Madras High Court
D.Sterling James Bhasker vs M/S.Coromandel Harley-Davidson on 22 August, 2022
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.08.2022
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.S.No.67 of 2013
D.Sterling James Bhasker ...Plaintiff
Vs.
M/s.Coromandel Harley-Davidson
Lathangi Cycle and Carriage (P) Ltd.,
Rep. by its Managing Director,
Mr.M.P.Vikram Setti,
Old No.8, New No.15, Wallace Garden,
nd
2 Street, Nungambakkam,
Chennai – 600 006. ...Defendant
Prayer: Petition filed under Order VII Rule 1 CPC Read with Order IV Rule 1
O.S. Rules, to pass a Judgment and Decree against the defendant:
(a) for the recovery of the sum of Rs.2,10,60,000/- (Two crores ten
lakhs and sixty thousand only) due payable by the defendant being the
compensation for the amputation of the right arm and loss of pay, medical
expenses and disability.
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(b) to declare the termination letter dated 19.11.2012, issued by the
defendant terminating the services of the plaintiff as null and void.
(c) for a permanent injunction restraining the defendant their men,
agents and servants from in anyway implementing the termination of
employment of the plaintiff as issued by letter dated 19.11.2012.
(d) to pay the costs of the suit.
(e) to pass any such further orders as this Court may deem fit and
necessary on the facts and circumstance of the case and thus render justice.
For Plaintiff : Mrs.Uma Maheswari
for Mr.Ganesh
For Defendants : Served – name printed – no appearance
JUDGMENT
The suit has been filed by the plaintiff for the following reliefs:
(a) for recovery of a sum of Rs.2,10,60,000/- (Two Crores Ten lakhs and Sixty Thousand only) due payable by the defendant being the compensation for the amputation of the right arm and loss of pay, medical expenses and disability.
(b) to declare the termination letter dated 19.11.2012, issued by the defendant terminating the services of the plaintiff as null and void. 2/44 https://www.mhc.tn.gov.in/judis
(c) for a permanent injunction restraining the defendant their men, agents and servants from in anyway implementing the termination of employment of the plaintiff as issued by letter dated 19.11.2012.
(d) to pay the costs of the suit.
(e) to pass any such further orders as this Court may deem fit and necessary on the facts and circumstance of the case and thus render justice.
2.The case of the plaintiff is as follows:-
(i) The plaintiff has been working in the automobile industry for about 17 years in sales and marketing and he has a very fair amount of recognition and reputation in the industry and owing to his experience and knowledge in the automobile industry, he was originally appointed by A&Z Motor Company (P) Ltd, an authorized dealer of Harley-Davidson Motor Bikes for the territory of Tamil Nadu on 01.07.2011. The plaintiff was appointed as the Business Head and he was paid an annual salary of Rs.7,00,000/- per annum which was subsequently revised to Rs.10,20,000/-.
(ii) Subsequently the defendant had bought over the business of A&Z Motor Company (P) Ltd., and issued a fresh appointment order to the plaintiff 3/44 https://www.mhc.tn.gov.in/judis on 08.06.2012. After taking over of the business of A&Z Motor Company (P) Ltd., the defendant was issued a new dealership code by Harley Davidson India Ltd., and thus, the defendant became an authorized dealer of Harley-
Davidson India Ltd. As a part of his scope of employment, the plaintiff had to organize and conduct HOG (Harley-Davidson Owner's Group) rides for the owners of Harley-Davidson motor bikes, which event is periodically conducted. The first ride, the Founder's Day ride, was organized by Harley-Davidson India th Ltd., on 10 June 2012 with dealership support and then, every fortnight by th the dealership, first to Yelagiri (236 kms), 24 June 2012 and back to Chennai on the same day (which included the Managing Director of the defendant company Mr.Vikram and his entire family for the event in their cars and his brother, Mr.Satish also riding a H-D bike on TCR plate), then to th nd Pulicat/Sriharikota 8 July, 2012 and then to Pondicherry on 22 July 2012.
th
(iii) Apart from that, the plaintiff had been to Bangalore on 10 July 2012 to get Harley-Davidson Company display bikes from Bangalore to Chennai for th th Chennai Auto Expo from 12 to 15 July 2012 and a colleague of the plaintiff 4/44 https://www.mhc.tn.gov.in/judis and the plaintiff rode the bikes from Bangalore to Chennai. Thus, in compliance of his scope of employment, the plaintiff arranged and organized a Harley-Davidson Owner's Group ride on 22.07.2012. This is a periodical program that is conducted by the dealership as a part of business promotion and takes place every fortnight and this particular ride on 22.07.2012 was for the purpose of formation of a HOG (Harley Owners' Group) Chapter for Chennai.
(iv) The plaintiff started HOG ride on 22.07.2012 from the Coromandel Harley-Davidson showroom at Chennai at around 7.00 A.M. along with 19 other bikes and riders (including 3 other dealership-owned vehicles driven by other staff), which is part of his duty as a Business Head of the defendant company. The ride was supposed to be on the Chennai – Pondicherry – Chennai Sector on NH-45. The plaintiff on completion of the first leg of the ride at Tindivanam had taken a break for breakfast alongwith other riders at round 8.30 A.M., after breakfast, the plaintiff was leading HOG ride so as to guide the route of the ride.
