BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/04/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.757 of 2000 Tamil Nadu State Transport Corporation (Madurai Divn.II), Limited, Vannarapettai, Tirunelveli by its Managing Director. .. Appellant Vs. Isakkiappan .. Respondent Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Judgment and Decree dated 30.06.1999 made in M.C.O.P.No.131 of 1998 on the file of the Motor Accident Claims Tribunal (Additional Sub Court), Tirunelveli. !For Appellant : Mr.D.Sivaraman For Mr.Rajnish Pathiyil ^For Respondent : M/s.Chitra Sampath :JUDGMENT
This Civil Miscellaneous Appeal is directed against the award dated
30.06.1999 passed by the Motor Accident Claims Tribunal (Additional Sub Court),
Tirunelveli in M.C.O.P.No.131 of 1998 directing payment of a sum of Rs.70,000/-
together with an interest at the rate of 12% from the date of claim till
realisation and costs for the injuries sustained by the claimant in an accident
alleged to have taken place on 08.09.1997 at about 02.00 p.m.
2. The respondent herein/claimant preferred a claim on the file of the
Motor Accident Claims Tribunal (Additional Sub Court), Tirunelveli by filing
M.C.O.P.No.131 of 1998 praying for an award against the appellant/respondent for
the injuries sustained by the claimant who met with an accident on 08.09.1997 at
about 02.00 p.m.
3. The respondent/claimant in his claim petition had made the following
averments in support of his claim:
On 08.09.1997 at about 02.00 p.m. the bus bearing Registration No.TN-72-N-
0287 belonging to the Transport Corporation (appellant/respondent), on its trip
from Kovilpatti to Tirunelveli, met with an accident near Bethal ‘Home of
Orphans’ situated on the south of Kovilpatti West Police Station at a distance
of four kilometres. The driver of the said bus drove it in a rash and negligent
manner and tried to overtake another vehicle that was proceeding in front of the
bus in the same direction. After making an unsuccessful attempt to overtake the
said vehicle, he saw a van coming in the opposite direction and hence stopped
the bus on the middle of the road, as a result of which the van that came in the
opposite direction grazed the bus on its rear portion of the right side body. In
the said accident, the respondent/claimant who was travelling in the said bus
seated in the window seat of the rear row and one Krishnasamy Thevar of
Kalugumalai sustained grievous injuries. The respondent/claimant who sustained
grievous injuries on the right knee and right shoulder was given first aid
treatment at Government Hospital, Kovilpatti and then taken to Tirunelveli
Medical College Hospital, Palayamkottai and admitted there as an inpatient.
Subsequently, he also took treatment at private hospitals. Despite proper
treatment, the injuries sustained by the respondent/claimant resulted in
permanent disability and consequential loss of earning capacity. Even though the
damages could be estimated to Rs.3,05,000/-, the claimant would make a claim for
Rs.1,00,000/- alone as compensation from the appellant/respondent on the basis
that the rash and negligent driving of the bus belonging to the
appellant/respondent by its driver happened to be the cause of the accident.
4. In order to prove his case, besides examining himself as P.W.1, the
claimant examined one more witness as P.W.2 and relied on three documents marked
as Exs.P-1 to P-3.
5. The appellant/respondent filed a counter statement and resisted the
claim, denying the petition averments regarding the negligence, the age and
occupation of the claimant, injury sustained by the claimant and its
consequences and the justifiability of the amount claimed as compensation by the
claimant. Contending further that there was no want of care on the part of the
driver of the bus; that it was the rash and negligent driving of the other
vehicle that came in the opposite direction that led to the unfortunate
accident; that if at all the claimant is entitled to get any compensation, the
same could be recovered only from the owner and insurer of the above mentioned
vehicle that came in the opposite direction and that the claim petition should
be dismissed in limine, as the same suffered from the defect of non-joinder of
necessary parties, in so far as they were not made parties to the claim
petition. Incorporating a further contention that the amount claimed by the
claimant was highly excessive and exorbitant, the appellant/respondent had
prayed for the dismissal of the claim petition with costs. In support of the
defence case of the appellant/respondent, only one witness was examined and one
document was marked as Ex.R-1.
