P.C. Govindaswamy Chettiar vs K.S. Subramanian and others

Ramanujam, J.—All the above four appeals arise out of one claim for compensation in respect of a motor vehicles accident. Hence they are

disposed of together. On 13th June, 1976, one K.S. Subramaniam, Commercial Assistant, Tamil Nadu Electricity Board, Erode, Dindigul, was

travelling in a bus T.N.R. 330, from Sungambanari to Madurai, along with his wife. A lorry T.N.Y.4179 which was coming fast in the opposite

direction, dashed against the bus on its right as a result of which, the appellant''s right hand resting with the window sill got completely severed from

his body. He was immediately taken to the Melur Hospital and the profuse bleeding was arrested. Thereafter, the claimant was sent to Government

Erskine Hospital, Madurai, for further treatment. He was under the treatment for about a month and his right hand had to be amputated above the

elbow. On the basis that the accident, which resulted in the amputation of his right hand, was due to rash and negligent driving of the bus, by its

driver, and the lorry, by its driver, the claimant claimed a compensation of Rs. 86,300, before the Motor Accidents Claims Tribunal, Madurai. The

said compensation was claimed under eight heads. They are (1) loss of salary during the period of treatment Rs. 1,500; (2) medical expenses Rs.

2,000; (3) cost of clothing damaged Rs. 300; (4) Extra nourishment charges Rs. 10,000; (5) Pain and suffering Rs. 10,000; (6) Permanent

disability Rs. 40,000; (7) Loss of earning power Rs. 30,000 and (8) Transport charges Rs. 300. The said claim was opposed by the owners of the

both the bus and the lorry, as well as the Insurance Companies with which the said vehicles had been insured. In the claim petition, the bus owner

was the first respondent and the insurance company, with which the bus had been insured, the second respondent. The third respondent was the

owner of the lorry and the insurance company, with which the lorry had been insured, the fourth respondent. The first respondent resisted the claim

before the Tribunal, contending that the driver of the bus drove the bus slowly and cautiously, that the lorry of the third respondent cams in the

opposite direction rashly and negligently; that it came so close and dashed against the right side of the bus, as a result of which, the right arm of the

claimant got severed, that the carelessness and negligence on the part of the driver of the lorry and the carelessness of the petitioner, in stretching

his right hand outside the bus, are responsible for the accident in question and that therefore the driver of the bus cannot be held liable for the

accident to any extent. The second respondent, the Insurance company, with which the bus had been insured, took up the same defence as the first

respondent. However, in addition, it contended that its liability is restricted to the sum of Rs. 5,000 under the terms of the Insurance policy. The

respondents 3 and 4 contended that there was no negligence or rashness on the part of the driver of the lorry, that it was the negligence of the

claimant, in stretching his right hand outside the bus, that was entirely responsible for the accident, and that in any event the driver of the bus was

also responsible for the accident, as the bus was driven in a rash and negligent manner. They also contended that the compensation claimed is

excessive and speculative.

On the above pleadings, the Tribunal set out the following two questions for consideration:

Whether the accident took place on the lines indicated by the petitioner in the petition?

Which of the respondents are liable for payment of compensation and what is the amount to be awarded?

On a consideration of entire evidence adduced by all the parties, the Tribunal found that as the right side of both the vehicles were found damaged

after the accident, both of them are equally responsible for the accident, and that the accident was due to the fact that both the vehicles coming at a

speed, came so close and grated each other as a result of which the right arm of the claimant was severed. On the question of the quantum of

compensation, the Tribunal found that a sum of Rs. 36,500 will be fair and reasonable compensation but that under the terms of the Insurance

policy, issued by the second respondent, in respect of the bus in question, the liability of the second respondent cannot in any event exceed Rs.

5,000. In respect of the balance, the award was passed against respondents 1, 3 and 4. Aggrieved by the said award of the Tribunal, the above

four appeals have been filed. App. No. 391 of 1980 has been filed by the claimant, seeking higher compensation than the one awarded by the

Tribunal. App. No. 190 of 1978 has been filed by the owner of the lorry questioning the award passed against him. App. No. 12 of 1979 has

been filed by the owner of the bus questioning the award so far as he is concerned App. No. 348 of 1979 has been filed by the Insurance

Company, with which the lorry had been insured.

