BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:13/10/2008 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL C.M.A.(MD)No.519 of 2004 and C.M.P.No.2610 of 2004 The Managing Director Tamil Nadu State Transport Corporation, Madurai Division-I, Ltd., Madurai 625 016. .. Appellant Vs D.Pratap .. Respondent Prayer Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree made in M.C.O.P.No.31 of 2001 on the file of the Motor Accidents Claims Tribunal (Sub Court) Sivagangai dated 30.06.2003. !For Appellant ... M/s.C.Ambujam Selvarani ^For Respondent ... No appearance :JUDGMENT
This Civil Miscellaneous Appeal is filed by the appellant/respondent as
against the award dated 30.06.2003 passed in M.A.C.T.O.P.No.31 of 2001 by the
Motor Accidents Claims Tribunal viz., Sub Court, Sivagangai in awarding a total
sum of Rs.2,13,000/- as compensation along with interest at 9% per annum from
the date of filing of the petition till date of payment.
2.The facts of the claim in nutshell are as follows:
(i) On the date of accident, the respondent/claimant was travelling in the
appellant/respondent’s bus bearing Registration No.TN-58-N-0299 from Madurai to
Tirunelveli to attend his cousin’s marriage. The appellant/ respondent’s
Transport Corporation bus driver drove the bus in a rash and negligent manner
and when the bus came near to Etturvattam Pillaiyar Koil, a woman tried to cross
the road from west to east and the driver tried to turn the bus to the west side
(right side) and because of the rash and negligent driving of the appellant
Transport Corporation’s bus driver, by losing control of the bus went to the
extreme right side of the road (western side) and the bus dashed against a
stationery lorry bearing Registration No.TDI 9626, facing the northern direction
and then fell on its left side. As result of heavy impact of the accident, the
respondent/claimant sustained fracture and suffered bruises all over the body
and in all five passengers including the respondent/claimant suffered grievous
injuries, besides two of them lost their lives.
(ii) The respondent/claimant was taken to Sattur Government Hospital where
he was given the first aid and later he was referred to Tirunelveli Government
Hospital. The respondent/claimant took a taxi from Sattur to Tirunelveli and got
himself admitted in Getwell Hospitals Tirunelveli on the night of 27.05.2000 and
he received treatment. For further treatment, the respondent/claimant was
admitted into the Apollo Hospitals, Madurai. On 31.05.2000, the fractured right
arm of the respondent/ claimant was operated upon and plating and bone grafting
were performed. The respondent/claimant was admitted into the Apollo Hospital,
Madurai for seven days and he was discharged on 05.06.2000 and still he is
taking treatment in a private clinic at Madurai.
(iii) The respondent/claimant was aged 28 years, having a robust health
and has been practising as a Civil cum Criminal Lawyer in the Courts of
Sivagangai and Madurai District from 23.09.1993 and earns not less than a sum of
Rs.7,500/- as income per month. Due to the fracture in the right arm the
respondent/claimant is unable to stretch his hand and further he is not in a
position to rotate his right hand. For lifting wait, the respondent/ claimant
cannot use his right hand as he used to do prior to the accident. The
respondent/claimant has incurred an expense of Rs.60,000/- and further in future
he has to spend another sum of Rs.30,000/- for removing the plate after two
years and hospitalisation expenses etc. The respondent/claimant moderately
estimates his claim to an extent of Rs.4,00,000/- together with interest at 18%
per annum payable to him by the appellant/respondent. The Vachakarapatty Police
have registered a criminal case in Crime No.103 of 2000 under Section 279, 337
and 304(A) IPC against the driver of the appellant.
(iv) The appellant/respondent Corporation has taken a stand inter alia
mentioning that when the appellant/ respondent’s bus was nearing Etturvattam, a
pedestrian suddenly tried to cross the road from right to left and the driver of
the appellant bus after seeing this, in order to avoid any accident, swerved the
bus towards right and in the process unexpectedly the bus was dragged towards
right side and went down the right side slope and dashed against lorry which was
also standing in a slanting position and capsized and hence, the accident had
not taken place due to the rash and negligent driving of the appellant’s bus
driver and in any event, the claim of Rs.4,00,000/- for the simple injury
sustained is untenable.
3.Before the Tribunal, witnesses P.W.1 and P.W.2 were examined and Exs.P.1
to P.25 were marked on the side of respondent/claimant. On the side of
appellant/ respondent, no witness was examined and no documents were marked. On
an appreciation of oral and documentary evidence, after contest, the Tribunal
has passed an award granting a total compensation of Rs.2,13,000/- along with
interest at 9% per annum from the date of filing of the petition till date of
payment together with proportionate costs to the respondent/claimant payable by
the appellant/respondent Transport Corporation.
