stated that the bus TMN 2690 was attempting to overtake a cyclist and with a view to do that, the bus was swerved to the right and at that time, the bus DEP 6111 which came from west towards east driven rashly and negligently hit against the front right side of the bus TMN 2690 and stopped and as a result of that, injuries were sustained by him. Exhibit B-1 is the plan of the scene of accident. There from, it is seen that the tarred portion of the road is 22 feet broad with mud portion in the north and also south measuring about 6 feet and 2 feet respectively. From this, it is clear that the total available width is about 30 feet. The bus TMN 2690 proceeding from east towards west is found to be well towards the northern half of the road beyond the middle and the tourist bus is also seen almost near the extreme left side of the road on the northern side. Exhibit B-1 had also been admitted by R.W. 1. Exhibit B-2 is the copy of the mahazar of the scene of accident and there from, it is seen that the width of the road was about 30 feet inclusive of the tarred portion and the bus DEP 6111 was 7 feet 8 inches away, while the distance between the bus TMN 2690 and the southern extremity was nearly 15 feet. Exhibit B-3 is the charge-sheet filed against R.W. 3 and that proceeds on the footing that the bus TMN 2690 had dashed against the bus DEP 6111. Exhibit B-4 is the Motor Vehicle Inspector's report and that states that the accident was not due to any mechanical defect. It is in the background of the aforesaid oral and documentary evidence that the precise manner in which the accident had taken place, has to be determined.
5. The evidence of P.W. 1 has already been referred to and she had clearly stated that the drivers of both the buses, by their rash and negligent driving, had brought about the accident. A careful consideration of her evidence shows that nothing had been suggested against the acceptance of her testimony regarding the manner in which the accident took place. R.W. 1 had stated that he had seen the bus TMN 2690 even at a distance of 150 feet and the road was straight and about 30 to 35 feet broad. Likewise, R.W. 3 had also seen the bus DEP 6111 even at a good distance. The evidence of R.W. 3 shows that he was attempting to overtake a cyclist who was proceeding from east towards west and that would have obliged R.W. 3 to proceed to the middle of the road and even slightly to the northern side in order to clear the cyclist and that accounts for the position of the bus TMN 2690 slightly beyond the middle of the road, as could be seen from the plan Exhibit B-1. The driver of the bus DEP 6111 who was proceeding from west towards east had also not taken sufficient care to drive carefully and cautiously; as otherwise, having seen the bus TMN 2690 even at a distance of 150 feet, R.W. 1 could have averted the accident, if he had been driving the tourist bus DEP 6111 at a reasonable speed and also carefully and cautiously. From the sketch Exhibit B-1, it is seen that the driver of the tourist bus DEP 6111 had not made any attempt whatever to swerve the bus northwards towards the mud portion of the road with a view to avert the accident and that could not have been done only because of the rash and negligent driving of the tourist bus DEP 6111 by its driver. The fact that the bus TMN 2690 had crossed the middle of the road would also indicate the rashness and negligence on the part of R.W. 3, who, from his own evidence, appears to be only a casual labourer who did not have even an order of appointment as a driver. It will, therefore, be not improper to assume that a casual labourer had been asked to drive a bus even without his having been appointed as a driver. It is obvious from the evidence of P.W. 1 and Exhibits B-1 and B-2 that but for the rash and negligent driving of both the vehicles, the accident would not have taken place, especially when mechanical defect is ruled out under Exhibit B-4. Initially, no doubt, under Exhibit B-3, a charge-sheet had been laid only as against R.W. 3. But that by itself may not be conclusive. It is also seen from Exhibit A-1, the copy of the First Information Report given by Padmanabhan, that the driver of the tourist bus DEP 6111 (R.W. 1) had been implicated as being responsible for the accident. Irrespective, therefore, of whether criminal proceedings were launched against R.W. 1 or R.W. 3 or both, the evidence clearly discloses that the accident should have taken place only on account of the rash and negligent driving of both the buses by their drivers. It may not be out of place to point put that R.Ws. 3 and 4 as well as R.W. 1 would all be interested in supporting their versions with a view to avoid liability for payment of compensation. The features revealed by Exhibits B-1 and B-2 would undoubtedly support the version of P.W. 1 in regard to the manner in which the accident took place. Earlier, it had been pointed out that nothing had been elicited in the cross-examination of P.W. 1 to doubt the veracity of her testimony that both the drivers were driving their buses rashly and negligently and that had caused the accident and this version of P.W. 1 is fully supported by Exhibits A-1 and B-1 to B-3. Considering the evidence in relation to the manner in which the accident took place, the Tribunal cannot be stated to have committed any error in holding that the rash and negligent driving of the buses TMN 2690 and DEP 6111 by their respective drivers had caused the accident and the liability for payment of compensation had to be apportioned 50 : 50.