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(v) Due to brake failure, the vehicle went out of control and met with an accident and the plaintiff sustained serious injuries including multiple fractures, which cruelly resulted in the amputation of his right arm. The accident took place at around 9.30 A.M., at Kiliyanoor and the riders who were following him rushed him to the nearest hospital i.e. JIPMER Hospital, Pondicherry. After having been taken to JIPMER Hospital, the defendant's representatives and management did not inform the plaintiff's family about the accident in the first instance and it was only later after the lapse of a 2 hours, the plaintiff's family was informed about the accident and no expert medical assistance or treatment was provided to the plaintiff since no Senior Doctor/Surgeon was available, as it was a Sunday.
(vi) The plaintiff's family was therefore left with no other option but to take a huge risk by having him transported from JIPMER Hospital, Pondicherry to MIOT Hospital, Chennai. However, by the time, the plaintiff could be brought to Chennai the damage to his right arm from the accident 6/44 https://www.mhc.tn.gov.in/judis worsened with the main artery, nerves and blood vessels all having come to be completely cut off. There was lack of oxygenation and severe blood loss for several hours. Hence, the only option available to doctors to save the plaintiff's life was to remove the right arm. The right arm was therefore amputated from just 2 ½ inches from the shoulder which has now put him to a bleak and clueless future and he is not in a position to actively work again as he could earlier.
(vii) The plaintiff's right ankle had sustained multiple fractures and is supported by steel plates and screws permanently to help in walking and is also a permanent disability because it impedes running as well as other future simple damages like twisting of the ankle etc. He is the sole breadwinner of his family and his present situation has not only jeopardized his whole family but also affected the future of his child. The plaintiff was shocked to receive a letter dated 29.10.2012 from the defendant wherein it has been claimed as if the plaintiff had virtually stolen the motor bike ridden by him on 22.07.2012 on the ground that he had taken it without any authority, which is absolutely false 7/44 https://www.mhc.tn.gov.in/judis on the part of the defendant to level such allegation against the plaintiff, who has put in his sweat and blood in successfully establishing the dealership of Harley-Davidson in this part of the country. It is also false to state that since the vehicle was under temporary registration, the plaintiff had crossed the permissible limit fixed by the insurance company with reference to the distance upto which the vehicle could be taken out.
(viii) As per the insurance policy of the vehicle, the vehicle could be run by the company staff within a radius of 160 km from the address of the registered owner (the defendant) which is the office address at Old.No.8, New nd No.15, Wallace Garden, 2 Street, Nungambakkam, Chennai – 600 006. The place where the accident took place is well within the radius of 160 km from the office address, as stipulated by the terms of the policy. Originally, at the time when the accident took place, the management of the defendant offered all assistance in the world for his speedy recovery and early resumption of office but owing to the best reasons known to the management of the 8/44 https://www.mhc.tn.gov.in/judis defendant, they started behaving in a hostile manner and refused even to visit the plaintiff at the hospital. When the plaintiff's wife tried to reach the higher officials of the management of the defendant company, she was denied access and was refused audience. The sudden change in colour of the management was putting more pressure on the plaintiff and his family. This hostile behaviour further traumatized the plaintiff which has a serious impact on his recovery.
(ix) The defendant issued a letter dated 28.09.2012 to the plaintiff with all frivolous and vexatious allegations, which are far from the truth, such unscrupulous and callous allegations have been leveled with the sole intent to cover up the lacuna of the defendant and to protect the brand name "HARLEY-DAVIDSON". The defendant has resorted to all sorts of practices and have gone to every conceivable extent to cover up the following defects on their part in relation to the accident:
A.No official permission (Police/Government) sort for conducting HOG ride.
9/44 https://www.mhc.tn.gov.in/judis B.No proper insurance was taken for employees by the defendant company nor had the A&Z Motor Company (P) Ltd.'s bike and rider insurance been transferred.
C.Continuing with the same temporary registration and insurance in the name of A&Z Motor Company (P) Ltd.
D.The brake failure of the vehicle which will cost serious disrepute to the brand image ''HARLEY-DAVIDSON".
(x) It was only with the intent to get away with the above said defects that the defendant has leveled false allegations against the plaintiff, as if he had taken the vehicle without authority. The defendant has therefore rather unfairly and cruelly reduced the plaintiff to no better than a common thief. This allegation is nothing but a thorough afterthought to escape from all liabilities and the allegaion of removing the vehicle without authority has been invented only with intent to defeat and delay the lawful amounts due and payable to the plaintiff. The plaintiff, had suitably replied to the allegations of the defendant vide letter dated 27.09.2012 and email dated 25.09.2012 denying the same as an afterthought and meaningless and that such allegations were the reward 10/44 https://www.mhc.tn.gov.in/judis for his loyalty. The defendant had issued another letter dated 19.10.2012 wherein they claimed that the plaintiff had also removed stocks to the tune of about Rs.12 lakhs and it is further mentioned in the said letter that the plaintiff had prevented the company from taking out insurance policies for its employees. All these allegations are baseless and have been made with ulterior motives to deny the legitimate claims of the plaintiff.
