S. Raja vs Managing Director, Metropolitan Trans. Corpn. Ltd.

P.P.S. Janarthana Raja, J.—The appeal is preferred by the claimant against the award dated 24.2.2006 made in M.C.O.P. No. 4449 of

2000 by the Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes), Chennai.

Background facts in a nutshell are as follows:

Claimant was injured in a motor vehicle accident that took place on 29.6.2000 at about 1630 hours. The appellant-claimant was travelling as a

passenger in MTC bus belonging to respondent transport Corporation bearing registration No. TN 01-N 2798 from Teynampet to Kundrathur.

The driver of the said bus drove the same in a rash and negligent manner at terrific speed along the Porur Poonamallee High Road and grazed

against the oncoming unknown lorry and caused the accident, due to which the claimant sustained grievous injuries on his right hand. Immediately

he was admitted in the Government General Hospital at Chennai, as an inpatient from 29.6.2000 to 19.7.2000. He claimed a total sum of Rs.

2,50,000 as compensation. Respondent Corporation resisted the claim. On pleadings the Tribunal framed the following issues:

(1) Whether the bus bearing registration No. TN 01-N 2798 was involved in the accident?

(2) Whether the accident had occurred due to rash and negligent driving of the driver of the bus bearing registration No. TN 01-N 2798?

(3) Whether the petitioner is entitled for compensation as prayed for?

(4) To what relief?

After considering the oral and documentary evidence, the Tribunal held that the accident had occurred due to composite negligence of the driver of

the bus, driver of the unknown lorry and also the claimant and fixed the percentage of negligence on the driver of the bus at 30 per cent, on the

part of the unknown lorry driver at 30 per cent and that of the claimant at 40 per cent as contributory negligence and awarded compensation of

Rs. 18,000 with interest at 7.5 per cent per annum from the date of petition, the details of which are as under:

Loss of income Rs. 36,000

Loss of income during treatment period Rs. 1,000

Transport charges Rs. 1,000

Extra nourishment Rs. 1,000

Attendant charges Rs. 1,000

Pain and suffering Rs. 5,000

Permanent partial disability Rs. 15,000

Total Rs. 60,000

30 per cent negligence on the part of driver of the

bus

(Rs. 60,000 x 30/100) Rs. 18,000

The Tribunal has awarded compensation of Rs. 18,000 to the appellant-claimant. Aggrieved by that award, the claimant has filed the present

appeal for enhancement.

The learned counsel appearing for the claimant-appellant questioning the negligence as well as quantum of compensation submitted that the

Tribunal ought to have awarded compensation as claimed by the claimant and the amount awarded under various heads is very low and meagre

and the Tribunal has not followed the principles of assessment before passing the award. He further submitted that the Tribunal erred in fixing 40

per cent contributory negligence on the part of the claimant without any basis. The order of the Tribunal is not in accordance with law and it is a fit

case for enhancement.

Learned counsel appearing for the respondent No. 3, Corporation, submitted that the Tribunal had considered all the relevant materials and

evidence on record and fixed the percentage of negligence correctly and awarded a just, fair and reasonable compensation. Hence the order of the

Tribunal is in accordance with law and the same has to be confirmed.

Heard the counsel. On the side of the claimant, PWs 1 and 2 were examined and documents Exh. P1 to Exh. P6 were marked. On the side of

the respondent, RW 1 Muthuvel, who is the investigator, was examined and Exh. R1 final report submitted by the Sub-Inspector of Police,

Nandambakkam Police Station, was marked to substantiate their claim. PW 1 is the claimant. PW 2 is Dr. Saichandran. Exh. P1 is the discharge

summary. Exh. P2 is series of photos. Exh. P3 is the copy of the first information report. Exh. P4 is the disability certificate. Exh. P5 is X-ray. Exh.