6. Learned Counsel for the appellants in C.M.A. Nos. 324 and 325 of 1986 and also C.M.A. Nos. 391 to 393 of 1986 contended that the manner in which the Tribunal proceeded to award compensation to the claimants injury-war is not in order and that the award of compensation on that footing cannot be justified. On the other hand, Counsel for the claimants pointed out that though it may be that the Tribunal had awarded compensation injury-war, yet, having regard to the nature of the injuries sustained by the claimants in the accident, the compensation claimed could be rightly brought under the different heads of claim set out in the claim petitions and awarded. In addition, it was also submitted that the claimants would be entitled to an enhancement of compensation as claimed in the memoranda of objections. In paragraphs 15 and 16 of its award, the Tribunal had taken the injuries sustained by the claimants into account and had awarded compensation injury-war. The Tribunal, while assessing the compensation awardable in respect of the injuries, should have taken into account the nature of the injuries and their after effects, the disability, if any, caused, etc. and determined the compensation payable in the light of the medical evidence that had been available. Instead, the Tribunal, in this case, had proceeded to Ward to Kochammal Rs. 1,500/- towards the three simple injuries, Rs. 5,000/- towards another injury, Rs. 2,500/- towards disability and Rs. 6,000/- towards yet another injury. Likewise, in respect of the other claimant Prema Sudha, the Tribunal awarded Rs. 500/- each towards the two simple injuries Rs. 3,000/- in respect of another injury. The underlying idea of awarding compensation is not in respect of or on the basis of merely the injuries sustained, but it is with reference to the nature of the injuries sustained in the accident, the bodily discomfort such injuries had produced the disability, if any, left behind as a result of the sustaining of those injuries, loss of limb, disfigurement, etc. resulting from the injuries, etc. All these aspects must be considered and taken into account while awarding compensation. It would, therefore, become necessary to refer to the evidence, particularly the medical evidence in relation to the injuries sustained by the claimants in the accident and the compensation awardable to them. In so far as Kochammal is concerned, it is seen from the wound certificate Exhibit A-12 that she had sustained (1) A compound fracture of both the bones of left lower leg with external wound 2" x 1" in size exposing the bones; (2) A lacerated wound 1" x ½" bone deep vertically placed on the right side of forehead; (3) Two upper incisors teeth lost and bleeding from gums (4) Bleeding from nose; and (5) A lacerated wound ¼" x ¼" over right side of the nose. Injury Nos. 1 and 3 have been described in Exhibit A-12 to be grievous and the others simple. Kochammal had been admitted into the hospital after the accident and had been discharged on 15.6.1984 against medical advice and she had later been admitted into Catherin Booth Hospital at Nagercoil on 15.6.1984, from where she was discharged on 24.6.1984. P.W. 2 is a Dental Surgeon who had treated Kochammal and Prema Sudha in the Catherin Booth Hospital at Nagercoil. With reference to Kochammal, he had taken X-ray Exhibit A-10 and Exhibit A-11 is the discharge certificate of Kochammal. He has spoken to the treatment given to Kochammal, who, when she came to him, had lost two of her incisor teeth. P.W. 2 is positive that there is no chance of fallen teeth growing again. He would state that the good looks of the girl had been lost owing to the loss of teeth. A suggestion that the good looks of Kochammal had not been lost had been denied by P.W. 2. He had also spoken to the mental depression arising out of the loss of teeth. Though P.W. 2 stated that artificial treatment could reduce facial disfigurement and that attempts were made to do so, he had also stated that if it is so done, it may not affect the good looks of Kochammal. P.W. 3 is the doctor who had treated Kochammal on her admission into the Government Hospital after the accident. After referring to the sustaining of five injuries listed in Exhibit A-12, P.W. 3 stated that she had sustained a fracture in her left leg and that the third injury would cause disfigurement and that would be a permanent disability and that though the fracture might unite, that would leave her left leg weak and prevent her from doing normal work. In his cross--examination, P.W. 3 stated that temporarily the fallen teeth could be fixed to avoid facial disfigurement, but that could not be done on a permanent footing. Further, P.W. 3 had also stated in his evidence after observing Kochammal walk in the Court hall that she is subjected to certain disability. It is seen from the claim petition that Kochammal had prayed for compensation in a total sum of Rs. 50,000/- comprised of Rs. 300/- towards transport to hospital, Rs. 2,000/- towards--extra--nourishment, Rs. 200/- towards damage to clothing and articles, Rs. 10,000/- for pain and suffering and Rs. 37,500/- towards compensation for continuing permanent disability. In regard to the claim for expenses for transport to hospital and extra--nourishment, she had claimed Rs. 2,300/-, which, on the available materials, appears to be reasonable. The cash bills