(xi) It is impossible to remove the stocks to the tune that the defendant suggests without actually inviting the attention of the company and secondly, no organization would run the risk of not taking out insurance policies solely on the strength of one man's resistance to it. The defendant had constituted a Disciplinary Committee headed by one Mr.Sathish and called upon the plaintiff to appear before the Committee on 29.10.2012. It was very well known to the defendant company/management that the plaintiff was not in a position to move around and hence it was not possible for him to attend the hearing on 29.10.2012 which had been unilaterally fixed by the management. 11/44
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(xii) The plaintiff had not been issued with any show cause notice nor was he aware of the charges leveled against him to submit his defense. The plaintiff had suitably replied to the defendant through letter dated 25.10.2012 denying the allegations leveled against him as false frivolous, baseless and vexatious and he had further informed the defendant about his inability to appear before the so called Disciplinary Committee. It is unknown from where the defendant had invented allegation against the plaintiff that he did not allow the defendant company to insure the employees. In fact, the plaintiff who had been following it up with the management of the defendant company right from day one that insurance is a must and it should be done on top priority.
(xiii) It is rather unfortunate that the defendant is trying to take advantage of the FIR and washing their hands off their liability to pay the plaintiff the compensation for the injury suffered by him due to the accident which took place while discharging his duty as a Business Head of the defendant company. The defendant seems to be interested in only protecting their brand name and not so keen on the welfare of their staff. 12/44 https://www.mhc.tn.gov.in/judis
(xiv) The plaintiff has spent about Rs.7,00,000/- towards his medical expenses, which is the amount incurred only as on date. In addition, no salary has been paid to him so far since the accident. The plaintiff has become partially disabled and he cannot work or live normally as he used to be. Thus, he is entitled to compensation on the following heads:
(i)Medical expenses : Rs.7,00,000/-
(ii)Opportunity loss since he cannot work
anymore in automobile industry Rs.85,000/- x : Rs.1,83,60,000/-
12 (months) x 18 (years) if you decide not to
retain the services of our client
(iii)Compensation towards mental trauma
and physical pain and suffering : Rs.10,00,000/-
(iv)Compensation towards partial disability : Rs.10,00,000/-
--------------------
Total compensation apart from medical Rs.2,10,60,000/-
expenses so far
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(xv) Instead of sympathizing with pain the plaintiff is undergoing both physically and mentally due to the damage, loss and injury caused to him, the defendant is trying to mock the genuine claim of the plaintiff by claiming 13/44 https://www.mhc.tn.gov.in/judis compensatiion from the plaintiff and is trying to compete with the compensation amount as well with such false claims adding to the agony of the plaintiff. Hence, the plaintiff has no other remedy has approached this Court in filing the above suit for the recovery of the payment receivable to the tune of Rs.2,10,60,000/-. Further, the learned counsel for the plaintiff relied on the following judgments in support of his contention:-
a) Judgment of Hon'ble Supreme Court Ramesh Gobindram (Dead) through Lrs. Vs. Sugra Humayu Mirza Wakf [2010] 8 SCC 726 dated 01.09.2010.
b) Judgment of Hon'ble Supreme Court in Padma Ashok Bhatt Vs. Orbit Corporation Ltd., and others [2017 (6) Mh.L.J.102] dated 26.07.2017.
c) Judgment of Hon'ble Supreme Court in the Premier Automobiles Ltd., Vs. Kamlekar Shantaram Wadke of Bombay [(2017) 5 SCC 623] dated 26.08.1975
d) Judgment of Hon'ble Supreme Court Maharashtra State Cooperative Housing Finance Corporation Ltd., Vs. Prabhakar Sitaram Bhandange (2017) 14/44 https://www.mhc.tn.gov.in/judis 5SCC 623 dated 30.03.2017.
e) Judgment of Hon'ble Supreme Court Ishwar Bhai C.Pate Vs. Harihar Behera and Another (1999) 3 SCC457 dated 16.03.1999
f) Judgment of Hon'ble Supreme Court in Pradip Buragohain Vs.Pranati Phukan (2010)11 SCC 108 dated 07.07.2010.
g) Judgment of this Court in Arasa Kumar Vs. Nallammal [2004(4) CTC 261] dated 19.03.2004
h) S.Suppiah Chettiar Vs. V.Chinnathurai AIR 1957 Mad 216 dated 10.08.1956
i) Judgment of High Court of Allahabad Dominion of India Vs. Kaniz Fatma and Another [1961 SCC Online All 353] dated 17.04.1961
j) Judgment of High Court of Gujarat [Union of India Vs. Gopaldar Varandmal] reported in 1965 SCC Online Guj] dated 13.08.1965
k) Judgment of High Court, Kerala in Minerals & Chemicals Vs. T.A.Thevan [1992 (64) FLR 212] dated 26.09.1991.
