Common Judgment:

The appellant-Transport Corporation / respondent has preferred the appeal in C.M.A.(MD)No.1723 of 2008, against the judgment and decree passed in M.C.O.P.No.254 of 2003, on the file of Motor Accidents Claims Tribunal, Sub Judge, Periyakulam.

2. Not being satisfied with the award passed by the Tribunal, the petitioner/claimant has also preferred an appeal in C.M.A.No.801 of 2008, claiming additional compensation of Rs.6,00,000/-.

3. The short facts of the case are as follows:-

The petitioner has filed the claim in M.C.O.P.No.254 of 2003, claiming compensation of a sum of Rs.10,00,000/- from the respondent, for the injuries sustained by him in a motor vehicle accident. It was submitted that on 10.11.2002, the petitioner was proceeding in his motorcycle bearing Registration No.TN-60-3327, from Kadamalaigundu towards Ganeshapuram, on the extreme left of the road and at about 11 a.m., when the vehicle was nearing Veppamarathupatti bridge, the respondents State Transport Corporation bus bearing Registration No.TN-57-N-1115, coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner dashed against the motorcycle and caused the accident. In the result, the petitioner sustained severe injuries and was admitted at Kadamalaigundu Government Hospital, wherein first-aid was given and subsequently admitted at Meenakshi Mission Hospital, Madurai, wherein he took treatment as an inpatient from 10.11.2002 to 25.11.2002. Prior to the accident, the petitioner was working as an agriculturist and earning Rs.10,000/- per month. Due to the disability sustained by him in the accident, he is not able to do any work as he used to do before the accident. Hence, the petitioner/claimant has filed the claim against the respondent, viz., the Managing Director, Tamil Nadu State Transport Corporation, Madurai, who is the owner of the bus bearing Registration No.TN-57-N-1115.

4. The respondent in his counter has submitted that on the date of occurrence, when the respondents bus was proceeding from Devi bus stand towards Mutthalamparai and at about 10.35 a.m., when the driver of the bus, on seeing the private bus coming in the opposite direction had slowed down the bus and taken the bus to the left side of the road in order to give way to the private bus and at that point of time, the motorcyclist who was proceeding behind the private bus had suddenly tried to overtake the private bus and had come into the path of the respondents bus. The motorcyclist, on seeing the respondents bus was close in front of him lost control of his vehicle and as the road was slippery near the left portion of road, due to recent rains, fell down from his motorcycle onto his right side and sustained injuries. It was submitted that the motorcyclist had only a learners licence and that if the motorcyclist had been a little bit more careful, he could have averted the accident. It was submitted that the as the accident was caused by the negligence of the motorcyclist, the respondent is not liable to pay any compensation. It was submitted that the petitioner should prove his age, income and occupation through documentary evidence. It was submitted that the claim was excessive.

5. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz.,

"(i) Was the accident caused by the rash and negligent driving by the first respondents bus driver and

(ii) Is the petitioner entitled to get compensation If so, what is the quantum of compensation, which he is entitled to get"

6. On the petitioners side, three witnesses were examined and sixteen documents were marked as Exs.P1 to P16, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of wound certificate, Ex.P3-copy of charge sheet, Ex.P4-medical treatment record issued at Meenakshi Mission Hospital, Madurai, Ex.P5-Motor Vehicle Inspectors report, Ex.P6-medical chits, Ex.P7-health inspection report, Ex.P8-medical bills, Ex.P9-receipt for travel expenses, Ex.P10-copy of patta book, Ex.P11-photo and negatives, Ex.P12-copy of medical report issued at Madurai Meenakshi Hospital, Ex.P13-copy of medical record issued at Madurai Meenakshi Mission Hospital for the period from 20.01.2003 to 26.01.2003, Ex.P14-copy of medical records, Ex.P15-X-rays (two in series) and Ex.P16-disability certificate. On the respondents side, one witness was examined and three documents were marked as Exs.R1 to R3, viz., Ex.R1-copy of Motor vehicle inspectors report for motorcycle, Ex.R2-copy of rough sketch and Ex.R3-observation mahazar.