marked as Exhibits A-13 to A-22 show that beverages for giving her extra-nourishment had been purchased and it would be just, fair and reasonable to award to Kochammal Rs. 2,300/- under the heads of transport to hospital and extra--nourishment, as claimed by her. In regard to damage to clothing and articles, there is no evidence in support thereof and, therefore, no amount could be awarded to her under this head. In respect of compensation for pain and suffering, considering the compound fracture sustained by Kochammal and also loss of her two incisor teeth and other injuries sustained by her and the hospitalisation initially in the Government Hospital and later in the Catherin Booth Hospital at Nagercoil till 24.6.1984, it would be just, fair and reasonable to award to Kochammal compensation in a sum of Rs. 5,000/- for pain and suffering. In regard to compensation for continuing permanent disability, it is seen from the evidence of P.W. 3 that she had suffered some disability, though the degree of such disability has not been specified by him. Further, the lacerated wound on the right side of her forehead is likely to leave a deep scar and that is also likely to affect the good looks of Kochammal and also stand in the way of her getting married. The loss of two incisor teeth has also to be adequately compensated, for, the evidence does not clearly establish that Kochammal would look normal as before without any facial disfigurement or alteration even if artificial teeth should be fixed. It may be that the evidence of P.Ws. 2 and 3 does not establish any permanent disability or disfigurement as it is, but the possibility of the effects of injuries sustained by Kochammal on her future career as a school girl as well as maiden and house-wife later should be taken into account and considering these aspects, in my view, it would be just, fair and reasonable to award to Kochammal compensation in a sum of Rs. 15,000/- for continuing permanent disability. In all, Kochammal, the claimant in M.A.C.P. No. 4 of 1985 would be entitled to recover Rs. 22,300/ by way of compensation, together with interest at 12% per annum from the date of the claim petition, viz. 22.10.1984 till the date of payment, credit being given to payments, if any, made meanwhile.
7. In so far as the compensation awardable to Prema Sudha is concerned, it is seen that she had sustained three injuries, as could be seen from Exhibit A-2: (1) A lacerated wound ½" x ½" over lower lip middle; (2) Injury on the right side of the scalp on the back, ¼" x ¼"; (3) Lower half of left upper incisor tooth broken off. The third injury has been shown as grievous and the others simple. Exhibits A-3 to A-5 are the X-rays in regard to injury Nos. 1 and 2 and Exhibits A-7 to A-9 are the X-rays regarding third injury. Prema Sudha was discharged from the hospital on 15.6.1984 against medical advice and she had thereafter entered Catherin Booth Hospital at Nagercoil and she was discharged on 24.6.1984. One incisor tooth of Prema Sudha was broken and the next tooth was also displaced and there is no chance of the broken tooth growing again, as she had passed that age, as per P.W. 2. The incisor tooth, according to P.W. 2, is an important one which would project the figure of the person and by loss of that tooth, her beauty would be affected and that she was still taking treatment under him and that would be a permanent loss for her and that she would also experience periodical pain and suffering owing to the broken tooth. P.W. 3 would on the other hand say that the third injury would cause permanent disability. Two of the injuries sustained by Prema Sudha are simple injuries and the third grievous injury. The loss of upper incisor tooth according to P.W. 2 the Dental Surgeon had caused displacement of another tooth and that would be a permanent loss of tooth, besides subjecting Prema Sudha to suffer pain periodically. It is seen from the claim petition that Prema Sudha had claimed under the heads of transport to hospital and extra-nourishment Rs. 300/- and Rs. 2,000/- respectively. These claims appear to be fair and reasonable and a sum of Rs. 2,300/ - under these heads has to be awarded to Prema Sudha as compensation. Regarding damage to clothing and articles for which a sum of Rs. 200/- had claimed, there is no reliable and acceptable evidence and this amount cannot, therefore, be granted. Towards pain and suffering, as noticed earlier, only the third injury referred to earlier was grievous in nature and that, along with other injuries, undoubtedly would have caused considerable pain to Prema Sudha while she was hospitalised. Towards this, on the available evidence, compensation in a sum of Rs. 3,000/- would be adequate. Considering the evidence of P.W. 2, the Dental Surgeon, in regard to injury No. 3 sustained by Prema Sudha, in respect of loss of good looks and permanent disability and tooth displacement, it would be just, fair and reasonable to award to her a sum of Rs. 5,000/- under the head of continuing permanent disability. In all, Prema Sudha, the claimant in M.A.C.P. No. 5 of 1985 would be entitled to recover Rs. 10,300/- by way of compensation in respect of the injuries sustained by her, together with interest at 12% per annum from the date of the claim petition viz., 22.10.1984 till payment, credit being given to payments, if any, made meanwhile.