P6 is bus ticket. After considering the oral and documentary evidence, the Tribunal held that the accident had occurred due to negligent driving of

the driver of the bus, driver of the unknown lorry and the claimant and fixed the percentage of negligence on the part of the driver of the bus at 30

per cent, on the part of the unknown lorry driver at 30 per cent and that of the claimant at 40 per cent as contributory negligence. The learned

counsel appearing for the appellant submitted that at the time of the accident the claimant was seated on the rear side and to establish the same, the

respondent Corporation has not examined their driver. He further submitted that sitting in the rear side of the bus and placing his right hand on the

window of the bus would not be considered as negligence. Therefore, there is no contributory negligence. The learned counsel also relied upon the

decision of Allahabad High Court in the case of State of Uttar Pradesh Vs. Vinod Kumar Bhatnagar and Others, wherein in para 10 it has been

held as follows:

(10) To the same effect is the decision of a Division Bench of this court reported in Ramesh Kumar Awasthi Vs. The Collector, Saharanpur and

Others, . In that case also the appellant was travelling by a bus. Another bus coming from the opposite direction grazed against the body of the bus

in which the appellant was sitting. By the impact of the grazing of the bus the window glass was smashed and the appellant''s right hand was cut

and slit from above the right elbow joint. It was held that it was the duty of both drivers to ensure safety of the passengers and for that purpose

they should have taken care to leave sufficient space between the two vehicles at the time of crossing each other. K.N. Singh, J. speaking for the

Bench observed:

The legal position is clear that it is the duty of the driver to drive the vehicle in such a manner as to safeguard the safety of the passengers. If two

vehicles while crossing each other graze their bodies without there being any justification for the same, a presumption about the negligence of the

drivers would arise. Both the drivers should have realised that if the two vehicles cross each other in speed without leaving sufficient space between

them the safety of the passengers would be jeopardized. It was the duty of both the drivers to ensure safety of passengers.

It is a matter of common knowledge that passengers sitting near the window rest their hand on the window-sill specially when on a long journey in

the countryside. The driver of a bus carrying passengers on long journeys is expected to have knowledge of this fact. The drivers of the two buses

were bound to take precaution against the possibility that while grazing against each other some person might be placing his elbow or hand on the

window-sill. Since the two vehicles came too close to each other resulting into an accident without there being justification for the same, it has to be

presumed that the drivers had failed to take reasonable care for the safety of passengers and, therefore, they were negligent. In Jamnagar Motor

Transport Union (P) Ltd. Vs. Gokaldas Pitamber''s L.Rs. and Others, , the Supreme Court in similar situation where the two buses grazed while

crossing each other held that both the drivers were negligent. The view that we are taking has been taken by various High Courts in a number of

cases. Reference may be made to State of Punjab v. Guranwanti 1958 ACJ 110 (Punjab), Smt. Sushma Mitra Vs. Madhya Pradesh State Road

Transport Corporation and Others, , Delhi Transport Undertaking and Another Vs. Krishna Wanti and Another, and The General Manager,

Karnataka State Road Transport Corporation, Bangalore Vs. Krishnan and Others,

The learned counsel also submitted that the accident resulting in the injuries to the claimant occurred on account of negligence of the drivers of both

the vehicles i.e., bus and lorry. In this case the accident had occurred since both the vehicles crossed each other in speed without leaving sufficient

space between them and caused accident. Therefore, it cannot be said that the claimant was guilty of the contributory negligence because he

placed his hand on the window. In the case of Jamnagar Motor Transport Union (P) Ltd. Vs. Gokaldas Pitamber''s L.Rs. and Others, , wherein

the Apex Court observed that the act of resting his head could not be said to be a rash act and held as follows:

Exactly identical is the situation before me, namely, that applicant was resting his hand on the window and the hook of the incoming vehicle caused

injuries to him and on this basis it could not be said that the injuries were suffered by him by keeping his hand on the window.