4.The learned counsel for the appellant/Transport Corporation contends
that the Tribunal has not taken into consideration of the fact that the accident
has taken place when the bus got capsized, which is beyond the control of the
driver and notwithstanding the fact the best care and caution taken by the
appellant bus driver, the accident has taken place and only to avoid slanting
against a pedestrian who crossed the road suddenly, the driver swerved the bus
on the right side and resultantly, the occurrence has taken place and in any
event, the award passed by the Tribunal is exorbitant and therefore, prays for
allowing the appeal.
5.To establish the plea of negligence, the respondent/claimant has
examined himself as P.W.1 and he has deposed that on 27.05.2000 to attend his
cousin’s marriage at about 3.00 p.m. in the evening he travelled in the bus TN-
58-N-0299 from Madurai to Tirunelveli and that the bus was proceeding from North
to South, in the direction of Tirunelveli and in Madurai-Tirunelveli National
Highway the driver of the bus drove the bus in a rash and negligent manner and
at about 4.30 p.m. in the evening when the bus was nearing Etturvattam Pillaiyar
Koil at that time a woman made an endeavour to cross the road from the direction
of west to east at that time the driver of the bus in a rash and negligent
manner swerved his bus as a result of which the bus dashed against the
stationery lorry TTI 9626 which was in the opposite direction, facing north and
resultantly, the bus got capsized and many passengers sustained injuries and
that his dress was damaged and his watch was smashed and that initially he was
admitted into Sattur Government Hospital where first aid was given to him and on
the same day he went to Tirunelveli Getwell Hospital from Sattur in a car and
got himself admitted as an inpatient and in the Getwell Hospital on 27.05.2000
he was given treatment in U slab fashion etc.
6.In Ex.P.1 the informant’s name is mentioned as Sattanathan. The accused
name is described as Ramasamy, Government bus driver of bus bearing Registration
No.TN-58-N-0299. A perusal of Ex.P.1-FIR indicates that the informant-
Sattanathan is one of the passengers who travelled in the bus TN-58-N-0299 on
the date of accident on 27.05.2000. Moreover, the informant Sattanathan in
Ex.P.1-FIR has categorically stated that when the bus TN-58-N-0299 (in which he
was travelling along with his two sons) came near to Etturvattam Pillaiyar Koil
at about 4.30 p.m. in the evening the driver of the bus drove the vehicle in
fast speed and negligently and rashly and in the Virudhunagar-Sattur main road a
woman made an attempt to cross the road from west to east and when the driver of
the bus swerved the bus, the bus dashed against a stationery lorry TTI 9626
facing north which was standing in the left side of the road, as a result of
which their bus got capsized in the sand road of south of Pillaiyar Koil and
resultantly, he suffered superficial injury on the toe of his two legs and five
persons who travelled in his bus also sustained injuries and one person got
entangled and died on the spot and that the injured were taken in a bus which
came that way and they were admitted into the Sattur Government Hospital where
they received treatment. In the instant case, the rough sketch of the scene of
occurrence has been marked as Ex.P.6.
7.The sum and substance of the appellant/Transport Corporation’s
contention is that the accident has not taken place due to the rash and
negligent driving of the appellant/Transport Corporation’s bus driver but the
accident has taken place when the bus driver in order to avoid any accident
swerved the bus towards right side (when the pedestrian suddenly tried to cross
the road from right to left near Etturvattam and resultantly, the bus has gone
to the right side slope and dashed against a lorry which was standing in a
slanting position and capsized.
8.It cannot be gainsaid that the maxim res loquitur applies if accident is
proved to have occurred due to the negligence of the driver and the presumption
of negligence can be inferred and the burden will be shifted on the driver to
show that he was not negligent at the time of accident, in the considered
opinion of this Court. However, the maxim is not a rule of law. But this Court
points out that ‘it is no more than a rule of evidence affecting onus. It is
based on common sense, and its purpose is to enable justice to be done when the
facts bearing on causation and on the care exercised by the defendant are at the
out set unknown to the plaintiff and are or ought to be within the knowledge of
the defendant’ as per decision of Lord Normand in Barkway V. South Wales
Transport Company Ltd., (1950) 1 All E.R. 392, 399. As a matter of fact, the res
ipso loquitur is only a rule as to the way of evidence, from which negligence
can be inferred.