7. P.W.1, the petitioner had adduced evidence which is corroborative of the statements made by him in the claim regarding manner of accident and in support of his evidence, he had marked the exhibits listed as Exs.P1 to P7.

8. R.W.1, Pandian, the driver of the respondents bus had adduced evidence that on 10.11.2002, he had driven the bus bearing Registration No.TN-57-N-1115 from Theni towards Muttholamparai and when he was proceeding on the Kundamanur Varushanadu Thenvadal Road from North towards South and nearing Tana Thottam, he had seen a private bus coming in the opposite direction, from south towards north. He deposed that, in order to give way to the private bus, he had slowed down his bus and taken it to the extreme left of the road. He deposed that the motorcyclist who had been proceeding behind the private bus had ridden his motorcycle in a rash and negligent manner and suddenly tried to overtake the private bus and had come on to the right side of the road and that the motorcyclist on seeing the respondents bus in front of him had become flustered and lost his control. He deposed that as the road was slippery, due to a spell of rain, the motorcycle skidded on the road and the petitioner had fallen down on the ground and sustained injuries.

9. It was contended on the respondents side that if the bus had dashed against the motorcycle, both the vehicles would have been damaged and that as per Motor Vehicle Inspectors Report, it is seen that no damages had been shown to be sustained by the respondents bus.

10. On scrutiny of Ex.P3, it is seen that the police had after investigation filed the charge sheet as against the driver of the bus. On scrutiny of Ex.P5, it is seen that the accident had not occurred due to any mechanism failure of the vehicles involved in the accident. The Tribunal observed on scrutiny of Ex.P3, observation mahazar, that it had not been shown that occurrence site of the accident was slippery due to recent rains. Further, the Tribunal observed that other than the evidence of R.W.1, no other witnesses had been examined or documents produced to prove this contention.

11. On scrutiny of Ex.P5, the Motor Vehicle Inspectors Report for bus, it is seen that the bus had not been damaged in the said accident. On scrutiny of Ex.R1, the Motor Vehicle Inspectors report of motorcycle, it is seen that the motorcycle had been damaged in the accident. The Tribunal observed that the bus had been inspected on 14.11.2002, at about 4.30 p.m., i..e., after four days from the date of occurrence of accident. The Tribunal, opined that it would have been possible for the respondent Transport Corporation to have repaired the bus in the bus Department prior to sending it for inspection. Hence, the Tribunal rejected the contentions of the respondent that just because the bus had not been damaged, the accident could not have taken place in the manner as alleged in the claim. Hence, the Tribunal on scrutiny of Exs.P1, P3 and scrutiny of evidence of P.W.1 held that the accident had been caused by the rash and negligent driving by the driver of the respondents bus.

12. P.W.3, Dr.A.Chinnathurai had adduced evidence that he had examined the petitioner and scrutinized the medical records and had found that the petitioners spinal cord bone had been fractured and that due to this, the petitioners legs have been immobilized. He deposed that a surgery had been conducted and steel plates with screws had been fixed in the fractured area. He deposed that the functioning of the petitioners legs, havebeen reduced and that functioning of liver and urinary tract have been drastically affected and the petitioner has also become impotent. He deposed that the petitioner had sustained 100% disability in the accident and in support of his evidence, he had marked Ex.P-15, X-rays and Ex.P16-disability certificate.

13. The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.50,000/- under the head of pain and suffering; Rs.1,00,000/- under the head of permanent disability of 100%; Rs.750/- towards damage to cloths and articles; Rs.5,000/- was awarded for transport expenses; Rs.55,677.35 was awarded under the head of medical expenses as per medical receipts marked as Ex.P8; Rs.3,000/- was awarded towards nutrition; The Tribunal, on considering the notional monthly income of the petitioner could be taken as Rs.4,000/- per month awarded a sum of Rs.16,000/- for loss of income for four months during medical treatment and convalescence period. In total, the Tribunal, awarded a sum of Rs.2,30,427/- to the petitioner and directed the respondent/Transport Corporation to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of deposit, with costs within two months from the date of its order.

