The Managing Director v. V.Ellappan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 17.03.2021

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.920 of 2021 and C.M.P.No.5251 of 2021 The Managing Director, Tamil Nadu State Transport Corporation Limited, Divisiion - III, No.1, 2, Sheikpet Nadu Street, Kanchipuram.

.. Appellant/Respondent Vs.

V.Ellappan .. Respondent/Petitioner Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 29.11.2019 made in M.C.O.P.No.78 of 2012, on the file of the Additional Sub Court, (Motor Accidents Claims Tribunal), Kanchipuram.

For Appellant :

Mr.K.J.Sivakumar For Respondent :

Mr.M.Sivakumar for M/s.C.Prabakaran

J U D G M E N T

(The matter is heard through "Video Conferencing/Hybrid mode") This Civil Miscellaneous Appeal has been filed by the appellant-Transport Corporation challenging the quantum of compensation granted by the Tribunal in the award dated 29.11.2019 made in M.C.O.P.No.78 of 2012, on the file of the Additional Sub Court, (Motor Accidents Claims Tribunal), Kanchipuram.

2.The appellant is the respondent in M.C.O.P. No.78 of 2012, on the file of the Additional Sub Court, (Motor Accidents

Claims Tribunal), Kanchipuram. The respondent/claimant filed the said claim petition, claiming a sum of Rs.15,00,000/- as compensation for the injuries sustained by him in the accident that took place on 29.08.2011.

3.According to the respondent, on the date of accident, when he was walking as a pedestrian inside O.V.Alagesan Bus Stand, Kanchipuram, following traffic rules and regulations, the driver of Bus bearing Registration No.TN-32-N-3128 owned by the appellant-Transport Corporation drove the vehicle in a rash and negligent manner and hit against the respondent and caused the accident. The front side tyre ran over the respondent's legs and the respondent sustained multiple grievous injuries. The accident occurred only due to rash and negligent driving by driver of the Bus and hence, filed the said claim petition claiming compensation against the appellant as owner of the Bus involved in the accident.

4.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by driver of the Bus owned by the appellant-Transport Corporation and directed the appellant to pay a sum of Rs.4,94,150/- as compensation to the respondent. 5.Questioning the quantum of compensation granted by the Tribunal in the award dated 29.11.2019 made in M.C.O.P.No.78 of 2012, the appellant - Transport Corporation has come out with the present appeal.

6.The learned counsel appearing for the appellantTransport Corporation contended that the respondent did not file any material document to prove his age, avocation and income. In the absence of any material evidence, the Tribunal erred in fixing the monthly income of the respondent as Rs.6,000/-, which is excessive. In the absence of any material evidence to prove that the respondent suffered functional disability and lost his earning capacity, the Tribunal erred in fixing the disability of the respondent as 45% and adopting multiplier method for awarding compensation towards disability. In any event, the total compensation awarded by the Tribunal is excessive and prayed for setting aside the award of the Tribunal.

7.The learned counsel appearing for the respondent made submissions in support of the award passed by the Tribunal and prayed for dismissal of the appeal.

8.Heard the learned counsel appearing for the appellantTransport Corporation as well as the respondent and perused the materials available on record.

9.From the materials on record, it is seen that it is the contention of the respondent that in the accident, he suffered fracture on two parts of his right leg and both the legs were injured and has taken treatment as in-patient at the Government Hospital, Chennai, from 29.08.2011 to 15.10.2011, for a period of 47 days. P.W.2 Doctor examined the appellant and certified that the appellant suffered 45% disability. P.W.2 Doctor deposed about the nature of injuries suffered by the respondent and issued the disability certificate to that effect. In the absence of any contra evidence to disprove the evidence of P.W.2 Doctor and Ex.P7 - disability certificate, the Tribunal considering the evidence of P.W.2 Doctor, fixed the functional disability suffered by the respondent as 45%, which is in order.

At the time of accident, the respondent was working as a Mason under the Lucky Constructions, Kanchipuram. The Tribunal adopted multiplier method in awarding compensation towards disability on the ground that due to the fracture of right leg, the bones were malunited, he suffered 1 1⁄2 inch shortening, his normal way of life is affected and his earning power has been reduced. The reason given by the Tribunal for adopting multiplier method is in order. The respondent claimed that he was earning a sum of Rs.12,000/- per month working as a Mason. He did not file any document to prove the same. In the absence of any material evidence to prove the avocation and income, the Tribunal fixed a sum of Rs.6,000/- per month as notional income of the respondent. The accident is of the year 2011.

Considering the year of accident and nature of work done by the respondent, the monthly income fixed by the Tribunal is not excessive. The amounts awarded by the Tribunal under other heads are just and reasonable and there is no error in the award of the Tribunal warranting interference by this Court.

10.In the result, this Civil Miscellaneous Appeal is dismissed and the amount awarded by the Tribunal at Rs.4,94,150/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit is confirmed. The appellant-Transport Corporation is directed to deposit the award amount along with interest and costs, less the amount already deposited, within a period of twelve weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.78 of 2012. On such deposit, the respondent is permitted to withdraw the award amount, along with interest and costs, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar (CO) // True Copy // Sub Assistant Registrar gsa To 1.The Additional Sub Court, (Motor Accident Claims Tribunal), Kanchipuram.

2.The Section Officer, VR Section, High Court, Madras.

+1CC to Mr.C.Prabakaran, Advocate, SR.No. 17065 +1CC to Mr.K.J.Sivakumar, Advocate, SR.No. 16995 C.M.A.No.920 of 2021 and C.M.P.No.5251 of 2021 CA(CO) B.VC (21/09/2021)