8. That leaves for consideration C.M.A. No. 393 of 1986 preferred by the owner and the insurer of the tourist bus DEP 6111 against the award of compensation in favour of Nesamony Transport Corporation in a sum of Rs. 16,697.83 comprised of one-half of Rs. 6,502.03 towards repair charges and one-half of Rs. 26,893.63 representing the loss of collection from the bus TMN 2690 belonging to Nesamony Transport Corporation for a period of 35 days. In so far as the purchase of spares for the bus TMN 2690 and also the repairs carried out, there is the evidence of R.W. 2 supported by Exhibit B-5. From that evidence, it is clear that Nesamony Transport Corporation had incurred expenditure in the purchase of spare parts, labour charges, overhead charges, etc., totalling to Rs. 6,502.03. This would represent the amount spent by Nesamony Transport Corporation in setting right the damage sustained by the vehicle TMN 2690 in the accident owing to the rash and negligent driving of the buses, the responsibility for which had to be shared 50 : 50 by Nesamony Transport Corporation and the tourist bus DEP 6111. In other words, Nesamony Transport Corporation would be entitled to recover from the owner and the Insurance Company as well as the driver of the tourist bus DEP 6111 one-half of Rs. 6,502.03 or Rs. 3,251.02 in respect of the damages to the vehicle or the amount spent by Nesamony Transport Corporation for the purpose of effecting repairs to its bus involved in the accident and to restore it to its condition prior to the accident. However, linked with this was a claim by Nesamony Transport Corporation for Rs. 26,893.63 stated to represent loss of collection from the bus TMN 2690 for a period of 35 days when it was under repairs. With regard to this claim, learned Counsel for the appellants in C.M.A. No. 393 of 1986 submits that under Section 110(1) of the Motor Vehicles Act (hereinafter referred to as the Act), a claim for damages to any property of a third party arising out of the use of a motor vehicle alone could be entertained and adjudicated upon by a Motor Accidents Claims Tribunal and the loss of collection cannot be characterised as damages to any property and, therefore, the Tribunal fell into an error in entertaining the claim of Nesamony Transport Corporation to the tune of Rs. 26,893.63 and halving this amount and passing an award against the appellants and the second respondent in C.M.A. No. 393 of 1986. Reliance in this connection was also placed by learned Counsel upon the decisions reported in Rajkumar v. Mahendra Singh 1985 ACJ 103 and General Manager Kerala State Road Transport Corporation v. Saradamma 1987 ACJ 927. On the other hand, learned Counsel for Nesamony Transport Corporation pointed out that no objection was raised by the appellants in C.M.A. No. 393 of 1986 regarding the entertainability of the claim for loss of collection and that the loss of collections could also be regarded as damages sustained by Nesamony Transport Corporation owing to the involvement of its vehicle in the accident and was rightly entertained by the Tribunal and relief granted. Learned Counsel relied in this connection upon the decisions reported in Shankarlal v. Madhya Pradesh State Road Transport Corporation 1983 ACJ 447 and Union of India v. Ratan Lal 1988 ACJ 992.
9. Before proceeding to consider the aforesaid submission, it would be necessary to make a reference to Section 110(1) of the Act, as it stood amended at the relevant time. Section 110(1) of the Act stated:
A State Government may, by Notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both:
Provided that, where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.
Section 110F of the Act, which bars the jurisdiction of Civil Courts provides:
Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal the respect of the claim for compensation shall be granted by the Civil Court.
