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Judgment
P.R. Shivakumar, J.—These civil miscellaneous appeals are directed against the common judgment of the Motor Accidents Claims Tribunal (Additional District Sessions Judge-cum Chief Judicial Magistrate) Sivaganga pronounced in M.C.O.P. Nos. 230 and 310 of 1996 respectively and the awards passed thereon.
C.M.A. No. 1405 of 1998 is directed against the award passed in M.C.O.P. No. 230 of 1996 and C.M.A. No. 1406 of 1998 is directed against the award passed in M.C.O.P. No. 310 of 1996. Since both the appeals have arisen out of a common judgment of the Tribunal, they are taken up together for hearing and common judgment is pronounced.
Samayadurai, the first respondent in C.M.A. No. 1405 of 1998 had preferred a claim before the Motor Accidents Claims Tribunal (Additional District Sessions Judge -cumChief Judicial Magistrate) Sivaganga against the appellant herein and respondents 2 and 3 herein by filing M.C.O.P.
No. 230 of 1996 praying for an award directing the respondents therein to pay a sum of Rs. 2,25,000/- as compensation together with future interest and cost for the injuries sustained by him in an accident that took place on 26.02.1996. Likewise, Karmegam, the first respondent in C.M.A. No. 1406 of 1998 had preferred a claim before the very same Tribunal against the same set of respondents by filing M.C.O.P. No. 310 of 1996 praying for an award directing the respondents therein to pay a sum of Rs. 1,00,000/- as compensation together with future interest and cost for the injuries sustained by him in the above said accident.
The above said accident took place due to the head-on collision of the bus belonging to the appellant herein bearing registration No. TN-45-N- 0329 and the lorry belonging to the second respondent herein having registration No. TCU-9981 which stood insured with the third respondent herein as on the date of accident. The said accident occurred at a place near Ladanendal in between Madurai and Manamadurai. The first respondent in C.M.A. No. 1405 of 1998/claimant in M.C.O.P. No. 230 of 1996 was travelling as a loadman in the above said lorry, whereas the first respondent in C.M.A. No. 1406 of 1998/claimant in M.C.O.P. No. 310 of 1996 was travelling as a passenger in the bus belonging to the appellant herein. Both the claimants had made the claim as against the appellant, being the owner of the bus involved in the accident and against the second and third respondents, being the owner and insurer of the other vehicle involved in the accident, namely the lorry bearing registration No.
TCU-9981.
The second respondent in M.C.O.P., the owner of the lorry chose to remain ex-parte. Both the appellant and the third respondent contested the claim made by each one of the claimants on the question of negligence as well as quantum of compensation.
The Tribunal, after enquiry, came to the conclusion that the driver of the bus belonging to the appellant was at fault and that the rash and negligent driving of the bus by its driver was the sole cause of the accident. Based on the said finding, it mulcted the entire liability on the appellant Transport Corporation to pay compensation to the injured claimants. The Tribunal assessed the compensation for the injuries sustained by the appellant in C.M.A. No. 1405 of 1998/the claimant in M.C.O.P. No. 230 of 1996 and the appellant in C.M.A. No. 1406 of 1998/the claimant in M.C.O.P. No. 310 of 1996 at Rs. 64,000/- and 59,000/- respectively and passed the impugned awards directing the appellant Transport Corporation to pay the above said amounts together with interest at the rate of 12% per annum from the date of claim till realisation and proportionate costs. The Tribunal has exonerated respondents 2 and 3 in the appeals/respondents 2 and 3 in M.C.O.Ps. from their liability to pay compensation to the claimants.
Challenging the said awards, the appellant Transport Corporation, which figures as the first respondent in the M.C.O.Ps. before the Tribunal, has brought forth these civil miscellaneous appeals.
This Court heard the arguments advanced on either side and paid its anxious considerations to the same.
In these appeals, the finding of the Tribunal regarding the question of negligence as well as the quantum of compensation have been challenged by the appellant. There is no controversy regarding the manner in which the accident took place. There was a head-on collision of the two vehicles involved in the accident - bus bearing registration No. TN-45-N-0329 belonging to the appellant and the lorry bearing registration No. TCU-9981 belonging to the second respondent. Admittedly, the said lorry stood insured with the third respondent. It was the contention of the appellant Transport Corporation that the driver of the lorry alone was at fault. On the other hand, it was contended before the Tribunal on behalf of the third respondent that the driver of the bus alone was at fault. In order to substantiate their claim, both the claimants were examined as P.Ws. 1 and 3.
