w w w . L a w y e r S e r v i c e s . i n

S. Krishnamurthy v/s The Managing Director, Tamil Nadu State Transport Corporation, Kumbakonam Ltd., Thanjavur District

Company & Directors' Information:- TRANSPORT CORPORATION OF INDIA LIMITED [Active] CIN = L70109TG1995PLC019116

Company & Directors' Information:- A S TRANSPORT PRIVATE LIMITED [Active] CIN = U60222TN1981PTC008886

Company & Directors' Information:- B K B TRANSPORT PRIVATE LIMITED [Active] CIN = U50300JH1990PTC004226

Company & Directors' Information:- M Y TRANSPORT COMPANY PRIVATE LIMITED [Active] CIN = U63090UP2002PTC026917

Company & Directors' Information:- V K TRANSPORT PRIVATE LIMITED [Active] CIN = U22219GJ1997PTC032421

Company & Directors' Information:- G S TRANSPORT PVT LTD [Active] CIN = U63090WB1989PTC047780

Company & Directors' Information:- G B TRANSPORT (INDIA) PVT LTD [Active] CIN = U63090WB1979PTC032170

Company & Directors' Information:- V A TRANSPORT PRIVATE LIMITED [Active] CIN = U45202WB1996PTC081673

Company & Directors' Information:- H R T TRANSPORT COMPANY PRIVATE LIMITED [Strike Off] CIN = U63031DL1999PTC102593

Company & Directors' Information:- G M TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U60100MH1994PTC076183

Company & Directors' Information:- G L TRANSPORT PRIVATE LIMITED [Active] CIN = U60200CH2010PTC032269

Company & Directors' Information:- R AND P TRANSPORT CO. PVT LTD [Active] CIN = U60231OR2006PTC027280

Company & Directors' Information:- R AND P TRANSPORT CO. PVT LTD [Active] CIN = U60231DL2006PTC149707

Company & Directors' Information:- V. N. TRANSPORT PRIVATE LIMITED [Active] CIN = U63090DL2004PTC125632

Company & Directors' Information:- C AND M TRANSPORT P LTD [Active] CIN = U60300MH1994PTC078458

Company & Directors' Information:- G R C TRANSPORT COMPANY PVT LTD [Strike Off] CIN = U63090WB1988PTC044164

Company & Directors' Information:- E C TRANSPORT LTD [Active] CIN = U63090WB1987PLC043252

Company & Directors' Information:- D G R TRANSPORT PRIVATE LIMITED [Active] CIN = U60231TZ2010PTC016521

Company & Directors' Information:- P T TRANSPORT PVT LTD [Strike Off] CIN = U63090WB1989PTC046423

Company & Directors' Information:- TRANSPORT INDIA PRIVATE LIMITED [Strike Off] CIN = U60230OR2007PTC009590

Company & Directors' Information:- C R TRANSPORT COMPANY PRIVATE LIMITED [Strike Off] CIN = U63090DL2002PTC115826

Company & Directors' Information:- A P M TRANSPORT COMPANY LIMITED [Strike Off] CIN = U60231KL1998PLC012555

Company & Directors' Information:- T. G. TRANSPORT PRIVATE LIMITED [Active] CIN = U02710CT2004PTC017051

Company & Directors' Information:- J. T. TRANSPORT PRIVATE LIMITED [Active] CIN = U63031WB2007PTC112457

Company & Directors' Information:- R S R TRANSPORT PRIVATE LIMITED [Active] CIN = U60210TZ1961PTC000392

Company & Directors' Information:- A & A TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U63010TN2008PTC070171

Company & Directors' Information:- S P TRANSPORT COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059085

Company & Directors' Information:- A B TRANSPORT PRIVATE LIMITED [Active] CIN = U60221RJ2000PTC016701

Company & Directors' Information:- G. G. TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U60210AS2008PTC008576

Company & Directors' Information:- A P K TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U60221TN2005PTC058057

Company & Directors' Information:- S P S TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U63090WB1997PTC085564

Company & Directors' Information:- TRANSPORT COMPANY PRIVATE LIMITED [Active] CIN = U60210TN1938PTC003051

Company & Directors' Information:- A G L TRANSPORT PRIVATE LIMITED [Active] CIN = U63090TN2005PTC056306

Company & Directors' Information:- W M TRANSPORT COMPANY PRIVATE LIMITED [Active] CIN = U60210DL2001PTC113547

Company & Directors' Information:- B V M TRANSPORT CO. PRIVATE LIMITED [Strike Off] CIN = U00739KA1998PTC024103

Company & Directors' Information:- A O TRANSPORT COMPANY PRIVATE LIMITED [Active] CIN = U99999MH1960PTC011783

Company & Directors' Information:- M R TRANSPORT COMPANY PVT LTD [Strike Off] CIN = U63090WB1987PTC042118

Company & Directors' Information:- P P TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U63090DL2003PTC119167

Company & Directors' Information:- D D J TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U60210PB1996PTC019190

Company & Directors' Information:- M M TRANSPORT PVT LTD [Strike Off] CIN = U60231PB1979PTC004031

Company & Directors' Information:- J P TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U60231PB1997PTC019652

