{"id":69299,"date":"2007-04-23T00:00:00","date_gmt":"2007-04-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tamil-nadu-state-transport-vs-isakkiappan-on-23-april-2007"},"modified":"2014-09-07T13:59:49","modified_gmt":"2014-09-07T08:29:49","slug":"tamil-nadu-state-transport-vs-isakkiappan-on-23-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tamil-nadu-state-transport-vs-isakkiappan-on-23-april-2007","title":{"rendered":"Tamil Nadu State Transport vs Isakkiappan on 23 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Tamil Nadu State Transport vs Isakkiappan on 23 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 23\/04\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nC.M.A.(MD).No.757 of 2000\n\nTamil Nadu State Transport\nCorporation (Madurai Divn.II),\nLimited,\nVannarapettai,\nTirunelveli\nby its Managing Director.\t.. Appellant\n\nVs.\n\nIsakkiappan\t\t\t.. Respondent\n\n\n\tCivil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act\nagainst the Judgment and Decree dated 30.06.1999 made in M.C.O.P.No.131 of 1998\non the file of the Motor Accident Claims Tribunal (Additional Sub Court),\nTirunelveli.\n\n\n!For Appellant\t    : Mr.D.Sivaraman\n\t\t      For Mr.Rajnish Pathiyil\n\t\t\t\n\t\n^For Respondent      : M\/s.Chitra Sampath\n\n\n:JUDGMENT\n<\/pre>\n
\tThis Civil Miscellaneous Appeal is directed against the award dated
\n30.06.1999 passed by the  Motor Accident Claims Tribunal (Additional Sub Court),
\nTirunelveli in M.C.O.P.No.131 of 1998 directing payment of a sum of Rs.70,000\/-
\ntogether with an interest at the rate of 12% from the date of claim till
\nrealisation and costs for the injuries sustained by the claimant in an accident
\nalleged to have taken place on 08.09.1997 at about 02.00 p.m.<\/p>\n
\t2. The respondent herein\/claimant preferred a claim on the file of the
\nMotor Accident Claims Tribunal (Additional Sub Court), Tirunelveli by filing
\nM.C.O.P.No.131 of 1998 praying for an award against the appellant\/respondent for
\nthe injuries sustained by the claimant who met with an accident on 08.09.1997 at
\nabout 02.00 p.m.<\/p>\n
\t3. The respondent\/claimant in his claim petition had made the following
\naverments in support of his claim:\n<\/p>\n
\tOn 08.09.1997 at about 02.00 p.m. the bus bearing Registration No.TN-72-N-
\n0287 belonging to the Transport Corporation (appellant\/respondent), on its trip
\nfrom Kovilpatti to Tirunelveli, met with an accident near Bethal ‘Home of
\nOrphans’ situated on the south of Kovilpatti West Police Station at a distance
\nof four kilometres. The driver of the said bus drove it in a rash and negligent
\nmanner and tried to overtake another vehicle that was proceeding in front of the
\nbus in the same direction. After making an unsuccessful attempt to overtake the
\nsaid vehicle, he saw a van coming in the opposite direction and hence stopped
\nthe bus on the middle of the road, as a result of which the van that came in the
\nopposite direction grazed the bus on its rear portion of the right side body. In
\nthe said accident, the respondent\/claimant who was travelling in the said bus
\nseated in the window seat of the rear row and one Krishnasamy Thevar of
\nKalugumalai sustained grievous injuries. The respondent\/claimant who sustained
\ngrievous injuries on the right knee and right shoulder was given first aid
\ntreatment at Government Hospital, Kovilpatti and then taken to Tirunelveli
\nMedical College Hospital, Palayamkottai and admitted there as an inpatient.
