IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 20.08.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.236 of 1999 1. The Director Employment and Training Chepauk, Chennai-5. 2. The Deputy Director Industrial Training Institute Near Collector Bungalow Salem-8. 3. The Principal Industrial Training Institute Near Collector Bungalow Salem-8. ... Appellants Vs. J.Umashankar ... Respondent Appeal against the judgment and decree of the learned Additional Subordinate Judge, Salem in O.S.No.794 of 1995 dated 18.02.1999. For appellants :: Mr.V.Ravi Additional Government Pleader(AS) For respondent :: No appearance JUDGMENT
This appeal is focussed as against the judgment and decree dated 18.02.1999 passed in O.S.No.794 of 1995 by the learned Additional Subordinate Judge, Salem. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. The case of the plaintiff in the suit, which is one for claiming damages in a sum of Rs.5 lakhs, consequent upon the injury sustained by him in his right eye could be portrayed thus:
The plaintiff was selected by the defendants for Industrial Training of “Forger and Heat” Trade (i.e. Blacksmith) at Industrial Training Institute, Salem-8. He joined the trade on 13.08.1991 and was taking training enthusiastically. On 30.06.1992, when the plaintiff and his batch mates were taking practical training at the “A” unit workshop, the Trade Master Karthikeyan, who was in charge of “B” unit was also in charge of “A” unit due to the absence of the Trade Master Teacher Rangasami in the A Unit. At about 11.00 O’ clock, the plaintiff was in the process of making “Hallow and Flat tongs with the help of forge and blower as per the instructions and directions of the defendants subordinates. At that time, a thick hot silver of steel, flew from the adjacent student’s work bench and pierced the right eye of the plaintiff inflicting and causing injury to the right eye pupil; whereupon, he was taken to the Mohan Kumaramangalam Medical College Hospital, Salem. From there, the plaintiff was taken to an Eye Specialist Dr.Siddartha of T.M.S.Eye Hospital. Despite best treatment given, the plaintiff’s right eye lost its vision totally. Subsequently, he took treatment at Madurai Aravind Eye Hospital to prevent further damage to his one other eye. Basic safe guards for the eye by providing eye glasses and other precautionary equipments were not extended to the plaintiff; wherefore only he sustained eye injury and consequent loss of eye sight.
Accordingly, he prayed for a compensation of Rs.5 lakhs from the defendants.
3. Per contra, gain saying and remonstrating, the allegations/averments in the plaint, the second defendant filed the written statement, the warp and woof of it would run thus:
The plaintiff was admitted on 01.08.1991 in Forger Heat Treater Trade in A Unit of the said training institute. On the said date of accident, the trainees of “A” unit were expected to assemble to attend shop-talk class. But the plaintiff even though happened to be a trainee in the “A”unit did not choose to attend that class but he was in the B unit watching the exercise, which was going on under the supervision of the Assistant Training Officer of that Trade. It so happened that a piece of iron chip caused injury to the right eye of the plaintiff; whereupon he took treatment at his own instance in a private hospital. On 16.7.1992, he started again attending the institute and left the Institute on 01.08.1992 after completing the training course. Instead of attending the shop talk class meant for “A” unit trainees, the plaintiff voluntarily went to “B” unit without wearing safety devices and watched the exercise and thereupon alone he invited the accident. There had been no necessity to provide safety glasses during shop talk class and theoretical classes. In short, the accident had occurred only due to the negligence of the plaintiff himself and for which, he cannot claim damages.
Accordingly, they prayed for the dismissal of the suit.
4. The trial court framed the relevant issues. During trial, on the side of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A10 were marked and on the defendants’ side, D.Ws.1 to 4 were examined and Exs.B2 to B4 were marked. Ultimately, the trial Court awarded the compensation of Rs.1 lakh with interest.
5. Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, this appeal has been filed on various grounds, the pith and marrow of them would run thus:
(i) The judgment and decree of the trial Court are against law, weight of evidence and all probabilities of the case.
(ii) The trial Court ignored the fact that the plaintiff was not expected to be in the “B” unit instead of attending the shop talk class meant for “A” unit trainees.
(iii) The trial Court did not take into account the fact that the plaintiff invited on himself the accident for which, the defendants cannot be made liable.
(iv) Without any basis, the trial Court simply quantified the compensation in a sum of Rs.1 lakh.
Accordingly, they prayed for the dismissal of the suit.
6. The points for consideration are as to:
1. Whether the accident occurred due to the negligent conduct of the plaintiff or had occurred while the plaintiff was taking training in the Industrial Training Institute, Salem for no fault of him?
2. Whether the defendants could be made liable to pay damages for the injury sustained by the plaintiff?
3. Whether the lower Court quantified the damages in accordance with law?
4. Whether there is any infirmity in the judgment and decree of the trial Court?
7. Heard the learned Additional Government Pleader on behalf of the appellants. However, the learned counsel for the respondent is absent.
