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Judgment
R. Banumathi, J.—Being dissatisfied with the quantum of compensation of Rs. 2,63,000/- awarded by the Tribunal for the personal injuries
sustained by the injured Claimant, Claimant has preferred C.M.A. No. 1064 of 2002, seeking for enhancement.
Being aggrieved by the quantum of compensation, Metropolitan Transport Corporation (MTC) has preferred Cross-Appeal in C.M.A. No. 2483
of 2002, seeking for reduction of the quantum of compensation.
Brief facts, which are relevant for disposal of this Appeal are as follows:
On 19.11.1998-10.30 a.m., Claimant was riding the T.V.S. Champ bearing Regn. No. TN-01-Z-2433 in G.N.T. Road. When the Claimant was
nearing Erukkencherri, a bus bearing Regn. No. TCB 4848 driven by its driver in rash and negligent manner came at high speed and dashed
against the Claimant, as a result of which, Claimant sustained multiple fractures - comminuted fracture of right leg below knee, degloving injury in
the right leg and multiple injuries all over the body. Alleging that the driver of MTC is responsible for the accident, Claimant has filed the Petition
u/s 166 of Motor Vehicles Act, claiming compensation of Rs. 7,00,000/-.
Opposing the claim, MTC has filed counter stating that on 19.11.1998, the bus was on its trip from Kannadasan Nagar to Parrys and while so
proceeding in G.N.T. Road near Erukancherri, a T.V.S. Champ that was proceeding ahead of the bus without any sign of indication stopped the
vehicle, due to which, T.V.S. Champ skidded and rider fell down near the bus and sustained minor injuries. Since, the accident was due to lack of
carelessness and negligence of the Claimant, MTC is not liable to pay any compensation. MTC has also disputed the age, income of the Claimant,
nature of injuries sustained by him and duration of treatment and valid license of the Claimant to ride a two wheeler.
Before the Tribunal, Claimant examined himself as P.W. 1. Dr. Thiagarajan was examined as P.W.2. Traffic Sub-Inspector, who registered the
F.I.R. against the bus driver was examined as P.W. 3. Exs. P.1 to P.12 were marked. On the side of MTC, driver was examined as R.W. 1.
Upon consideration of oral and documentary evidence and referring Ex. P.12 plan, Tribunal has held that the accident was due to the rash and
negligent driving of MTC bus driver. On the evidence of P.Ws. 1 and 2, Tribunal has awarded total compensation of Rs. 2,63,000/- under the
following heads:
Loss of Earning Power ....... Rs. 75,000/-
Permanent Disability ....... Rs. 50,000/-
Loss of Income ....... Rs. 21,000/-
Medical Expenses ....... Rs. 79,000/-
Pain and Suffering ....... Rs. 15,000/-
Attendant Charges ....... Rs. 10,000/-
Transport Charges ....... Rs. 1,000/-
Extra nourishment ....... Rs. 5,000/-
Damage to Cloths ....... Rs. 500/-
Medical Treatment ....... Rs. 6,500/-
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Total ....... Rs. 2,63,000/-
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Challenging the order of the Tribunal and the quantum of compensation MTC has preferred Appeal in CMA. No. 2483 of 2002. The learned
Counsel Mr. S. Ramachandran, appearing for the Appellant-Corporation has submitted that the Tribunal failed to appreciate that without any
signal or indication the Claimant had suddenly stopped the TVS Champ. Due to which TVS Champ skidded and the rider had fallen down near
the bus and sustained injuries and the accident was due to lack of care and negligence of the Claimant himself. It was further submitted that the
Tribunal erred in awarding compensation of Rs. 50,000/- for Permanent Disability and again awarding of Rs. 75,000/- for Loss of earning power
and it would amount to awarding of double compensation of Permanent Disability and Loss of earning power and sought for reduction of
compensation.
The learned Counsel for the Appellant-Claimant in CMA. No. 1064 of 2002 has submitted that both bones of right leg was fractured and there
was also degloving injury and the Claimant had taken treatment in the hospital for more than three months and while so, the quantum of
compensation awarded by the Tribunal is very much on the lower side and the same is to be enhanced.
Before the Tribunal, though MTC has taken the plea of contributory negligence of the Claimant, the same was not substantiated by convincing
evidence. That apart FIR in Cr. No. 622/B3/98 was registered only against the MTC driver for rash and negligent driving. By perusal of Ex. P.12
plan, it is seen that TVS Champ was proceeding on the left side and the bus came from behind and hit against the two wheeler. Situs of accident
appears to be on the left extremity of the road. Referring to Ex. P.12, Tribunal has rightly held that the accident was due to negligent driving of the
bus driver and held that MTC is liable to pay the compensation. In the absence of any acceptable evidence, it is not possible to accept the
contention of MTC to attribute contributory negligence to the Claimant who was riding the TVS Champ.