\nSubsequently, he also took treatment at private hospitals. Despite proper
\ntreatment, the injuries sustained by the respondent\/claimant resulted in
\npermanent disability and consequential loss of earning capacity. Even though the
\ndamages could be estimated to Rs.3,05,000\/-, the claimant would make a claim for
\nRs.1,00,000\/- alone as compensation from the appellant\/respondent on the basis
\nthat the rash and negligent driving of the bus belonging to the
\nappellant\/respondent by its driver happened to be the cause of the accident.\n<\/p>\n
\t4. In order to prove his case, besides examining himself as P.W.1, the
\nclaimant examined one more witness as P.W.2 and relied on three documents marked
\nas Exs.P-1 to P-3.\n<\/p>\n
\t5. The appellant\/respondent filed a counter statement and resisted the
\nclaim, denying the petition averments regarding the negligence, the age and
\noccupation of the claimant, injury sustained by the claimant and its
\nconsequences and the justifiability of the amount claimed as compensation by the
\nclaimant. Contending further that there was no want of care on the part of the
\ndriver of the bus; that it was the rash and negligent driving of the other
\nvehicle that came in the opposite direction that led to the unfortunate
\naccident; that if at all the claimant is entitled to get any compensation, the
\nsame could be recovered only from the owner and insurer of the above mentioned
\nvehicle that came in the opposite direction and that the claim petition should
\nbe dismissed in limine, as the same suffered from the defect of non-joinder of
\nnecessary parties, in so far as they were not made parties to the claim
\npetition. Incorporating a further contention that the amount claimed by the
\nclaimant was highly excessive and exorbitant, the appellant\/respondent had
\nprayed for the dismissal of the claim petition with costs. In support of the
\ndefence case of the appellant\/respondent, only one witness was examined and one
\ndocument was marked as Ex.R-1.\n<\/p>\n
\t6. The Tribunal, after completion of recording evidence, heard the
\narguments advanced on both sides, framed the necessary questions for
\ndetermination, considered the records brought forth and came to the conclusion
\nthat the driver of the bus acted with rashness and negligence in driving the bus
\nand that the same had led to the accident in which the respondent\/claimant
\nsustained injuries. The Tribunal also found that the claimant suffered 50%
\npermanent disability as against 64% certified by the Medical Officer, awarded a
\ntotal sum of Rs.70,000\/- as compensation and directed the appellant\/respondent
\nto pay the above said amount to the claimant along with an interest at the rate
\nof 12% from the date of claim till realisation. It has also directed the
\nappellant\/respondent to pay costs.\n<\/p>\n
\t7. The correctness and legality of the award passed by the Tribunal is
\nunder challenge in this Civil Miscellaneous Appeal at the instance of the
\nTransport Corporation (appellant\/respondent).\n<\/p>\n
\t8. Advancing arguments on behalf of the appellant, Mr.D.Sivaraman, learned
\ncounsel contended as follows:\n<\/p>\n
\tAdmittedly, it was an accident involving two vehicles. But the
\nrespondent\/claimant chose to make the claim for compensation against one of the
\nvehicles alone. The fact that the owner and insurer of the second vehicle
\ninvolved in the accident were not made parties to the case was not properly
\nappreciated by the Tribunal. The Tribunal ought to have sustained the contention
\nof the appellant\/respondent regarding the defect of non-joinder of necessary
\nparties and dismissed the claim petition. The Tribunal has also committed an
\nerror in holding that the driver of the bus was at fault and in mulcting the
\nliability solely on the appellant\/respondent. At any event, the learned counsel
\ncontended further, the assessment of disability at 50% and the award of
\nRs.70,000\/- as compensation should be held excessive and hence deserves to be
\nreduced in the interest of law.\n<\/p>\n
\t9. The Court heard the submissions made by M\/s.Chitra Sampath, learned
\ncounsel for the respondent regarding the above said arguments advanced by the
\nlearned counsel for the appellant and paid its anxious considerations to the
\nsame.\n<\/p>\n
\t10. It is a fact not in controversy that the bus bearing Registration
\nNo.TN-72-N-0287 belonging to the appellant\/respondent met with an accident on
\nthe date, time and place mentioned in the claim petition. It is also not in
\ndispute that the respondent\/claimant who was travelling as a passenger in the
\nsaid bus at the time of accident sustained injuries. The award of the Tribunal
\nis sought to be attacked on three grounds. They are:\n<\/p>\n
\t(i) There was no negligence on the part of the driver of the bus;\n<\/p>\n
\t(ii) The petition should have been dismissed for non-joinder of necessary
\nparties; and<\/p>\n
\t(iii) The amount awarded as compensation is excessive.\n<\/p>\n
\t11. According to the case of the respondent\/claimant, the above said bus
\nwas driven by its driver in a rash and negligent manner and the accident
\noccurred solely due to the fact that the driver of the said bus made an attempt
\nto overtake another vehicle and stopped the bus on the middle of the road, on
\nseeing yet another vehicle (van) coming in the opposite direction. Admittedly it
\nwas not a case of head on collision. On the other hand, the van that came in the
\nopposite direction came into contact with the rear portion of the right side
\nbody of the bus and in fact, grazing the right side body of the bus the said van
\ndid pass the accident spot. P.W.1 giving a graphic picture of the occurrence,
\nhas clearly stated in his evidence that the bus was stopped by its driver in
\nsuch a way that its front portion was on the left side of the road and the back
\nportion of the bus was on the right side. The Tribunal has rightly rejected the
\nevidence of R.W.1 and preferred the evidence of P.W.1 and assigned cogent and
\nconvincing reasons for such a preference.\n<\/p>\n
\t12. On the other hand, this Court is able to find some substance in the
\nsubmission made by the learned counsel for the appellant\/respondent that the
\nTribunal has made an incorrect observation that the complaint statement recorded
\nby the police regarding the accident was one given by R.W.1  and not by P.W.1.
