The Managing Director, v. Nallathambi,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.06.2017 CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN Civil Miscellaneous Appeal(MD)No.27 of 2016 and C.M.P(MD)No.453 of 2016 The Managing Director, Tamil Nadu State Transport Corporation Kumbakonam Division II, Periyamilaguparai, Trichy.
...
Appellant Vs.
Nallathambi ... Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree made in M.C.O.P.No.183 of 2009, dated 24.04.2015 on the file of the Motor Accidents Claims Tribunal/III Additional Sub Court, Tiruchirappalli. For Appellant : Mr.P.Prabhakaran For Respondent : Mrs.T.Kokilavani for Mr.C.Padmaraj
JUDGMENT
The Transport Corporation which suffered an award for a sum of Rs.5,29,000/- for the injuries suffered by the claimant as a result of a road accident that occurred on 30.06.2008 is the appellant.
2.The respondent/claimant had sought for compensation of Rs.10 lakhs for the injuries suffered by him. According to him, when he was riding a two wheeler along with his friend one Rengaprabhu on Trichy - Karur Road, the bus belonging to the respondent Corporation which was coming in the opposite direction was driven in a rash and negligent manner and dashed against the two wheeler resulting in the accident. As a result of the accident, the respondent/claimant suffered fracture in the right foot and the right hand and other injuries all over the body. He was admitted in the G.V.N. Hospital at Trichy. As a result of the accident, the major portion of his right foot was removed. It is also claimed that the respondent/claimant was aged 38 years at the time of the accident and he was earning a sum of Rs.6,000/- per month. He was working as Driver.
3.The appellant Corporation filed a counter affidavit contending that the driver of the Corporation had driven the bus at a normal speed with all care and caution and the accident occurred only due to the rash and negligent driving of the injured while attempting to overtake a lorry. It is further contended that the nature of injuries do not justify the compensation awarded.
4.The Tribunal upon consideration of the evidence on record both oral and documentary concluded that the accident had occurred only due to the rash and negligent driving of the driver of the Corporation bus. On the quantum, the Tribunal had taken the monthly income of the injured at Rs.6000/- and assessed the extent of disability at 60% and fixed the functional disability at 40%. Therefore, the Tribunal arrived at a sum of Rs.4,32,000/- as future loss of income and awarded a sum of Rs.12,000/- towards loss of income during the period of treatment; Rs.30,000/- towards pain and suffering, Rs.10,000/- towards extra nourishment; Rs.5,000/- towards travelling allowance; and Rs.5000/- towards attendant expenses. Though it is claimed that a sum of Rs.
80,000/- was spent for treatment, since no bills were produced the Tribunal rejected the said claim. However, as a minimum medical expense, the Tribunal awarded Rs.5000/- under the said head. The Tribunal has also awarded a sum of Rs.30,000/- towards future expenses since it was found that the petitioner had to undergo surgeries for removing the rod and plates that were fixed to set right the fracture in tibia. In all, the Tribunal had awarded a sum of Rs.5,29,000/- towards compensation.
5.Mr.P.Prabhakaran, learned counsel for the appellant Corporation would contend that the Tribunal fixed the entire liability on the driver of the corporation. He would further submit that the accident had occurred while overtaking a lorry by the injured and therefore, certain amount of contributory negligence should have been attributed to the respondent/claimant. 6.The Tribunal on the basis of the evidence had concluded that it was the bus, which was driven by its driver in a rash and negligent manner, that was responsible for the accident. Though the driver of the bus was examined as R.W.1, the Tribunal refused to accept his testimony as it was an interested testimony and there was no evidence to corroborate the same. The FIR has been filed against driver of the bus.
Considering the above fact, the Tribunal has concluded that the negligence is on the part of the driver. The non examination of the conductor or any passenger in the bus has been rightly put against the transport corporation by the Tribunal. The Tribunal cannot rely upon an interested testimony of the driver alone to conclude that the injured claimant was responsible for the accident.
7.On the question of quantum, Mr.P.Prabhakaran, learned counsel would contend that the Tribunal adopted the income of Rs.6000/- which is excessive. He would further submit that there is no evidence to show that the injured claimant was working as a driver.
8.Be that as it may, as a result of the accident, the major portion of the right foot as well as the two fingers in the right hand of the respondent/claimant have been amputated. This had not only resulted in disability but also disfigurement. The injured was aged only 38 years and has a long away to go. Though the Tribunal has fixed a sum of Rs.6000/- as monthly income, it has fixed functional disability at 40% and has awarded a compensation of Rs.4,32,000/- under the head of disability. Therefore, I do not find any reason to interfere with the said fixation. As regards the compensation awarded by the Tribunal in the other heads, I find that the said compensation is just and reasonable.
Therefore, I do not find any infirmity or irregularity in the award passed by the Tribunal. 9.Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P(MD)No.453 of 2016 is closed.
Sd/- Assistant Registrar(CS-III) /True Copy/ Sub Assistant Registrar To The III Additional Subordinate Judge, Motor Accidents Claims Tribunal, III Additional Sub Court, Tiruchirappalli.
+1cc to Mr.P.Prabhakaran, Advocate Sr.No.60091 +1cc to Mr.C.Padmaraj, Advocate Sr.No.60064 SMS VB/JC/SAR2/28.06.2017/3P/4C Civil Miscellaneous Appeal(MD)No.27 of 2016 and C.M.P(MD)No.453 of 2016 13.06.2017