Madras High Court
The Managing Director, Tamil Nadu State ... vs G. Natarajan And Kannappan on 5 January, 2008
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. Aggrieved by the award of compensation of Rs. 2,14,400/- towards personal injuries sustained by the respondent claimant, State Transport Corporation has preferred this appeal.
2. Brief facts are as follows:- On 03.11.1995, claimant was travelling in the Corporation bus TN-21-N-0207 from Vellore to Kanchipuram. He was sitting on the right side of the bus near window. At about 5.30 p.m. when the bus was proceeding on the Madras Bangalore Road near Ambi Junction Road, a lorry came from the opposite side and right side body of the bus dashed against the lorry, due to which, claimant's right fore arm was completely crushed. After treatment, right fore arm of the claimant was amputated at the hospital. The claimant is a gold smith and due to amputation of right fore arm, he suffered permanent disability and lost earning capacity. The respondent/claimant filed Claim Petition claiming compensation of Rs. 4,00,000/-.
3. Stating that the bus driver drove the bus very carefully and alleging that inspite of being cautioned, the claimant was keeping his hand outside the window of the bus and the accident was solely due to the negligence of the claimant the appellant Corporation filed counter.
4. Before the Tribunal, claimant examined himself as PW-1 and P.W.s 2 to 4, including Doctor as PW-2. Exs.P-1 to P-8 were marked. Corporation examined its driver as RW-1.
5. Upon consideration of evidence, the Tribunal has found that it is the duty of the bus crew to ensure safe passage of the passengers and RW-1 did not take such care. Finding that the accident was due to rash and negligent driving of the bus driver, the Tribunal held that the Corporation is liable to pay compensation. Fixing the income of the claimant at Rs. 1,200 p.m. and adopting a multiplier of 12 years, the Tribunal has awarded total compensation of Rs. 2,14,400/- towards the permanent disability, loss of income, medical expenses, pain and suffering and other heads.
6. The learned Counsel for the Appellant has submitted that when there was no damage to the bus, the Tribunal erred in holding that the bus was driven negligently and bus driver was responsible for the accident. It was further submitted that when the claimant was negligent in keeping his right hand on the window side, the Tribunal erred in not attributing contributory negligence to the claimant and deducting amount on that score. The learned Counsel for the Appellant Corporation further urged that when the claimant continued his avocation, the Tribunal erred in fixing the loss of income at Rs. 1,200 p.m. and the quantum awarded is on the higher side.
7. Supporting the findings of the Tribunal, the learned Counsel for the respondent has submitted that based on the evidence of P.W.s 1 and 2, the Tribunal has rightly held that the accident was due to the rash and negligent driving of the bus driver and the finding does not suffer from any error. The learned Counsel for the respondent/claimant as also submitted that the claimant being a gold smith and a right hander, having regard to the nature of avocation, Tribunal has awarded just and fair compensation and the same cannot be interfered with.
8. There is no denying that on 03.11.1995, claimant/PW-1 travelled in the Corporation bus bearing registration No. TN-21-N-0207 from Vellore and admittedly, he was sitting on the right side of the bus near window seat. When the bus was nearing Ambi Junction in Madras Bangalore Road, a lorry came in the opposite direction and the bus dashed against the lorry, due to which, the right hand of the claimant PW-1 had been crushed. In his evidence, PW-1 has stated that at the time of accident, bus was driven negligently which has caused the accident.
9. PW-2 an employee under PW-1 travelled along with PW-1. In his evidence, PW-2 has also stated that the bus was proceeding speedily and driven in an rash and negligent manner. P.W.s 1 and 2 have consistently stated that the bus was driven fast and in a rash and negligent manner due to which, the bus dashed against the on going lorry, causing crush injury to PW-1's right hand.
10. The learned Counsel for the appellant Corporation has submitted that inspite of being warned, PW-1 kept his right hand on the window and he did not withdraw the right arm. The learned Counsel further submitted that when there was not even a slight damage to the bus, liability cannot be fastened upon the bus driver. It was further submitted that the absence of damages to the body of the bus would indicate that only the claimant was negligent in keeping his right arm on the window which has caused the crush injury. The contention of the learned Counsel for the Appellant Corporation does not merit acceptance. To prove that there was no damage to the bus, appellant Corporation had not produced the Motor Vehicle Inspector's report or other material. In the absence of Motor Vehicle Inspector's report, it is not possible to accept the contention of the appellant Corporation that there was no damage to the bus at the time of the accident.