\nFactually, the First Information Report was drafted on the basis of the
\nstatement of P.W.1 recorded by the police, while he was under treatment in the
\nhospital. This is clear from the contents of Ex.R.1, copy of the First
\nInformation Report.\n<\/p>\n
\t13. It is true that there is no clear cut evidence on the side of the
\nrespondent\/claimant that the criminal case was registered based on the statement
\nof P.W.1. On the other hand, P.W.1 pleaded ignorance regarding the registration
\nof the criminal case against the driver of the van alone. But he was not
\nconfronted by showing Ex.R.1. On the other hand, the appellant\/respondent chose
\nto produce Ex.R.1 through R.W.1 in proof of its defence case that the criminal
\ncase was registered against the van driver. R.W.1 himself would admit that the
\nrespondent\/claimant did not give any statement to the police, as he was
\nquivering with pain. Therefore, the Tribunal has rightly come to the conclusion
\nthat no credence can be given to Ex.R.1. Thus, the arguments advanced by the
\nlearned counsel for the appellant that the Tribunal has committed an error in
\nnot placing reliance on Ex.R.1 has got to be discountenanced.\n<\/p>\n
\t14. On the other hand, the learned counsel for the respondent\/claimant in
\nthis regard would contend that, even assuming negligence on the part of the
\ndriver of the van also, the same was not enough to rule out any negligence on
\nthe part of R.W.1, the driver of the bus in so far as R.W.1 had not taken care
\nto leave sufficient space on the right side between his bus and the vehicles
\nthat came in the opposite direction. This Court is able to find some substance
\nin the above submission made by the learned counsel for the respondent\/claimant.
\nIn support of his contention, the learned counsel relied on the Judgment
\nreported in Vimla v. Moolchand [2005 (III) ACC 72, wherein the Rajasthan High
\nCourt has observed as follows:\n<\/p>\n
\t“It was the duty of the driver of the vehicle in which the passenger was
\ntravelling to ensure that adequate distance is maintained between the vehicles
\nin which the passenger was travelling and the vehicle approaching from the
\nopposite direction. Failure to do so would amount to negligence and lack of due
\ncare and precaution and as such the driver of such vehicle in which the
\npassenger was travelling and who received injury on account of impact from the
\nvehicle approaching from the opposite direction cannot be absolved of the
\nliability in such a case.”\n<\/p>\n
\t15. The learned counsel for the respondent\/claimant has also relied on the
\nJudgment reported in Delhi Transport Undertaking versus Krishnawanti [1972 ACJ
\n423] and Kerala High Court in Kerala State Road Transport Corporation versus
\nMadhavi Amma and another  [1977 ACJ 3] which was followed by the very same
\nKerala High Court in its subsequent judgment reported in Beeravu versus
\nK.K.Damodaran and others  [1994 ACJ 1297].   Therein, it has been observed as
\nfollows:\n<\/p>\n
\t“The driver of the bus must ensure sufficient space between the bus and
\nother objects.  A passenger cannot be held guilty of contributory negligence
\nwhen in the normal course any portion of his body is outside the bus, even in
\ncase, it is taken for arguments sake that the claimant put his hand on the side
\nwindow of the bus”.\n<\/p>\n
\t16. Applying the ratio found in the above said cases to the facts of the
\ninstant case, this Court comes to the conclusion that there was negligence on
\nthe part of R.W.1, the driver of the bus involved in the accident and hence the
\nfinding of the Tribunal, holding that R.W.1, the driver of the bus belonging to
