Madras High Court
Managing Director, Thanthai Periyar ... vs N. Hussain Mohideen on 29 June, 1992
Equivalent citations: I(1993)ACC399, 1993ACJ1259
JUDGMENT V. Ratnam, J.
1. In this appeal, at the instance of Thanthai Periyar Transport Corporation Ltd. against the award of the Motor Accidents Claims Tribunal (Second Judge, Court of Small Causes), Madras, in M.C.O.P. No. 128 of 1988, the two questions which arise for consideration are:
(1) whether the Tribunal was right in its conclusion that the rash and negligent driving of the bus No. TML 8630 belonging to the appellant, by its driver, caused the accident on 7.1.1988, in which the respondent sustained injuries, and (2) whether, in respect of the injuries so sustained by the respondent, the Tribunal was justified in awarding to him compensation in a sum of Rs. 35,750/- together with interest at 12 per cent per annum from the date of claim petition till the date of payment.
2. There is no dispute now that in an accident that took place on 7.1.1988, involving the bus No. TML 8630, near the entrance to the Broadway Bus Stand, the respondent, who was a passenger in that bus, sustained certain injuries. According to the case of the respondent, the bus was stopped at the entrance to the Broadway Bus Stand and while the respondent was attempting to get down from the bus, the driver started the bus rashly and negligently, as a result of which he fell down and sustained injuries, in that the front wheel of the bus ran over his right leg. In respect of that, he prayed that compensation in a sum of Rs. 75,000/-should be awarded to him.
3. This claim was resisted by the appellant on the ground that the bus was about to enter the bus stand at Broadway and despite warning, a passenger got down from the moving bus and sustained injuries and as there were parked vehicles on the road, passengers were warned that they should not get down and the bus was being driven slowly and cautiously. The appellant thus attributed the negligence to the respondent. The compensation claimed was also characterised to be excessive.
4. On a consideration of the evidence, oral as well as the documentary, the Tribunal found that the rash and negligent driving of the bus by its driver caused the accident, in which the respondent sustained injuries and in respect of those injuries, the respondent deserved to be awarded compensation in a sum of Rs. 35,750/- together with interest, as stated earlier. It is the correctness of the award so passed that is questioned in this appeal, while the respondent, in the memorandum of cross-objections, has prayed that the disallowed portion of compensation in a sum of Rs. 39,250/- should also be awarded to him.
5. Learned counsel for the appellant first contended that the conclusion of the Claims Tribunal on the question of rashness and negligence is erroneous. According to the learned counsel, the respondent got out of the running bus and sustained injuries and, therefore, he cannot claim compensation in respect of the accident brought about on account of his own negligence. However, it is not possible to accept this contention. Regarding the manner in which the accident took place, there is the evidence of the respondent, examined as PW 3 and that of the driver and conductor of the bus, examined as RWs 1 and 2. PW 3, in his evidence, stated that the bus reached the entrance to the Broadway Bus Stand and at that time, the bus was unable to enter the bus stand on account of traffic obstructions, and stopped outside and passengers got gown and while he was also getting down with one foot in the bus and another on the floor, the driver suddenly started the bus and his right foot was run over by the bus. The driver, RW 1, in his evidence, accepted that there was traffic obstruction when the bus was about to enter the bus stand, but stated that the bus was proceeding only slowly and when the passengers attempted to get down they were warned not to do so, but in spite of it, one elderly gentleman got down from the front exit and the brakes were applied and in spite of that, he fell down and sustained injuries. The conductor of the bus, examined as RW 2, has also given evidence to similar effect. From the evidence of PW 3 and RWs 1 and 2, it is clear that the respondent had travelled as a passenger in the bus in question on the date of accident and that the bus had reached the destination and it was not in a position to get into the bus stand owing to the traffic obstruction. While the respondent claimed that he was, like other passengers, attempting to get down from the bus, the bus started rashly and negligently and that had caused the accident, RWs 1 and 2 would say that the bus was in motion and the respondent, in the process of alighting from the moving bus, got injured. When once it is accepted by RWs 1 and 2 that there was a traffic obstruction and the bus could not enter the bus stand, it is difficult to accept that the bus was moving slowly, as claimed by RWs 1 and 2. It is common knowledge that even before the bus could enter the Broadway Bus Stand, it is stopped outside to enable passengers to get down from the bus and in this case, from the evidence, it is clear that the bus had to stop outside the bus terminus, owing to traffic obstruction in the access road. Under those circumstances, there is nothing improbable in the evidence of PW 3 when he stated that he attempted to get down from the bus, while the other passengers did that and before he could alight from the bus completely, the bus had started. The evidence of RWs 1 and 2, being employees of the appellant Corporation, would only be to support the case of the appellant so as to see that no liability is fastened on the appellant. Thus, on a due consideration of the manner in which the accident took place, the version given by PW 3 is more probable and acceptable and the Tribunal cannot, therefore, be stated to have committed any either in holding that the rash and negligent driving of the bus belonging to the appellant, by its driver had caused the accident, in which the respondent sustained injuries.