8. The point Nos.1 and 2 are taken together for discussion as they are inter-linked and inter-woven with each other:
A bare perusal of the depositions of the plaintiff Umashankar (PW1) would reveal that he belonged to “A” unit and that the teacher in charge of “A” Unit was absent; whereupon the teacher of the “B” Unit was present and as per the instruction of the “B” Unit teacher, he went to the workshop, where the plaintiff was assigned with the task of performing Forger-Heat work; while so, when the neighbour trainee was cutting the iron piece, a splinter came in violent conduct with the right eye of the plaintiff causing injury to him.
9. DW2 Parameswaran one other trainee of that institute would depose that he only heard that when the plaintiff went to “B” Unit, just to see as to how the “B” Unit people are taking training, the accident had occurred. However, he would assert that while the shop-talk class was going on, the plaintiff was absent, even though he was expected to be present there.
10. It is therefore, crystal clear from the deposition of DW2 that he was not an eye witness to the occurrence and he was at the most could be taken as the one examined on the side of the defendants just to put forth the point that the plaintiff was absent at the shop-talk class, even though he was expected to be there. DW1, Karthikeyan, the Junior Training Officer also would admit that he was not an eye witness to the occurrence. It is therefore clear, on the defendants’ side, no ocular witness to the occurrence was examined so as to torpedo the deposition of PW1. But the fact remains that PW1, the plaintiff sustained injury while he was taking training.
11. In my considered opinion, it is totally irrelevant whether at the relevant time, he was in the “A” Unit or in the “B” Unit and it was the duty of the officials concerned to see that the trainees were not sustaining injuries in any manner while they were taking training in the premises. Indubitably and incontrovertibly, the accident took place while he was in the institute and that too, when training process was going on and that itself would be sufficient to mulct the defendants with the responsibility to pay damages to the plaintiff.
12. There is nothing to indicate that the plaintiff behaved in a violent or rude or negligent manner and invited the accident on himself. Even for argument sake, without upholding that the plaintiff unauthorisedly went into the “B” Unit instead of attending the shop-talk class meant for “A” unit, nonetheless, the officials should have taken steps not to permit him to enter such workshop. Hence, in this view of the matter, I am of the considered opinion that the defendants cannot wriggle out of their responsibility by trying to put the blame on the plaintiff as though he was not expected to be in the “B” Unit.
13. Point Nos.1 and 2 are decided accordingly in favour of the plaintiffs.
Point No.3:
14. A mere perusal of the judgment of the lower Court would unambiguously highlight the fact that without adhering to any norms relating to assessment of damages, it simply jumped to the conclusion that a sum of Rs.1 lakh should be paid as compensation to the plaintiff.
15. PW2, the Doctor, with reference to the medical records, viz., Ex.A9 and Ex.A10, would depose that the plaintiff lost his right eye sight. Exs.A9 and A10 would clearly exemplify that out of 100% eye sight, he has got only 1% eye sight relating to his right eye and virtually, it should be taken that his right eye lost its entire sight, for that, he should be compensated adequately. Exs.B6 and B7 receipts totally are accounting only for an expenditure of Rs.100/- and nothing more. The plaintiff has not chosen to file before the Court the bills evidencing the expenditure incurred by him for taking treatment even though admittedly he took treatment in private hospitals including Aravind Eye Hospital, Madurai. Hence, it is just and necessary to assess the compensation in accordance with the well settled propositions of law relating to quantification of damages.
16. For assessing the percentage of loss, consequent upon the injuries sustained by the plaintiff, Schedule I- Part II, Item No.25 of the Workmen’s Compensation Act, 1923, could fruitfully be relied on as it indicates that 40% loss of earning capacity should be the appropriate one for loss of one eye sight. The injury was sustained by him during the year 1991. Taking the standard prevailing at that time in assessing the compensation, I am of the considered opinion that awarding a sum of Rs.1,000/- for each percentage of loss would meet the ends of justice. Accordingly, under the caption “permanent disability” towards permanent loss of his right eye sight, a sum of Rs. 40 x 1000 = Rs.40,000/- (Rupees forty thousand only) could be awarded as compensation. In the absence of evidence to prove the expenses incurred for his treatment, a sum of Rs.10,000/- (Rupees ten thousand only) could be awarded as he took treatment in not less than two private hospitals and in such a case, certainly he might have incurred not less than a sum of Rs.10,000/-. For taking nutritious food and for transport expenses, a sum of Rs.10,000/- (Rupees ten thousand only) could be awarded and towards loss of amenities, a sum of Rs.15,000/- (Rupees fifteen thousand only) could be awarded. As such the total compensation comes to Rs.75,000/- (Rupees seventy five thousand only).
17. In the result, this appeal is partly allowed reducing the compensation from Rs.1 lakh to Rs.75,000/- (Rupees seventy five thousand only).
18. The learned Additional Government Pleader would also highlight that already the entire amount was deposited in the Court concerned. Whatever amount in excess paid over and above the amount payable under
G.RAJASURIA,J.,
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this judgment, the defendants are at liberty to get back from the trial Court.
19. With the above modification, this appeal is partly allowed and the rest of the judgment and decree of the trial Court are confirmed. However, in the circumstances, there shall be no order as to costs.
20..08..2008
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To
The Additional Subordinate Judge
Salem
A.S.No.236 of 1999