9.It is relevant to make a mention that the maxim res ipso loquitur comes
into operative play (1) on proof of the happening of an unexplained occurrence;
(2) when the occurrence is one which would not have happened in the ordinary
course of things without negligence on the part of some one other than the
plaintiff; and (3)the circumstances point to the negligence in issue being that
of the defendant rather than that of any other person. The third ingredient is
normally satisfied by showing that the instrument causing the damage has been in
the Management and control of the defendant at the time of occurrence, but this
is not essential and necessary. In short, the ‘res’ speaks because the facts
stand unexplained, and therefore, the natural and reasonable, not conjectural,
inference from the facts establishes that what has happened is reasonably to be
attributed to some act of negligence on the part of some one; i.e. some want of
reasonable care under the given circumstances. Admittedly, on the side of
appellant/Transport Corporation, the driver of the bus TN-58-N-0299 Ramasamy has
not been examined as witness before the Tribunal.
10.In the light of evidence of P.W.1/claimant coupled with Ex.P.1-FIR and
Ex.P.6-Plan and also applying the principle of Res Ipso Loquitur and bearing in
mind of the fact that the respondent/claimant and others have sustained injuries
arising out of the accident and one person died after entangling himself below
the bus etc., this Court comes to the inevitable conclusion that in the instant
case, the accident has taken place because of the fast speed, rash and negligent
driving of the bus by its driver Ramasamy and that he is squarely responsible
for the happening of occurrence and the point is answered accordingly.
11.In regard to the quantum of compensation to be awarded, it is pertinent
to point out that the respondent /claimant in his claim petition has made a
claim of Rs.4,56,000/- towards compensation claiming different sums under
different heads and restricting a sum of Rs.4,00,000/- which runs as follows:
“Particulars of loss expenses
Part-I
(a)Loss of earning from
28.5.2000 to 31.8.2000 : Rs. 22,500.00
(b)Partial loss of earnings
from- to- at the net rate of Rs.
a day/week : -------
(c)Transport to Hospital : Rs. 5,000.00
(d)Extra Nourishment : Rs. 15,000.00
(e)Damages to clothing and articles : Rs. 3,500.00
(Watch worth Rs.1,800/-
Raymond clothing worth
Rs.1,700/-)
(f)Others
1.Medical Expenses - Rs.60,000/-
2.Future Medical Expenses -
Rs.30,000/-
3.Dejection and Unhappiness caused
-Rs.20,000/- : Rs.1,10,000.00
PART-II
(g)Compensation for pain and
suffering : Rs. 50,000.00
(h)Compensation for continuing for
permanent disability if any : Rs.1,00,000.00
(i)Compensation for the loss of
earning power : Rs.1,50,000.00
----------------
(j)Total Rs.4,56,000.00
----------------
* The petitioner hereby restricts his claim to Rs.4,00,000/-.
12.In this connection, it is useful to refer to P.W.1/claimant’s evidence
to the effect that initially he was admitted into the Sattur Government
Hospital, where he has taken first aid treatment and later on the same day he
has been admitted into the Getwell Hospital at Tirunelveli as an inpatient,
where he was given the first U slab treatment on 27.05.2000 and that he went to
Tirunelveli by car from Sattur and from Tirunelveli he went to Madurai on
30.05.2000 and got himself admitted into the Madurai Apollo Hospital and on
31.05.2000 Dr.Muthuvel conducted a surgery on his right upper hand and fixed
the plate and bone grafting was done and he remained as an inpatient till
05.06.2000 (for a week) and he took treatment as an outpatient and that
Dr.Muthuvel Rajan Hospital on 10.06.2000, 24.06.2000, 26.08.2000 and he further
took treatment under Dr.Mohan Doss Gandhi in Jayadev Hospital from 27.08.2000 to
10.09.2000 as an inpatient and till he is taking treatment and also he
undergoing physiotherapy training and that he was enrolled as an Advocate on
22.09.1993 and was practising in Sivagangai and Madurai District Courts and
prior to accident he was earning an income not less than Rs.7,500/- per month
and at the time of accident his wife was 8 months pregnant and that he could not
do any help to her properly and that he could not appear before Courts because
of the treatment he had undergone and because of the accident his avocation as
an Advocate had been affected and the earning capacity had been reduced and to
remove the plate in the upper portion of the right hand, he requires a sum of
Rs.30,000/- for performing surgery.
