The Managing Director, v. Anthoniraj,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 22.12.2017 PRONOUNCED ON : 23.07.2018

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN C.M.A.(MD)No.945 of 2015 and M.P.(MD).No.1 of 2015 The Managing Director, M/s. Tamil Nadu State Transport Corporation Ltd., Kumbakonam Division, Periyamilaguparai, Trichy - 01.

... Appellant / Respondent Vs.

Anthoniraj ... RespondenT/ Petitioner Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and award made in M.C.O.P.No.2436 of 2013, dated 29.10.2014 on the file of the Motor Accidents Claims Tribunal, Special Sub Court, Tiruchirapalli. For Petitioner : Mr.D.Sivaraman, Standing Counsel.

For Respondent : Mr.A.Saravanan

JUDGMENT

The award passed by the learned Special Subordinate Judge, Motor Accident Claims Tribunal, Trichy in M.C.O.P.No.2436 of 2013 dated 29.10.2014 is under challenge in this appeal, at the instance of Tamil Nadu State Transport Corporation Ltd., Kumbakonam Division both on the ground on negligence as well as quantum.

2. The respondent herein was none other than the appellant's conductor, who was on duty in the ill-fated bus on 19.05.2010. The claimant/respondent herein suffered injuries all over his body. He suffered severe head injury and also fracture in the ribs on both sides. The catalogue of injuries suffered by him is set out both in the award as well as in the claim petition. The Tribunal has awarded a sum of Rs.11,47,125/- as compensation together with interest. Contending that the same is excessive, this appeal has been filed.

3. The appellant admits liability to the extent of Rs.5,00,000/-. The award is under challenge in respect of the

balance amount of Rs.6,47,125/-.

4. Heard the learned counsel appearing on either side.

5. The learned Standing counsel appearing for the appellant contended that the appellant's driver cannot be exclusively fastened with the liability for the occurrence in question. But then, in any event, the claimant cannot be faulted at all. If another vehicle had also contributed to the accident and liability must be apportioned which was for the appellant to have implicated the owner of the other vehicle. Having failed to take such steps before the Tribunal, the appellant cannot be heard to contend that the entire negligence cannot be fixed on the appellant's driver. This Court therefore confirms the finding of the Tribunal that the rash and negligent driving of the appellant's driver caused the accident. This is because such a finding is based on credible material and proper reasoning.

6. The claimant examined not only himself as a witness but also the two doctors, who treated him. Ex.P.1 to Ex.P.20 were marked. It is seen that the claimant could not report for duty for a period of 22 months. Eventhough, he had two more years of service, he had to take voluntary retirement. He had suffered permanent disability, which had severely restricted his activities and movement. The doctors have stated that the petitioner has suffered partial permanent disability to the tune of 39%. The claimant has also developed severe neural disability. The claimant was an inpatient for 9 days and for several months thereafter took treatment as an outpatient in other hospitals. The claimant had incurred a sum of Rs.36,040/- towards medical expenses. In the light of these facts which cannot be disputed, the compensation payable to the claimant can be re-worked.

7. The Tribunal has awarded a sum of Rs.61,040/- towards expenses relating to treatment. The said head included several sub-categories, such as transportation, nourishment and attender charges. This Court is of the view that the amount awarded under these heads by the Tribunal does not warrant any interference. It is again not in dispute that the claimant could not attend his duties for a full period of 22 months. The claimant was earning a sum of Rs.17,144/- per month. On account of the accident in question, the claimant lost 22 months salary, which comes to Rs.3,77,173/-. It also does not warrant any interference. According to the claimant, eventhough, he had two more years of service, he had to go on voluntary retirement. This Court is of the view that this would represent his loss of earning, due to disablement.

But the Tribunal erroneously adopted the multiplier method in disability cases. The claimant admits that he was granted pension. Therefore, this Court is of the view that 50% of what he would have earned otherwise will represent his actual loss of earning. Therefore, this would come to Rs.2,05,728/-.

Tribunal ought to have awarded a sum of Rs.50,000/- towards claimant's future medical expenses. The claimant has been put to considerable physical pain and sufferings. He has been unable to report for duty. He had to retire from service prematurely. This would have certainly had severe emotional impact on the claimant. Therefore, this Court is of the view that a sum of Rs.1,50,000/- can be awarded under the head of pain and sufferings. The Doctors have assessed the physical disability of the claimant at 39%. The claimant continues to suffer from giddiness and hears noises in his ears. Since he has suffered frontal bone injuries, sense of smell has come down and ribs of both side has been fractured.

Therefore, all these injuries will considerable impair the claimant's activity and movement and he would certainly need the assistance of others. Therefore, for loss of amenities, the claimant would be entitled to a sum of Rs.1,50,000/-. Thus the compensation payable by the appellant comes to Rs.9,93,941/-. This can be rounded off to Rs.10,00,000/-. In other aspects, the award passed by the Tribunal is confirmed.

8. In the above terms, the award passed by the Tribunal is modified. Accordingly, this Civil Miscellaneous Appeal is partly allowed. The appellant shall deposit the modified amount within a period of eight weeks from the date of receipt of a copy of this judgment, less the amount already deposited, if any. On such deposit, the claimant is entitled to withdraw the entire award amount, less the amount already withdrawn by him, if any, by filing proper application before the Tribunal. No Costs. Consequently, connected Miscellaneous petition is closed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar(CS-IV) To

1. The Special Sub Judge, Motor Accidents Claims Tribunal, Tiruchirapalli.

2. The Record Keeper, V.R.Section,(2 Copies) Madurai Bench of Madras High Court, Madurai.

+1cc to Mr.D.Sivaraman, Advocate SR.No.74787 Pjl/pmu MK/SKN/SAR 4/09.08.2018/3P/5C JUDGMENT MADE IN C.M.A.(MD)No.945 of 2015 23.07.2018