Madras High Court
Ravichandran vs The Managing Director, Pallavan ... on 20 October, 2003
Equivalent citations: 2004(2)CTC30, (2003)3MLJ654
Author: S.R. Singharavelu
Bench: S.R. Singharavelu
JUDGMENT A.S. Venkatachalamoorthy, J.
1. The Claimant in M.C.O.P. No. 1041 of 1993 on the file of Motor Accident Claims Tribunal (V Judge, Court of Small Causes), Madras has filed the above appeal claiming enhanced compensation.
2. The appellant herein filed the claim petition under Sections 166 etc., of Motor Vehicles Act and the rules framed thereunder contending that on 24.11.1992 at about 5.30 p.m., at the bus stop when he was getting into the bus (route No. 19K) and in that process was standing in the footboard, the driver suddenly drove the bus in a rash and negligent manner and overtook a stationary lorry very closely and at that time the appellant/Claimant was hit by the said lorry, as a result of which the Claimant sustained grievous injuries i.e, fracture of ribs and also injury on his hands, etc. According to the Claimant, he was operated and the spleen was also removed. The appellant/Claimant claimed a total compensation of Rs. 1,00,000/- under various heads.
3. The respondent herein resisted the said petition denying the very accident itself on 24.11.1992 involving the Pallavan Transport Bus plying with route No. 19K and bearing registration No. TML 3638. Further it is contended that in fact the said bus completed the trips as scheduled on that day. Without prejudice to the above contention, the respondent also submitted that the amount of compensation claimed is highly excessive, exorbitant and fanciful.
4. Before the Tribunal both the parties let in oral and documentary evidence. After due consideration of the materials available on record, the Tribunal came to the conclusion that the bus in question was in fact involved in the accident on 24.11.1992 at about 5.30 p.m. and that the same occurred only because of the rash and negligent driving of the driver of the bus. On the question of compensation payable, the Tribunal fixed partial permanent disability at 30% and awarded a total compensation of Rs.41,000/- payable with interest at the rate of 12% per annum.
5. The disappointed Claimant has filed the above appeal claiming that he should be paid compensation as prayed for in his original petition made before the Tribunal.
6. Three questions arise for consideration in this appeal viz., (1) Whether in the accident on 24.11.1992 at 5.30 p.m., the bus belonging to the Transport Corporation bearing registration No. TML 3638 was involved.
(2) If the answer is in the affirmative, whether the accident took place due to the rash and negligent driving of the driver of the bus belonging to the Transport Corporation.
(3) Again if the answer is in the affirmative, what is the amount of compensation that is to be payable by the respondent Corporation to the appellant/Claimant.
7. Points 1 and 2 can be considered together for the sake of convenience. The appellant in an endeavour to substantiate his case, examined himself as PW-1, apart from examining PW-2, Doctor by name J.R. Thyagarajan and marked Exs.P-1 to P-5. On the side of Transport Corporation, the driver of the bus TML 3638 has been examined as RW-1. But however, no document was marked.
8. PW-1 in his evidence has categorically stated that on the fateful day, that was on 24.11.1992 at about 5.30 p.m., he was standing in Jayanthi Theatre stopping and waiting for the bus 19K, along with others. A bus arrived and when the appellant/Claimant was in the process of getting into the bus and when he was on the footboard, the driver suddenly drove the bus in a rash and negligent manner and the bus moved very close to a stationary lorry and the appellant was hit by the said lorry with the result he sustained injuries. Though this witness has been subjected to a lengthy cross examination, we find nothing has been elicited which would persuade this Court to reject his testimony.
9. The driver of the bus has been examined as RW-1. Of course in his evidence he has denied any such occurrence. Further he would claim that as usual the bus plied and completed all its trips for the day. But however, to substantiate the same, no material has been placed before the Court. The respondent Corporation could have examined the Time Keeper in the Depot and also marked relevant documents to substantiate its claim. In fact, we find, a complaint was given to the Police on the same day, wherein it is clearly mentioned that there was an accident at 5.30 p.m. on 24.11.1992 and in which the bus plying in the route No. 19K was involved.
10. On consideration of the oral and documentary evidence available on record, this Court is inclined to come to the conclusion that the bus in question was involved in the accident and the same was driven in a rash and negligent manner by its driver - RW-1.
