Madras High Court
K. Shankar vs Pallavan Transport Corporation Ltd. on 22 July, 1999
Equivalent citations: 2001ACJ488
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. Shankar, the claimant is the appellant herein.
2. For the injuries sustained on his right leg which resulted in the complete amputation due to the negligent driving of the bus belonging to the Pallavan Transport Corporation, the respondent herein, the appellant herein filed a claim petition claiming compensation of Rs. 4,50,000.
3. The Tribunal, after enquiry, though concluded that compensation could be worked out to Rs. 1,47,000, held that the claimant would not be entitled to any compensation, since he alone was negligent. However, the Tribunal awarded Rs. 25,000 towards no fault liability.
4. Questioning this amount on no fault liability, Pallavan Transport Corporation, the respondent herein also filed a cross-objection on the ground that during the relevant time, no fault liability for the injuries would be only up to Rs. 7,500.
5. The few facts which are required for the disposal of the appeal and the cross-objection could be stated as follows:
(a) Shankar, the appellant herein was working as a helper and welder in a lathe workshop. On 14.2.1989 at about 8.30 p.m. after finishing his work, he was walking along Rajaji Salai on the western side of the road, in order to get the bus route No. 58. When he was going opposite to Harbour Police Station, the bus bearing registration No. TCB 4663, route No. 57 V came from south to north at a very high speed, in a rash and negligent manner and turned towards the extreme western side of the road and hit against the claimant. Due to the impact, he fell down and sustained serious injuries on the right leg. He was taken to the hospital. He took treatment for about two months. Ultimately, his entire right leg was amputated.
(b) Originally, the right leg up to knee was removed. Therefore, in the petition which had been filed initially the claim was made only for Rs. 2,00,000. During the pendency of the petition, leg up to thigh was removed and amputated. So, he filed another petition for enhancing the claim amount to Rs. 4,50,000.
(c) During the course of enquiry, in order to prove the negligence of the bus driver, the claimant examined himself as PW 1 and others as PW 2 to PW 5, Exhs. A1 to A5 were marked on the side of the claimant. On the other side, RW 1, the driver, RW 2, the A.D.S.I. of police and RW 3, Hemanthakumar, one of the passengers were examined and Exhs. R1 to R4 were marked.
(d) On analysing the material evidence placed before the Tribunal by both the parties, the Tribunal concluded that the injured/claimant was alone negligent and so, he would not be entitled to any amount as compensation. However, towards no fault liability Rs. 25,000 was awarded.
6. As indicated earlier, the Tribunal, though calculated the amount of compensation as Rs. 1,47,000 in terms of the loss, found that the claimant was negligent and that, therefore, he would not be entitled to any amount of compensation.
7. The impugned award is being assailed by the learned counsel for the appellant/ claimant on the ground that the Tribunal has not analysed the evidence properly and by overlooking the vital materials, wrongly concluded that the injured was negligent.
8. Even though there is a finding by the Tribunal that the injured would not be entitled to any amount of compensation, being dissatisfied with the award of Rs. 25,000 as 'no fault liability', the Pallavan Transport Corporation has filed the cross-objection mainly on the ground that injured would be entitled to only Rs. 7,500 for no fault liability under the prevailing provisions then.
9. I heard the counsel for the parties.
10. On going through the award impugned and the materials, I am of the view that the Tribunal has not taken into consideration the relevant materials available on record in the proper perspective and consequently, there has been a miscarriage of justice through a wrong finding to the effect that the injured was negligent.
11. To arrive at such a conclusion, I may state the reasons, which are as follows:
(i) The occurrence had taken place on 14.2.1989 at about 8.30 p.m. According to PW 1, the claimant, when he was walking along the road on the left side, the bus came and hit against him from behind. According to the driver, RW 1, when the bus was going slowly, the injured attempted to board the bus through the front door and fell down, as a result of which, the rear wheel ran over his right leg. In order to support the version of PW 1, PW 3 Kumar, an eyewitness was examined. In order to support the plea made by RW 1, RW 3 one Hemanthkumar, the alleged passenger was examined.
(ii) But, curious thing that I could see in this case is that RW 1 gave a complaint to the police, who in turn registered the same as F.I.R. making the injured himself as an accused for an offence under Section 337, Indian Penal Code. It is stated in the F.I.R. that the injured out of his own negligence sustained injuries by falling down from the bus, while attempting to board into the bus. This aspect has been proved by PW 5, the Investigating Officer and RW 2, the A.D.S.I. of Police.
(iii) Another peculiar feature in the instant case is that an alleged statement from the injured at the hospital had been obtained by PW 5, in which also it is stated that the victim sustained injuries only due to his own negligence. Ultimately, the Police Officer, referred the matter as a 'mistake of fact'. When the F.I.R. itself does not give any particulars with reference to any offence against any person, it is not known as to why the F.I.R. had been registered for the offence under Section 337, Indian Penal Code, that too, against the victim.