The evidence of other two witnesses, namely P.W. 2 and 4 are not relevant for the purpose of deciding the question of negligence. The sole witness examined as R.W.1 on behalf of the appellant is the driver of the bus involved in the accident. On the other hand, the investigator engaged by the third respondent insurance company and the driver of the lorry involved in the accident have been examined on behalf of the third respondent as R.W. 2 and R.W. 3 respectively. P.W. 1, the claimant in M.C.O.P. No. 310 of 1996 in his evidence would state that the drivers of both the vehicles were at fault. On the other hand, the other claimant, namely the claimant in M.C.O.P. No. 230 of 1996, while deposing as P.W.
3, in his cross-examination, would state that the lorry was proceeding on the southern side of the east-west road and the bus which came in the opposite direction came to a wrong side, namely the southern side of the road and dashed against the lorry indicating that it was the driver of the bus was at fault. The driver of the bus, while deposing as R.W. 1, would admit that he was in the process of overtaking a tractor fitted with a trailer and while he was in the process of overtaking the tractor he saw the lorry that came in the opposite direction coming at a high speed; that on seeing the said lorry, he stopped the bus using its breaks and that thereafter the lorry came and hit the bus which had then became stationary. He would also contend that the actual spot of impact was on the northern part of the east-west road and not on its southern part as contended by the third respondent.
Per contra, R.W. 3, the driver of the lorry has taken an opposite but similar stand in his evidence by stating that, on seeing the bus coming in the wrong track in an attempt made by the driver of the bus to overtake the tractor, he applied the breaks of the lorry and brought it to a halt and that thereafter, the bus came and dashed against the lorry. Admittedly the bus was proceeding from west to east and the lorry was proceeding in the opposite direction - from east to west. R.W. 1 would admit that he was in the process of overtaking a tractor which was proceeding ahead of the bus in the very same direction. Therefore, it is quite probable that the bus would have crossed the mid line of the road and gone to the southern part of the road. The assertion of R.W. 1 that the accident took place on the northern part of the road and not on the southern part of the road is falsified by the documentary evidence produced on the side of the claimants and the third respondent. Copies of the rough sketch prepared by the police showing the topography of the place of occurrence and the inspection report of the Motor Vehicles Inspector attested by the Station House Officer have been obtained by R.W. 2 and produced before the Tribunal to be marked as Ex. R.1. From the report of the Motor Vehicles Inspector, it is clear that the accident was not due to any mechanical defect in either of the vehicles involved in the accident and that it occurred solely due to human error. The copy of the rough sketch prepared by the Investigating Officer makes it abundantly clear that the width of the tar road was 24 feet and that the accident took place on the southern part of the eastwest road. The southern part of the east-west road was the wrong side for the bus which was proceeding towards east. The Tribunal relying on the above said document and the admission made by R.W. 1 that the accident took place while the bus was in the process of overtaking a tractor, and the fact that the evidence of R.W. 1 stood falsified by the rough sketch, came to the conclusion that it was the driver of the bus who acted with rashness and negligence and caused the accident. Admittedly, a criminal case was registered against R.W. 1, the driver of the bus involved in the accident. It is also evident from Ex. P-1 - certified copy of the First Information Report, the driver of the lorry lodged the complaint, based on which the criminal case was registered against R.W. 1 (the driver of the bus) in Crime No. 46 of 1996 on the file of Thiruppuvanam Police Station for offences punishable under Sections 279 and 337 IPC. In the said complaint, it was averred that the driver of the bus came to the wrong side with rashness and negligence and caused the accident in question.
R.W. 1 has also admitted in his evidence that pursuant to the accident, he was placed under suspension by the Management of the appellant Transport Corporation.
Taking note of all these aspects, this Court is of the considered view that the Tribunal has committed no error in coming to the conclusion that it was R.W. 1, the driver of the bus who was at fault and that the accident took place due to his rashness and negligence. The said finding of the Tribunal regarding the question of negligence and the consequential fixing of the entire liability to pay compensation to the claimants on the appellant Transport Corporation are neither infirm nor discrepant. They deserve to be confirmed by this Court.
