Madras High Court
J.Thangam vs The Managing Director on 15 October, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.10.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.NO.4087/2008
J.Thangam .. Appellant
Vs
The Managing Director
Tamil Nadu State Transport Corporation Limited
Villupuram Division I .. Respondent
Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 8.9.2008 made in MCOP.No.32/2008 by the Motor Accident Claims Tribunal (FTC-III) Virudhachalam.
For Appellant : Mr.S.Udhayakumar
For Respondent : Mr.B.Vijayalakshmi
JUDGEMENT
This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 8.9.2008 made in MCOP.No.32/2008 by the Motor Accident Claims Tribunal (FTC-III) Virudhachalam, whereby the Tribunal awarded a sum of Rs.25,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization to the claimant/appellant herein, as against the claim of Rs.3 lakhs for the injuries suffered by her in the motor accident.
2. In this appeal, the Appellant has challenged the quantum of compensation and also the finding of the Tribunal holding the driver of the bus belonging to the Respondent Transport Corporation not responsible for the accident.
3. The facts of the case are that on 17.4.2006, when the claimant was alighting from the bus, the bus driver moved the bus negligently, as a result of which, the claimant fell down from the bus and the rear wheel of the bus ran over her right leg causing crush injuries and also fracture of right leg. She suffered permanent disability to an extent of 47 per cent as assessed by the Doctor. According to the claimant, she was not in a position to do her normal duties and carry on her avocation as a coolie and on the aforesaid grounds, she claimed a compensation of Rs.3 lakhs before the Tribunal.
4. The Respondent Transport Corporation contested the claim by filing a counter denying the allegations made by the claimant and alleged that the claimant suddenly got down from the moving bus, in spite of warning given by the driver and the conductor of the bus and fell down from the moving bus. Thus, according to them, the accident had occurred only due to the carelessness and negligent act of the claimant. Therefore, it was contended that the Transport Corporation is not liable to pay any compensation.
5. The claimant examined herself as PW.1 and narrated the accident in her evidence and marked Ex.P1 First Information Report in support of her case that when she was alighting from the bus in the bus stop, the driver moved the bus and she fell down resulting in serious injuries to her. The First Information Report was registered on the report given by her husband Jeyaveeran, who accompanied her and travelled in the same bus at the time of the accident. It is averred that both of them were returning from Neiveli after purchasing household articles and boarded the bus involved in the accident. It is further averred that at Oomangalam Village bus stop, his wife was alighting as a fourth person and even before she could get down, the driver of the bus took the bus rashly, as a result of which, she fell down and sustained crush injuries. It is averred that immediately she was taken to the hospital by him with the assistance of other persons and thereafter, he came to the Oomangalam Police Station and lodged the complaint.
6. In the evidence, no doubt, PW.1 did not say about her husband accompanying her in the bus. But, she has clearly deposed that she was getting down from the bus from the front entrance of the bus and before she could get down, the driver took the bus which resulted in the accident. Merely on the ground that PW.1 has omitted to state about her husband travelling along with her in the bus at the time of the accident, it cannot be said that he would not have travelled along with PW.1 and witnessed the accident. The Tribunal has observed that the first information had been given to the Police Station only at 4.00 p.m., though the accident had occurred at 10.30 a.m. and thus, it had drawn a presumption that the husband of the injured could not have seen the accident on the premise that there was delay in giving the complaint regarding the accident.
7. At the outset, it is to be pointed out here that even in the complaint, it is clearly stated by the husband of the injured that after admitting his wife who was seriously injured, in the hospital, he came to the Police Station and lodged the complaint. Hence, there is sufficient and satisfactory explanation for the delay of few hours in lodging the complaint. In fact, the involvement of the bus in the accident and the claimant sustaining injuries on falling down from the bus are not disputed by the Respondent. The Tribunal has totally failed to appreciate the evidence of PW.1, whose evidence indicated that she was getting down after the bus stopped and before she could get down, the bus was started. Nothing was elicited from her evidence to infer that she jumped down from the moving bus even before the bus was stopped in the bus stop. In fact, the evidence clearly indicted that the accident had occurred only in the bus stop. Therefore, the case of the Respondent that she tried to alight from the moving bus even before the bus had reached the bus stop cannot be accepted.
8. Mr.S.Udhayakumar, the learned counsel for the Appellant submitted that the injured was not negligent and that the rash and negligent driving of the bus driver resulted in the accident. He would submit that the Tribunal, relying mainly on Ex.R1, the final report of the investigating officer wherein the criminal case was closed as a mistake of fact, has come to the conclusion that the bus driver was not negligent and responsible for the accident and that mere a report of the investigating officer without any supporting document is not sufficient to hold that there was no negligence on the part of the bus driver. He pointed out that the investigating officer was not an eye witness to the accident and he was not examined before the court as a witness.
