Madras High Court
The Managing Director vs Tmt.M.Indirani on 6 August, 2010
Author: R.Sudhakar
Bench: R.Sudhakar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/08/2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Civil Miscellaneous Appeal (MD)No.972 of 2010 and Civil Miscellaneous Appeal (MD)No.973 of 2010 and M.P.(MD)No.4 of 2010 in both appeals C.M.A.No.972 of 2010:- The Managing Director, Tamil Nadu State Transport Corporation (Division-1) Limited, Bye-Pass Road, Madurai-10. ... Appellant/Respondent vs. Tmt.M.Indirani. ... Respondent/Petitioner C.M.A.No.973 of 2010:- The Managing Director, Tamil Nadu State Transport Corporation (Division-1) Limited, Bye-Pass Road, Madurai-10. ... Appellant/Respondent vs. T.Madurai Veeran. ... Respondent/Petitioner Both the Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988 against the common award and decrees dated 20.6.2007 passed in M.C.O.P.Nos.1036 and 1037 of 2003 respectively on the file of the Motor Accidents Claims Tribunal (IV Additional Sub Court), Madurai. !For appellant in both appeals ... Mr.M.Prakash ^For respondent in ... M/s.C.Vakeeswaran, both appeals W.Samprabakar and M.Ajmalkhan :COMMON JUDGMENT
The Tamil Nadu Transport Corporation is on appeal challenging the common award dated 20.6.2007 passed in M.C.O.P.Nos.1036 and 1037 of 2003 on the file of the Motor Accidents Claims Tribunal (IV Additional Sub Court), Madurai.
2. On notice, the respondent/claimant in both the appeals is represented through their advocate. By consent of both parties, the appeals are taken up for final disposal.
3. Both the cases relate to injury. The accident in this case happened on 5.8.2002. The claimant Madurai Veeran, aged 50 years, a Peon at A.I.R., Madurai was proceeding on a TVS Champ along with his wife M.Indirani, the other claimant aged 45 years old, a tailor. The accident happened at about 6.30 pm at Madurai-Natham Main Road. Claimants' case is that the offending vehicle came in a rash and negligent manner and hit the two wheeler and as a consequence of the accident, the husband and the wife, the claimants, suffered injuries. They were treated at Meenakshi Mission Hospital, Madurai as inpatient. The wife Indirani suffered the following injuries as mentioned in the claim:-
"Grievous Injuries in nature:
1. Severe Blood Injuries on the 2(two) spots in the Middle of her Head,
2. Severe Fracture of 9 RIBS in her Right Chest,
3. Severe Fracture of 5 RIBS in her Left Chest,
4. Fractured Bones of her RIBS have pierced her lungs and so she has flail chest with respiratory distress,
5. Two fractures on her Right Humerus, i.e., on her Arm of her Right Hand,
6. Severe Fracture of Right Wrist and
7. Multiple injuries all over her body."
The husband Madurai Veeran suffered the following injuries as mentioned in the claim:-
"Grievous injuries in nature:
1. Severe Fracture of 3rd, 4th, 5th, 6th & 7th RIBS of Right Side,
2. Severe Fracture of (Middle Third) Right Clavicle Bone,
3. Severe Laceration Injury on his Right Wrist & on Hip (R),
4. Severe Fracture of Right Shoulder,
5. Swelling & Tenderness in the Right Ilium of pelvis and
6. Multiple Injuries all over his body."
The husband Madurai Veeran was treated in Hospital as inpatient from 5.8.2002 to 16.8.2002 (i.e.) for a period of 12 days. The wife Indirani was treated in Hospital on three episodes (i.e.) from 5.8.2002 to 8.10.2002, 14.10.2002 to 31.10.2002 and 17.4.2003 to 22.4.2003 for nearly three months. The husband claimed a sum of Rs.2,50,000/- as compensation stating that his income was Rs.6,000/- per month at the time of accident and the wife Indirani claimed a sum of Rs.9,00,000/- as compensation stating that she was earning Rs.4,000/- per month as tailor.
4. The Tribunal tried both the claims together and passed a common award. In support of both the claims, the injured claimants were examined as P.W.1 and P.W.2 respectively. Two doctors were examined as P.Ws.3 and 4. Exs.A-1 to A-39 were marked. On behalf of the appellant transport corporation, the respondent before the Tribunal, the Branch Manager was examined as R.W.1. No document was marked.
5. The learned counsel for the appellant in both the appeals pleaded that the injured Madurai Veeran, the rider of the two wheeler was also negligent and responsible for the accident and the negligence should be apportioned equally. In support of this plea, learned counsel relied upon Ex.A-18, the order passed by the concerned Magistrate in Referred Charge Sheet and stated that the case as against the driver of the bus was closed. If at all the negligent should have been apportioned equally.
6. Per contra, learned counsel for the claimant in both the appeals pleaded that the FIR was lodged against the driver of the bus. The appellant transport corporation did not examine the driver or the conductor. No mahazar was recorded. No sketch was drawn and the department failed to let in evidence to show that negligence was on the driver of the two wheeler.