\nthe appellant\/respondent was at fault and that his negligence had led to the
\naccident in question, has got to be confirmed.  There is no scope for
\ninterference whatsoever with the above said finding.\n<\/p>\n
\t17. The next contention of the learned counsel for the
\nappellant\/respondent is that the claim petition should have been dismissed for
\nnon-joinder of necessary parties in so far as the owner and insurer of the
\nsecond vehicle involved in the accident, namely, the van that came in the
\nopposite direction, were not made parties to M.C.O.P.  The said contention does
\nnot merit acceptance in the hands of this Court. Even assuming that the accident
\noccurred as a result of composite negligence of the driver of the bus and the
\ndriver of the van, they become joint tortfeasors. In respect of composite
\nnegligence leading to the accident, a claimant could maintain the claim petition
\nfor compensation as against all or anyone of the joint tortfeasors.  The legal
\nposition in this respect has been well settled.\n<\/p>\n
\tThe Honourable Supreme Court has held as follows in Union of India -Vs-
\nUnited India Insurance Company Limited (AIR 1998 SC 640):\n<\/p>\n
\t“where accident has occurred due to negligence of the drivers of two
\nvehicles and not due to negligence of the claimant, one of the joint tort-
\nfeasors cannot plead contributory negligence on the part of the passengers of
\nthe vehicle and qua the passengers of the bus, who were innocent.  The drivers
\nand owners of the vehicles would be joint tort-feasors.  It is well settled that
\nthe liability of joint tort-feasors is joint and several and each is
\nresponsible, jointly with each and all of the others and also severally for the
\nwhole of the amount of damage caused by the tort, irrespective of the extent of
\nhis participation.  The injured may sue any one of them separately for the full
\namount of loss or he may sue all of them jointly in the same action and even in
\nthe latter case, the judgment so obtained against all of them may be executed in
\nfull against any one of them.”\n<\/p>\n
\tIn ILR (1990) Karnataka 3181 (Karnataka State Road Transport Corporation –
\nvs- Reny Mammen), it has been observed as follows:\n<\/p>\n
\t“Where accident has occurred due to composite negligence of drivers of two
\nvehicles, their liability would be joint and several and the claimant can
\nproceed against both or any one of the joint tort-feasors and recover full
\ncompensation to which he is entitled and apportionment of negligence between the
\njoint tort-feasor is for the benefit of the respondents to claim contribution
\nfrom the other tort-feasor, if he satisfies the award against the claimant and
\nit is open to the tort-feasor  who satisfies the award to proceed against the
\nother tort-feasor for contribution”.\n<\/p>\n
\tIn AIR 2004 Karnataka 149(Karnataka State Road Transport Corporation,
\nBangalore and etc., -vs- Arul alias Aravind and etc), it has been observed as
\nfollows:\n<\/p>\n
     “In view of the aforesaid reasoning and decisions of the Supreme Court, we
\nhave no hesitation to hold that where a claim petition is filed by the injured
\nor legal representatives of the deceased due to injury or death arising out of
\nthe use of motor vehicles due to the composite negligence of drivers of the two
\nvehicles, the claimant can recover compensation from any one of the joint tort-
\nfeasors and the just compensation to which he is entitled cannot be reduced for
\nnon-impleading of the other joint tort-feasors.”\n<\/p>\n
\t18. The above said proposition will apply with more vigour where the other
\nvehicle could not be traced and the identify of the other vehicle was not known.