Firstly we will take up App. No. 190 of 1978 and 348 of 1979 filed by the lorry owner and the insurance company, with which the lorry had

been insured. In these appeals the contentions raised by the appellants are : (1) that the compensation awarded by the Tribunal was excessive; and

(2) that in any event, in view of the finding given by the Tribunal that both the driver of the lorry and the driver of the bus have been equally

responsible for causing the accident, the liability should be equally apportioned as between the bus and the lorry and if it is so apportioned, the

appellant''s liability will be considerably reduced. The learned counsel for the appellants in these two appeal have taken us through the findings of

the Tribunal that both the lorry driver and the bus driver were responsible for the accident.

After referring to the evidence of P.Ws.2 and 3 as also the evidence of the driver of the bus as R.W.1 and Ex.P. 6, the Motor Vehicles

Inspector''s report, the Tribunal came to the conclusion that both the drivers were guilty of composite negligence in causing the accident. In giving

this finding the Tribunal has taken note of the fact that both the vehicles had been driven fast and they have come too close, as a result of which, the

right hand of the appellant had been severed. The Tribunal has also taken note of the fact that Ex. P6 Motor Vehicles Inspector''s Report shows

that there were damages on the right side of the bus as also the right middle side of the lorry, which indicated that two vehicles had come too close

to each other and their right sides came into a rubbing contact resulting in the amputation of the right hand of the claimant, which he had rested on

the window sill of the bus. According to the learned counsel for the appellants in these two appeals, on the basis of this finding, the Tribunal should

have apportioned the compensation equally between the bus and the lorry and, in such a case, the liability of the appellants in the above two

appeals, will get reduced. The learned counsel for the bus owner contends that the evidence on record does not indicate any negligence on the part

of the bus driver and that therefore the Tribunal is in error in holding that both the bus driver and the lorry driver are liable for composite negligence

in driving their vehicles. Thus the learned counsel for the bus driver challenged the findings of the Tribunal that there was a composite negligence on

the part of the driver of the bus and on the part of the driver of the lorry. He relies on the evidence of R.W.1, the driver of the bus, which is to the

effect that he was about to stop the bus for writing the invoice and at that stage, the lorry which was coming fast in the opposite direction, came too

close and dashed on the right side of the bus and that was responsible for severing the right hand of the claimant. It is pointed out by the learned

counsel that the driver of the lorry has not taken part in the proceedings and did not get into the witness box to depose as to how the accident

happened. Reference has also been made to Ex. P5, the judgment of the criminal Court, wherein the driver of the lorry has been sentenced to pay

a fine on his plea of guilty, to substantiate the plea that the lorry driver never took the plea at any stage that the bus driver was also negligent in

causing the accident. However, having regard to the evidence of P.Ws.2 and 3, it is clear that the bus was being driven at a considerable speed

and the accident occurred when the lorry coming fast in the opposite direction grated it on its right side. P.W.2, the claimant, has specifically

deposed that the bus driver was also negligent in driving the vehicle fast and coming too close to the lorry. Though R.W.1, has stated that he was

about to stop the bus on the left side of the road for writing up the invoice and at that stage, the lorry, which was coming fast in the opposite

direction, came too close, that evidence cannot be accepted at its face value for there is no other material to indicate that the bus was about to stop

when the accident took place. No sketch has been filed in this case, and if the case as put forward by R.W.1 is true a detailed sketch could have

been filed to indicate the position of the bus at the time of the accident. In the absence of any sketch, showing the actual position of the bus at the

time of the accident, mere ipse dixit of R.W.1, that he was about to park the bus on the left side of the road and at that stage the lorry came too

close to the bus and caused the accident, cannot be accepted.

