Madras High Court
The Managing Director vs B.Sivashankaran R1 In Cma.602/2006 And on 14 March, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.03.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.Nos.602/2006 and 2989/2007
CMP.No.2468/2006
The Managing Director
Tamil Nadu State Transport
Corporation Limited, Salem Appellant in CMA.602/2006 and
R1 in CMA.2989/2007
Vs
1.B.Sivashankaran R1 in CMA.602/2006 and
Appellant in CMA.2989/2007
2.A.M.V.Jaraman R2 in both CMAs
3.M/s.United India Insurance Company
Limited, Erode R3 in CMA.2989/2007
Prayer:- These Civil Miscellaneous Appeals are filed against the Judgement and Decree dated 27.7.2005 made in MCOP.No.1078/1999 by the learned Chief Judicial Magistrate (MACT) Namakkal.
For Appellant : Mr.P.Jagadeeswaran-CMA.602/2006
For Respondent : Mr.S.Sivakumar-R1-CMA.602/2006
Mr.K.S.Narasimhan-R3-CMA.602/2006
JUDGEMENT
These Civil Miscellaneous Appeals are filed by the Tamil Nadu State Transport Corporation Limited, Salem and the claimant respectively against the Judgement and Decree dated 27.7.2005 made in MCOP.No.1078/1999 by the learned Chief Judicial Magistrate (MACT) Namakkal.
2. The Appellant/Claimant sustained injures in the accident that occurred on 15.5.1998 at 5.30 a.m. when he was travelling as a Conductor in the bus bearing Reg.No.TN-27-N-0629 belonging to the Appellant/Transport Corporation. The claimant claimed a sum of Rs.32,22,995/- as total compensation before the Tribunal. The Tribunal awarded a sum of Rs.6,31,250.38/- as total compensation with interest at 7.5 per p.a. from the date of the claim petition till the date of realization. As against the same, these appeals have been filed by the Transport Corporation and the claimant respectively.
3. Mr.P.Jagadeeswaran, the learned counsel for the Appellant/Transport Corporation submitted that the Tribunal has not taken into consideration the totality of the evidence on record and pointed out that had the Tribunal considered the same, it would have come to the conclusion that there was negligence on the part of the driver of private bus bearing Reg.No.TN-33-D/6979 owned by the 2nd Respondent and insured with the 3rd Respondent Insurance Company. The learned counsel would submit that in view of the fact that there was collision between the two vehicles, the Tribunal ought to have held that it was composite negligence on the part of both the drivers. He would further submit that in any event, the Tribunal ought to have held that the driver of the private bus had contributed to the negligence to some extent and apportioned the same on the part of the driver of the private bus.
4. On the other hand, Mr.S.Sivakumar, the learned counsel for the claimant not only supported the finding of the Tribunal on the aspect of negligence, but also contended that the award passed by the Tribunal under different heads both for pecuniary and non-pecuniary damages are on the lower side. He would submit that the Tribunal failed to take into consideration the future prospects, while computing the loss of income on account of the amputation suffered by the claimant. He also pleaded for enhancement of compensation for pain and suffering, transportation and extra nourishment and amenities.
5. This court heard the learned counsel on either side and also perused the materials placed on record.
6. The injured claimant, who was the Conductor in the Transport Corporation bus, examined himself as PW.1 and has stated that on the date of the accident, the driver of the Transport Corporation was driving the bus in the Salem-Bangalore Main Road and he had hit behind the private bus, due to which he sustained grievous multiple injuries. But, however, he would add that there was negligence on the part of the driver of the private bus also and therefore, both the drivers were negligent in causing the accident. According to him, the private bus which was going ahead of the Transport Corporation bus suddenly stopped without giving any indication or signal, as a result of which, the Transport Corporation bus hit the back side of the private bus causing the accident. The evidence of RW.1 driver of the Transport Corporation bus is also to the same effect as deposed by PW.1.
