Madras High Court
Santhi vs The Managing Director Cholan Roadways ... on 1 September, 1987
Equivalent citations: I(1988)ACC67
JUDGMENT S. Swamikkannu, J.
1. The Courts are not expected to approach the case of the accident with an opinion that it would have been only that he driver of the vehicle which hit the victim, had driven the vehicle in a rtash and negligent manner. Such a kind of approach by the Court is nothing but perverse. A Court or Tribunal is expected to apply its mind to the entire evidence both oral and documentary and then only come to the conclusion as to the actual position that had been in existence during the time of the impact and then the act of the driver of the vehicle in question. In the instant case, the petitioner minor Santhi, aged 5 at the time of the occurrence represented by her next friend and father Murugaiyan that on 9-2-1978 by about 12.45 p.m. the petitioner appellant herein was walking along with her grandmother Manickavalli on the left side of the Bazaar Road in Poon-thottam village of Nannilara Taluk, that the second respondent before the Tribunal, Raghavan, was driving the bus MSQ 2437, that the said bus came at a high speed without sounding horn and the back wheel of the bus ran over the left leg of the petitioner, that on account of this accident, grievous injury was caused to the petitioner/appellant herein and that the same has resulted in permanent disability of the appellant The left leg was completely crushed and the petitioner/appellant herein is not able to walk. The accident had occurred only on account of the rash and negligent driving of the vehicle by the driver. The first respondent before the Tribunal is the employer as well as the owner of the vehicle involved in the accident. The petitioner/appellant herein had incurred Rs. 350/- towards transport charges to the hospital ; Rs. 50/- represented damages to clothing articles ; Rs. 1,000/-was spent for extra nourishment; Rs. 2000/- was payable as compensation for pain and suffering. A sum of Rs. 21,600/- is payable as compensation for the permanent disability caused. Thus the petitioner/appellant herein is entitled to get a total sum of Rs. 25,000/- as compensation from the respondents before the Tribunal.
2. The first respondent, Managing Director, Cholan Roadways Corporation, Kutnbakonam, had filed a counter which has been adopted by the second respondent, the driver of the vehicle MSQ 2437, before the Tribunal to the following effect.
3. According to the first respondent, it is not correct to state that the Vehicle MSQ 2437 was driven rashly or negligently. The second respondent was driving the vehicle on that day from Nagapattinam to Mayuram. By about 12.45 p.m. the vehicle was approaching Poonthottam bus stop. The bus was driven slowly. It is true that the grand-mother of the minor petitioner as well as the minor petitioner/Appellant herein were coming along the bazaar. Cauvery a servant maid was also proceeding along with Manickavalli and the petitioner. The grandmother went to a sweet stall to buy some snacks. The child was left alone. Suddenly the child ran across the road. The driver saw the child and immediately applied the brake. In fact the bus had cleared the child and it was stopped. But the child knocked against the rear wheel of the bus and fell down. Immediately the conductor engaged a taxi and took the child to Peralam Hospital and then to Mayuram Hospital for treatment. The second respondent had immediately given the report to the Peralam Police. Therefore, the driver was not in any way responsible for the accident. In the criminal case filed against the driver, he has been duly acquitted by the First Class Magistrate at Mayuram. In any even, the claim of Rs. 25,000/- as compensation is high and excessive. It is denied that the minor petitioner has suffered any permanent disability.
4. In this Court, C.M.P. No. 13226 of 1987 in C.M.A. No. 300 of 1982 has been filed to receive documents as additional evidence in this appeal.
The points that arise for consideration in this appeal are:
(1) Whether the document, namely the disability certificate issued by Dr. Chandran can be received as an evidence. (2) Whether the accident had resulted on account of the rash and negligent driving of the bus MSQ 2437 by the driver of the first respondent. (3) Whether the petitioner/appellant herein is entitled to any compensation and if so, to what amount.
5. The second and third points now framed for consideration were the points that were discussed by the Tribunal for arriving at a decision that there had been no negligence on the part of the driver of the bus and that the appellant is not entitled to any compensation. P.W. 1, Murugaiyan, P.W. 2 Manickavalli, P.W. 3, Cauvery P.W. 4 Madhavan and P.W. 5 Dr. S. Jamal had been examined before the Tribunal on behalf of the appellant. On behalf of the respondent Raghavan, Driver, was examined. Ex. A. 1 case sheet of the petitioner in T.M.C. Hospital, Thanjavur was filed on behalf of the appellant herein. On behalf of the respondents Ex. B. 1, portion marked in the deposition of P.W. 2 before the Judicial Second Class Magistrate, Mayuram in CC 440 of 1979; Ex. B. 2 dated 9-2-1978 certified copy of F.I.R. given by R.W. 1 before Peralam Police Station and Ex. B. 3 dated 2011-1979 certified copy of judgment in C.C. No. 440 of 1979 on the file of Judicial Second Class Magistrate, Mayuram were marked.
6. It is submitted on behalf of the appellant by Mr. R. Chandrabose Chelliah, learned Counsel that the Tribunal had not properly appreciated the evidence on record and that is why it had come to a wrong conclusion that there was no negligence on the part of the driver of the bus. He further submits that the appellant has to suffer the disability till her life and the prospect of her marriage also is bleak because it is clear from the certificate which is now sought to be introduced as additional evidence that the appellant had suffered 40% disability.
7. Miss Vijaya, learned Counsel for the respondent vehemently contends that this document, which is now sought to be received in evidence, should not be received in evidence at this stage because of the very fact that the said certificate had been obtained about 2 years subsequent to the occurrence. According to her, the document has been obtained with ulterior motive.
