B. Sreenivase Gowda, J. - MFA 7891/2010 is filed by the Tamil Nadu State Transport Corporation (hereinafter referred to as "TNSTC" for short) challenging the judgment and award of the Tribunal on the ground of negligence, consequential liability and quantum.
MFA 664/2011 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal.
2. As both the appeals are arising out of a common judgment and award of the Tribunal, with the consent of learned counsel appearing for parties, they are heard together and disposed of finally by this common judgment.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 26-6-2007 by involvement of a Tamil Nadu State Transport Corporation bus bearing registration No. TN-29-N-1901 by its driver and another unknown vehicle, the points that arise for my consideration in these appeals are :
"a) Whether the finding of the Tribunal on negligence that the accident has occurred due to rash and negligent driving of a TNSTC bus by its driver is sustainable in law?
b) Whether the finding of the Tribunal on liability in fastening the same on the TNSTC is sustainable in law?
c) Whether in cases where accident takes place by composite negligence of the drivers of more than one vehicle causing injury or death to person/s, if such injured person or deceased is a third party to the accident, such the injured person/s or legal heirs of such deceased person is/are entitled to recover compensation from the driver, owner and the insurer of anyone of such vehicle irrespective of the percentage of negligence contributed by the drivers of the vehicles?
5. Sri Satish, the learned counsel appearing for the TNSTC submits that the accident has occurred due to contributory negligence 011 the part of the drivers of TNSTC bus and an unknown vehicle and it is evident from the oral evidence of the driver of the bus examined as RW-1, in spit of that, the Tribunal has committed an error in holding that the accident has occurred due to rash and negligent driving of the driver of the TNSTC and fastening entire liability on the TNSTC. He submits that the compensation awarded by the Tribunal is on the higher side and it is required to be reduced. Therefore, he prays for allowing the appeal filed by the TNSTC and dismissing the appeal filed by the claimant
6. Smt. Sunitha, the learned counsel appearing for the claimant submits that there is no illegality or infirmity in the findings of the Tribunal either on negligence or on liability warranting interfering of this Court. Regarding quantum, she submits the compensation awarded by the Tribunal for the nature of injuries sustained by the claimant is on the lower side. Therefore, she prays for allowing the appeal filed by the claimant and dismissing the appeal filed by the Corporation.
Point No. 1 �
7. The claimant in support of her contention that on 26-6-2007 when she was travelling in the TNSTC bus bearing Reg. No. TN-29-N-1901 as a passenger the driver of the said bus drove the same in a rash and negligent manner with an intention to overtake a vehicle proceeding ahead of the bus and caused the accident, as a result of which, she has sustained crush injury to her right hand and consequently her right hand up to shoulder level was amputated has examined herself as PW-1 and has produced FIR and IMV report which were marked as Ex. P-1 and 2 and seven medical records which were marked as Ex. P-3 to P-9 respectively. The claimant, in her evidence has reiterated the averments made in her claim petition. Her contention that the accident had taken place due to rash and negligent driving of the driver of TNSTC bus is corroborated by FIR and IMV report marked as Ex. P-l and P-2 respectively.
8. The INSTC in support of their contention that the accident has occurred due to contributory negligence of the drivers of TNSTC bus and another unknown vehicle have not made any attempt to find out which is that unknown vehicle which was involved in the accident and further they have not examined any independent witness to the accident.
9. As per the contentions of the parties the accident had taken place by involvement of a TNSTC bus and another unknown vehicle. The TNSTC except contending so, have not chosen to inform the jurisdictional police about the involvement of another vehicle and have not made any attempt to trace that vehicle and implead the driver, owner and insurer of that vehicle and no evidence was adduced establishing the involvement of another unknown vehicle in the accident under the above circumstances the Tribunal considering the oral and documentary evidence available on record was justified in holding that the accident had taken place due to rash and negligent driving of the driver of the TNSTC bus.
Point Nos. 3 and 3 �
10. When an accident takes place by composite negligence of the drivers of more than one vehicle causing bodily injury or death to person/s in such cases, if injured person or deceased person is a third party to the said accident, such injured person or legal heirs of such deceased person is/are entitled to recover compensation from the driver, owner and insurer of anyone of such vehicles involved in the accident irrespective of percentage of negligence contributed by the drivers of the vehicle. It is for the owner and the insurer of that vehicle to take steps to implead the driver, owner and insurer of other vehicles involved in the accident as parties to the petition.