7. It is seen that the driver of the private bus lodged the complaint, based on which First Information Report Ex.P1 has been registered. In Ex.P1, it is stated that the private bus was stationed on the left side of the road in Dharmapuri-Krishnagiri National Highways at about 5.30 a.m. to enable the passengers to attend calls of nature. It is further stated that all the passengers alighted from the bus and went to attend calls of nature and at that time, the Transport Corporation bus came at a high speed and dashed behind the private bus causing damages on the rear right side of the private bus. It is further stated that no passenger in the private bus sustained injury. The reports of the Motor Vehicles Inspector in respect of both the vehicles have been marked as Ex.P3 and Ex.P4, which throws much light on the aspect as to whose negligence was the cause for the accident. Ex.P3 clearly indicated that there were damages on the rear portion of the private bus i.e. the right side rear portion was damaged including rear glass and rear indicators. Whereas Ex.P4 Motor Vehicle Report in respect of the Transport Corporation bus disclosed that there was full damage on the front left side of the Transport Corporation bus including the front left side of the footboard. Therefore, the entire damages on the Transport Corporation bus was on the front left side.
8. The oral evidence clearly indicated that RW.1 the driver of the Transport Corporation bus had seen the private bus at a close distance that is within 20 ft. and on seeing the private bus stationed, he could not stop his vehicle and steered the bus to his right and in that process, the front left side of the Transport Corporation bus had hit the rear right side of the private bus. The case of the Appellant Corporation that the private bus was moving ahead cannot be accepted. The First Information Report clearly indicated that the private bus was stationed on the left extreme side of the road to enable the passengers to attend their calls of nature, that is why, none of the passengers of the private bus had been injured though there was an extensive damage on the rear side of the private bus. The Tribunal has categorically found that the driver of the Transport Corporation has not left sufficient space in driving the vehicle in the National Highway, that is why on seeing the private bus the driver of the Transport Corporation could not control and stop the vehicle immediately. RW.1 ought to have taken care to keep a fair distance between his vehicle and the bus going ahead of him, but he has not done so. The damages on both the vehicles indicated that the Transport Corporation bus had knocked the private bus on one side and the inference that could be drawn from such damages is that the Appellant's driver had seen the bus only when he came so closely to the bus going ahead and that is why, he could not control and stop his vehicle and avoid hitting the rear side of the private bus. The finding on this issue is a finding of fact and there is no cogent and convincing reason to disagree with the well reasoned order of the Tribunal on this point. Therefore, the said finding on the aspect of negligence is confirmed.
9. In the accident, the conductor of the Appellant Transport Corporation bus had sustained fracture on the right foot, toes and contusion on the skull of neck and lacerated wound vertical on left side face, fracture of left maxilla and left shoulder. Due to the injuries he had suffered, impaired sensation over the right side of abdomen and the right lower limb. Further, he had suffered loss of consciousness for about six hours immediately after the accident and was unable to move both upper and lower limbs. He had numbness below the chin and urinary incontinence on account of the injuries sustained by him. He was catheterized for urinary retention and he was diagnosed to have a traumatic C5, 6 disc prolapse for which he underwent a C 5, 6 anterior cervical discoidectomy. Although after surgery he had some improvement of symptoms, but he was not able to lift both the upper limbs above the bed and was not able to hold objects in his hand or to feed himself. His lower limb was grossly spastic and he could only just move the toes. On examination, while he was admitted in the Christian Medical College Hospital, in the Neurosurgery Unit, he could appreciate touch, but pain and temperature sensations were markedly impaired below the nipple level bilaterally. Ex.P10 and Ex.A12 clearly disclosed that he has become paraplegic.
10. The Doctor assessed total neurological disability at 95 per cent (impairment related to walking (cannot walk) at 40 per cent, impairment related to two upper extremities (cannot use both upper limbs for normal self care) at 30 per cent and impairment of bladder and bowel functions (No voluntary control) at 25 per cent). The Dentist who assessed the claimant has stated that he had lost three teeth due to trauma. The medical records clearly indicated that he has become totally unfit to do any work much less the activities as a Conductor. It is further to be noted that the claimant was terminated from his service on account of the fact that he became totally unfit to continue the job as Conductor. Though the Tribunal has accepted that he has suffered total disablement, but awarded only Rs.40,000/- towards loss of income, Rs.1,00,000/- for pain and suffering, Rs.25,000/- for future medical expenses and Rs.5,51,250.38/-, which includes medical expenses, charges paid for attendant and physiotherapist during the period of treatment which requires enhancement.