11. The next question is what is the just compensation payable by the respondent Corporation. The appellant has marked copy of accident register as well as disability certificate. Dr. J.R. Thyagarajan has been examined as PW-2. If one considers the oral and documentary evidence, it could be seen that he has sustained injury on the chest and that he was hospitalised for a period of 13 days. His spleen had to be removed as there was rupture in it. Even after discharge from the hospital, PW-1 was taking treatment in a private hospital. At the relevant time, the Claimant was working as a salesman in a wine shop. According to the Doctor, the extent of disability is 30%. The question is whether such estimation by the Doctor is correct. In an endeavour to appreciate whether the extent of disability as opined by the Doctor is correct or not, we sought the assistance of the medical books and encyclopaedia to find out what is spleen and what are its functions.
(a) Dorland's Illustrated Medical Dictionary, 29th Edition, which has been published after consulting 27 noted Doctors in various fields describes 'spleen' as, "a large gland like but dectless organ situated in the upper part of the abdominal cavity on the left side and lateral to the cardiac end of the stomach. It is of a flattened oblong shape and about 125 mm long, the largest structure in the lymphoid system; it has a purple color and a pliable consistency, and is distinguished by two types of tissue: red pulp and while pulp. It disintegrates the red blood cells and sets free the hemoglobin, which the liver converts into bilirubin; gives rise to new red blood cells during fetal life and in the newborn; serves as a reservoir of blood, produces lymphocytes and plasma cells, and has other important functions, the full scope of which is not entirely determined."
(b) Stedman's Medical Dictionary, Illustrated 23rd edition would describe 'spleen' as, "a large vascular lymphatic organ lying in the upper part of the abdominal cavity on the left side, between the stomach and diaphragm. ..... The spleen is a blood-forming organ in early life. It is a storage organ for red corpuscles, and, because of the large number of macrophages, acts as a blood filter."
(c) Oxford & IBH New Medical Dictionary would define 'spleen' as, "a large mass of lymphatic tissue between the fundus of the stomach and the diaphragm that functions in phagocytosis, production of lymphocytes, and blood storage. It has an outer capsule of dense connective tissue and smooth muscle fibres, from which trabeculae extend into the pulp consisting of lymphocytes and a network of venous sinuses."
(d) The following text books,
1) Hohn, David C. "Spleen". In Current Surgical Diagnosis and Treatment, 10th edition Ed.Lawrence W.Way. Stamford: Appleton & Lange, 1994.
2) Packman, Charles H. "Autoimmune Hemolytic Anemia" In Conn's Current Therapy, 1996, ed. Robert E.Rakel. Philadelphia: W.B. Saunders Co., 1996.
3) Tanaka, Kouichi R. "Nonimmune Hemolytic Anemia". In Conn's Current Therapy, 1996, ed. Robert E.Rakel. Philadelphia: W.B. Saunders Co., 1996
4) Tsoukas, Christos M., et al. "Effect of Splenectomy on Slowing Human Immunodeficiency Virus Disease Progression". Archives of Surgery 133 (Jan.1998) would describe the organ 'Spleen' and its function is to the effect that, 'Spleen is an organ that is part of the lymphatic system. The spleen is a dark-purple, bean-shaped organ located in the upper left side of the abdomen, just behind the bottom of the rib cage. In adults, the spleen is about 4.8 x 2.8 x 1.6 in (12 x 7 x 4 cm) in size, and weighs about 4-5 oz (113-14 zg). Its functions include a role in the immune system; filtering foreign substances from the blood; removing worn-out blood cells from the blood; regulating blood flow to the liver; and sometimes storing blood cells. The storage of blood cells is called sequestration. In healthy adults, about 30% of blood platelets are sequestered in the spleen.'
12. It may be a person can survive even without a spleen. But one thing is clear that it is performing various functions in the human body system. In fact, according to Dorland's Medical Dictionary, it has other important functions and the full scope of which is not entirely determined.
13. That being so, we are of the view that it cannot be said that fixation of disability at 30% is on the higher side.
A sum of Rs. 40,000/- can be awarded under the head of partial permanent disability. With this we have to add a sum of Rs. 10,000/- towards pain and sufferings; Rs. 5,000/- for loss of income and another sum of Rs. 6,000/- towards medical expenses and extra nourishment. Thus, we can arrive at a figure of Rs. 61,000/-, which we feel would be the just compensation.
14. In the result, the appeal is allowed in part. The award of the Tribunal is modified to the effect that the Appellant/Claimant shall be entitled to a compensation of Rs. 61,000/- instead of Rs. 41,000/- awarded by the Tribunal, which will carry interest at the rate of 12% per annum from the date of filing of petition. No costs.