Prasath vs Subramania Pillai and Another

M. Karpagavinayagam, J.—Prasath, the injured-claimant, is the appellant herein.

Since the injured sustained injuries due to negligent driving of the driver of the bus belonging to respondent No. 2, he filed a claim petition

seeking for compensation of Rs. 1,40,152.

The Tribunal, after enquiry, holding that both the driver of the bus as well as the injured were negligent and responsible for the accident,

awarded Rs. 25,000 payable to the appellant.

The main ground of attack made on the judgment impugned is that in the absence of any oral evidence to attribute contributory negligence on the

part of the appellant-injured, the Tribunal ought not to have held that the appellant also was negligent and that the quantum of award on the basis of

the contributory negligence is too meagre. This submission is resisted by the counsel for respondents stating that Tribunal''s finding is correct.

In the light of the rival contentions, let us examine the facts and material circumstances of the case.

The appellant was working as Assistant Engineer in Tamil Nadu Electricity Board (Distribution) in Tiruvattar. On 19.11.1990, at about 4.15

p.m., he boarded the bus belonging to the respondent No. 2 Corporation at Tiruvattar bus stand for going to Marthandam. The respondent No. 1

was the driver. When the bus was nearing Pachiparai, proceeding from east to west, a lorry was going ahead. The injured got the seat to sit in the

rear seat of the bus on the extreme rear side. While he was sitting like that, he was putting his right hand inside the bus on the space available,

touching the iron rods of the window. At about 4.45 p.m., when the bus had reached the place called Potravilai, the respondent No. 1 driver

drove the bus at a high speed, tried to overtake the lorry going ahead, in a rash and negligent manner, without keeping his side. Due to the above

negligent act, the rear side of the bus dashed against an electric pole standing on the right side of the road. As a result of the impact, there was a

dislocation of the iron rods in the window on the rear right side of the bus, causing crush injuries on the right hand of the appellant-injured. He was

taken in the bus to the L.M.S. Hospital at Marthandam. After taking some treatment there, he was taken to Neyyur Hospital in taxi. From there,

he was referred to Trivandrum Medical College Hospital. He was hospitalised for a number of days. Due to the injuries, he suffered a permanent

disability on the right hand. With reference to the accident a complaint was given by the appellant against the bus driver to the police, which was

registered.

On the basis of these facts, the injured-claimant filed a petition claiming for compensation of Rs. 1,40,152.

In order to prove his plea, the claimant examined himself as PW 1 and Dr. George Vargis, who gave treatment to the injured, was examined as

PW 2. On his side, Exhs. A-1 to A-14 were marked.

The above claim was contested by the respondent No. 2 Corporation, by filing counter, stating that the injured, while travelling in the bus, put

his right hand outside the bus and when the driver overtook the lorry, the hand projected outside, dashed against an electric pole and thereby he

sustained injuries, for which the driver of the bus was not responsible.

In order to substantiate this plea in the counter, the driver of the bus was examined as RW 1.

The Tribunal, on analysing the evidence adduced by PW 1, held that PW 1''s statement is fully corroborated by the FIR which has been

marked as Exh. A-1 and as such, PW 1''s evidence can be accepted. Having held so, the Tribunal, on the basis of the counter and the evidence of

RW 1, came to the conclusion that the accident took place when the driver overtook the lorry and when the PW 1 put his hand outside the bus

window and as such, both the driver of the bus and PW 1 were negligent.

This conclusion, in my view, in the light of the facts and circumstances of the case is quite erroneous. Admittedly, RW 1 overtook the lorry.

Therefore, he must have verified whether sufficient space was available to overtake the lorry which was proceeding ahead of the bus. Furthermore,

only after getting the signal from the lorry driver, the driver of the bus has to overtake the lorry. Then only the lorry driver would give sufficient

space to enable the bus driver to overtake the lorry and avoid the accident.

In the instant case, RW 1 did not say anything about getting the signal from the lorry driver. Moreover, there is no dispute in the fact that the

claimant sustained injuries due to the dashing of the bus with the electric pole. When the electric pole was standing on the right side, the driver of

the bus must have avoided the overtaking of lorry.

On the other hand, it is the specific evidence of PW 1, the claimant, that he was resting right hand on the iron rods inside the bus. Though in the

chief-examination, RW 1, the driver, stated that the claimant was putting the hand outside the bus, he stated in the cross-examination that he saw

the claimant, putting the hand outside the window through the mirror. It is quite strange to say that he saw PW 1, projecting his hand outside the

bus, while he was overtaking the lorry. Had he actually seen the hand of PW 1 projecting outside the bus, he must have stopped the vehicle,

especially when the electric pole was standing on the right side. Furthermore, he could not have seen the sitting position of PW 1 through the

mirror, that too, when he was overtaking the lorry. Therefore, the evidence of RW 1 is not reliable and the same has to be rejected.

As indicated earlier, the Tribunal specifically observed that the evidence of PW 1 can be fully accepted since his statement is supported by the

FIR, Exh. A-l. When such being the conclusion, the Tribunal ought not to have held that both RW 1 and PW 1 are negligent.

Under these circumstances, I am of the view that the driver of the bus alone was negligent and, therefore, the Corporation is liable to pay the

compensation and the quantum also has to be fixed only on that basis.

The Tribunal awarded Rs. 5,000 for pain and suffering, for medical expenses and extra nourishment Rs. 5,000 and for permanent disability Rs.

15,000. This is very much on the lower side. The medical records show that the injured-claimant took treatment in several hospitals for about two

months. Exh. A-9 series show the medical bills, incurring heavy expenditure and Exhs. A-11 and A-12 show that the claimant sustained fracture

and he had suffered a permanent disability, initially, of 100 per cent and after subsequent treatment, the same was fixed at 22 per cent. As per Exh.

A-3, he had ""fracture shaft humerus (right) compound segmental fracture both bones (right) forearm (grade III)"".

He was hospitalised and he did not attend the office from 19.11.90 to 17.4.91. During this period, he did not obtain salary. His salary certificate

shows that his monthly salary was Rs. 3,241. PW 2, the doctor, would say as follows:

x x x

Under these circumstances, award of Rs. 15,000 towards permanent disability is not adequate. According to PW 1, he filed Exh. A-9 series,

medical bills and showed the transport expenditure under Exh. A-10 Trip Sheet. There is no reason to reject these documents. Hence, as a

consolidated amount towards all the heads, namely, pain and suffering, medical expenses, transport charges, loss of income for the period during

hospitalisation and loss of future earning power, it would be appropriate to direct the respondents to pay Rs. 1,00,000. Therefore, the award

passed by the Tribunal is modified to the effect that the appellant is entitled to get 1,00,000 as compensation and the respondent No. 2

Corporation is directed to pay the said amount along with 12 per cent interest per annum from the date of filing of the claim petition till the date of

realisation.

With the above modification, the appeal is allowed. No costs.