11. It is not in dispute that the claimant was drawing a salary of Rs.5652/-. In order to compute loss of income, hike in salary in future and promotions have to be taken into consideration and 30 per cent for future prospects has to be added and if so added the monthly loss of income would be computed to Rs.7347/-. As he was aged 38 years old at the time of the accident, the proper multiplier is 15. Applying the multiplier of 15, the total loss of income would come to Rs.13,22,460/-.
12. According to the claimant, as he is totally disabled, assistance is continuously needed for his entire future life. PW.1 has stated as follows:-
@,e;j tpgj;jpw;F gpwF. Vdf;F rpWePh; jd;dpr;irahf fHptjpy;iy/ xU ig K:yk; brhl;L brhl;lhf toe;j tz;zk; cs;sJ/ mnj nghd;W kyKk;. jd;dpr;irahf fHptjpy;iy/ xU cjtpahsh; K:yk; jhd; vdJ tapw;wpy; kyk; ePf;fg;gl;L tUfpwJ/ ehd; czt[ cz;z ntz;LkhdhYk;. ntW ntiyfis bra;a ntz;LkhdhYk; vdf;F xU cjtpahsh; ntz;oa eph;ge;jk; Vw;gl;Ls;sJ@
13. PW.4 Doctor has stated that there was impairment of bladder and bowel functions and therefore, the claimant had no voluntary control. The evidence placed on record clearly indicated that the claimant is not capable of doing his routine work due to traumatic acute 6 disc herniation, due to which his bladder and bowel movements has become uncontrollable. Therefore, there is every justification for having an Assistant with him to assist him in his normal activities as stated above. It has come in the evidence of the Doctor that the claimant is totally dependent on others, because of paraplegic and he requires attendant for the purpose of doing his normal work. Since the nature of injuries is permanent and looking into the uncertainty of life, he requires permanent attendant to look after him. Though he has claimed for a period of 15 years, I feel it appropriate to award a sum of Rs.3,60,000/- towards future attendant charges at the rate of Rs.3000/- per month for 10 years.
14. Like wise, he has claimed compensation for having the assistance of Physiotherapist at the rate of Rs.3000/- per month for 15 years. He has stated in his evidence as follows:-
@vdf;F. jpde;njhWk; xU KlePf;F epg[dh; gapw;rp bfhLj;jhy; jhd;. VdJ tapw;wpy; tha[ bjhy;iyfspnsh. brhpkhd Mfhj epiynah. RpWePh; fHpahj epiynah Vw;glh tz;zk; ,Uf;Fk;/ jpde;njhWk; KlePf;F epg[dh; vdf;F gapw;rp bfhLf;ftpy;iyahdhy; vdf;F brhpkhdk; Vw;glhJ/ tha[thy; tapW cg;gptpLk;/ rpWePh; toahJ/ vdnt. KlePf;F epg[eh; gapw;rp. vdf;F kpft[k; mtrpakhf ,Ug;gjhy; ehd; euk;gpay; epg[dhpd; Mnyhridapd; nghpy; jpde;njhWk; fhiyapYk;. KhiyapYk; KlePf;F epg[dhplk; gapw;rp vLj;Jf;bfhz;L ,Uf;fpnwd;/ ,e;j KlePf;Fg;gapw;rp vd; Ma[s; fhyk; tiu ehd; bgw;whf ntz;Lk;@
15. PW.6 Doctor Urologist has stated that the claimant would require clean intermittent catheterization and regular follow up for a long time to prevent complications like stones, kidney failure etc. but however chances of complete recovery of bladder function is very poor. From the evidence of PW.4 and the claimant, it could be seen that the claimant has become paraplegic and he cannot walk and to do routine work. As per the evidence of PW.4 Doctor, which remained totally unchallenged, he requires the exercise of physiotherapy for his entire life and therefore, I deem it appropriate to award a sum of Rs.2,00,000/- for physiotherapy.