It is, however, pointed out by all the respondents in the claim petition that the claimant also contributed to the accident by his negligence in

keeping his elbow on the window sill. The normal tendency of a person sitting near the window is to rest his elbow on the sill and the drivers of

both the bus and the lorry should take note of that tendency while driving their vehicles. As pointed out by Gujarat High Court in Chaturji Amarji

and Others Vs. Ahmad Rahimbux and Others,

The correct criterion in such cases is first to find out as to whether it is a case in which the arm or any part of the body of a passenger travelling by

the bus was protruding unreasonably, and whether such an act on the part of...the danger ; and lastly, whether a conclusion was inevitable that he

received the injury as a result of his own lack of care and positive negligence on his part. Secondly, a question may also be asked as to whether the

accident resulting in the injuries to the passenger was the result of the contemporaneous negligence on the part of the passenger as well as the

driver or drivers of the vehicles concerned. In this connection, it has to be borne in mind that primarily the drivers owe a duty of safety to such

passengers which consists of driving the vehicles slowly with care and caution, while crossing each other and not bring their respective vehicles

very close to each other so that any such passenger who is sitting with his arm or any part of his body resting on the window sill or the window rail

or sitting in such a way that it protrudes therefrom, does not get hurt when the vehicles cross each other.

In Jamnagar Motor Transport Union (P) Ltd. Vs. Gokaldas Pitamber''s L.Rs. and Others, , deceased was resting his head travelling in a passenger

bus on the side bar of the window and a contention that resting the head itself was a negligent act was negatived by the Supreme Court on the

ground that the act of resting his head could not be said to be a rash act. Smt. Sushma Mitra Vs. Madhya Pradesh State Road Transport

Corporation and Others, , was a case in which a passenger was resting his elbow on the window sill of the bus in which he was travelling and a

truck coming in the opposite direction hit against the elbow. The Madhya Pradesh High Court pointed out:--

It cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of 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. It is a matter of common experience that passengers who sit adjoining a window very often rest their

arm on the window sill by which act the elbow projects outside the window. The driver of the bus must have these passengers also in

contemplation, and, therefore, while overtaking or crossing another vehicle on the road he must not come too close to the vehicle that is overtaken

or crossed and he must leave sufficient gap between the vehicles to avoid injury to these passengers. The driver of a vehicle coming from the

opposite direction owes a similar duty while crossing a passenger bus. He too must have in contemplation a passenger sitting near the windows of

the on coming bus who may have their hands resting on the windows, and in crossing the bus he must not only avoid contact with the body of the

bus but he must also avoid coming in contact with the elbow of any passenger that may be resting on the window and projecting outside the body

of the bus. He must, therefore take precautions to move to his near side and leave sufficient gap for preventing any mishap.

In this view of the matter, we have to agree with the findings of the Tribunal, that the accident was due to the composite negligence of both lorry

driver as well as the bus driver. On the basis of this finding, the Tribunal should have apportioned the liability for compensation, as between the

lorry and the bus equally, which has not been done. The learned counsel for the appellants appear to be right in contending that the Tribunal is in

error in not apportioning the liability between the lorry and the bus, on the question of quantum of compensation.

So far as App. No. 12 of 1979 filed by the owner of the bus is concerned, the finding of the Tribunal that the bus driver was also rash and

negligent, as also the quantum of compensation fixed by the Tribunal have been challenged. So far as the question of composite negligence is

concerned, we have already expressed our view that the Tribunal is right in holding, that the driver of the lorry as well as the bus both, have been

negligent and it is that negligence, which has caused the accident.

