Madras High Court
Tamilnadu State Transport Corporation ... vs V.Kumar on 29 January, 2007
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2007 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.(NPD-S) No.451 OF 2001 Tamilnadu State Transport Corporation Ltd., Villupuram Division III, Kancheepuram, rep. by its Managing Director, (formerly known as P.T.M.G.R. Transport Corporation) ... Appellant vs. V.Kumar ... Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 23.06.2000 made in M.C.O.P.No.1506 of 1997 on the file of Motor Accidents Claims Tribunal (Small Causes Court), Chennai. For Appellant : Mr.P.G.Padmanabhan For Respondent : Mr.S.Udayakumar J U D G M E N T
On 23.07.1995, at 8.00 p.m., the respondent/claimant was travelling in a bus owned by the appellant Transport Corporation. It stopped near Thaiyur bus stand due to break-down and the passengers were asked to travel by another bus belonging to the appellant Transport Corporation. At that time, a bus with route No.K55 plying between Tambaram and Tiruporur stopped near Thaiyur bus stand and when the respondent/claimant attempted to board the bus, the driver started the bus without noticing the passenger. The respondent/claimant fell down and sustained injuries. He was admitted in Government Royapettah Hospital and thereafter was treated as inpatient in Kilpauk Medical College Hospital. He sustained fracture of left leg, head injury and left knee crush injury. He claimed compensation of Rs.75,000/-.
2. The appellant Transport Corporation resisted the claim and contended that the bus bearing Registration No.T.N.01 N.0123, said to be involved in the accident on 23.07.1995 does not belong to their Transport Corporation. They contended that the claim petition is not maintainable and prayed for its dismissal. Without prejudice to the above contention, they also disputed the age, income, occupation, nature of injuries and the period of treatment of the respondent/claimant.
3. Before the Tribunal, the respondent/claimant examined himself as P.W.1. P.W.2 is the Doctor, who examined the respondent/claimant and issued the Disability Certificate. Ex.P1- Discharge Summary; Ex.P2-series of Medical Bills ; Ex.P3-First Information Report ; Ex.P4-Disability Certificate and Ex.P5-X-ray were marked on the side of the respondent/claimant. On behalf of the Transport Corporation, Ex.R1 - Report of the Transport Corporation and Ex.R2 - Police Report were marked. No oral evidence was let in.
4. The Tribunal on evaluation of pleadings and evidence found that the bus belonging to the appellant Transport Corporation was involved in the accident and held they are liable to pay compensation. The Tribunal awarded Rs.10,000/- for pain and suffering; Rs.10,000/- for loss of income; Rs.10,000/- for future loss of earning capacity; Rs.5,000/- for extra nourishment and medical expenses and Rs.40,000/- as disability compensation; altogether awarded Rs.75,000/- as compensation.
Aggrieved by the finding of the Tribunal as regards negligence and liability, the Transport Corporation has preferred this appeal.
5. Heard Mr.P.G.Padmanabhan, learned Counsel appearing for the appellant and Mr.S.Udayakumar, learned Counsel for the respondent/claimant.
6. Learned Counsel for the appellant contended that the bus bearing Registration No.TN.01 N.0123 does not belong to the appellant Transport Corporation. He further submitted that the First Information Report registered against the driver of the bus was referred to as "Mistake of Fact". He also submitted that the finding of the Tribunal is perverse and that the Transport Corporation is not liable to pay compensation.
Learned Counsel also submitted that the compensation of Rs.75,000/- for the injuries sustained by the respondent/claimant is on the higher side.
7. On the other hand, learned Counsel for the respondent/claimant submitted that the respondent/claimant and others travelled in a bus owned by the Transport Corporation. Due to brake down at Thaiyur bus stop, all the passengers were instructed to take another bus belonging to the same Transport Corporation. He further submitted that when the respondent/claimant attempted to board the bus, the driver has started the bus without noticing the passengers, due to which, the respondent/claimant fell down and sustained injuries.
8. Learned Counsel for the respondent/claimant also submitted that the document Ex.R1-Report of the Transport Corporation shows only the place of the depot, where the vehicles were attached as on 23.07.1995. For example, the vehicle bearing Registration No.TN.01 N.9000 was attached to Tirutani Depot and TN.02.N.9001 was attached to Kancheepuram Depot. Details of other vehicles attached to their respective depots is mentioned in the document.