6. Learned counsel for the appellant next contended that the amount of compensation awarded is on the high side and deserved to be reduced, while the counsel for the respondent-cross-objector submitted that the disallowed portion of compensation should also be awarded to him. It is seen from the hospital records, Exhs. A-3 and A-7, that the respondent had sustained a de-glowing injury in his right foot which had also subsequently developed into ulcer with pus formation. The respondent had been hospitalised for a period of 12 days initially and later for almost one month in the hospital at Kancheepuram. PW 3, in his evidence, had stated that he was eking out his livelihood as a lorry driver and that, as a result of the injuries sustained by him in the accident, he had also been subjected to a disability, in that he is not in a position to drive the lorry, as before, and he was also unable to sit cross-legged and was finding it difficult to climb up stairs and to walk or even to stand for some time. The doctor, examined as PW 1, under Exh. P-l had granted a disability certificate to the effect that the respondent had sustained permanent disability of 20 per cent. It is in the background of the aforesaid injuries that the amount of compensation awardable to the respondent has to be determined. The Tribunal had awarded to the respondent a sum of Rs. 500/- in respect of transport charges, which, on the evidence available, appears to me to be fair and just, inasmuch as the respondent had to be hospitalised at Madias initially and later at Kancheepuram and necessarily, amount must have been spent towards his transport to the hospitals. In regard to the extra nourishment, the Tribunal had awarded a sum of Rs. 250/-, which is also very fair and reasonable. Considering the nature of the injuries sustained by the respondent in his right foot, he must have taken extra nourishment for purposes of facilitating healing of the injuries and also to recoup his health and a sum of Rs. 250/- under this head cannot, by any means, be stated to be very high or inadequate. Towards pain and suffering, the Tribunal had awarded a sum of Rs. 5,000/-. The details of the injuries sustained by the respondent are found in the case-sheet, Exh. and therefrom it is seen that the de-glowing injury had affected the right foot of the respondent. The nature of the injury is such that the respondent undoubtedly ought to have been in a state of pain at least immediately after the accident and also during the period of his treatment at Madras as well as in Kancheepuram. The award of Rs. 5,000/- under this head by the Tribunal cannot be stated to be exorbitant or very low. The respondent had been eking out his livelihood as a lorry driver, as stated earlier and as PW 3, he had stated that as a result of the injuries sustained by him in the accident in his right foot he has not been able to drive lorry at all and he had also sustained 20 per cent disability. In regard to this the Tribunal had awarded compensation in a sum of Rs. 20,000/- which also appears to be very reasonable. A proper and functional right foot is very essential for driving and controlling a lorry and with the loss of the use of the right foot, the respondent cannot attempt to drive the lorry as before. The percentage of disability no doubt has been stated to be 20 per cent. But it cannot be gainsaid that the disability is such that the respondent cannot any longer drive a lorry as spoken to by him. Further, PW 3 had also stated that he finds it difficult to fold his legs and he is not able to squat, besides he is not able to climb up stairs or even to walk or stand and this would certainly affect the respondent in his daily life. Taking these aspects into account, the award of Rs. 20,000/- by way of compensation for permanent disability cannot be stated to be either excessive or even low. In respect of loss of earning capacity, the Tribunal had awarded Rs. 10,000/-. The respondent was aged 55 years at the time of the accident, in which he sustained injuries. The driving licence of the respondent has been produced and marked as Exh. P-6. The injuries sustained by him in the accident had left him in such a condition that he is not able to drive the vehicle and that would necessarily have an effect upon his earning capacity. The evidence of PW 3 discloses that he was earning Rs. 40/- to Rs. 50/- a day. Even on a low income, the loss of earning capacity for the next 5 to 10 years during which the respondent could have driven the lorry, was rightly computed at Rs. 10,000/-. Counsel on both sides were not in a position to bring to the notice of court any evidence which would justify either a reduction or even a further enhancement of the amount award-able to the respondent under any of the aforesaid heads. No case is, therefore, made out to interfere with the award of the Tribunal. The C.M.A. and the memorandum of cross-objections will stand dismissed. There will be, however, no order as to costs either in the appeal or in the memorandum of cross-objections.