14. Aggrieved by the award passed by the Tribunal, the respondent / Tamil Nadu State Transport Corporation, Dindigul, has preferred the appeal in C.M.A.(MD)No.1723 of 2008.

15. The learned counsel for the appellant / Transport Corporation in C.M.A.(MD)No.1723 of 2008 has contended in his appeal that the Tribunal has wrongly fixed the negligence on the part of the driver of the appellant / respondent, only on the evidence of the petitioner / claimant and exhibits marked by the claimants. It was contended that the Tribunal has failed to see that there is no possibility for the driver of the bus to drive it in a rash and negligent manner at the curved place, i.e., the site of occurrence of accident. It was contended that the Tribunal erred in holding that the claimant had sustained 100% disability and in awarding an excessive award of Rs.2,30,427/- Hence, it was prayed to set-aside the award passed by the Tribunal.

16. Not being satisfied with the award passed by the Tribunal, the claimant has also preferred an appeal in C.M.A.(MD)No.801 of 2008.

17. The learned counsel for the appellant / claimant in C.M.A.(MD)No.801 of 2008 has submitted that the Tribunal ought to have granted Rs.2,00,000/- under the head of permanent disability as the claimant had sustained 100% disability, as the claimant had sustained spinal cord injury and has also become impotent due to the accident. It was contended that the award of Rs.50,000/- for pain and suffering is also on the lower side as the claimant had received treatment as an inpatient for more than 30 days and that a vertebra surgery had also been conducted. It was also contended that the monthly income of Rs.4,000/- taken by the Tribunal as notional income of the claimant is very low as the claimant was working as an agriculturist and earning Rs.10,000/- per month. It was also contended that the Tribunal had failed to grant award for future medical expenses, and had failed to grant reasonable compensation under the head of nourishment, transportation as well as for attendant charges. Hence, it was prayed to grant additional compensation of Rs.6,00,000/-.

18. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability. However, the quantum of compensation awarded is on the lower side, since the claimant had undergone surgical operation in his spinal cord and steel rod had been fixed in the fractured area. Further, as per the doctors evidence, the claimant has lost his sensitivity and functioning of large intestine and urinary tract had been affected. Hence, the doctor had assessed the disability as 100%. Therefore, this Court reassesses the compensation as follows:-

Rs.1,00,000/- is awarded under the head of disability; Rs.35,000/- towards pain and suffering; Rs.10,000/- towards transport; Rs.10,000/- is awarded towards nutrition; Rs.10,000/- towards attender charges; Rs.15,000/- is awarded towards loss of earning during medical treatment period; Rs.56,000/- is awarded towards medical expenses; Rs.1,00,000/- under the head of loss of amenities, loss of comfort. In total, this Court awards Rs.3,36,000/- as compensation. After deducting initial compensation of a sum of Rs.2,30,427/-, this court assesses the compensation as Rs.1,05,573/- and rounds it off to Rs.1,05,000/- as additional compensation, as it is found to be appropriate in the instant case. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation.

19. As per the Court records, it is seen that this Court imposed a condition on the appellant to deposit 50% of the compensation amount as awarded by the Tribunal, on 23.12.2008. Now, this Court directs the appellant in C.M.A.(MD)No.1723 of 2008 / Transport Corporation to pay the balance compensation amount, as per this Courts assessment within a period of four weeks from the date of receipt of a copy of this order.

20. After such a deposit being made, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon lying in the credit of M.C.O.P.No.254 of 2003, on the file of Motor Accidents Claims Tribunal, Sub Judge, Periyakulam, after filing a Memo, along with a copy of this order.

21. In the result, the above appeal in C.M.A.(MD)No.1723 of 2008 filed by the Tamil Nadu State Transport Corporation, is dismissed. The appeal in C.M.A.(MD)No.801 of 2008, filed by the claimant is partly allowed. Consequently, the order and decree made in M.C.O.P.No.254 of 2003, on the file of Motor Accidents Claims Tribunal, Sub Judge, Periyakulam, dated 27.03.2006, is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.