It is thus seen that under Section 110F of the Act, the State Government has been enabled to constitute by notification Accidents Claims Tribunal for the purpose of adjudication of claims for compensation in respect of accidents involving (i) death of, or (ii) bodily injury to persons arising out of the use of motor vehicles. Likewise, the Claims Tribunals have also been enabled to adjudicate upon claims for damages to any property of a third party arising out of the use of the motor vehicles. Initially, there was some doubt that Claims Tribunals did not have the jurisdiction to adjudicate upon claims for compensation in regard to injury to property and that was resolved by the amendment effected by the Act 56 of 1969, which included adjudication of a claim for damages to any property of a third party arising out of an accident involving the use of a motor vehicle, as being within the scope of an adjudication by Motor Accidents Claims Tribunal constituted. By the Proviso, it was made clear that where the claim for damages to any property exceeded Rs. 2,000/-, an option was given to the claimants to have the matter brought up before a Civil Court for adjudication and in such a case, the Claims Tribunal was declared not to have jurisdiction to entertain any question with reference to such a claim. The question that now arises for consideration is, whether the expression "damages to any property of a third party" would also include loss of income as one capable of being adjudicated upon by the Motor Accidents Claims Tribunal. Giving the words "damages to any property of a third party" their normal and ordinary meaning, the scope of such a claim, for purposes of adjudication by the Claims Tribunal, would appear to be confined to the amount required to be awarded by way of pecuniary compensation to set right the actual damage caused by an accident to any property of a third party and no more. In Rajkumar v. Mahendra Singh 1985 ACJ 103 in considering the question whether a claim for loss of business owing to the vehicle remaining idle during the period of its repairs, could not be laid before a Claims Tribunal, it was pointed out, referring to Section 110(1) of the Act that the word 'damage' or 'damages' used in Section 110 of the Act meant injury to any property involved in the accident and the claim which could be lodged and adjudicated upon by the Claims Tribunal was only a claim for compensation for damages resulting to the vehicle due to the accident and such a claim would ordinarily cover expenses incurred for repairs or restoration of the vehicle to its original condition and that the loss of business owing to the vehicle remaining idle during the period of its repairs could not be described as damage to property, but can be, at best, damage or loss to the owner and that under Section 110(1) of the Act read with Section 110F of the Act, a Civil suit claiming that relief would not also be barred. In General Manager Kerala State Road Transport Corporation v. Saradamma 1987 ACJ 927 a similar question arose as to whether a claim for loss of collection during the period when the bus was under repairs can be entertained and adjudicated upon by a Motor Accidents Claims Tribunal. It was held that the language of Section 110(1) of the Act was plain and admitted of only one meaning, namely that the power conferred on the Tribunal was restricted to deciding claims to damage to property and the use of the preposition "to before the noun 'property' also indicated the relationship to the person or thing denoted by it stood in regard to the claim. Ultimately, it was decided that the words "damage to property" took in only direct damage to property and a claim for damages suffered by the owner of a motor vehicle, which was involved in an accident, apart from the claim for damages to the vehicle itself, could appropriately be brought before the Civil Court, as the Motor Accidents Claims Tribunal did not have jurisdiction to entertain such a claim. The aforesaid decisions would undoubtedly support the view which has been expressed earlier with reference to the nature of the claim for damages falling within the scope of an adjudication before the Motor Accidents Claims Tribunal. However, in Shankarlal v. Madhya Pradesh State Road Transport Corporation 1983 ACJ 447 a contrary view has been expressed, though it is not very clear from the judgment on what basis such a view had been expressed. In paragraphs 6 and 7 of the judgment, there is no doubt a reference to the claim for damages for a period of 20 days during which the truck remained under repairs and could not be gainfully used. But how such a claim was either sustainable or adjudicated upon by the Claims Tribunal had not been adverted to at all. Again, in Union of India v. Ratan Lal 1988 ACJ 992, it had been held that the scope of Section 110 of the Act cannot be circumscribed by a narrow interpretation and that the expression "damage to property" has a very wide amplitude to include future property representing even the earnings which the owner of the damaged vehicle would have earned, if the vehicle had not been damaged. It was also further pointed out that an interpretation not extending the applicability of Section 110(1) of the Act to business loss, would leave that part of the claim to be agitated before