(iv) Moreover, the main portion of the contents of the F.I.R. was not supported by RW 1 during the course of the examination. In the F.I.R., it is stated that as soon as he got down after the accident, he was chased by public and consequently, he went to the Harbour Police Station, and reported the matter. But, RW 1 during his cross-examination would deny that he had given such a statement to the police. Furthermore, according to RW 1, he went to Harbour Police Station, the police there in turn rushed to the spot and took the injured to the hospital and along with the transport officials, he came to the Elephant Gate Police Station and only there, he gave a complaint to the police in the presence of the transport officials. But, contrary to the above statement, PW 5, the Investigating Officer would state that he came to the spot on receipt of the information and obtained a complaint from the driver at the spot itself. If that is true, it is quite strange to see, how the driver was able to get the name and other particulars of the injured, who was in the hospital at that time. Therefore, I am not able to place any reliance either on the evidence of the Investigating Officer or on the evidence of RW 1 and other documents marked as Exh. R-1, F.I.R. and Exh. R-3, referred report.
(v) Exh. R-4 has been marked through PW 5 to show that he obtained a statement from the injured. Admittedly, when the alleged statement had been obtained from the injured, the F.I.R. was pending against the injured. In the F.I.R. the claimant Shan-kar was shown as an accused. When the investigation was pending, PW 5 is said to have gone to the hospital and obtained a statement from the injured. The injured is a person, who knows to write and read. But, Exh. R-4 contains thumb impression. It is not known under what circumstances thumb impression was obtained from the victim, who was conscious even according to RW 1.
(vi) The fact that RW 1's admission regarding the presence of the Pallavan Transport Corporation officials at the time of giving complaint to the Elephant Gate Police and the subsequent fact of the police registering the F.I.R. against the victim himself, when there are no allegations against him in the F.I.R. in regard to the offence under Section 337, Indian Penal Code, would show that these documents were deliberately created by the Pallavan Transport Corporation with the effective connivance of the police, in order to escape from liability.
12. Under these circumstances, I do not find any reason to reject the evidence of PW 1, which is well corroborated by the evidence of PW 3, another eyewitness.
13. In this context, the decision rendered by this court in M. Jaganathan v. Pallavan Transport Corporation Ltd. 1999 ACJ 366 (Madras), is quite relevant.
14. The Division Bench of this court in the said decision would elaborately deal with several decisions rendered by the various High Courts regarding the duties of the drivers and conductors. The gist of the observations is as follows:
The fundamental duty of both the driver as well as the conductor is to verify specifically whether any passenger is getting into the bus or getting down from the bus before actually the bus is moved from the bus-stop where it is stopped, irrespective of the fact whether the place of stopping is a bus-stop or not.
It cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of the passengers. While driving, he must have the passengers in contemplation and he must avoid acts or omissions which can reasonably be foreseen to injure them and in deciding what acts or omissions he should avoid, he must bear in mind the normal habits of passengers.
Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape from liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable.
15. While taking these observations into consideration, it is quite clear that in this case, the claimant has clearly proved through the oral and documentary evidence that the driver of the bus alone was negligent and due to negligent driving, he sustained very serious injuries, resulting in the complete amputation of his right leg and also resulting in the loss of his job.
16. In the light of the above finding, let us now go into the aspect of assessment over the damages.
17. The Tribunal assessed the loss to the tune of Rs. 1,47,000. In my view, in the light of the facts and circumstances of the case, the said amount is very much on the lower side.
18. There is evidence to show that the claimant was earning Rs. 500 per month in a lathe workshop. Exh. P-3 has been marked to show that due to the amputation of his right leg, he lost his job. Moreover, he has also produced disability certificate Exh. P-5 to show that the permanent disability is 80 per cent.
19. In the light of the above factors, we have to suitably modify the award impugned, which could be done in the following manner:
Rs.
(1) For permanent disability 80,000 (2) For pain and suffering 50,000 (3) For loss of earning power in the future 1,00,000 (4) For loss of earning during the period when he was hospitalised for two months 2,000 (5) For loss of expectation of proper marital alliance 50,000 (6) For mental agony 1,00,000 (7) For medical expenses 7,000 (8) For mental anguish suffered by parents 50,000 (9) For transport charges and extra nourishment 11,000
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Total 4,50,000 Thus, the total compensation would work out to Rs. 4,50,000.
20. Therefore, the claimant-appellant would be entitled to the amount of compensation as claimed along with interest at 12 per cent per annum from the date of the petition till the date of payment. Consequently, the appeal is allowed and the cross-objection is dismissed. No costs.