The first respondent in C.M.A. No. 1405 of 1998/claimant in M.C.O.P. No. 230 of 1996 made a claim of Rs. 2,25,000/- as compensation for the consequences of the injuries sustained by him in the accident. He has alleged multiple fractures on the left leg and mal-union after treatment resulting in functional permanent disability. He has also alleged shortening of his left leg. The Tribunal has awarded a total sum of Rs. 64,000/- as compensation for P.W. 3 with the following details:
Compensation for permanent
disability = Rs. 18,000.00/-
Compensation for loss of
future earning capacity +
loss of amenities in life = Rs. 25,000.00/-
Compensation for medical
expenses + extra-nourishment +
transport expenses = Rs. 9,000.00/-
Compensation for pain and suffering = Rs. 12,000.00/-
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Total = Rs. 64,000.00/-
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Even though P.W. 3 would have stated that immediately after the accident, he was admitted in the Government Rajaji Hospital, Madurai and took treatment as inpatient there for 56 days, he has not produced either the wound certificate or the Accident Register. On the other hand, he has produced a note book containing the report regarding diagnosis and the treatment given and the advice given on discharge. The genuineness of the said document is not disputed. From Ex. P.10, it is obvious that the above said Samayadurai sustained a fracture of tibia on the left leg and fractures on the first, second, third and fourth metatarsal on the left foot. He was treated as an inpatient from 26.02.1996 to 11.04.1996 as per the particulars found in Ex. P.10. Thereafter, he seems to have attended the O.P. ward on 25.04.1996 and 06.06.1996.
P.W. 4 happened to be the medical officer, who assessed the disability of P.W. 3 and issued the disability certificate marked as Ex. P.12. The medical file relating to the treatment given to P.W. 3 at Government Rajaji Hospital, Madurai has been produced and marked as Ex. P.14. The x-ray photo taken to assess the disability has been produced as Ex. P.13. The testimony of P.W. 4 corroborated the particulars found in Ex. P.10 that Samayadurai sustained fracture of tibia on the left leg and fracture of metatarsal 1, 2, 3 and 4 on the left foot. It is quite clear from the evidence adduced on behalf of Samayadurai and that though the fractured pieces of bones have united, there was mal-union resulting in shortening of the left leg by 3 cms and restriction of movements of the joints at the knee and ankle. P.W. 4 has assessed the extent of disability at 46% and certified the same to be permanent. The correctness of the assessment of disability made by P.W. 4 has not been successfully challenged. Therefore, this Court comes to the conclusion that the Tribunal has correctly accepted the assessment made by the medical officer, namely P.W. 4 regarding the nature and extent of disability suffered by P.W. 3.
Admittedly P.W. 3- Samayadurai was travelling in the mini lorry as a load man at the time of accident. The case of P.W. 3 that he was working as a load man has not been seriously disputed. The Tribunal has opined that because of the above said disability, P.W. 3 has also lost his earning capacity. But it has chosen to award a sum of Rs. 18,000/- alone for permanent disability and a further sum of Rs. 25,000/- towards loss of earning capacity and loss of amenities in life as a separate item of damages. The award of separate amounts for permanent disability and loss of future earning capacity plus loss of amenities is also attacked as unreasonable. Bringing to the notice of the Court the judgment of the Full Bench of Madras High Court in Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and Others, , the learned Counsel for the appellant rightly contended that in case of injuries resulting in permanent disability, two methods of assessment of compensation for permanent disability are possible. One by awarding a lump sum payment for the permanent disability which will take into its fold, the loss of future earning capacity and loss of amenities in life and the other by awarding separate amounts for loss of future earning capacity and loss of amenities in life caused by the permanent disability. In case of permanent disability, when separate amount is awarded towards loss of future earning capacity, it would not be proper to award any amount separately for permanent disability as such.
In this case, even though the Tribunal might have chosen to separately itemise compensation for permanent disability as such and compensation for loss of earning capacity plus loss of amenities in life which has resulted in duplication, the learned Counsel for the first respondent/claimant has rightly pointed out that the total amount awarded in respect of the said two items is below the reasonable amount that can be awarded as compensation. The total amount awarded by the Tribunal under the above said two items comes to Rs. 43,000/-. As the extent of permanent disability is certified to be 46%, this Court is of the view that awarding a lump sum of Rs. 46,000/- for permanent disability shall be quite reasonable. Therefore, while disallowing the sum of Rs. 25,000/- awarded by the Tribunal towards loss of earning capacity and loss of amenities in life, the compensation for permanent disability as such is liable to be enhanced to Rs. 46,000/-.