The main objection of MTC is quantum of compensation. In the accident the Claimant had sustained lacerated injuries in the right leg exposing
the bone with fracture of tibia. There was compound fracture of tibia lower 1/3rd of right leg. After the accident, the Claimant was admitted in a
private hospital-Shri Hari''s hospital where he had taken treatment as in-patient from 19.11.1998 to 4.12.1998. Surgery was done on 04.12.1998
and the right leg wound thoroughly cleaned and wound debrided. Plates were inserted in the said bone. Skin grafting was also done. At the time of
discharge the Claimant was advised crutch walking. After discharge the Claimant again admitted in the same hospital on 16.12.1998 for removal of
Orthofix and fixation of Illizarov ring fixator. The ring fixator was affixed and angulation was corrected. During the second spell of treatment, the
Claimant had taken treatment as in-patient for about one week and he was discharged on 23.12.1998. He was again advised only crutch walking.
In his evidence, P.W.1 has stated that even after intense treatment, there is shortening of right leg and he is not in a position to walk. P.W.1 has
further stated that he is not in a position to move the right foot and that there is swelling in the right foot and he is not able to wear the footwear and
that he is not in a position to carry on his normal avocation.
P.W. 2 Dr. Thiagarajan had examined the Claimant and noticed mal-union of both bones of right leg which is laterally displaced and there was
shortening of 1"". There was also 6"" x 3"" depressed scar with muscle fibrosis of right leg muscles. Knee flexion only 60 degree possible and no
movements of right ankle, right foot toes also flexed and the Claimant walking with limping. P.W. 2 has stated that the Claimant cannot squat or
use Indian toilet and use vehicles. Examining the Claimant, P.W. 2 had assessed the Permanent Disability at 55%.
At the time of accident the claimant was aged 27 years and he was working as Medicines Distributor. According to the Claimant his work
involves traveling and that after the accident and because of shortening of right leg, he is not in a position to carry on his normal avocation. As the
Claimant had taken treatment for two spells of time, the Tribunal awarded compensation of Rs. 15,000/- for Pain and Suffering and Rs. 79,000/-
for medical expenses.
The Tribunal has awarded Rs. 50,000/- for Permanent Disability and another sum of Rs. 75,000/- for loss of earning power. Placing reliance
upon Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and Others, it was submitted that having awarded Rs. 50,000/- for Permanent
Disability, the Tribunal ought not to have again awarded compensation for Loss of earning power which would amount to awarding of double
compensation. The assessment of damages in personal injury cases rises great difficulties. The compensation has to be calculated having regard to
the age of the Claimant, nature of injuries sustained by him and nature of treatment and the quantum of compensation awarded must be reasonable.
No doubt, when the compensation is awarded under the head Permanent Disability again awarding of compensation for Loss of earning power
would not arise. But having regard to the fracture of both bones in right leg and deep depressed scar with muscle flexion in the right leg muscles
and the physical deprivation of the Claimant, it cannot be said that the compensation of Rs. 1,25,000/- (i.e., Rs. 50,000/- for Permanent Disability
and Rs. 75,000/- for Loss of earning power) is excessive or on the higher side. In my considered view that the total compensation of Rs.
2,63,000/- awarded by the Tribunal under various items seem to be just and reasonable.
The learned Counsel for the Claimant has submitted that the quantum of compensation awarded by the Tribunal is on the lower side and the
same has to be enhanced. The Claimant had taken treatment only for two spells of time on 19.11.1998 and 16.12.1998 and thereafter went to the
hospital for checking up. P.W. 2 Dr. Thiagarajan who examined the Claimant has assessed the permanent disability at 55%. Having regard to the
nature of injuries and percentage of disability the quantum of compensation awarded by the Tribunal would be sufficient and no substantial ground
is made out for enhancement of compensation.
In the result. The award passed by the Tribunal in M.C.O.P. No. 5346 of 1998 dated 27.09.2001 on the file of Second Judge, Small Causes
Court, Motor Accident Claimant Tribunal, Chennai is confirmed and both the Appeals are dismissed.
It is stated that the Claimant had already withdrawn part of the amount. The Claimant is entitled to withdraw the balance compensation amount
payable to him along with accrued interest.
There is no order as to costs.