Samaraj Oil Mills and Fertilisers and Others vs D. Kothandaraman

Ramaprasada Rao, J.—The owner of a lorry and the company in which it was insured are the Appellants in the appeal against the order of

the Motor Accidents Claims Tribunal, Madras. The despondent was employed in the Madras Telephone District. On the date when the accident

occurred he was expecting a promotion about a month thereafter, and he was earning a salary of Rs. 110/- per month on the date of the accident.

But according to him be would have earned a salary of Rs. 215/- per month thereafter, on promotion. The Respondent was proceeding from north

to south as a pillion passenger in the motor cycle driven by one Mohammed The Lorry MDE 5476 was proceeding from south to north.

According to the Respondent the lorry in its attempt to overtake a stationary lorry on the right and in its desperate attempt to avert a cart which

was {Missing on the road, hit the motor cycle resulting in a permanent disability to the Respondent (pillion passenger). The Respondent was

hospitalised for nearly sixteen months and his case is that he has suffered a permanent disability and it is not in dispute that his leg has been

shortened. The Respondent''s case is spoken to by P.W. 4 and the medical evidence supports his claim that he has suffered a permanent disability.

The case of the first Appellant is that the Accident occurred due to the contributory negligence of the rider and the pillion passenger on the motor

cycle as they were not watchful on the road at that part of the night when the incident occurred and that they (Appellants) were not responsible for

the ultimate damage According to both the Appellants the non-examination of the rider (Mohammed) as also the non-examination of an

independent person on the road at that time, including the cart-puller goes into the root of the matter and it is their case that the Respondent is not

entitled to compensation on the only principle of res ispa loquitur which was accepted by the court below. The Tribunal, considered the damages

under three heads: (1) loss of salary for one year at the rate of Rs. 110/- per month (2) expenses for treatment both in and out of hospital; and (3)

damages for permanent disability etc. Under the first bead it granted the Respondent a sum of Rs. 1,320/- as claimed. Towards the expenses the

Tribunal was of the view that the Respondent was entitled to it, notwithstanding the fact that the Government reimbursed him to the extent of the

expenses incurred on the foot that any such payment by the Department to its servants was only an Ex Gratia payment. On this account a sum of

Rs. 2,000/- was granted by the Tribunal, to cover the out-of-pocket expense said to have been incurred by the Respondent for the treatment

which he took. On the third ground, as to the quantum of damages-in its generality, the Tribunal, awarded a sum of Rs. 10,000/-. The Appellants

are now before me questioning not only the quantum, but also the liability to pay any compensation at all.

Ex. P. 4 is the sketch prepared by the investigating officer soon after the accident. The accident occurred in Mount Road at a place where the

width of the road is about 52 feet. From the sketch it is seen that the lorry in question was 15 feet away from the eastern pavement of the road.

This by itself is one of the incidents which speak for themselves If the lorry was stationed about 15 feet away from the eastern pavement, then it is

obvious that it has swerved much to its wrong side, and there is no satisfactory explanation as to why this sketch which was exhibited even in the

Magistrate''s Court, when the driver of the first Appellant was charged, was marked, accepted and acted upon. In fact, it was not stated that any

objection was taken before the learned Magistrate, who found the driver guilty on his own admission and confession without any query being made

against the admissibility or correctness of Ex. P. 4. One other feature in Ex. P. 4 is that the lorry after the impact proceeded nearly 55 feet before it

became stationary and then turned and stopped on the extreme left of the road.

I shall first take up the contention of Mr. Aravamudha Iyengar, learned Counsel for the Appellants, that the non-examination of Mohammed and

the cart-man is fatal to the claim for compensation. In my view, the non-examination of the two persons as above is immaterial in so far as the

instant case is concerned, because there is abundant material alieunde to establish the accident and to bring home the negligence on the part of the

driver of the lorry and thus vicariously impose liability on the first Appellant, his master.

