Madras High Court
Tamil Nadu State Transport vs P.Ilayaraja on 25 November, 2009
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/11/2009 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.(MD)No.755 of 2005 and Cros. Obj. (MD)No. 56 of 2008 C.M.A.(MD)No.755 of 2005 Tamil Nadu State Transport Corporation (Madurai) Ltd., Rep. through its Managing Director, Madurai-625 010. ... Appellant Vs P.Ilayaraja ... Respondent Appeal filed under Section 173 of Motor Vehicles Act, 1988, amended by Motor Vehicle (Amendment) Act, 1994, against the judgment and award dated 11.01.2005, made in M.C.O.P.No.383 of 2003, on the file of the Motor Accidents Claims Tribunal (First Additional Sub Court), Madurai. !For Appellant ... Mr.D.Sivaraman for M/s.Rajnish Pathiyil ^For Respondent ... Mr.T.Selvakumaran Cross Obj. No.56 of 2008 P.Ilayaraja ... Cross Objector Vs Tamil Nadu State Transport Corporation (Madurai) Ltd., Rep. through its Managing Director, Madurai-625 010. ... Respondent !For Appellant ... Mr.T.Selvakumaran ^For Respondent ... Mr.D.Sivaraman for M/s.Rajnish Pathiyil **** :JUDGMENT
Challenging the award dated 11.01.2005, made in M.C.O.P.No.383 of 2003, on the file of the Motor Accidents Claims Tribunal (First Additional Sub Court), Madurai, the Transport Corporation has preferred the present appeal.
2. In the claim petition, it is stated that on 06.02.2003, at about 8.30 p.m. while the claimant was travelling by bus belonging to the respondent Corporation to go to a Company for attending interview at Trivandram, he was sitting on the right side seat near the window. Since the bus driver was driving the bus in a rash and negligent manner, which crossed the central median line and dashed against another vehicle which was coming from the opposite side. In the accident, he sustained severe crush injuries in his right hand. Immediately, he was removed to Kovilpatti Government Hospital, from where he was removed to the Government Medical College Hospital, Tirunelveli, and took treatment for several months. His right hand was amputated. He was earning a sum of Rs.10,000/- by working as Air-condition and Refrigerator Mechanic in Swift Engineering Company Pvt. Ltd., Maldives, and he could not go to Maldives for continuing his job. Hence, a sum of Rs.10,00,000/- was prayed for as compensation.
3. In the counter filed by the respondent Corporation, it is stated that the claimant has categorically stated before the Sub Inspector of Police, Kayathar Police Station, that a lorry coming from the opposite side damaged his hand and fled away. However, in order to get compensation, he says that he kept his hand inside the bus. In spite of the warnings given by the driver, conductor and other passengers on seeing the claimant sleeping with his hand stretching outside the bus, he invited the accident. He was also advised to change his seat, but it was ignored by him. He is responsible for the accident. There is no fault on the part of the bus driver. The bus driver was driving the bus cautiously. Hence, the compensation claimed is excessive. Therefore, the petition may be dismissed.
4. The learned Tribunal Judge, after considering the evidence on record, has anchored the entire liability upon the bus driver and directed the respondent to pay a compensation of Rs.1,53,000/- to the claimant. The appellant has come forward with this appeal challenging the quantum as fixed by the Tribunal that it is on the higher side. The claimant in his turn has filed the Cross Objection seeking for an enhancement of compensation to the tune of Rs.3,47,000/- .
5. Mr.D.Sivaraman, learned counsel appearing for the appellant laboured hard to show that the contributory negligence lies on the part of the claimant. He draws attention of this Court to the allegations in the First Information Report, for which, the claimant himself is the author. In the First Information Report, he has stated that he was sleeping by stretching his hand outside the bus and that a mini-lorry came from the opposite direction dashed against his hand and caused severe crush injury.