After considering the principles enunciated in the above said judgments, it is reasonable to conclude that it is only the drivers of the bus as well as

the lorry, who are responsible for the accident and no material was placed to show that there is a contributory negligence on the part of the

claimant. In such circumstance, this court is of the view that 40 per cent negligence fixed by the Tribunal on the part of the claimant is set aside and,

therefore, the composite negligence is fixed only on the part of the drivers of the bus as well as lorry equally.

At the time of the accident, the claimant was aged about 46 years. PW 1, the claimant, deposed that he was a coolie and earning Rs. 3,000 per

month. He further deposed that he suffered fracture in his right hand and immediately after the accident, he was admitted in the Government

General Hospital, Chennai, as an inpatient and took the treatment from 29.6.2000 to 19.7.2000. PW 2, doctor, who examined the claimant, has

assessed the disability at 20 per cent and issued Exh. P4, disability certificate. He deposed that he examined the patient clinically and even as per

Workmen ''s Compensation Act, it amounts to 50 per cent disability. He further deposed that claimant had only 20 degree of movement in his right

elbow joint and right arm and assessed the disability as 50 per cent partial and permanent. The Tribunal, considering the oral and documentary

evidence, fixed the monthly income at Rs. 2,000 and taking 50 per cent as permanent and partial disability fixed the monthly income at Rs. 1,000

(Rs. 2,000 x 50/100). Considering the age of the claimant as 46 years, the loss of income is calculated for a period of 3 years and arrived at the

loss of income at Rs. 36,000 (Rs. 1,000 x 12 x 3). Considering the injury sustained and the period of treatment, I feel that the amount awarded

under this head is very reasonable and the same is confirmed. The Tribunal has also awarded a sum of Rs. 1,000 for loss of income during

treatment period, which I feel is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs. 1,000 towards transport

charges. Considering the period of treatment, i.e., from 29.6.2000 to 19.7.2000, the amount awarded under this head is also very reasonable and

the same is also confirmed. The Tribunal further awarded a sum of Rs. 5,000 towards pain and suffering. The claimant suffered fracture of his right

hand elbow. Hence, I feel that amount awarded under this head is also very reasonable and the same is confirmed. The learned counsel appearing

for the claimant vehemently contended that Tribunal has not awarded any amount for damage to the clothes. In such circumstances, I feel that it

would be appropriate to award a sum of Rs. 500 under this head. The Tribunal has awarded a sum of Rs. 15,000 towards permanent and partial

disability. The learned counsel appearing for the claimant vehemently contended that the amount awarded by the Tribunal under this head is very

low and meagre. Normally the courts would award Rs. 1,000 to Rs. 2,000 per percentage of disability. After considering the evidence of PW 2,

doctor, who assessed the disability at 50 per cent, I feel that it would be reasonable and appropriate to award Rs. 2,000 for 1 per cent disability.

Accordingly the award under the head partial permanent disability works out to Rs. 1,00,000 (50 per cent x Rs. 2,000) as against Rs. 15,000.

The details of the modified compensation as per the above discussion are as under:

Loss of income for three years Rs. 36,000

Loss of income during treatment period Rs. 1,000

Transport charges Rs. 1,000

Extra nourishment Rs. 1,000

Attendant charges Rs. 1,000

Pain and suffering Rs. 5,000

Damage to the clothes Rs. 500

Permanent partial disability Rs. 1,00,000

Total compensation Rs. 1,64,000

Rounded off to Rs. 1,65,000

Composite negligence on both the drivers (Rs. 1,65,000 x Rs. 82,500

50/100)

Tribunal already awarded Rs. 18,000

Enhancement amount Rs. 64,500

Therefore, the claimant is entitled to enhanced compensation amount of Rs. 64,500 (Rs. 82,500 - Rs. 18,000) with interest at 6 per cent from the

date of petition.

Respondent Corporation is directed to deposit the enhanced compensation of Rs. 64,500 with interest at 6 per cent from the date of petition

within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the appellant-claimant is permitted to withdraw the

same.

With the above modification, the civil miscellaneous appeal is disposed of. No costs.