9. Learned Counsel further submitted that the said document does not indicate that the bus with route number 55K was not operated by the appellant Transport Corporation from Tambaram to Tiruporur. He further submitted that the respondent/claimant gave the route number as 55K and probably, due to the fact that the accident occurred at 8.00 p.m., he could not have noticed the correct Registration Number, for which, it cannot be said that the vehicle was not involved in the accident.
10. Placing reliance on a decision reported in 2002 ACJ 1925 (Revathy Rajasekaran and another vs. Vijayakumaran and another), learned Counsel for the respondent/claimant submitted that in the absence of any rebuttal evidence and non-examination of the officer concerned, the finding of the Tribunal has to be sustained.
11. In the above reported case, the owner of the offending vehicle denied the involvement of the vehicle in the accident. The officer, who maintained the log book was not examined before the Tribunal. The Court held that if the offending vehicle was not involved in the accident, there is no reason as to why the police should implicate the driver of the jeep.
12. Learned Counsel for the respondent/claimant submitted that the time keeper of the Transport Corporation or the Branch Manager attached to the depot was not examined on behalf of the Transport Corporation. He submitted that there is also no contrary evidence let in by the appellant. In the absence of any rebuttal evidence and non-production of the log book to prove that the vehicle was not operated from Tambaram to Tirupur, the Transport Corporation has failed to prove that the vehicle was not operated on the day of accident and therefore, prayed that adverse inference has to be drawn against the Transport Corporation.
13. In N.K.V. Bros (Private) Limited vs. M.Karumai Ammal and others, reported in AIR 1980 Supreme Court 1354, the Apex Court held as follows :
"Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the evidence of res ipsa loquitor. Accident Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mytic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the tact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neigbour. Indeed, the State must seriously consider no-fault liability by legislation."
14. In Laxmi Gontiya and another vs. Nand Lal Tahalramani and others reported in 1999 ACJ 241, a Division Bench of the Madhya Pradesh High Court has considered the issue as to whether the non-mentioning of the Registration Number of the offending vehicle is fatal to the claim. In paragraphs 9 and 10 of the judgment, the Court held as follows :
9. ... Merely because the registration number, if not mentioned in the first information report, testimony of the witnesses cannot be discarded as it is well settled that the first information report is not a substantive piece of evidence. It is not an encyclopaedia. The object of first information report from the point of view of the informant is to set the criminal law in motion. From the point of view of investigating authorities, it is to obtain information about the alleged criminal activity so as to able to take suitable steps for tracing and bringing to book the guilty party. In Kusum Kali vs. Bhailal Tiwari, M.A. No. 465 of 1995; decided on 04.11.1996, where the registration number was not mentioned in the first information report, this Court has observed that mere non-mention of number in the first information report would not be fatal, if otherwise it is established that the vehicle was involved in the accident.
10. In motor accident cases where the litigant persons are illiterate, if the Tribunal finds that the evidence led is not sufficient to establish the involvement of the vehicle which causes the accident, in our opinion, it would be proper for the Tribunal giving a helping hand by directing the party to lead evidence in accordance with the requirement of law, as it is well settled that a Court or Tribunal is not to act as an unpire watching a battle of wits between the parties from a distance through telescope. The court is charged with the responsibility of guiding the procedure and apprising the parties whenever necessary of their duties. As legal procedure is full of traps; if a litigant happens to stumble, the courts should discharge its responsibility except when this is the result of an attempt to be clever and over-reach the court or to do something inequitable to the other side. In the latter event the party concerned should be dealt with severely. "
15. In Raju vs. Sardar Singh and another (2005 (III) ACC 138), the Madhya Pradesh High Court has held that, even in the absence of Registration number in the First Information Report, if there is clear oral evidence that the vehicle was involved in the accident, compensation has to be awarded.
16. The accident had occurred on 23.07.1995 at 8.00 p.m. The respondent/claimant contended that he was rushed to Government Royapettah Hospital, Chennai for first aid. Thiruporur Police on investigation have examined the respondent/claimant in the Hospital and registered a case against the driver of the bus in Crime No.472/1995 under Sections 279 and 337 I.P.C. Even in the First Information Report, the respondent/claimant had stated the route number of the bus as 55K and that it is owned by M.G.R. Transport Corporation. It is also evident from the First Information Report that the police received the information about the accident from the hospital authorities.