8. This Court has gone through the affidavit sworn to by the father of the appellant and filed in support of the application for the reception of the document. This Court also perused the Counter that had been filed on behalf of the respondent-Managing Director, Cholan Roadways Corporation, Kumbakonam, sworn to by S. Lakshmi Narasimhan, Assistant Manager (Legal) of the respondent Corporation. In the interests of justice, this Court accepts the averments made in the affidavit sworn to by Murugaiyan, father of the appellant herein and hold that this document requires consideration in this appeal and as such, the same is marked as Ex. A. 2 by this Court in this appeal. Further there is nothing on record to show that this document should not be admitted as evidence at this stage. Dr. K. Chandran, had issued it on 26-1-1984. The said certificate shows that the appellant minor Shanthi has been disabled with severe equino varus deformity of left ankle and foot. It is also stated in this certificate that the disability is partial and permanent, and to the tune of 35%. In the remarks column, it is stated that foot and ankle is crooked, ugly, non-sensitive and she is able to limp like an horse (equnus). The leg is thickened and swollen (mega leg). The donor area of the back is also non-sensitive. As already stated, this document is admitted in evidence as proved by this Court. Under the circumstances, the contents of the same are taken as evidence. In the instant case, it is vehemently contended on behalf of the respondent, owner of the bus, that there had been no negligence on the part of the driver, who had been examined as RW 1. RW 1, Raghavan deposed that there had been no negligence and that he had used all the diligence of a prudent driver under the circumstances and that it was only due to the appellant having run towards the bm, that tha appellant got hit which resulted in the accident. The Tribunal had held that the driver is not in any way responsible for this unfortunate accident.
9. Let us now come to the evidence of PW 2. She has admitted in her cross-examination that when she and the appellant were proceeding along the road, the minor petitioner appellant herein asked for peas. PW 2 had denied the suggestion that the minor petitioner actually asked for karaboonthi and that for purchasing the saem, she proceeded to the shop on the eastern side. PW 2 had admitted that Karaboonthi was then sold in a shop on the eastern side. It was suggested to PW 2 that she actually went to the karaboonthi shop on the eastern side and when the minor petitioner/ appellant herein was also there. Cauvery who was on the eastern side, called the child and the child immediately crossed the road from west to east. PW 2 had denied the suggestion above mentioned. PW 2 had admitted that she had been examined as a witness in the Criminal Court.
10. On the above narration in paragraph 8 of the award, the Tribunal came to the conclusion that there was no negligence on the part of the driver. It should be borne in mind that when a child is seen by the driver, the psychology of the child's mind during that time should also be visualised by the driver of a heavy vehicle. In the instant case, RW 1 has failed to visualise the mind of the child. The Tribunal is wrong in coming to the conclusion that there was no negligence on the part of the driver. This Court after having gone through the entire evidence of PWs 1 to 5 is convinced that the rash and negligent driving on the part of RW 1 alone was responsible for the occurrence which resulted in 40% deformity. The victim is a female child. Her future is completely bleak because this disability will stand as an obstacle for getting herself married. This Court holds by reversing the finding of the Tribunal that it was only due to rash and negligent driving of the bus by RW 1, that the occurrence took place.
11. Ex. A. 1, Case sheet of the appellant, in T.M.C. Hospital, Thanjavur, clearly shows as to what amount of pain and suffering that this child/appellant herein would have undergone. This Court ventures to observe that no amount of compensation by means of money can compensate this loss. No one has got any right to deform another muchless a driver of a bus.
12. The appellant had asked for a compensation of Rs. 25,000/-. From the contents of Ex. A. 2 which is now admitted as evidence, it is seen that her leg had been completely deformed. Therefore the compensation that has to be awarded towards this permanent disability must be appreciable. In this regard, learned Counsel for the appellant referred to the decision in Amul Ramchandra Ganghi v. Abhashbhai Kasambhai Diwan . In that case the right leg of a young boy aged 12 had to be amputated from above the ankle. Considering the facts of the case including the young age of the victim and the need to periodically assess the damages at certain key paints, in view of the falling value of money and the rising standard of living, a sum of Rs. 25,000.00 was awarded as damages for non-pecuniary loss. In the instant case also we find that the child has lost the left leg upto left ankle and this form is known as "severe equino varus". The doctor who has issued Ex. A-2 has assessed the disability at 35%. According to the doctor, the foot and ankle is crooked, ugly, non-sensitive and she is able to limp like an horse (equnus). The leg is thickened and swollen (mega leg). The donor area of the back is also non-sensitive. Under the circumstances, this Court awards a compensation of Rs. 21,000/- under this head. So far as the compensation for pain and suffering is concerned, this Court grants the sum asked for, namely Rs 2,000/-. Towards extra nourishment a sum of Rs. 1,000/- has been asked. The said sum of Rs. 1,000/-is fixed as compensation for extra nourishment. Towards clothing a sum of Rs. 50/- has been awarded by this Court A sum of Rs. 350/- has been granted towards transport expenses. Thus in all this Court awards a sum of Rs. 24,400/-.
13. At this stage, learned Counsel for the appellant submits that this matter may be remanded for fixing the compensation by the Tribunal. This Court does not find any ground to grant this request. As such the oral prayer for remand is hereby rejected.
14. In the result, the appeal is allowed. There will be an award for a sum of Rs. 24,400/- with interest at 6% per annum from the date of the petition till date of deposit. Time for deposit 2 months from this date. The above said sum has to be deposited in any one of the Nationalised Banks on the memo filed by the father of the appellant specifying the bank in which the said sum can be deposited. The interest that will accrue on this sum is permitted to be withdrawn once in three months for the maintenance of the child. The amount has to be deposited in fixed deposit in the name of the appellant for a period of five years. There is no order as to costs.
15. Ex. A2, 26-1-1984 Disabiity Certificate issued to the Appellant (Claimant) by Dr. Chandran.