9. At the outset, I would like to say that the final report of the investigating officer can be considered only as his opinion and such an opinion, in the absence of any other materials, particulars or data furnished by the investigating officer, has no value. It is for the court to examine and determine for itself as to whether the conclusion reached or opinion formed on the basis of the statements collected by the investigating officer is correct or not. In the case on hand, no materials is placed on record to sustain the conclusion arrived at by the investigating officer that there was no negligence on the part of the bus driver. Hence, there being no evidence of the investigating officer as to why he had so concluded and in the absence of any other material to sustain such a conclusion, Ex.R1 has to be excluded from consideration on the ground that the same is based on no material or evidence.
10. RW.1 in his evidence has stated that the injured had jumped down from the moving bus. It is highly unbelievable that a lady would jump down from the moving bus when the bus stop was hardly 100 ft. ahead. Hence, the statement of the driver is not believable. Even assuming that she had attempted to alight from the moving bus even before the bus reached the bus stop, the driver, on seeing her getting down, could have stopped the bus and avoided the accident, but he has not done so, as it could be seen that the rear wheel of the bus had run over her right leg causing grievous injuries. In these circumstances, it is apparent that the accident had occurred only due to the rash and negligent act of the bus driver. Hence, the findings of the Tribunal that the bus driver was not rash and negligent in causing the accident is not sustainable and accordingly, it is set aside.
11. On the basis of the findings that there was no rash and negligent act on the part of the bus driver, the Tribunal has awarded only Rs.25,000/- as compensation, which is also not sustainable.
12. The claimant has sustained fracture of tibia, fracture of fibula and fracture of medial malleolus on the right leg. She was hospitalized from 17.4.2006 to 23.4.2006, which is evident from Ex.P3 wound certificate. Further, it is seen that she has been referred to higher medical institution for further management by the Government Hospital, Virudhachalam. She has also taken native treatment in Puthur Bone Setting Hospital, which is disclosed from Ex.P4. PW.2 Dr.Palani has assessed her disability as 47 per cent on the ground that there was malunion of fractured bones. She had bone stiffness over the fractured site and there was shortening of right leg by 2" and there was weakness of leg muscles and stiffness and restriction of movements of right knee. She had difficulty in standing or walking for long time and squatting or sitting cross legged is also difficult.
13. According to the claimant, she was getting Rs.200/- per day as income as an agricultural coolie, but there is no evidence to prove her avocation and income. However, a sum of Rs.3000/- can be taken as notional income. Considering the disability suffered by her and taking into account the evidence of the Doctor, Rs.2000/- per percentage could be awarded for the disability suffered by her. Thus, taking the disability as 47 per cent, the compensation towards the loss of future earnings due to the disability suffered by her would come to Rs.94,000/-.
14. In addition to that, considering the nature of injuries and the disability suffered by the claimant, a sum of Rs.20,000/- towards pain and suffering, Rs.10,000/- towards attendants charges, Rs.2500/- towards transportation expenses and Rs.2500/- for extra nourishment are awarded. Due to the injuries and the treatment undergone by her, she would not have been able to attend to her avocation at least for three months and hence, a sum of Rs.9000/- is awarded for the loss of income during the period of treatment for three months at the rate of Rs.3000/- p.m. She has incurred a sum of Rs.1873.90/- towards medical expenses, which is borne out by records Ex.P5 medical bills and the same is rounded off to Rs.1900/- and is awarded under the medical expenses. In all, a sum of Rs.1,39,900/- is awarded as total compensation to the claimant with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed below:-
15. In the result, this Civil Miscellaneous Appeal is allowed . The impugned award is enhanced from Rs.25,000/- to Rs.1,39,900/- as mentioned above. In all, the claimant is entitled to a total compensation of Rs.1,39,900/- (Rupees one lakh thirty nine thousand nine hundred only) with interest 7.5% p.a. from the date of the claim petition till the date of realization as detailed above. The Respondent Transport Corporation is directed to deposit the entire award amount with interest at 7.5% p.a. from the date of the claim petition till the date of deposit, after giving credit to the amount if any deposited by them, within a period of six weeks from the date of receipt of a copy of this order and on such deposit being made, the claimant is entitled to with draw the entire award amount with interest. No costs.
Srcm To:
1.The Motor Accident Claims Tribunal (FTC-III) Virudhachalam
2.The Record Keeper, VR Section, High Court, Madras