Company & Directors' Information:- N P TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U63090OR2012PTC015128

Company & Directors' Information:- A N G TRANSPORT COMPANY PRIVATE LIMITED [Active] CIN = U60300MH2013PTC246013

Company & Directors' Information:- L M A TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U63090MH2002PTC135727

Company & Directors' Information:- K. G. N. TRANSPORT PRIVATE LIMITED [Active] CIN = U74999MH2017PTC301073

Company & Directors' Information:- B S TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U63040TG2015PTC097190

Company & Directors' Information:- K AND A TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U60200HP2010PTC031455

Company & Directors' Information:- K. C. TRANSPORT PRIVATE LIMITED [Active] CIN = U63030JK2017PTC009897

Company & Directors' Information:- S N TRANSPORT PRIVATE LIMITED [Under Process of Striking Off] CIN = U60200DL2014PTC264029

Company & Directors' Information:- R J TRANSPORT COMPANY PRIVATE LIMITED [Active] CIN = U63010DL2013PTC248305

Company & Directors' Information:- S. K. T. TRANSPORT INDIA PRIVATE LIMITED [Strike Off] CIN = U60230MP2012PTC028886

Company & Directors' Information:- D C V TRANSPORT PRIVATE LIMITED [Strike Off] CIN = U60210TZ1960PTC000375

Company & Directors' Information:- P V E TRANSPORT PRIVATE LIMITED [Active] CIN = U60210TN1961PTC004682

Company & Directors' Information:- THE TRANSPORT COMPANY LIMITED [Dissolved] CIN = U99999MH1940PLC010301

    Civil Miscellaneous Appeal No. 1699 of 2016

    Decided On, 22 October 2020

    At, High Court of Judicature at Madras


    For the Appellant: K. Varadha Kamaraj, Advocate. For the Respondent: D. Venkatachalam, Advocate.