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3. Though the defendant at an earlier point of time appeared before this Court and filed the written statement, has not chosen to appear before this Court at present and thereafter, notice was served and name has been printed in the cause list, but there is no representation on behalf of the defendant either inperson or through learned counsel. Further, the defendant has not chosen to let in any evidence. The defendant, by way of written statement, has denied the averments stated by the plaintiff as follows:-
(i) The plaintiff was appointed by letter dated 08.06.2012 under probationary for a period of six months and the company is at liberty to terminate his services, if his service is found not satisfactory and if he was found to be indulged in activities prejudicial to the interest of the company at any time.
(ii) The defendant-company, M/s.Lathangi Cycle & Carriage took over dealership of Corommandel Harley Davidon dealership from M/s.A&Z Motors Pvt. Ltd., on 26.05.2012. The employees of A&Z Motors were offered jobs for the same position they were holding at the time of taking over the charge of 16/44 https://www.mhc.tn.gov.in/judis dealership only on the basis of their willingness and they were appointed for the positions as specified in their appointment orders. The plaintiff being Business Head has to organize HOG drives which literally means Harley Davidson Owner's Group, means the Owners of Harley Davidson Bikes will go together for a pleasure drive and the defendant being Dealer, Principal for CHD (Corommandel Harly Davidson) have to organize chapters on a regular intervals.
(iii) The plaintiff being Business Head and representative of Lathangi Cycle and Carriage Pvt. Ltd., has to supervise the HOG Drive and he is responsible to conduct the HOG Drive, as per the HOG Rules, which specified that "every HOG Driver/rider has to sign a declaration form that they are driving/riding the bike on their own volition and any injury suffered during the raid the driver/rider is solely responsible for CHD (Dealer Principal) or HD (Principal) are not responsible'.
(iv) It is very clear from the FIR, given by the brother of the plaintiff in Kiliyanur Police Station that the plaintiff was negligent, reckless and rash in 17/44 https://www.mhc.tn.gov.in/judis driving the vehicle. Further, in the reply of the plaintiff dated 18.09.2012, the plaintiff has claimed that the accident was a result due to his high sugar levels and subsequent black out due to high sugar levels.
(v) The Management of LCCPL took upon itself to help the plaintiff and paid a sum of Rs.2,85,000/-, towards cost of treatment and supported the family, this fact has been admitted by the plaintiff's spouse, vide her mail dated 18.08.2012, but the plaintiff has chosen to hide this good gesture of LCCPL management to this Court and has asked to put it for strict proof, which itself shows his attitude of gaining undue monetary benefits through any means, wherein the defendant is not liable to pay any amount to the plaintiff, who drive the motorcyle by violating traffic rules, HOG Rules and Company Rules which is also not in the name of the defendant.
(vi) In the insurance policy, it is clearly mentioned that the policy is limited to geographical area, as per Motor Vehicles Act and there is no mention of 160 km radius and the motorcycle and its insurance is not in the 18/44 https://www.mhc.tn.gov.in/judis name of the company and he has taken the motorcycle on his own without transferring the vehicle and insurance in the name of the defendant and without the consent of the defendant. As such, the claim of the plaintiff is false and far from the truth and the defendant is not liable to pay the compensation as claimed.
(vii) The plaintiff has made loss to the company amounting to Rs.14,31,920/-, being the landing cost of the bike, which was damaged not fit to repair, due to the action of the plaintiff and the plaintiff was in probationary period at the time of the accident. The company issued a show cause notice calling for his explanation, a Disciplinary Committee, was constituted and after giving opportunity on several times and on examining his misconducts, he was terminated from the service on 19.11.2012 and the termination order was given effect from that date and the same was implemented.
(viii).The defendant submitted that the management representatives were dealt with hostile treatment by the spouse of the plaintiff, whenever they 19/44 https://www.mhc.tn.gov.in/judis visited the hospital, they requested to give the copies of the receipts for the payment made by the management at MIOT Hospital towards plaintiff medical bills, the spouse of the plaintiff not only refused to provide copies of receipts but made a demand for further release of payment and also abused the representative of the defendant. This type of hostility came from the family members of the plaintiff, despite the defendant's responsible behaviour and helpful nature. The plaintiff has hidden the actual facts, if at all the management was to be hostile why it would release a sum of Rs.2,85,000/-
and the amounts were paid in cash at MIOT Hospital in the name of the plaintiff as MIOT Hospital demanded only cash payments.
(ix) The defendant further submitted that even though the plaintiff was under probation and despite his hostile behaviour chose to give a personal hearing and accordingly, the management consituted a 3 Member Disciplinary Committee for personal hearing, so that the plaintiff can represent his case and submit all documentary evidence and also submit his plea before the Committee, since he expressed his inability to appear in person, the plaintiff 20/44 https://www.mhc.tn.gov.in/judis was allowed to represent his case through his representative, but failed to appear by himself or send representative on all the three dates viz. 29.10.2012, 05.11.2012 and 10.11.2012 and the version of the plaintiff that management put every effort to prevent a complaint is far from truth and baseless.