16. As to the assessment of compensation in respect of injured claimant, we have the decision of the Honourable Supreme Court reported in 1995-ACJ-366-Sc (R.D.Hattangadi Vs. Pest Control (India) Pvt. Limited ) wherein it was held as under:-
"Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by claimant; (i) medical attendance; (ii) loss of earning of profit upto to the date of trial; (iii) other material loss. In so far as non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters; i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life. i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
17. In the case of Basavaraj Vs. Shekhar (1987-ACJ-1022-Karnataka), the Karnataka High Court has observed at paragraph 8 of the said judgement as under:-
"8. If the original position cannot be restored- as indeed in personal injury or fatal accident cases it cannot obviously be- the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so 'make good' the damage."
18. The observations made by the courts both the Honourable Supreme Court and the High Court referred to above apply to the facts of the present case. The claimant has to remain totally disabled to do anything, even to attend his calls of nature during his entire future life, which cannot be less than 40 years having regard to his age i.e. 38 years. His marriage prospects are also completely ruled out. Therefore, it is reasonable to award Rs.1,00,000/- for loss of marriage prospects. He has to incur considerable expenses periodically towards his future treatment and attendant charges. I feel that the ends of justice would be met if the amounts are awarded as under:-
19. In view of the reasons stated aforesaid, I am of the considered opinion that the learned counsel for the Appellant Insurance Company has not been able to substantiate their contention that the amount of compensation awarded by the Tribunal under various heads is on the higher side. On the other hand, the learned counsel for the claimant has been able to convince this court that the amount awarded by the Tribunal in favour of the claimant is on the lower side and requires to be enhanced as aforesaid. Therefore, the impugned award is enhanced to Rs.28,78,710/- from Rs.6,31,250.38/- with interest 7.5 per cent p.a. from the date of the claim petition till the date of realization.
20. It is to be pointed out, at this juncture, that the Tribunal has deducted Rs.85,000/- from the award on the ground that the claimant has received the said sum from the Appellant/Transport Corporation towards medical expenses. The evidence of PW.7 indicated that the Transport Corporation was collecting Rs.5/- to Rs.10/- per month from its employees as subscription under medical assistance insurance scheme and from the said scheme, the claimant was granted Rs.85,000/- towards medical expenses. Therefore, deduction of the said amount from the total compensation is not acceptable, as it was paid from the contribution made by the employees in the said scheme.
21. In AIR-2003-SC-674 (Nagappa Vs. Gurudial Singh and others), the Honourable Supreme Court has held that there is no restriction that compensation could be awarded only up to the amount claimed by the claimant and in an appropriate case where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal/court may pass such award. In the present case, the claimant in CMA.No.2989/2007 though restricted his claim in the appeal to the tune of Rs.20,00,000/-, but however, he has claimed Rs.32,22,995/- as compensation in the claim petition. On a careful consideration of the materials and evidence brought on record, this court is of the view that the claimant in CMA.No.2989/2007 is entitled to get Rs.28,78,710/- as compensation as arrived at above, which is just and reasonable.
22. In the result, CMA.No.602/2006 filed by the Transport Corporation is dismissed and CMA.No.2989/2007 filed by the claimant is allowed. The the impugned award is enhanced to Rs.28,78,710//- from Rs.6,31,250.38/-. In all, the claimant is entitled to a sum of Rs.28,78,710/- (Rupees twenty eight lakhs seventy eight thousand seven hundred and ten only) with interest 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed above. The Transport Corporation is directed to deposit the enhanced award amount with interest at 7.5 per cent p.a. from the date of the claim petition till the date of deposit within a period of eight weeks from the date of receipt of a copy of this order. The claimant in CMA.No.2989/2007 is required to pay the additional court fee for the enhanced award amount before the Tribunal. The Registry is directed to make ready the decree, after payment of such additional court fee for the enhanced award amount before the Tribunal by the claimant and on the receipt being produced for such payment by the claimant. After paying the additional court fee for the enhanced award amount before the Tribunal, the claimant is entitled to withdraw the award amount with interest after giving credit to the amount already withdrawn by him if any. No costs. Consequently, the connected MP is closed.
14.03.2012 Index:Yes/No Web:Yes/No Srcm To:
1.The Chief Judicial Magistrate (MACT) Namakkal
2.The Record Keeper, VR Section, High Court, Madras ARUNA JAGADEESAN, J.
Srcm CMA.Nos.602/2006 and 2989/2007 14.03.2012