In the instant case, the TNSTC failed to prove the fact of involvement of another vehicle in the accident and further the claimant having travelled as a passenger in the TNSTC bus, is a third party to the accident and, therefore, he is entitled to recover compensation from anyone of the tortfeasor. In the facts and circumstances of the case, the Tribunal was justified in fastening liability on the TNSTC. Point Nos. 2 and 3 are answered accordingly.
11. As per wound certificate Ex. P-3, the claimant had sustained crush injury extending from right humerus and clavicle (arm) to wrist joint bones, anteriors, nerves exposed muscle detache from attachment and lacerated injury over left wrist joint 3x1x1 cms. and later her right hand up to shoulder joint was amputated. The injury No. 1 is grievous in nature and injury 2 is simple in nature. The injuries sustained by the claimant are also evident from discharge card at Ex. P-4, photo with negative at Ex. P-5, case sheet at Ex. P-7, OP slip at Ex. P-8 and X-ray at Ex. P-9 and corroborated by the oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. PW-2, doctor in his evidence has stated that the claimant has suffered disability of 30% to the whole body.
12. Considering the nature of injuries particularly amputation of right hand up to shoulder joint, Rs. 50,000/- awarded by the Tribunal towards ''pain and suffering'' is very much on the lower side and, therefore, it is enhanced by another Rs. 1,00,000/- and hence, a sum of Rs. 1,50,000/- is awarded under this head.
13. As Rs. 25,000/- awarded by the Tribunal towards ''medical expenses'' is based on the medical bills produced by the claimant, it is just and proper and there is no scope for either reduction or enhancement under this head. ,
14. The claimant was treated as inpatient for a period of 79 days in Bowring Hospital, Bangalore. Considering the duration of treatment as inpatient in Bowring Hospital, which is a Government Hospital, a sum of Rs. 10,000/- awarded by the Tribunal towards ''incidental expenses'' such as conveyance. nourishment and attendant charges is just and proper and there is no scope for either reduction or enhancement under this head.
15. Considering the nature of injuries sustained by the claimant, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in her future life, a sum of Rs. 1,50,000/- is awarded towards Toss of amenities'' as against Rs. 10,000/- awarded by the Tribunal.
16. The claimant has lost her right hand up to shoulder joint and there is no dispute that she is a right handed person. Now with the help of her left hand she can only manage to attend to her routine personal work however, it cannot be said that she can earn an income which she was earning prior to the accident. Therefore, it is just and proper to consider her functional disability at 100%. She is aged about 51 years at the time of accident, and multiplier applicable to her age group is 11. Her income is assessed at Rs. 4,500/- per month. Therefore, the Toss of future income'' works out to Rs. 5,94,000/-(4500 x 12 x 11) and it is awarded as against Rs. 3,96,000/- awarded by the Tribunal.
17. In view of awarding compensation under the head Toss of future income'' by taking 100% functional disability, no compensation could be awarded under the head ''loss of income during laid up period.'' Therefore, Rs. 9,000/- awarded by the Tribunal under the head Toss of income during laid up period'' is disallowed.
18. Thus, the claimant is entitled for the following compensation :-
Heads | Rs. |
| Pain and sufferings | 1,50,000 |
| Medical Expenses | 25,000 |
| Incidental expenses | 10,000 |
| Loss of amenities | 1,50,000 |
| Loss of future income | 5,94,000 |
TOTAL | 9,29,000 |
| LESS : Compensation awarded by the Tribunal | 5,00,000 |
BALANCE (ADDITIONAL COMPENSATION) | 4,29,000 |
19. Accordingly, the MFA 664/2011 is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herin above. The claimant is entitled for an additional compensation of Rs. 4,29,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
20. The TNSTC is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 75% of the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Grameena Bank/Post Office for a period of 7 years with a right of option to withdraw interest periodically. Remaining 25% of the amount with proportionate interest is ordered to be released in favour of the claimant.
21. The Tribunal while releasing 25% of the amount is also directed to issue fixed deposit slips, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank in which the amount will be kept in fixed deposit is directed to release the fixed deposit amount on its maturity without insisting for any further order from the Tribunal.
22. In view of confirming the findings of the Tribunal on negligence and liability and partly allowing MFA 664/2011 filed by the claimant and enhancing the compensation awarded by the Tribunal, MFA 7891/2010 filed by the insurer for the offending vehicle does not survive for consideration and accordingly, it is dismissed as devoid of merits.
23. The amount in deposit is ordered to be transferred to the Tribunal for disbursement in the terms indicated herein above.
24. No order as to costs.