(x) On 23.07.2012, the Management sent its representative to Kiliyanur Police Station and lodged a complaint stating that the plaintiff had driven the said registered vehicle and met with an accident within the limits of Kiliyanur Police Station by skidding and suffered injuries on his right hand elbow and right leg, no third party was involved. Further, Kiliyanur Police acknowledged above complaint and registered the same as complaint and issued receipt No.0409361 dated 23.07.2012 and released the vehicle which was left in their Police Station on 22.07.2012 after the accident.
(xi) At the time of changeover of dealership from M/s.A&Z Motors to LCCPL it was informed to the plaintiff to get the insurance done for himself and the other staff deployed under him, which he refused by stating that it was 21/44 https://www.mhc.tn.gov.in/judis not necessary as no insurance existed during A&Z Motor tenure also. Further, being Business Head and representative of management at the highest level, the onus lies on the plaintiff to get the insurance for his division, which he failed to do so. The management never stated that insurance will not be taken for the CHD staff. On the contrary, the plaintiff rejected the offer by stating that the same is a wasteful expenditure, now the plaintiff is trying to blame the management.
(xii) The plaintiff being Business Head with A&Z Motors and also with LCCPL, his responsibility was to ensure that all the documents which were in the name of A&Z Motor transferred in the name of LCCPL, which he failed to do so till 22.07.2012 i.e. till 58 days of take over. On the contrary, the management time and again reminded the plaintiff of his duties and asked the plaintiff to ensure smooth transition from M/s.A&Z Motor to LCCPL, which he failed to do so, the plaintiff claims of having more than 17 years of experience in automobile industry with unblemished track record, which is doubtful by his lacklustre approach, despite being Business Head he is trying to shift the onus 22/44 https://www.mhc.tn.gov.in/judis on the management rather than accepting his failure to get the documents such as Temporary Registration and insurance from A&Z Motor Company to LCCPL.
(xiii) The plaintiff alleged that the management is trying to prevent any legal settlements is not true, the plaintiff is not entitled to any amount from the management/defendant. On the contrary, the management/defendant had compensated and paid towards medical bills to the tune of Rs.2,85,000/- at MIOT Hospital and Rs.2,000/- for ambulance which is more than the compensation, which if at all he is entitled, the good gesture of management was stalled by the plaintiff and his family members by their hostile behaviour towards managment, thereby pleaded in the written statement to dismiss the suit.
4. Heard the learned counsel for the plaintiff and perused the documents / pleadings filed and the judgments referred by the plaintiff as well and the written statement filed by the defendant.
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5. This Court had framed as far as five issues for consideration on 06.06.2014, thereafter, vide order dated 16.10.2014, admitted the present suit by raising ten Substantial Questions of Law, which are as follows:-
Issues:-
1. Whether the plaintiff is entitled to the compensation as claimed in the suit?
2. Whether the plaintiff is entitled to a decree of declaration that the Letter dated 19.11.2012 terminating his service is null and void?
3. Whether the plaintiff is entitled to a decree of injunction restraining the defendant from implementing the termination of employment by letter dated 19.11.2012?
4. Whether the plaintiff is entitled to reimbursement of medical expenses incurred by him during his employment as an employee of the defendant?
5. Relief & Cost 24/44 https://www.mhc.tn.gov.in/judis Substantial Questions of Law:
(1) Whether the plaintiff is authorised to drive the bike being business head or he has to driver in the escort car which is provided for him?
(2) Whether the plaintiff had obtained permission from management to drive the motor cycle?
(3) Whether the accident was due to the mechanical failure of the bike or because of rash and negligent ride by the plaintiff?
(4) Whether the plaintiff has been covered already under ESI Act or not? (5) Whether the plaintiff is entitled to compensation towards loss of income for the permanent disability suffered by him due to the accident?
(6) Whether the plaintiff is entitled to compensation for the pain and suffering and mental agony?
(7) Whether the counter claim filed by the defendant is maintainable? (8) Whether the suit is maintainable as filed?
(9) Whether the plaintiff is entitled to ride the vehicle based on the temporary registration without following the motor vehicle rules? 25/44 https://www.mhc.tn.gov.in/judis (10) Whether the plaintiff is entitled to any other relief?
6. For Clarity and better appreciation, this Court, would like to answer Issue No.1 and Substantial Question of Law No.5 together and Issue No.4, at the end.
7. As far as Issue Nos. 2 & 3 are concerned, It is an admitted fact on either side that the plaintiff was issued with a fresh appointment order on 08.06.2012 by the defendant. The plaintiff was designated as 'Head Business Operations' Coromandel Harley Davidson Division, on a consolidated pay of Rs.85,000/- which is evident through Ex.P.1. On a perusal of the same, it is seen that effective date of appointment was mentioned as 26.05.2012 and the probationary period was mentioned for a period of 6 months from the date of joining. Further, it is made clear that only on a successful completion of probation, the services of the plaintiff would be confirmed. The accident had occurred on 22.07.2012, which is well within the period of probation and period of employment. Hence it is correct to state that only after the occurrence of the accident, the plaintiff was terminated. There is a clear 26/44 https://www.mhc.tn.gov.in/judis distinction between public employment governed by statutory rules and private employment, which is governed purely by contract. The test for deciding the nature of relief, viz., damages or reinstatement with consequential reliefs is whether the employment is governmed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory Rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts, as per decision of Hon'ble Supreme Court reported in Manu/SC/7605/2008 [State Bank of India & Others Vs. S.N.Goyal]. That apart, the High Court of Rajasthan in a case reported in 2011 LLR 654 [Suresh Chander Vs. Nagar Palika, Rajsamand & Another] has observed that "Even when the termination of the workman is held to be illegal, the relief of reinstatement with backwages is not automatic since the courts can grant 27/44 https://www.mhc.tn.gov.in/judis compensation in lieu of reinstatement and back wages". Keeping in mind the said decisions of Hon'ble Supreme Court as well as High Court of Rajasthan, this Court is of the view that the plaintiff is not entiled to a decree of declaration that the termination letter dated 19.11.2012 is null void. In view of the above, Issue Nos.2 and 3 does not arise for consideration and the said issues are answered accordingly.