Judgment Text

(Prayer: This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 19.04.2013 made in M.C.O.P.No.1942 of 2010 on the file of the Motor Accident Claims Tribunal, VI Small Causes Court, Chennai.)(The case has been heard through video conference)1. The appeal is filed by the accident victim for enhancement of compensation not being satisfied by the compensation of Rs.10,52,000/- for fractured injury sustained by him in the motor accident.2. The case of the appellant is that, on 07.01.2010 while he was at Nallanchavadi near Seergazhi opposite to the house of one Selvaraj, near the break down bus, the bus bearing registration No.TN 49 N 2001 driven by its driver very rash and negligent manner hit against the break down bus, the appellant and others. At the time of accident, the appellant was working as RMS Postal Assistant earning Rs.7,000/- pm. In the accident, he sustained degloving injury with skin loss of right leg and fracture of MTB II right and injury over left knee and injury over right chest. He was admitted in the hospital as in-patient from 07.01.2010 to 09.01.2010 at Stanley Hospital, Chennai then for next 4 days at CMC, Vellore and from 13.01.2010 to 20.01.2010 at Mother’s Hospital, Thirupati. He was shifted to Aesthetics Clinic, Tirupathi for surgery and treated as in-patient from 1.02.2010 to 11.02.2010.3. The Tribunal after considering the nature of injury and disability caused due to the injury, held that the injury has caused functional disability of 60%, hence applied multiplier for the loss of income and considering the medical bills , the tribunal awarded the compensation of Rs.10,52,000/-.4. In the appeal for enhancement, the appellant state that, the tribunal ought to have assessed the loss of earning power as 100% instead of 60%. The future prospect of the injured not taken into account. The compensation of Rs.42,000/- towards loss of income during the treatment period is low. For other disability separate compensation ought to have awarded. The compensation under heads like loss of amenities, transport, extra nourishment has to be enhanced.5. Per contra, the learned counsel for the respondent/Transport corporation submitted that, the tribunal erred in applying multiplier for non schedule injury. At the most, the claimant ought to have been paid only Rs 2000/- per percentage of disability. PW-2, doctor who assessed disability, had given certificate Ex P-8, stating that the claimant suffer 25% disability for fibrosis lower lobe lung. 25% disability for SSG area lower leg, ankle and foot and head, shrunk heal, ankle movements DFPF 50 o restricted. Difficulty to squat and walk faster. 20% disability for malunited fracture at II MTB. Due to this injury the claimant will find difficult to continuously stand or ride vehicle. None of these disability will cause impediment in earning capacity. The Tribunal erred in converting the physical disability into earning disability without following the dictum of the Supreme Court judgment in Rajkumar –vs- Ajay Kumar case. Further, the tribunal without any evidence has accepted the plea of the claimant that he is working as RMS postal Assistant and earning Rs.7,000/- per month. In the absence of documentary proof for his employment or income, the tribunal ought not to have fixed Rs.7,000/- as income.6. The learned counsel for the respondent/State Transport Corporation would further submit that, challenging the excess award passed by the tribunal, the state transport corporation filed appeal before this court in C.M.ANo. 3025 of 2014. This court after considering the grounds of appeal and the impugned award, dismissed the appeal holding that the determination of compensation is perfectly correct and there is no reason for the appellate Court to interfere with the same.7. The learned counsel for the respondent would submit that after dismissal of the appeal by the High Court on 21.11.2014, the entire award amount with interest was deposited and the claimant had withdrawn the money without reserving right to file appeal. Thereafter got his claim petition numbered and seek enhancement of compensation. Hence this appeal is not maintainable and sought for dismissal of the appeal.8. In response to this plea, the learned counsel for the appellant would state that, this appeal was filed before 21.11.2014. In C.M.A.No.3025 of 2014, the appeal filed by the transport corporation, he was not heard. The appeal was dismissed at the admission stage. Therefore, the order passed in C.M.A.No. 3025 of 2014 will not hit by resjudicata.9. Since a interesting legal issue has been raised by the respondent’s counsel, before adverting to the merits of the appeal under consideration, it is necessary for the court to first decide whether this appeal can be dismissed on the ground “issue already heard and decided finally” invoking the principle of res judicata.10. The award of the tribunal and the order in the appeal is judgment in personum. No doubt, in appeal preferred by the transport corporation, this court has gone into merits of the case and decided, but without hearing the claimant, who by the time had filed his appeal for enhancement, but got it numbered after two years. Therefore, the order passed in C.M.A.No.379 of 2014 though between the same parties, will not operate as resjudicata, but shall have higher persuasive value.11. This court is embolden to hold so, in view of the Full Bench Judgment of this Court rendered a century ago in Secretary of State –vs- Syed Ahmad Badsha Sahib Bahadur ( AIR 1921 Mad 248 = 14 L.W 128). In the said case, the question referred to the Full Bench was whether a judgement in an earlier proceeding was conclusive or binding on a person who was not a party thereto. The Full Bench answered the question in negative, but expressed the opinion that such a judgment can only be used in evidence, even though it will not fall under section 41 of the Evidence Act. The Full Bench has also observed that the judgment cannot be used for the purpose of preventing the other side from proving facts which he sets up.(Emphasis added)12. The factual difference between the case in hand and the case cited is that, in the instant case the appellant was a party but the appeal was decided without putting him notice. In the case cited, they were not inter-parties. Further, this court take note of the fact that this appeal was filed in the Registry on 02.04.2014 with defects. Later, represented with 766 days delay and got it condoned on payment of costs. Meanwhile, the appeal filed by the respondent/ transport corporation was decided on 21.11.2014 without notice to this appellant.13. Now reverting back to the merit of the appeal, this court finds no evidence to show the injured was earning Rs.7,000/- per month as RMS Postal Assistant. The claim if true could have been easily proved through documents. In respect of medical expenses, a sum of Rs.1,94,248/- as per bills Ex.P-7 fully reimbursed. For loss of amenities, physical ugly appearance, pain and suffering and loss of income during the treatment, the Tribunal has adequately awarded Rs.25,000/-, Rs.20,000/-, Rs.50,000/- and Rs.42,000/- (Rs.7,000 x 6 months) respectively.14. As far as loss of earning power, in view of this Court, the tribunal erred and carried away by the wrong information given in the claim petition at column 11 that the claimant’s right leg has amputated. The tribunal has failed to see the photographs of the claimant marked as Ex.P-10 and other medical records. Had the tribunal properly appreciated these documents it would not have applied the multiplier method at all. Certainly not 60% loss of earning capacity.15. Through the discharge summary issued by 5 hospitals, we find that immediately after the accident, the injured was taken to the Government Hospital at Seergazhi. Then to Stanley Hospital at Chennai. From Stanley to Vellore CMC. At CMC he was advised surgery. Against medical advice, he got discharged from CMC and got admitted at Mother’s hospital at Thirupathi. In that hospital external implantation was done to his fractured leg. After discharge from Mother’s Hospital on 20.01.2010, he got admitted in Aesthetic Clinic on 01.02.2010 for plastic surgery, in view of granulated wound from lower leg to the toes on dorsum mid foot on plantar region. In this clinic, wound excision and split skin grafting done.16. Ex.P-2 to Ex.P-6 indicates the injuries sustained by the claimant in the accident are degloving right foot, Haemothorax right, fracture at 2nd metatarsal right. For the said injuries he had been treated and recovered. For the malunited fracture of II metatarsal bone (MTB) PW-2 has assessed 20% disability. This injury may require compensation apply

Please Login To View The Full Judgment!

ing multiplier under the head functional disability leading to loss of earning capacity and rest of the injuries ought to have been compensated based on the percentage of physical disability. The tribunal has erred in this aspect and by resorting to multiplier method had in fact awarded higher compensation more and above what the appellant is entitled.17. The tribunal accepting the plea of the claimant that he is working as RMS postal Assistant had fixed the income as Rs.7,000/-. Though no addition is given under future prospects, the exorbitant fixation of 60% disability in earning capacity and the application of multiplier for non schedule injuries without any justification had resulted in awarding excessive compensation of Rs.10,52,000/-. By any standard, the compensation awarded for the injuries and disability vis a vis the income of the claimant requires no enhancement.18. For the reasons stated above, C.M.A.No.1699 of 2016 is dismissed. No order as to costs.