7. Merely on the ground that Referred Charge Sheet has been filed before the Court and order was passed, it cannot be said that the driver of the bus can be absolved from his negligence. The department having taken the pain to examine the Branch Manager, has not taken any steps to prove the nature of accident by examining the driver of the bus. The accident is not disputed. Further, they should have taken reasonable steps to record mahazar and sketch to show that the accident did not happen because of the fault of the driver of the appellant transport corporation bus. The FIR was recorded from the claimant on the next day. Therefore, the finding of negligence attributed on the part of the driver of the appellant transport corporation bus by the Tribunal is justified and this Court finds no good reason to differ with such finding.
8. Insofar as the quantum of compensation granted to the injured Madurai Veeran, aged 50 years is concerned, doctor assessed the disability at 20%. The Tribunal, however, reduced the disability to 15%. Based on the oral and documentary evidence, the Tribunal granted the following amounts as compensation with interest at 7.5% per annum:-
Sl.No. Heads Amount granted by the Tribunal 1 Transport expenses Rs. 100/-
2 Extra nourishment Rs. 5,000/-
3 Pain and suffering Rs.10,000/-
4 Medical expenses Rs.16,000/-
5 Disability fixed at 15% Rs.15,000/-
Total Rs.46,100/- (wrongly calculated to Rs.46,400/-
9. The said compensation does not appear to be excessive on any account. In fact no amount was granted towards attender charges. Both the husband and wife were in the hospital. The quantum of compensation, therefore, does not require to be reduced.
10. Insofar as the injured Indirani is concerned, based on the oral and documentary evidence, the Tribunal granted the following amounts as compensation with interest at 7.5%:-
Sl.No. Heads Amount granted by the Tribunal 1 Transport expenses Rs. 100/-
2 Extra nourishment Rs. 5,000/-
3 Pain and suffering Rs. 15,000/-
4 Medical expenses Rs.3,77,488/-
5 Disability fixed at Rs. 40,000/-
10%+ 30% Total Rs.4,37,588/-
11. In this case, the major amount granted towards compensation is only on account of medical expenses and that is supported by medical bills and the details have already been verified and extracted in the award. Counsel for the appellant is not able to show that the claimant is ineligible in respect of any portion of the amount. Mere statement that the medical expenses is excessive cannot be a ground to reduce the same. Insofar as the disability is concerned the nature of injury suffered by a lady to both the chest and lung region, the compensation is not excessive. On the contrary this court is at pains to state that the compensation granted is lower. Therefore, this Court finds no reason to reduce the compensation any further.
12. However, having noticed the nature of injuries suffered by a lady which is set out earlier, it will be very difficult for her to live a normal life as before. This Court, therefore, is of the opinion that she is entitled to higher compensation. Meagre amount has been granted for pain and suffering.
In spite of treatment as inpatient for three episodes, no amount has been granted for attender charges. Further, meagre amount has been granted for extra nourishment and transport. No amount has been granted towards loss of income during the period of treatment and convalescence stating that proof for tailoring business was not filed. However, as a house-wife, she is entitled to certain amount for the service she would render for maintaining the house. On that account a sum of Rs.7,500/- is granted towards loss of income during the period of treatment and convalescence. Following the decision of a Division Bench of this Court in Pallavan Transport Corporation Ltd., - vs. - M.Anbumani reported in 2004 ACJ 1086, this Court is constrained to invoke the provisions of Order 41 Rule 33 CPC to enhance the compensation to the injured claimant lady as indicated below:-
Sl.No. Heads Amount granted Amount granted by the Tribunal by this Court 1 Transport expenses Rs. 100/- Rs. 100/-
2 Extra nourishment Rs. 5,000/- Rs. 10,000/- 3 Pain and suffering Rs. 15,000/- Rs. 25,000/- 4 Medical expenses Rs.3,77,488/- Rs.3,77,488/- 5 Disability fixed at 10% Rs. 40,000/- Rs. 50,000/- + 30% 6 Loss of income during --- Rs. 7,500/-
the period of treatment and convalescence Total Rs.4,37,588/- Rs.4,70,088/-
13. In view of the admitted case as to the nature of injuries and prolonged medical treatment, the enhanced compensation is granted in spite of the fact that the claimant's counsel has not even pleaded for the same, as the Court cannot be blind and loathsome to grant just compensation which the law requires.
(*)14. C.M.A.No.973 of 2010:- Finding no merits, the Civil Miscellaneous Appeal is dismissed. There will be no order as to costs. Counsel for the appellant seeks eight weeks' time to deposit the award amount and is granted. On such deposit, the claimant is permitted to withdraw the same. Consequently, connected M.P.No.4 of 2010 filed for interim stay is closed.
(*)15. C.M.A.No.972 of 2010:- In the result, this Civil Miscellaneous Appeal is disposed of as follows:-
(i) The award amount is enhanced to Rs.4,70,088/- from Rs.4,37,588/-.
(ii) The award amount including the enhanced amount of Rs.32,500/- shall carry 7.5% interest as ordered by the Tribunal.
(iii) Learned counsel for the appellant seeks eight weeks' time to deposit the award amount including the enhanced compensation and is granted.
(iv) On such deposit, and on payment of necessary court fee for the enhanced compensation, the claimant is permitted to withdraw the same as ordered by this Court.
(v) There will be no order as to costs.
(vi) Consequently, connected miscellaneous petition No.4 of 2010 is closed.
ts To TO BE SUBSTITUTED ORDER COPY ALREADY DESPATCHED:
The Fourth Additional Subordinate Judge, (The Motor Accidents Claims Tribunal) Madurai.