6. The Tribunal, after completion of recording evidence, heard the
arguments advanced on both sides, framed the necessary questions for
determination, considered the records brought forth and came to the conclusion
that the driver of the bus acted with rashness and negligence in driving the bus
and that the same had led to the accident in which the respondent/claimant
sustained injuries. The Tribunal also found that the claimant suffered 50%
permanent disability as against 64% certified by the Medical Officer, awarded a
total sum of Rs.70,000/- as compensation and directed the appellant/respondent
to pay the above said amount to the claimant along with an interest at the rate
of 12% from the date of claim till realisation. It has also directed the
appellant/respondent to pay costs.
7. The correctness and legality of the award passed by the Tribunal is
under challenge in this Civil Miscellaneous Appeal at the instance of the
Transport Corporation (appellant/respondent).
8. Advancing arguments on behalf of the appellant, Mr.D.Sivaraman, learned
counsel contended as follows:
Admittedly, it was an accident involving two vehicles. But the
respondent/claimant chose to make the claim for compensation against one of the
vehicles alone. The fact that the owner and insurer of the second vehicle
involved in the accident were not made parties to the case was not properly
appreciated by the Tribunal. The Tribunal ought to have sustained the contention
of the appellant/respondent regarding the defect of non-joinder of necessary
parties and dismissed the claim petition. The Tribunal has also committed an
error in holding that the driver of the bus was at fault and in mulcting the
liability solely on the appellant/respondent. At any event, the learned counsel
contended further, the assessment of disability at 50% and the award of
Rs.70,000/- as compensation should be held excessive and hence deserves to be
reduced in the interest of law.
9. The Court heard the submissions made by M/s.Chitra Sampath, learned
counsel for the respondent regarding the above said arguments advanced by the
learned counsel for the appellant and paid its anxious considerations to the
same.
10. It is a fact not in controversy that the bus bearing Registration
No.TN-72-N-0287 belonging to the appellant/respondent met with an accident on
the date, time and place mentioned in the claim petition. It is also not in
dispute that the respondent/claimant who was travelling as a passenger in the
said bus at the time of accident sustained injuries. The award of the Tribunal
is sought to be attacked on three grounds. They are:
(i) There was no negligence on the part of the driver of the bus;
(ii) The petition should have been dismissed for non-joinder of necessary
parties; and
(iii) The amount awarded as compensation is excessive.
11. According to the case of the respondent/claimant, the above said bus
was driven by its driver in a rash and negligent manner and the accident
occurred solely due to the fact that the driver of the said bus made an attempt
to overtake another vehicle and stopped the bus on the middle of the road, on
seeing yet another vehicle (van) coming in the opposite direction. Admittedly it
was not a case of head on collision. On the other hand, the van that came in the
opposite direction came into contact with the rear portion of the right side
body of the bus and in fact, grazing the right side body of the bus the said van
did pass the accident spot. P.W.1 giving a graphic picture of the occurrence,
has clearly stated in his evidence that the bus was stopped by its driver in
such a way that its front portion was on the left side of the road and the back
portion of the bus was on the right side. The Tribunal has rightly rejected the
evidence of R.W.1 and preferred the evidence of P.W.1 and assigned cogent and
convincing reasons for such a preference.
12. On the other hand, this Court is able to find some substance in the
submission made by the learned counsel for the appellant/respondent that the
Tribunal has made an incorrect observation that the complaint statement recorded
by the police regarding the accident was one given by R.W.1 and not by P.W.1.
Factually, the First Information Report was drafted on the basis of the
statement of P.W.1 recorded by the police, while he was under treatment in the
hospital. This is clear from the contents of Ex.R.1, copy of the First
Information Report.
13. It is true that there is no clear cut evidence on the side of the
respondent/claimant that the criminal case was registered based on the statement
of P.W.1. On the other hand, P.W.1 pleaded ignorance regarding the registration
of the criminal case against the driver of the van alone. But he was not
confronted by showing Ex.R.1. On the other hand, the appellant/respondent chose
to produce Ex.R.1 through R.W.1 in proof of its defence case that the criminal
case was registered against the van driver. R.W.1 himself would admit that the
respondent/claimant did not give any statement to the police, as he was
quivering with pain. Therefore, the Tribunal has rightly come to the conclusion
that no credence can be given to Ex.R.1. Thus, the arguments advanced by the
learned counsel for the appellant that the Tribunal has committed an error in
not placing reliance on Ex.R.1 has got to be discountenanced.