8. The Substantial Question of Law Nos.1 and 2, are interlinked and hence they are taken up together.
Though the defendant by way of written statement averred that the plaintiff being Business Head and Representative of Lathangi Cycle and Carriage Pvt., Ltd., has to supervise the HOG drive and that the plaintiff is responsible to conduct the HOG drive, as per the HOG Rules, which specified that 'every HOG Driver / rider has to sign a declaration form that they are driving / riding the bike on their own volition and any injury suffered during the raid the driver / rider is solely responsible and CHD (Dealer Principal) or HD 28/44 https://www.mhc.tn.gov.in/judis (Principal) are not responsible' however, the defendant has not chosen to substantiate such contention by filing necessary documents and the appointment order is also silent about the same, hence, the said substantial questions of law are answered in favour of the plaintiff.
9. As far as Substantial Question of Law No.3 is concerned, the stand of the plaintiff is that due to brake failure of the defendant owned demo bike, the plaintiff fell down, thereby sustained grievous injuries. The defendant in their written statement has stated that the accident had occurred due to the rash ad negligent driving of the plaintiff. Further, in the FIR No.430 of 2012, viz., Ex.P.3 dated 10.08.2012 lodged by the plaintiff's brother under Sections 279 and 338 of IPC, it is alleged that the plaintiff stumbbled and fell down and there is no further evidence to corroborate the same during trial by either party. The discharge summary of the plaintiff in the JIPMER hospital, viz., Ex.P.4 would go to show that the plaintiff skid and fell down, which led to the injury and amputation of the right arm. The contention of the plaintiff is not established by examining the brake inspector or by producing necessary 29/44 https://www.mhc.tn.gov.in/judis documents. Though this Court had held that the accident had occurred in the course of employment, this Court is unable to ascertain the actual cause of accident, since there are no substantial evidence on either side to prove the accident had occurred due to brake failure or rash driving. The said issue is answered accordingly.
10. With regard to Substantial Question of Law No.4 is concerned, it is no doubt that in order to cover under ESI Act, the worker / Employee must contribute 1.75% of their salary, while the employer contributes 0.75% towards ESI Scheme. Further, the existing wage limit for coverage under the Act is fixed at Rs.21,000/- and Rs.25,000/- per month, in the case of a person with disability. The worker contributes 1.75% of their salary while the employer contributes 4.75% towards the ESI scheme, in the present case, it is clear that the plaintiff earns a sum of Rs.85,000/-, as consolidated pay, which is evident through Ex.P.1, appointment letter, hence it is clear the plaintiff is not covered under ESI Act.
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11. As far as Substantial Question of Law No.6 is concerned, since the plaintiff is in the managerial cadre, he cannot claim compensation before the Labour Court or any other court, therefore, the plaintiff has comeforward before this Court. That apart, a perusal of the discharge summary from MIOT Hospital, viz., Ex.P.5, shows that the plaintiff suffered severe crush injury and the plaintiff underwent above Elbow Guillotine Amputation right arm and it is crystal clear that the plaintiff would have undergone severe pain and sufferings. Keeping in view of the Judgment of the Hon'ble Supreme Court in the case reported in (2011) 1 SCC 343 [Rajkumar Vs. Ajay Kumar], this Court is inclined to award a sum of Rs.1,00,000/- under the head 'pain and sufferings'
12. As far as Substantial question of Law No.7 is concerned, the defendant has taken a stand in their written statement that the plaintiff had blocked the defendant from taking insurance for the display bikes, removed the stocks of the company to the tune of Rs.26,39,821/- and sought to pay the 31/44 https://www.mhc.tn.gov.in/judis landing cost Rs.14,31,920/- of the bike which was a part of accident. There is no ample evidence / documents to substantiate that the plaintiff had blocked the defendant company from taking insurance, moreover, this Court finds some force in the contention of the plaintiff that no organization would run the risk of not taking out insurance policies solely on the strength of one man's resistance to it. Further, the stand of the defendant that the plaintiff had removed the stocks of the defendant company, also cannot be accepted, in view of the fact that definitely, the security personnel, computerized codes, CCTV cameras would have been available for all the products of the defendant and the defendant has neither proceeded to conduct any enquiry nor lodged a police complaint with regard to the alleged theft. Further, after filing written statement in the year 2013, the defendant had not chosen to appear before this Court in further hearings. Though the learned counsel for the defendant had reported no instructions in the year 2018, they were set ex- parte only in the year 2021. Inspite of granting several opportunities, the defendant has not entered appearance nor let in any evidence to prove their 32/44 https://www.mhc.tn.gov.in/judis claim, hence this Court is unable to accept the contention and counter claim of the defendant.
