Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam-Dni) Limited, Kumbakonam V. Kalyani

[MADRAS HIGH COURT]

Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam-Dni) Limited, Kumbakonam
v
Kalyani

P. MURGESEN

25 Jun 2008
BENCH
P. MURGESEN
CASE NO
C.M.A. No.370 of 2002

The Order of the Court was as follows :

1. This Civil Miscellaneous Appeal is directed against the judgment and decree dated 20.09.1999 made in MACT.OP No.16 of 1999 on the file of the Motor Accidents Claims Tribunal (Additional Subordinate District Judge cum Chief Judicial Magistrate, Thanjavur) at Kumbakonam.

2. The brief facts arising out of this appeal are as under:-

On 18.11.1997, at about 6.15 p.m., the respondent / claimant was travelling in the bus bearing Registration No.TN-49-N-0355 belonging to the appellant / Transport Corporation. The bus was plying on the Thiruvaiyaru Road. When the claimant was alighting from the bus at the East Kottaiyur Bus Stop, the driver without noticing the claimant, started the bus, as a result of which the claimant lost her balance and fell down on the road and sustained injuries on her right knee, back hip, right arm, left foot and ankle. She was admitted in the Government Hospital, Kumbakonam as in-patient. She claimed a compensation of Rs.1, 25, 000/- before the Tribunal. Before the Tribunal, on behalf of the claimant P.W.1 and P.W.2 were examined and Ex.P1 to Ex.P6 were marked. On behalf of the Transport Corporation, one Nagarajan was examined as R.W.1 and no documents were marked. On consideration of the materials and evidence on record, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the bus driver and awarded a compensation of Rs.51, 080/- with interest at 12% p.a. from the date of petition. The details of the compensation are as under:-

Rupees
Loss of earning capacity
46, 080/
Loss of amenity
5, 000/-
Total
51, 080/-


Aggrieved by the award, the Transport Corporation has filed the present appeal.

3. It was stated on behalf of the Transport Corporation before the Tribunal in the counter statement that the driver was not at fault and the quantum fixed by the Tribunal is excessive.

4. Therefore, following questions arise for consideration in this appeal. Point No.1:-

Whether the accident had occurred due the rash and negligent driving of the bus driver or not?

Point No.2:-

What is the just compensation, the claimant is entitled to?

5. Point No.1:-

The claimant was examined as P.W.1. P.W.2 is the Doctor. She was travelling in the appellant's bus on the fateful day, i.e. on 18.11.1997 when she tried to get down at the Kottaiyur Bus Stop. Ex.P1 is the First Information Report which has been given by P.W.1. The accident did not occur due to mechanical defect, which is evident from Ex.P2-Certified copy of Motor Vehicle Inspector's Report. The driver was examined as R.W.1. He spoke that the claimant jumped from the bus. He admitted that the conductor is the proper person to speak about the accident, but he was not examined. The driver would not have seen the jumping of the claimant from the bus, because he would be concentrating only on the road and there is no possibility for him to see the alleged jumping of the claimant. The claimant has no enemity towards R.W.1. Nothing is elicited to reject her testimony. Her evidence would show that the accident had occurred only due to the rash and negligent driving of the bus driver. So, it is clear that the accident had occurred only due to the rash and negligent driving of the bus driver. Hence the finding of the Tribunal with regard to negligence part is confirmed.

Point No.2:-

The Tribunal has awarded Rs.46, 080/- towards loss of earning capacity and Rs.5, 000/- towards loss of amenity, totalling to Rs.51, 080/-. In the grounds of appeal, it is specifically averred that the compensation awarded is excessive. In the claim petition, the claimant claimed Rs.3, 320/- for the loss of earning from 18.11.1997 to 10.02.1998. It was stated that she was working in a Private Tailoring Coaching Institution at Kumbakonam as instructress, but no substantial evidence produced in respect of the same. If really she was working as instructress, she would have produced the evidence. Hence, her alleged loss of earning from 18.11.1997 to 10.02.1998 is not correct and she is not entitled to any relief in this respect. She claimed Rs.550/- towards transport to hospital. In the F.I.R. she has stated that after the accident, she was taken an auto to the hospital. Here, the nearby public arranged an auto and took her to the hospital. Hence her claim of Rs.550/- towards transport is not correct. She claimed Rs.4, 000/- towards extra nourishment, but she has not stated in her evidence that she has taken nourishment for Rs.4, 000/-. Hence it is rejected. She claimed Rs.1, 550/- towards damage to clothing and articles and Rs.5, 000/- towards medical expenses. She has not stated about these expenses in her evidence and hence they are rejected. She claimed Rs.25, 000/- towards pain and suffering. She said she sustained fracture of pelvic in left side hip, injuries in left foot, right leg above the knee, grievous injuries in the back hip, right arm and abrasion in the left ankle. Therefore she is entitled to Rs.7, 000/- towards pain and suffering # . She claimed Rs.50, 000/- towards permanent disability. The Doctor, P.W.2 assessed the disability at 30%. Ex.P4 is the Disability Certificate which shows that there is a fracture and malunion of bones and the disability has been assessed at 30%. Therefore it would be fit and proper to award Rs.30, 000/- towards permanent disability # . She claimed Rs.50, 000/- towards loss of earning power. Since there is a malunion of bones, there will be a pain in the right leg associated with difficulty in walking and climbing steps. Therefore she will not be in a position to work as before, which is evident from Ex.P4-Disability Certificate. Therefore the loss of earning power is fixed at Rs.10, 000/- # . The modified compensation as per the above discussion are as under:-

Rupees
Pain and suffering
7, 000/-
Permanent disability
30, 000/-
Loss of earning power
10, 000/-
Total
47, 000/-


The interest rate fixed by the Tribunal at 12% p.a. from the date of petition is confirmed.

6. In the result, the claimant is entitled to the modified compensation of Rs.47, 000/- with interest at 12% p.a. # from the date of petition.

7. The Civil Miscellaneous Appeal is disposed of accordingly. No costs.