14. On the other hand, the learned counsel for the respondent/claimant in
this regard would contend that, even assuming negligence on the part of the
driver of the van also, the same was not enough to rule out any negligence on
the part of R.W.1, the driver of the bus in so far as R.W.1 had not taken care
to leave sufficient space on the right side between his bus and the vehicles
that came in the opposite direction. This Court is able to find some substance
in the above submission made by the learned counsel for the respondent/claimant.
In support of his contention, the learned counsel relied on the Judgment
reported in Vimla v. Moolchand [2005 (III) ACC 72, wherein the Rajasthan High
Court has observed as follows:
“It was the duty of the driver of the vehicle in which the passenger was
travelling to ensure that adequate distance is maintained between the vehicles
in which the passenger was travelling and the vehicle approaching from the
opposite direction. Failure to do so would amount to negligence and lack of due
care and precaution and as such the driver of such vehicle in which the
passenger was travelling and who received injury on account of impact from the
vehicle approaching from the opposite direction cannot be absolved of the
liability in such a case.”
15. The learned counsel for the respondent/claimant has also relied on the
Judgment reported in Delhi Transport Undertaking versus Krishnawanti [1972 ACJ
423] and Kerala High Court in Kerala State Road Transport Corporation versus
Madhavi Amma and another [1977 ACJ 3] which was followed by the very same
Kerala High Court in its subsequent judgment reported in Beeravu versus
K.K.Damodaran and others [1994 ACJ 1297]. Therein, it has been observed as
follows:
“The driver of the bus must ensure sufficient space between the bus and
other objects. A passenger cannot be held guilty of contributory negligence
when in the normal course any portion of his body is outside the bus, even in
case, it is taken for arguments sake that the claimant put his hand on the side
window of the bus”.
16. Applying the ratio found in the above said cases to the facts of the
instant case, this Court comes to the conclusion that there was negligence on
the part of R.W.1, the driver of the bus involved in the accident and hence the
finding of the Tribunal, holding that R.W.1, the driver of the bus belonging to
the appellant/respondent was at fault and that his negligence had led to the
accident in question, has got to be confirmed. There is no scope for
interference whatsoever with the above said finding.
17. The next contention of the learned counsel for the
appellant/respondent is that the claim petition should have been dismissed for
non-joinder of necessary parties in so far as the owner and insurer of the
second vehicle involved in the accident, namely, the van that came in the
opposite direction, were not made parties to M.C.O.P. The said contention does
not merit acceptance in the hands of this Court. Even assuming that the accident
occurred as a result of composite negligence of the driver of the bus and the
driver of the van, they become joint tortfeasors. In respect of composite
negligence leading to the accident, a claimant could maintain the claim petition
for compensation as against all or anyone of the joint tortfeasors. The legal
position in this respect has been well settled.
The Honourable Supreme Court has held as follows in Union of India -Vs-
United India Insurance Company Limited (AIR 1998 SC 640):
“where accident has occurred due to negligence of the drivers of two
vehicles and not due to negligence of the claimant, one of the joint tort-
feasors cannot plead contributory negligence on the part of the passengers of
the vehicle and qua the passengers of the bus, who were innocent. The drivers
and owners of the vehicles would be joint tort-feasors. It is well settled that
the liability of joint tort-feasors is joint and several and each is
responsible, jointly with each and all of the others and also severally for the
whole of the amount of damage caused by the tort, irrespective of the extent of
his participation. The injured may sue any one of them separately for the full
amount of loss or he may sue all of them jointly in the same action and even in
the latter case, the judgment so obtained against all of them may be executed in
full against any one of them.”
In ILR (1990) Karnataka 3181 (Karnataka State Road Transport Corporation –
vs- Reny Mammen), it has been observed as follows:
“Where accident has occurred due to composite negligence of drivers of two
vehicles, their liability would be joint and several and the claimant can
proceed against both or any one of the joint tort-feasors and recover full
compensation to which he is entitled and apportionment of negligence between the
joint tort-feasor is for the benefit of the respondents to claim contribution
from the other tort-feasor, if he satisfies the award against the claimant and
it is open to the tort-feasor who satisfies the award to proceed against the
other tort-feasor for contribution”.