13. With regard to Substantial Question of Law No.8 is concerned, the plaintiff is residing at Chennai and the defendant-company is also situated at Chennai. Further, this Court has jurisdiction to try the suits valued above Rs.1 Crore and the present suit is valued for a sum of Rs.2,10,60,000/-, the present suit is maintainable.
14. With regard to Substantial Question of Law No.9 is concerned, the temporary registration of a vehicle is dealt under Section 43 of the Motor Vehicle Act, 1998, for ready reference, the same is extracted as follows:-
43. Temporary registration.— (1) Notwithstanding anything contained in Section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle 1. Subs. by Act 54 of 1994, Section 11, for “original registering authority” (w.e.f. 14-11- 33/44
https://www.mhc.tn.gov.in/judis 1994). 28 temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark.
(2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted 1 [with a body or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods, as the registering authority or other prescribed authority, as the case may be, may allow. 2 [(3) In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner.] On a careful reading of the said section, extracted above, it is clear that the only mandate given under Section 43 is that the registration should not 34/44 https://www.mhc.tn.gov.in/judis exceed more than one month and shall not be renewed. In the present case on hand, there is no document / evidence whatsoever has been produced by the defendant to establish that the plaintiff is not entitled to ride the vehicle and the vehicle driven by the plaintiff was under temporary registration and the plaintiff had driven the vehicle without following the motor vehicle Rules, hence it is construed that the plaintiff is entitled to ride the vehicle.
15. Issue No.5 and Substantial Question of Law No.10 are taken up together :-
The plaintiff is not entitled to any other relief.
16. The Issue No.1 and Substantial Question of Law No.5, are taken up and answered together.
As dealt above, it is clear that the accident had occured only during the course of employment. In a case reported in Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance Co., Ltd., reported in 2011 ACJ 2436 (SC), the Hon'ble Apex Court has held that "The term 'disability', as so used, ordinarily, means loss or impairment of earning power and has been held not 35/44 https://www.mhc.tn.gov.in/judis to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he as able to do previous to his injury, he will be entitled to suitable compensation. When it is crystal clear that the accident had occurred during the course of employment and there is no rebuttable evidence / documents produced by the defendant that the plaintiff was not an employee at the time of accident, the 'Employer becomes liable to pay compensation as soon as personal injury is caused to workman by accident which admittedly arose out of and in course of emploment', as opined by the Hon'ble Supreme Court in Civil Appeal No.5669 of 2012 (Arising out of SLP (C) No.9516 of 2010) dated 31.07.2012) [The Oriental Insurance Company Ltd., Vs. Siby Gerge and Others]. That apart, the Hon'ble Supreme Court in the case reported in (2011) 1 SCC 343 [Rajkumar Vs. Ajay Kumar] laid down the heads under which the compensation is to be awarded for personal injuries. Besides the above, eventhough the right arm of the plaintiff was 36/44 https://www.mhc.tn.gov.in/judis amputated and he cannot perform his work, as he was performing earlier, the plaintiff has failed to mark doctor's certificate with regard to his disability, therefore, in view of the said judgments rendered by the Hon'ble Supreme Court, this Court holds that the plaintiff is entitled to the compensation, but not as claimed in the suit.
17. With regard to Issue No.4, when this Court holds that the plaintiff is entitled for claiming compensation owing to the fact that at the time of occurence the plaintiff was an employee of the defendant-company, this Court, taking note of the fact that the plaintiff has marked the medical bills and the discharge summary from Jipmer Hospital as well as MIOT Hospital, vide, Ex.P.4 and Ex.P.5 to show that he has spent a sum of Rs.7,00,000/- towards his medical expenses, considering the grievous injuries suffered by the plaintiff and the treatment / surgery undergone by him, is of the view that a sum of Rs.7,00,000/- is a just and reasonable amount under the head 'medical expenses' and the same is hereby awarded and the said issue is answered in favour of the plaintiff.
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18. Taking into account the judgments laid down by the Hon'ble Supreme Court mentioned supra and considering the fact that there is no appropriate evidence or documents produced on the side of the defendant to disprove the claim of the plaintiff, this Court is inclined to accept the claim made by the plaintiff to the extent indicated below and grant the compensation to the plaintiff accordingly. That apart, the Hon'ble Supreme Court in the case of Binny Ltd., & Another Vs. Sadasivan & Ors., reported in (2005) 6 SCC 657, has observed that 'even if there is illegal termination of services, it is not possible to grant damages as claimed inasmuch as the principle of mitigation of damages squarely applies. As per this principle of mitigation of damages enshrined in Section 73 of the Contract Act, 1872, even if an employee is illegally terminated from services, he cannot sit at home and he must take sufficient steps to procure alternative employment'. In the present case, the percentage of permanent disability has not been proved by way producing a disability certificate from a authorised doctor with reference to the amputation of right hand. However, it is not in dispute that the plaintiff has 38/44 https://www.mhc.tn.gov.in/judis suffered such a permanent disability, subsequent to which, the plaintiff was terminated from service, but that does not mean that the plaintiff is not capable to do any other job. Having experience in automobile industry for more than 17 years, as averred by the plaintiff in the plaint, he can perform any job where an application of mind is required than physical work.