P.W. 3 seems to have taken treatment as an inpatient for 56 days in the Government Rajaji Hospital, Madurai. Of course, there is no document to show that P.W. 3 paid any amount for the treatment, he received at Government Rajaji Hospital, Madurai. But taking note of the period of treatment and the nature of treatment, one cannot reject the contention that some medicines could have been purchased from the private medical shops, for which, awarding a sum of Rs. 1,000/- shall be quite reasonable. In the light of the long duration of treatment as inpatient, awarding a sum of Rs. 5,000/- towards expenses for extra-nourishment shall be quite reasonable. Taking note of the number of trips P.W. 3 had undertaken to attend the O.P. ward, a minimum of Rs. 1,000/- can be awarded for transport expenses. For the very same reason, a minimum of
Rs. 2,000/- can be awarded towards the expenses for the persons who might have attended on P.W. 3, while he was taking treatment as inpatient.
The compensation, thus calculated for medical expenses, extra-nourishment, transport expenses and the expenses incurred on the persons who were attending on P.W. 3 while he was taking treatment as in patient comes to Rs. 9,000/-. A sum of Rs. 12,000/- awarded by the Tribunal as compensation for pain and suffering cannot be termed either exorbitant or unreasonable. Even assuming that the said amount is slightly on the higher side, the said amount can, at best, be reduced to Rs. 10,000/-. If such a calculation and adjustments are made, the total amount to which P.W. 3 - Samayadurai, the claimant in M.C.O.P. No. 230 of 1996 would be entitled can be fixed at Rs. 65,000/- which is a little above the amount fixed by the Tribunal. Therefore, this Court is of the considered view that, by no stretch of imagination, the total amount of Rs. 64,000/- awarded by the Tribunal can be attacked as either excessive or unreasonable. Hence the same deserves to be confirmed.
Karmegam, the first respondent in C.M.A. No. 1406 of 1998 and the claimant in M.C.O.P. No. 310 of 1996 figured as P.W. 1. He seems to have got first aid treatment at Thiruppuvanam Duraipandi Hospital and then admitted in the Government Rajaji Hospital, Madurai on 26.02.1996 itself. But without the knowledge of the hospital authorities, he seems to have left the said hospital on 26.02.1996 and got admitted on the same date, in a private hospital called "Kannan Sahaya Hospital", K.Pudur, Madurai''. From Exs. P.2 and P.3, it is clear that due to the injuries sustained in the accident, four teeth were lost. Ex. P.9 is the dental case sheet relating to the treatment he received at Radha Dental Clinic, Madurai artificial dentures have also been fixed for the missing teeth. P.W. 2 - Doctor attached to the above said private hospital has assessed the permanent disability suffered by P.W. 1 at 36% and issued Ex. P.5-disability certificate. The x-ray photo taken for P.W. 1 is Ex. P.8. The Tribunal seems to have accepted the correctness of the assessment of disability made by P.W. 2 and awarded a total sum of Rs. 59,000/- as compensation with the following details:
Compensation for medical expenses, extra-nourishment and transport expenses = Rs. 8,000/-
Compensation for pain and suffering = Rs. 10,000/-
Compensation for permanent disability = Rs. 16,000/-
Compensation for loss of earning capacity + loss of amenities in life = Rs. 25,000/-
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Total= Rs. 59,000/-
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From Ex. P.9, it is obvious that P.W. 1 paid more than Rs. 10,000/- to the dentist for the treatment and for fixing artificial dentures. In addition to that, Ex. P.4 covering a sum of Rs. 1,812.65 has been produced. So the compensation for medical expenses can be enhanced to Rs. 10,000/-.
Apart from medical expenses, for the travels undertaken to the hospital and for extra-nourishment, a further sum of Rs. 3,000/- can be awarded. A sum of Rs. 10,000/- awarded towards pain and suffering cannot be termed either excessive or unreasonable. As the extent of permanent disability is certified to be 36%, this Court is of the view that awarding a lump sum of Rs. 36,000/- for permanent disability shall be quite reasonable. While disallowing a sum of Rs. 25,000/- awarded towards compensation for loss of future earning capacity and loss of amenities in life, the compensation for permanent disability is enhanced from Rs. 16,000/- to Rs. 36,000/-. If such adjustments are made, Rs. 59,000/- awarded by the Tribunal as total compensation to P.W. 1 shall be quite reasonable and the same cannot be termed either excessive or exorbitant.
For all the reasons stated above, this Court hereby holds that there is no merit in either of the appeals and the same are liable to be dismissed with costs, confirming the award of the Tribunal.
In the result, these civil miscellaneous appeals are dismissed with cost.