Prabhu vs Tamil Nadu State Transport Corporation Ltd.

R. Karuppiah, J.—This Civil Miscellaneous Appeal has been filed by the appellant/claimant, for enhancement of compensation awarded by

the Motor Accident Claims Tribunal (1st Addl. Subordinate Court), Tirunelveli, in M.C.O.P. No. 669 of 2003, dated 28.10.2005. The

appellant/claimant has filed a claim petition for compensation of Rs. 2,00,000 and in the claim petition it is stated that on 19.5.2003 at about 4.45

p.m., while the claimant was driving a Mini Lorry bearing Reg. No. T.N. 67-0635 from Punnakayal to Palayamkottai and when he reached near

Athichanallur on the Tirunelveli - Tiruchendur Main Road, the claimant after given due signal and switch on the Headlight and entered into a small

damaged culvert. At that time, a bus bearing Reg. No. TN-72-N-342, belonging to the respondent, came from the opposite direction in a rash and

negligent manner without minding the signal, attempted to enter the small damaged culvert in a high speed. As a result, the bus driver unable to

control his vehicle and dashed against the mini lorry. In the accident, the claimant sustained several injuries including fracture over right leg.

Immediately he was taken to the Government Hospital at Srivaikuntam and after first aid, he was referred to Tirunelveli Medical College Hospital

at Palayamkottai and he was taking treatment as inpatient from 19.5.2003 to till the date of claim petition. The claimant has undergone surgery for

his right leg and was steel plated. At the time of accident, the age of claimant was 23 and he was working as driver and earned Rs. 3,000 per

month. Since the accident was occurred due to rash and negligent driving of the driver of the bus, criminal case under Sections 279 and 337 of

IPC, has been registered by Srivaikuntam Police Station in Crime No. 178 of 2003 as against the driver of the respondent bus and, therefore,

claimed compensation of Rs. 2,00,000 from the respondent transport Corporation.

The respondent Transport Corporation filed counter in which denied the manner of the accident alleged in the claim petition and stated that only

the claimant, who was driver of the mini lorry, bearing Reg. No. TN-67-0635, responsible for the accident and the accident was not occurred due

to rash and negligent driving of the respondent bus driver and the respondent driver has given a complaint immediately after the accident to the

police and further the claimant should prove all the averments made in the claim petition.

Before the Tribunal, on the side of the claimant examined 4 witnesses as P.Ws. 1 to 4 in which P.Ws.3 and 4 are same witness and marked 6

documents as Exs. P1 to P6 and on the side of the respondent, the conductor of the bus alone examined as R.W.1 and no documents have been

marked.

Considering the above said oral and documentary evidence adduced on either side, the Tribunal has held that the accident was occurred only

due to rash and negligent act of both the vehicles drivers viz., the claimant and R.W.1, who is appellant/respondent bus driver and therefore,

apportioned the negligent as 50:50 and fixed the liability accordingly.

With regard to quantum of compensation, the Tribunal has awarded Rs. 22,500 for various heads after deducting 50%. Aggrieved over the

above said quantum of compensation awarded by the Tribunal, the claimant has filed this Civil Miscellaneous Appeal for enhancement of

compensation.

The learned Counsel appearing for the appellant/claimant mainly contended that the Tribunal has failed to consider the fact that the accident was

occurred only due to rash and negligent driving of the respondent bus driver and criminal case also registered as against him. He further submitted

that the driver of the bus was not examined by the respondent and no reason has been assigned and further, R.W.1, who was conductor of the bus

could not be an eyewitnesses to the occurrence, and the findings of the Tribunal is illegal and therefore, the accident was occurred only due to rash

and negligent driving of the respondent bus driver.

As rightly contended by the learned Counsel appearing for the appellant, the driver of the bus, who is the competent witness to speak about the

accident, has not been examined by the respondent. No reasons have been assigned for non-examination of the driver of the bus. R.W.1

conductor of the bus could not be an eye-witness to the occurrence, considering the manner of accident occurred. P.W.1, who is the claimant,

clearly deposed about the manner of the accident as alleged in the claim petition and further both sides admitted that criminal case was registered

as against the driver of the respondent Transport Corporation bus and also marked Ex. P1, copy of F.I.R.

In the counter, the respondent has stated as if the driver of the bus has given the complaint immediately after the accident. But the above said

copy of the complaint has not been produced or case has not been registered on the basis of the above said alleged complaint given by the driver

of the respondent bus. All the above said facts reveal that the accident was occurred only due to rash and negligent driving of the respondent bus

driver and not negligent driving of the claimant and the findings of the Trial Court is not correct. Therefore, the respondent Transport Corporation

is liable to pay the entire compensation to the claimant.

With regard to quantum of compensation, the Tribunal has awarded Rs. 22,500 for various heads after deducting 50% towards contributory

negligence, on the following heads:

The learned Counsel appearing for the appellant/claimant has mainly contended that P.W.1 has deposed and also P.W.2 Doctor has been

examined and also marked Ex. P2 Outpatient Book; Ex. P3 - Disability Certificate; Ex. P4 - X-ray; Ex. P5 - copy of Accident Register and Ex.

P6 copy of case records and the oral testimonies of P.Ws.1 and 2 and the above said documents reveal that claimant has sustained partial

permanent disability due to the injuries and P.W.2, Doctor has assessed the disability as 44% but, the Trial Court has awarded only a meagre

amount.

A perusal of Ex. P2 Outpatient Book; Ex. P3 - Disability Certificate; Ex. P4 - X-ray; Ex. P5 - copy of Accident Register and Ex. P6 copy of

case records reveal that the claimant sustained fracture injuries and other injuries. The Doctor has assessed the disability as 44%. Considering the

nature of injuries and other factors, the compensation to be awarded for 44% disability as Rs. 44,000. The learned Counsel appearing for the

appellant pointed out that the Tribunal has failed to Award any amount for medical expenses. Admittedly, the claimant took first aid and taken

treatment in another hospital for several days and sustained fracture injuries also. Considering the above said period, nature of injuries and nature

of treatment Rs. 5,000 is to be awarded for medical expenses, even though document has not been produced. With regard to the award amount in

other heads are concerned, seems to be just and reasonable and no need to interfere with the same. Therefore, the claimant is entitled to

compensation on the following heads:

In the result, the Civil Miscellaneous Appeal is partly allowed and the Award passed by the Tribunal is modified and enhanced from Rs. 45,000 to

Rs. 74,000 with 7.5% interest from the date of claim petition. No costs.