In AIR 2004 Karnataka 149(Karnataka State Road Transport Corporation,
Bangalore and etc., -vs- Arul alias Aravind and etc), it has been observed as
follows:
“In view of the aforesaid reasoning and decisions of the Supreme Court, we
have no hesitation to hold that where a claim petition is filed by the injured
or legal representatives of the deceased due to injury or death arising out of
the use of motor vehicles due to the composite negligence of drivers of the two
vehicles, the claimant can recover compensation from any one of the joint tort-
feasors and the just compensation to which he is entitled cannot be reduced for
non-impleading of the other joint tort-feasors.”
18. The above said proposition will apply with more vigour where the other
vehicle could not be traced and the identify of the other vehicle was not known.
For all the reasons stated above, this Court comes to the conclusion that the
above said contention of the learned counsel for the appellant regarding the
maintainability of the claim petition on the ground of non-joinder of necessary
parties has got to be rejected as untenable.
19. In respect of the third and last ground of attack, this Court is of
the view that the same is liable to be discountenanced for the following
reasons:
In the instant case, the respondent/claimant has produced sufficient
evidence to substantiate his contention that the injuries sustained by him were
not fully cured and the same resulted in permanent disability. He has suffered
crush injury on the right hand involving fracture of right upper hand (humerus)
and compound fracture of both bones (radius and ulna) of the right forearm as
evidenced by Exs.P-1 and P-2, for which, he was given treatment at Tirunelveli
Medical College Hospital, Palayamkottai. P.W.2, the Assistant Professor of
Orthopaedics, besides issuing Ex.P-3 disability certificate, has deposed in the
Court confirming the correctness of the assessment of disability made by him in
Ex.P-3. It is the clear testimony of P.W.2 that there was mal-union of bones on
the right hand at the point of fracture and restriction of movement of all the
three joints of the right hand namely shoulder, elbow and wrist. It is also the
clear testimony of P.W.2 that the respondent/claimant cannot use his right hand
for doing his normal work. As a qualified Ortho-Specialist, he has assessed the
disability at 64% and certified the same to be permanent. The
appellant/respondent who wanted to challenge the same should have made steps to
get the claimant either examined by a Medical Officer of its choice or referred
to a Medical Board at the instance of the appellant to correctly assess the
nature and the extent of disability suffered by the claimant. But unfortunately,
the appellant/respondent has not done so. Under these circumstances, the
Tribunal has assessed the permanent disability suffered by the
respondent/claimant at 50% as against 64% certified by P.W.2. This, the Tribunal
seems to have done, perhaps due to the fact that P.W.2 did not choose to take x-
ray for assessing the disability. In the absence of any contra evidence, the
finding of the Tribunal that the respondent/claimant has suffered a permanent
disability and its assessment of disability at 50% as against the certified
disability of 64% cannot be termed incorrect or unreasonable. This Court notices
no reason, whatsoever, to differ with the Tribunal in this regard and reduce the
percentage of disability.
20. There is no dispute regarding the age of the claimant. In Ex.P.2 –
Accident Register, his age has been noted to be 19 years. While awarding lump
sum payment for permanent disability, the age of the claimant shall play an
important role. The award may range from Rs.1,000/- to Rs.2,000/- per 1% of
disability. Maximum and minimum rate shall be applicable in case of youngsters
and aged persons respectively. In spite of the fact that the claimant was
admittedly aged 19 years as on the date of accident, the Tribunal has applied
the minimum rate (at Rs.1,000/- per 1% disability) and fixed the amount of
compensation for permanent disability at Rs.50,000/-. At no stretch of
imagination, the same could be termed excessive. In addition to that the
Tribunal has also awarded a sum of Rs.20,000/- as compensation for pain and
suffering, loss of earning during the period of treatment, mental shock, etc.
The said amount will include damages for probable loss of expectation of life.
The same cannot be termed excessive. Therefore, this Court comes to the
conclusion that in respect of quantum also, the award of the Tribunal deserves
to be confirmed.
21. For all the reasons stated above, this Court is of the considered view
that there is no scope for interference with the award of the Tribunal either
legally or factually and that there is no merit in the appeal and the same
deserves to be dismissed with costs.
22. In the result, the award of the Tribunal is hereby confirmed and this
Civil Miscellaneous Appeal is dismissed with costs.
SML
To
The Motor Accident Claims Tribunal
(Additional Sub Court),
Tirunelveli.