a Civil Court and to avoid multiplicity of proceedings, the section ought to be interpreted widely to include future earnings be also, as part of the damages which could be adjudicated upon and awarded to a claimant so viewing the matter, the view taken in Rajkumar v. Mahendra Singh 1985 ACJ 103 has been dissented from. The only other decision stated to have some bearing is found reported in Sri Ranganathar Transports (P) Ltd. Thanjavur v. Tanjore Cooperative Marketing Federation Ltd. Tiruvarur 94 Law Weekly 759. There in issue that arose for consideration was the bar enacted under Section 110F of the Act and it was assumed, without any discussion that a claim for loss of business for the idle period of a vehicle involved in the accident would also fail under "any claim" occurring in Section 110F of the Act. That decision cannot, therefore, be of any assistance to Nesamony Transport Corporation to claim damages. However, on a careful consideration of the different views expressed in the decisions referred to already, the interpretation which commends itself to me is that the expression "damage to property" would take in only the monetary compensation to set right the actual damage caused to the property in an accident involving the use of a motor vehicle and nothing more. The expression "damages to any property of a third party" has to be necessarily restricted in its application to the actual damage caused to the property and cannot, in the absence of any indication in Section 110(1) of the Act, be expanded. The expression "damages" would connote pecuniary compensation obtainable in an action for a wrong, which is a tort in the case of motor vehicle accidents and when the language of the section is confined only to damages to (underlining mine) any property, it cannot, as it is, be extended or expanded into damages under other heads and not necessarily restricted to property. No doubt, such an interpretation may leave a claim for damages other than that to property arising out of a motor accident, for adjudication by a Civil Court, but that cannot be helped in view of the language employed in Section 110(1) of the Act. If it was the intention of the Legislature that damages under all its different heads could be recovered in an action under Section 110(1) of the Act before a Motor Accidents Claims Tribunal, suitable language could have been employed to that effect. But having regard to the phraseology actually employed, it is difficult to extend its scope by bringing under its coverage claims for damages other than actual damage to the vehicle involved in the accident and the Tribunal was in error in having entertained the claim of Nesamony Transport Corporation in this regard. In view of the restricted scope of an adjudication before a Claims Tribunal in regard to damage to the vehicle involved in the accident, the circumstance that the appellants in C.M.A. No.393 of 1986 did not specifically raise any objection to jurisdiction at the earlier stage of the proceedings would not affect the position, as, if the Claims Tribunal did not have jurisdiction to entertain a particular claim for damages in terms of the provision conferring such jurisdiction, the inaction on the part of the appellants in C.M.A. No. 393 of 1986 would not have the effect of conferring such jurisdiction on the Claims Tribunal. In other words, the plea of acquiescence would not enable Nesamony Transport Corporation to sustain the award, in the circumstances of this case. That would mean that the owner and the insurer of the tourist bus DEP 6111 would be liable only to the extent of Rs. 3,251.02 and not Rs. 16,697.83.
10. The result is, C.M.A. Nos. 324, 325, 391 and 392 of 1986 will all stand dismissed, while the memoranda of objections in C.M.A. Nos. 391 and 392 of 1986 will stand allowed to the extent indicated above. The claimant in M.A.C.P. No. 4 of 1985, viz. Kochammal will be entitled to recover one-half of Rs. 22,300/- viz. Rs. 11,150/- from the owner, driver and the insurer of the tourist bus DEP 6111 together with interest at 12% per annum from 22.10.1984 till the date of payment and the other half from the driver of the bus TMN 2690 and Nesamony Transport Corporation together with interest at 12% per annum from 22.10.1984 till the date of payment, credit being given to payments, if any, made meanwhile. Likewise, the claimant in M.A.C.P. No. 5 of 1985, viz., Prema Sudha will be entitled to recover one-half of Rs. 10,300/-, viz., Rs. 5,150 from the owner, driver and the insurer of the tourist bus DEP 6111 together with interest at 12% per annum from 22.10.1984 till the date of payment and the other half from the driver of the bus TMN 2690 and Nesamony Transport Corporation together with interest at 12% per annum from 22.10.1984 till the date of payment, credit being given to payments, if any, made meanwhile. The awards of the Tribunal in M.A.C.P. Nos. 4 and 5 of 1985 will stand modified accordingly. C.M.A. No. 393 of 1986 will stand allowed in part to the extent indicated and the award of the Tribunal in M.A.C.P. No. 16 of 1985 will stand modified in that Nesamony Transport Corporation will be entitled to recover from the appellants and the second respondent in C.M.A. No. 393 of 1986 a sum of Rs. 3,251.02 instead of Rs. 16,697.83. There will be no order as to costs.