\nFor all the reasons stated above, this Court comes to the conclusion that the
\nabove said contention of the learned counsel for the appellant regarding the
\nmaintainability of the claim petition on the ground of non-joinder of necessary
\nparties has got to be rejected as untenable.\n<\/p>\n
\t19. In respect of the third and last ground of attack, this Court is of
\nthe view that the same is liable to be discountenanced for the following
\nreasons:\n<\/p>\n
\tIn the instant case, the respondent\/claimant has produced sufficient
\nevidence to substantiate his contention that the injuries sustained by him were
\nnot fully cured and the same resulted in permanent disability. He has suffered
\ncrush injury on the right hand involving fracture of right upper hand (humerus)
\nand compound fracture of both bones (radius and ulna) of the right forearm as
\nevidenced by Exs.P-1 and P-2, for which, he was given treatment at Tirunelveli
\nMedical College Hospital, Palayamkottai. P.W.2, the Assistant Professor of
\nOrthopaedics, besides issuing Ex.P-3 disability certificate, has deposed in the
\nCourt confirming the correctness of the assessment of disability made by him in
\nEx.P-3. It is the clear testimony of P.W.2 that there was mal-union of bones on
\nthe right hand at the point of fracture and restriction of movement of all the
\nthree joints of the right hand namely shoulder, elbow and wrist. It is also the
\nclear testimony of P.W.2 that the respondent\/claimant cannot use his right hand
\nfor doing his normal work. As a qualified Ortho-Specialist, he has assessed the
\ndisability at 64% and certified the same to be permanent. The
\nappellant\/respondent who wanted to challenge the same should have made steps to
\nget the  claimant either examined by a Medical Officer of its choice or referred
\nto a Medical Board at the instance of the appellant to correctly assess the
\nnature and the extent of disability suffered by the claimant. But unfortunately,
\nthe appellant\/respondent has not done so. Under these circumstances, the
\nTribunal has assessed the permanent disability suffered by the
\nrespondent\/claimant at 50% as against 64% certified by P.W.2. This, the Tribunal
\nseems to have done, perhaps due to the fact that P.W.2 did not choose to take x-
\nray for assessing the disability. In the absence of any contra evidence, the
\nfinding of the Tribunal that the respondent\/claimant has suffered a permanent
\ndisability and its assessment of disability at 50% as against the certified
\ndisability of 64% cannot be termed incorrect or unreasonable. This Court notices
\nno reason, whatsoever, to differ with the Tribunal in this regard and reduce the
\npercentage of disability.\n<\/p>\n
\t20. There is no dispute regarding the age of the claimant. In Ex.P.2 –
\nAccident Register, his age has been noted to be 19 years. While awarding lump
\nsum payment for permanent disability, the age of the claimant shall play an
\nimportant role. The award may range from Rs.1,000\/- to Rs.2,000\/- per 1% of
\ndisability. Maximum and minimum rate shall be applicable in case of youngsters
\nand aged persons respectively. In spite of the fact that the claimant was
\nadmittedly aged 19 years as on the date of accident, the Tribunal has applied
\nthe minimum rate (at Rs.1,000\/- per 1% disability) and fixed the amount of
\ncompensation for permanent disability at Rs.50,000\/-. At no stretch of
\nimagination, the same could be termed excessive. In addition to that the
\nTribunal has also awarded a sum of Rs.20,000\/- as compensation for pain and
\nsuffering, loss of earning during the period of treatment, mental shock, etc.
\nThe said amount will include damages for probable loss of expectation of life.
\nThe same cannot be termed excessive. Therefore, this Court comes to the
\nconclusion that in respect of quantum also, the award of the Tribunal deserves
\nto be confirmed.\n<\/p>\n
\t21. For all the reasons stated above, this Court is of the considered view
\nthat there is no scope for interference with the award of the Tribunal either
\nlegally or factually  and that there is no merit in the appeal and the same
\ndeserves to be dismissed with costs.\n<\/p>\n
\t22. In the result, the award of the Tribunal is hereby confirmed and this
\nCivil Miscellaneous Appeal is dismissed with costs.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
The Motor Accident Claims Tribunal
\n(Additional Sub Court),
\nTirunelveli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Tamil Nadu State Transport vs Isakkiappan on 23 April, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-69299","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nTamil Nadu State Transport vs Isakkiappan on 23 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tamil-nadu-state-transport-vs-isakkiappan-on-23-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tamil Nadu State Transport vs Isakkiappan on 23 April, 2007 - 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