6. Mr.T.Selvakumaran, learned counsel appearing for the claimant would submit that it is the duty of the bus crew to ensure the safety of the passengers and the manner of accident would show that they had not taken such precaution and that they have to be held liable for the accident. In support of his contention, he placed much reliance upon a Division Bench decision of the Kerala High Court reported in 1994 ACJ 1262 (O.Mammachan v. Kerala State Road Transport Corporation and another) in which it is held as follows:
"It cannot be disputed that 2nd respondent owes a duty of care for the safety of passengers travelling in the bus. He has a duty to see that the passengers do not receive any injuries during the course of the journey. To achieve this object he has to look out for any possible obstruction on the road and to take reasonable steps to avoid obstruction without causing any injury to the passengers. While overtaking a moving vehicle or crossing another vehicle, the driver has to leave sufficient space in order to see that there was no likelihood of the passengers' arms being injured. He should have foreseen the possibility of passengers resting their elbows on the window-sill. In the process of crossing or overtaking another bus, he must not only avoid contact with the body of the bus but also avoid the elbow of any passenger resting on the window-sill coming into contact with the oncoming bus or the bus which he is overtaking. Precautions are, therefore, to be taken by him to leave sufficient gap for preventing any mishap."
7. It is natural for a passenger to keep his hand on the window- sill while travelling in a vehicle. If the claimant in this case was found to be natural in his attitude at the time of travelling in the bus, then this Court can fix the liability upon the driver. It is the duty of the driver to ensure that sufficient gap is left between his vehicle and other vehicle which happens to cross his vehicle from the opposite side. In this case, the driver has failed to leave sufficient space. There is no evidence in this regard. At the same time, the claimant has also contributed to the accident to some extent. Instead of keeping his hand inside the window, as per the allegations in the First Information Report, he has stretched his hand outside the bus, by means of which, he sustained severe crush injury which led to amputation. In these circumstances, this Court is of the considered view that a contributory negligence to the accident of 20% could be attributed to the claimant.
8. Insofar as the compensation as quantified by the Tribunal is concerned, the learned counsel appearing for the claimant is very much aggrieved. He would say that it has been established by production of evidence that the claimant is a qualified Mechanic in Refrigeration and Air-condition, for which, he has obtained diploma in the concerned courses, that he was working in Swift Engineering Company Pvt. Ltd., at Maldives and was getting a sum of Rs.10,000/- and that the Tribunal has miserably failed to award anything for loss of amenities and the loss of marriage prospects, etc.
9. Ex.P4 is the cash payment voucher issued by Swift Engineering Company Pvt. Ltd., Maldives, which shows that he drew a sum of Rs.7939/- in Maldives currency on 30.01.2003. The learned counsel appearing for the claimant would say that it is equal to a sum of Rs.10,000/-. Whatever may be, it has been stated that he was working in Maldives as Air-condition and Refrigerator Mechanic and he should have earned a considerable amount. However, for the purpose of compensation to be awarded in a lump sum, this Court fixes his monthly income at Rs.4,500/-, thereby, the annual loss of income is Rs.54,000/- in which after one third is deducted towards his personal expenses, a sum of Rs.36,000/- could be taken for the purpose of compensation. If multiplier 15 is adopted, the loss of income would be a sum of Rs.5,40,000/-. The Doctor has stated that because of the amputation of his hand, he is suffering from permanent disability to the tune of 84%. This Court restricts the same to 80% and hence, he is entitled to a sum of Rs.4,32,000/- under the head of permanent disability.
10. The following is the heads of compensation payable to the claimant:-
For permanent disability = Rs.4,32,000.00 For pain and suffering = Rs. 30,000.00 For loss of earning during treatment period = Rs. 25,000.00 For extra nourishment = Rs. 10,000.00 For transportation = Rs. 10,000.00 For loss of amenities = Rs. 30,000.00 For loss of marital prospects = Rs.1,00,000.00
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Total = Rs.6,37,000.00
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11. In the above said compensation of Rs.6,37,000/-, 20% of the amount i.e. Rs.1,27,400/- is to be deducted on account of his contributory negligence. Hence, a sum of Rs.5,09,600/- has to be made available to the claimant.
In fine, the Civil Miscellaneous Appeal is allowed in part and the Cross Objection filed by the claimant is allowed making the total compensation at Rs.5,09,600/-. The entire compensation shall be deposited along with 7.5% interest within a period of eight weeks from the date of filing of the claim petition till the date of deposit. No costs.
srm To
1.The First Additional Sub Court, Madurai.
2.Tamil Nadu State Transport Corporation (Madurai) Ltd., Rep. through its Managing Director, Madurai-625 010.