13.P.W.2-Dr.Ravichandaran in his evidence has stated that he examined
P.W.1/claimant on 28.01.2003 and that the claimant after taking treatment at the
Government Sattur Hospital later went to Tirunelveli Getwell Hospital and took
treatment and from there went to Madurai Apollo Hospital, where there 30.05.2000
to 05.06.2000 he was admitted as an inpatient and at the time of accident the
humorous bone on left hand was smashed for which a surgery was performed and
screw was fixed and later a bone grafting was performed on the claimant and that
the said bone has malunited etc. and to remove the plate and the screw another
surgery is to be performed on the claimant and the permanent disability
sustained by the claimant is assessed by him at 52% as per Ex.P.24 and Ex.P.26
is the certificate showing that an expense of Rs.30,000/- will have to be
incurred by the claimant for performing another surgery and that the claimant
has the difficulty to write for longer duration.
14.Since the P.W.1/claimant has suffered a partial permanent disability of
52% as per Ex.P.24-certificate, this Court grants a sum of Rs.52,000/- as
compensation in this regard. Towards pain and suffering, this Court grants a sum
of Rs.10,000/-. Towards transportation expenses, this Court grants a sum of
Rs.5,400/- as per Ex.P.19. In lieu of an expense of Rs.350/- incurred by the
respondent/claimant has seen from Ex.P.11 series (two in number), the first
respondent/claimant is granted a sum of Rs.350/- in this regard. Since towards
purchase of medicines, the respondent/claimant has incurred an expense of
Rs.491.25 p as per Ex.P.12 series (three in number), this Court awards the said
sum of Rs.491.25 p. As seen from Ex.P.13-Hospital Bills series (four in number),
the respondent/claimant has incurred an expense of Rs.32,220/- and therefore,
this Court grants the said sum of Rs.32,220/-. Since the claimant has incurred
an expense of Rs.7,170/- towards hospital expense, this Court grants the said
sum of Rs.7,170/-. Towards purchase of medicine, the respondent/claimant has
spent a sum of Rs.4342.95 as per Ex.P.15 and therefore, this Court awards the
said sum of Rs.4,342.95. As per Ex.P.16 series (three in number) the
respondent/claimant has incurred a hospital expense of Rs.600/- and therefore,
this Court grants the said sum of Rs.600/-. The respondent/claimant has produced
a hospital expense bill from Jayadev Hospital in and by which he has spent
Rs.23,764/- and therefore, this Court grants the said sum of Rs.23,764/-. As per
Ex.P.18-certificate dated 12.01.2002 the respondent/claimant has incurred an
expenditure of Rs.16,800/- towards medical treatment and therefore, this Court
grants the same. Thus, the respondent/claimant in all granted a sum of Rs.85,738
towards medical expense (as per Exs.P.11 to P.18).
15.For removing the plate by way of surgery, the respondent/claimant has
to incur an expense of Rs.30,000/- as per medical certificate dated 04.02.2003
and therefore, this Court grants the said sum of Rs.30,000/-. Towards loss of
income, this Court grants a sum of Rs.25,000/-. Towards nourishment expenses and
attendance expense etc., this Court grants a sum of Rs.4,862/-. Thus this Court
awards a sum of Rs.2,13,000/- as total compensation to the respondent/claimant
for the injuries and disability sustained by him arising out of the accident and
this sum of Rs.2,13,000/- is a fair, reasonable and prudent one considering the
facts and circumstances of the case and therefore, this Court is not interfering
with the award of Rs.2,13,000/- granted by the Tribunal to the
respondent/claimant. The aforesaid amount of Rs.2,13,000/- along with interest
at 9% per annum is directed to be paid by the appellant/Transport Corporation.
16.In C.M.P.No.2610 of 2004 on 05.03.2004 this Court has granted an order
of interim stay on condition that the appellant deposits the entire balance
compensation amount including interest and costs to the credit of
M.A.C.T.O.P.No.31 of 2001 on the file of Sub Court, Sivagangai within a period
of eight weeks etc.
In fine, the Civil Miscellaneous Appeal fails and the same is hereby
dismissed, leaving the parties to bear their own costs. Consequently, the award
dated 30.06.2003 passed by the Motor Accidents Claims Tribunal, viz.,Sub Court,
Sivagangai in M.A.C.T.O.P.No.31 of 2001 is affirmed for the reasons assigned by
this Court in this appeal. It is open to the respondent/claimant to receive the
amount to which he is entitled to from the Tribunal by filing appropriate
application as per Civil Rules of Practice in accordance with law. Connected
miscellaneous petition is also dismissed.
Sgl
To
The Additional District Judge,
Fast Track Court,
The Motor Accidents Claims Tribunal,
Virdhunagar.