11. As rightly observed by the learned Tribunal, it is the duty of the bus crew to ensure safe passage of the passengers. Courts have held that keeping hand on the window side is a comfortable way of being seated in the bus seat and bus crew owe a duty towards the passengers to warn them. Though it was contended that PW-1 was warned to take away his right hand, to substantiate the same, the appellant Corporation has not chosen to examine the conductor. Having regard to the consistent evidence of P.W.s 1 and 2 and other materials on record, the Tribunal has rightly held that the accident was due to the rash and negligent driving of the bus driver, and as rightly fastened the liability upon the appellant Corporation.
12. Insofar as the quantum is concerned, the Tribunal has awarded a total compensation of Rs. 2,14,400/-. under the following heads:
Amount in Rs.
Permanent Disability and loss of
earning capacity : 1,72,800
Pain and suffering : 20,000
Medical Expenses : 13,600
Nutritious Food and Extra
Nourishment : 6,000
Travel Expenses : 2,000
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2,14,400
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13. The learned Counsel for the Appellant Corporation has submitted that the Tribunal did not keep in view that claimant continues to carry on his avocation and that there was no loss of income. The learned Counsel for the Appellant Corporation further submitted that P.W.s 1 and 2 are interested witnesses and based on their evidence, the Tribunal ought to have held that there was no loss of income.
14. In the accident, the claimant sustained crush injury on the right elbow and fore arm. He was immediately taken to the Government Hospital Vellore. From Ex.P-2 - Wound Certificate, it is seen that the crush injury was involved in upper part of fore arm, exposing muscles with profuse bleeding. Respondent claimant had taken further treatment in CMC Vellore. As is seen from Ex.P-4 - Discharge Summary, the entire muscles of the lower arm and upper fore arm with distal humerous shattered limb is attached with few fibres of soft tissue and skin. Because of blood loss, there was transfusion of blood. After treatment, there was amputation of right arm above elbow. After discharge, the claimant was advised to report for further dressing till the healing of the wound.
15. PW-4 - Dr.Shanmuga Sundaram examined the claimant and had issued Ex.P-7 Disability Certificate, assessing permanent disability at 60%. In Ex.P-7 - Disability Certificate, PW-4 has stated that claimant has totally lost the function of the right upper limb because of elbow amputation. Having regard to the amputation of the right fore arm and Ex.P-7 - Disability Certificate, the Tribunal accepted Disability of the claimant at 60% and the same cannot be faulted.
16. Claimant is a gold smith. In his evidence, he has stated that because of disability, he lost his earning capacity. P.W.s 2 and 3 who are employees working under the claimant have also deposed that because of amputation of the right fore arm, claimant has lost his earning capacity and his income has fallen down. No doubt in his evidence PW-1 has stated that even after the accident he was continuing the job in his house. Perhaps he is carrying on the job with the assistance of others. But the fact remains that being a professional gold smith and right hander, there is every chance of considerable loss of earning capacity and efficiency in the avocation. In his evidence, PW-1 has stated that his approximate income per month is Rs. 7,000/-. Considering the same, Tribunal has fixed the loss of income at Rs. 1,200/-. Since the claimant is aged 52 years, Tribunal took the view that claimant would have worked for a further period of 12 years and adopted the multiplier of 12. With the amputation of the right fore arm, the claimant has to put up with such disability and loss of amenities and inconvenience, through out his life. The Tribunal has awarded total compensation of Rs. 2,14,400/-. The compensation towards permanent disability and loss of earning and other heads cannot be said to be excessive.
17. The findings of the Tribunal on negligence is based upon the evidence and materials on record. In my considered view, the quantum of compensation awarded to the claimant is also just and reasonable. The appeal is devoid of merits and is liable to be dismissed.
18. In the result, order the dated 25.07.2001 passed in MCOP No. 63/1996 on the file of the Motor Accident Claims Tribunal, (Additional District Judge), Vellore is confirmed and this appeal is dismissed with costs. If any amount is lying to the credit of MCOP No. 63/1996, the same shall be disbursed to the claimant, along with accrued interest.