19. Considering all the above stated facts and circumstances of the case and keeping in mind the judgments rendered by the Hon'ble Supreme Court as stated supra and taking note of the fact that the right hand of the plaintiff was amputed, he cannot perform his job, as he was doing before the accident, this Court is of the view that the plaintiff has suffered Partial Permanent Disability and therefore, inclined to fix 50% of his salary as monthly income and awards a sum of Rs.91,80,000/- towards 'Loss of Opportunity' & 'Partial Disability' [Salary is fixed at Rs.42,500/-, which is 50% from Rs.85,000/-, (as per Ex.P.1, Appointment order of the plaintiff dated 08.06.2012, issued by the defendant) *12(months)*18 (pending Years of 39/44 https://www.mhc.tn.gov.in/judis service, since in Tamilnadu, the retirement age of the employee is fixed at 60 and at the time of accident, the plaintiff was aged 42 years, multiplicand '18' is adopted)]. Further, considering the grievous injuries suffered by the plaintiff, which is evident as per Ex.P.4 and Ex.P.5, discharge summary along with medical bills from JIPMER Hospital, Puduchery and Discharge summary along with medical bills issued by MIOT hospital respectively, this Court is inclined to award a sum of Rs.7,00,000/- towards medical expenses and Rs.1,00,000/- under the head 'pain and sufferings'. In total, the plaintiff is entitled to a sum of Rs.99,80,000/-, as compensation and the defendant is directed to pay the same within a period of six months from the date of receipt of copy of this Judgment and if the defendant fails to pay the same within the prescribed period, the compensation shall carry an interest of 7.5% per annum.
In the result, the suit is partly decreed in the following manner:-
(i) The defendant shall pay a sum of Rs.99,80,000/- as compensation as specified above [Rs.91,80,000/- under the head 'Loss of Opportunity', Rs.7,00,000/- towards 'Medical Expenses' and Rs.1,00,000/- 40/44
https://www.mhc.tn.gov.in/judis towards 'Pain and Sufferings'] within a period of six months from the date of receipt of copy of this Judgment.
(ii) If the defendant fails to pay a sum of Rs.99,80,000/- within the prescribed period, the said compensation shall carry an interest of 7.5% per annum.
(iii) No costs.
22.08.2022 Index:Yes/No Internet:Yes/No Speaking Judgment / non speaking Judgment Exhibits produced on the side of the plaintiff:
S.No. Exhibits Date Description
1. Ex.P-1 08.06.2012 Appointment order of the plaintiff issued by the defendant
2. Ex.P-2 13.02.2012 The original reliance general insurance policy no.1203322345000033 dated 13.02.2012 filed by the defendant
3. Ex.P-3 10.08.2012 Certified copy of the FIR registered with Kiliyanoor Police Station
4. Ex.P-4 Photocopy of the discharge summary as issued by JIPMER Hospital, Puducherry along with medical bills.
5. Ex.P-5 Original discharge summary issued by 41/44 https://www.mhc.tn.gov.in/judis S.No. Exhibits Date Description MIOT Hospital, Chennai along with medical bills
6. Ex.P-6 28.08.2012 Original letter from the defendant to the plaintiff
7. Ex.P-7 03.09.2012 Original amendment letter from the defendant to the plaintiff
8. Ex.P-8 18.09.2012 Original reminder letter from the defendant to the plaintiff
9. Ex.P-9 18.09.2012 Office copy of the letter from the plaintiff to the defendant 10 Ex.P-10 19.10.2012 Original letter from the defendant to the plaintiff on appointment of disciplinary committee 11 Ex.P-11 Email and reply issued by the plaintiff on the appointment of disciplinary committee.
nd 12 Ex.P-12 26.10.2012 Original 2 letter on the disciplinary committee hearing th 13 Ex.P-13 10.11.2012 Original 4 letter on the disciplinary committee hearing 14 Ex.P-14 09.02.2009 Office copy of legal notice along with postal acknowledgement 15 Ex.P-15 07.11.2012 Original legal notice on behalf of the plaintiff issued to the defendant 16 Ex.P-16 05.12.2012 Original reply notice on behalf of the defendant addressed to the plaintiff 42/44 https://www.mhc.tn.gov.in/judis S.No. Exhibits Date Description 17 Ex.P.17 19.11.2012 Original termination Order passed by the Defendant Witnesses examined on the side of the plaintiff:
P.W.1. - Mr.D.Sterling James Bhasker (P.W.1) 22.08.2022 43/44 https://www.mhc.tn.gov.in/judis V.BHAVANI SUBBAROYAN, J ssd C.S.No.67 of 2013 22.08.2022 44/44 https://www.mhc.tn.gov.in/judis