The claimant has filed App. 391 of 1980, claiming higher compensation than the one awarded by the Tribunal at least under three heads,

permanent disability, loss of earning power and pain and suffering. As already stated, as against the claim of Rs. 10,000, for pain and suffering, the

Tribunal has awarded a sum of Rs. 7,500. As against the claim of Rs. 40,000, for permanent disability, Rs. 15,000 has been awarded and as

against the claim of Rs. 30,000 for loss of earning power, Rs. 10,000 has been granted. The learned counsel for the claimants contends that,

having regard to the certificate issued by P.W.1, the doctor who attended on the claimant, that the permanent disability is to an extent of 100%, the

entire sum of Rs. 40,000 claimed as permanent disability should have been given. It is also pointed out that as a result of the amputation of his right

hand, he has suffered the loss of earning power and that should be sufficiently compensated. It is also pointed out by the learned counsel, that for

pain and suffering, the entire sum of Rs. 10,000 should have been granted. P.W.1 has deposed that the overall disability for the arm is 100%; he

has said that overall disability is 60%. Hence, we have to take 60% as the loss of earning power as per the evidence of P.W.1, but on the facts of

the present case, it is not possible to adopt 60% as the loss of earning power. Admittedly, in this case, even after the accident, the claimant

continues to be employed in the Electricity Board and there is no reduction in his emoluments. The learned counsel for the claimant would state that

the employer Electricity Board has taken a sympathetic view and retained him in service. Whatever be the motive, the fact remains, that the

claimant continues to be employed in the Electricity Board in the same salary, as he was receiving before the accident. The learned counsel for the

claimant, contended, that all his chances of promotion had been lost and therefore it cannot be said that there is no loss of earning power. It has

been found by the Tribunal that though the claimant has come forward with a case that his promotional chances have been affected because of the

accident, he has not placed any material to indicate that he was in the list for promotion and that such chances of promotion have been lost, due to

the accident. We are in entire agreement with the observation of the Tribunal, that unless necessary materials are placed by the claimant to show

that he had chances of promotion which have been lost, it is not possible to say that the claimant had a chance of promotion and that that chance

had been lost, because of the injuries sustained by him. But it cannot on that ground be stated that there is no loss of earning power at all. Since

there is a permanent disability, naturally, there is a loss of earning power, but in the computation of loss of earning power in terms of money, we

cannot completely shut our eyes to the factual position. If the claimant had not lost anything by way of emoluments, as a result of the accident, and

his only possible chances of promotion had been lost, the lower court appears to be fair and reasonable in awarding as sum of Rs. 10,000 towards

the loss of earning power. The Tribunal has awarded a sum of Rs. 15,000 towards the personal disability. The Tribunal has taken note of the fact

that in view of the amputation of the claimant''s right hand he may need assistance from others. On the materials on record, we are not in a position

to say that the Tribunal''s estimate of the loss, arising out of the permanent disability, is in any way an underestimate. We are therefore inclined to

accept the view of the Tribunal on this aspect. As regards the pain and suffering the Tribunal has awarded a sum of Rs. 7,500 as against the claim

of Rs. 10,000. Having regard to the period during which, the claimant has been in the hospital and the nature of the injuries, which has been

attended immediately after his reaching the hospital, the award of Rs. 7,500 by the Tribunal, cannot be too low, as urged by the learned counsel

for the appellant. In this view of the matter, we cannot agree with the learned counsel for the claimant that the quantum of compensation awarded is

on the low side. We are also not inclined to agree with the other appellants that the compensation awarded is on the high side. Having regard to the

nature of injuries sustained by the claimant and the permanent disability suffered, the aggregate award of Rs. 36,500 by the Tribunal, should be

taken to be fair and reasonable. In this view of the matter, appeal No. 190 of 1978 and 348 of 1979 will stand partly allowed to the extent

indicated above. The quantum of compensation awarded by the Tribunal will be apportioned as between the lorry owner and the bus owner at the

ratio of 50: 50. The result is, there will be an award in favour of the claimant for a sum of Rs. 36,500, of which 50% is payable by respondents 3

and 4 in M.A.C.O.P. 119 of 1976. Out of the balance 50%, the second respondent''s liability will be limited to an extent Rs. 5,000 and the

balance will be payable by the first respondent. As the entire sum of Rs. 36,500 had been deposited by the 4th respondent, before the Tribunal, as

a result on an interlocutory order passed by the Court, it can withdraw and get back the balance in excess of Rs. 18,250 with interest on the said

sum. There will be no order as to costs.