17. The bus with route number 55K scheduled to start from Tambaram to Tiruporur would have stopped at various places before reaching its final destination and could have passed through Thaiyur bus stop. Chain of events prove that there was an accident, the respondent/claimant sustained injuries, First Information Report was registered in the hospital and in such circumstances, there is no reason as to why the injured should falsely implicate the Transport Corporation. No oral or documentary evidence was let in by the Transport Corporation to prove that the bus with route No.55K was not operated from Tambaram to Tiruporur.
18. In the absence of any strong rebuttal evidence to prove that the bus owned by the appellant Transport Corporation was not involved in the accident, the finding of the Tribunal on the basis of the oral evidence of the respondent/claimant, corroborated by the First Information Report that route number 55K was involved in the accident cannot be termed as perverse. Mere non-mentioning of the Registration Number in the First Information Report is not fatal to the claim. There is preponderance of probability to arrive at a reasonable conclusion that the appellant Transport Corporation bus was involved in the accident. Courts have always held that strict proof of evidence is not required in Motor Accident cases to prove the negligence of the driver and that technicalities or niceties should not alone waive while assessing the evidence. Therefore, the finding of the Tribunal as regards negligence is confirmed.
19. The respondent/claimant has deposed that at the time of accident, he was running a provision store and earning Rs.3,000/- per month. He has further deposed that he was given first-aid in Royapettah Goverment Hospital and was inpatient in Kilpauk Medical College Hospital for one month. It is evident from Ex.P1-Discharge Summary that the respondent/claimant had sustained fracture of ankle and there was infection at the place of injury. It also proves the nature of injuries sustained by him and that on 16.10.1995, skin grafting was done. At the time of discharge from the hospital, the respondent/claimant was advised to keep his leg in an elevated position and to avoid walking and standing as far as possible. He was also advised to come to the hospital for review.
20. P.W.2, Doctor, who examined the respondent/claimant with reference to medical records on 10.02.2000 deposed that there is malunion of bones and the movement of knee is restricted by 5 degrees due to stiffening of muscles and that there will be difficulty in squatting and walking. The Doctor assessed the disability at 40% and issued Ex.P4-Disability Certificate. Ex.P5 is the X-ray taken at the time of assessment of disability.
21. The respondent/claimant would have experienced severe pain and suffering at the time of accident, during the period of treatment and post-operative period. Therefore, the award of Rs.10,000/- towards pain and suffering is reasonable. Considering the shock, mental pain and suffering experienced by the respondent/claimant due to the injuries sustained in the accident, a sum of Rs.7,500/- is awarded towards mental agony. The disability compensation of Rs.40,000/- as against 40% permanent disability assessed by the Doctor is also reasonable as per the judgment of this Court reported in 2005 (5) CTC 745 (M.Bhagavathy vs. Thiruvalluvar Transport Corporation).
P.W.2, Doctor has deposed that there is malunion of bones, reduction of movement of knee due to stiffening of muscles and that there is difficulty in squatting and walking fast. The above evidence will not support the case of the respondent/claimant that he has lost his earning capacity. Therefore, the compensation of Rs.10,000/- for loss of earning capacity is liable to be deducted from the total award.
22. There is evidence to show that the respondent/claimant was advised to attend the hospital for review. Since, skin grafting had been done, it can be presumed that he would have attended the hospital even after discharge from the hospital. Considering the fact that he sustained fracture in leg, crush injury on the knee, it would be appropriate to award Rs.2,500/- for transportation expenses.
23. The compensation of Rs.75,000/- awarded to the respondent/claimant for the nature of injuries, period of hospitalisation, which includes a surgery cannot be termed as excessive. Therefore, the award of the Tribunal is confirmed. In the result, the Civil Miscellaneous Appeal is dismissed. No costs.
ABE To
1. The Motor Accidents Claims Tribunal (Small Causes Court), Chennai.
2. The Section Officer, V.R.Section, High Court of Madras, Chennai.