I shall briefly refer to the oral evidence, P.W. 1 would say that the lorry overtook a cart, hit against it, turned right and hit against the motor

cycle. He would also say that the driver of the lorry did not sound horn and did not stop. In cross-examination no suggestion was made that the

lorry, in order to avert the cart, had to negotiate in the manner it did, resulting in the unforeseen accident. On the other hand, the cross-examination

is silent on this point. P.W. 4 who was the person who was actually at the scene of occurrence and whose evidence has been believed by the

Court below, corroborate the Respondent. He would also say that the lorry overtook the, cart, hit against it and thereafter hit the motorcycle. He is

emphatic that he heard the noise of the impact on the cart and he informed the Respondent''s father about the unfortunate accident. The driver who

was examined is an interesting character in this case. He would say that be was driving the lorry in Mount at 10 p.m. at 20 miles per hour. It is

impossible to conceive that at that late hour in a wide road the lorry driver would stick to the speed limit of 20 miles per hour. He was obviously

speaking a falsehood. He refers to a stationary lorry, but he conveniently omits in chief examination any reference to the cart, but the presence of

which he had to admit when he was cross-examined. According to him he overtook the stationary lorry and that it was the motor cyclist who was

coming in the opposite direction, who came and hit the lorry, since, according to him, both the rider and the pillion passenger were conversing as

between themselves. Curiously enough, he disappeared from the scene and it was only on the next morning he gave a complaint to the police. He

admits that he did not even reply to the notice issued by the Respondent, and would add that even after noticing the motor cycle he did not apply

his brakes. According to him, he swerved to his left, but the cart hit against the lorry. The driver is so contumacious enough to say that he pleaded

guilty because the police wanted him to do so. Here again I do not place any reliance on the evidence of the driver.

The doctor who was examined on behalf of the Respondent admits that his leg has become short by 1/2 and that his knee has become stiff.

According to him the Respondent cannot squat on the floor and that the disability is likely to be permanent.

It is in such a conspectus offsets that the incident in question has to be-reviewed. It cannot be disputed that ihe-driver was rash, as indeed he

confessed that he was rash and negligent when he was confronted with the Police case u/s 338 Indian Penal Code. He became uncontrollable

when he hit against the cart and whilst negotiating in such circumstances-he ought to have been dazed and therefore-he ultimately hit the motor

cycle, as he did not even have the presence of mind to apply the brakes, at that point of time. He disappeared from the scene of the accident.'' The

nature of the injuries on the Respondent, the disinterested testimony of P.W. 4 and the location of the vehicles as indicated in-the sketch provide

ample material to conclude that this is a case in which the Tribunal, below has rightly applied the doctrine of res ipsa loquitur.

Mr. Aravamudha Iyengar rightly contends that the doctrine of res ipsa loquitur is normally a rule of evidence and not a norm of substantive law.

No doubt, it is so, but in such cases where the onus of proof-is upon the Respondent who comes to the court for compensation, it is for him to

establish in a reasonable way as to how the accident occurred and in what manner the opposite side is guilty and why he lias to be compensated

for. If he has established the primordial ingredient, namely, that the driver of the motor vehicle is guilty of rash and negligent driving, then the onus

shifts to the other side to rebut the normal presumption which would arise by reason of the proof. If in a given case material is available for the

court to come to a reasonable conclusion as to the precise cause of the occurrence and if such a cause is revealed by the evidence, oral or

documentary, then it can be said that the occurrence ceases to speak for itself. But when there is an indication from the happenings in a given case

that it was nothing but negligence on the part of the guilty driver that was responsible for the same, then notwithstanding the lacuna on the part of

the Plaintiff to fully establish by evidence the nature of the accident and how it occurred, it does not prevent the application of the rule of res ipsa

loquitur, which is but a reflection of the rule of common sense.

I have already indicated the various matters which would prompt a reasonable Tribunal, to come to the conclusion that this is a case where the

doctrine ought to be made applicable. The Tribunal, rightly, therefore, came to the conclusion that in the absence of any explanation by the driver

as to why he swerved to the wrong side of the road, and why he admitted his guilt in the Magistrate''s court, the principle of res ipsa loquitur ought

to be applied in the instant case.

A word about the nature of the evidence given by P.W. 4 which was commented upon by the learned Counsel for the Appellants. P.W. 4 is a

friend of the family and it is but natural to expect that as soon as he saw the appalling incident it struck him to report to the father of the Respondent

rather than involve himself by remaining at the site for being cited as a witness, and being examined by the investigating officer. His conduct was

natural and I am unable to agree that he is an interested witness. The Tribunal, therefore; rightly found that the Appellants are liable to pay

compensation.

The next question is as to what ought to be a reasonable compensation. I am unable to disturb, sitting in appeal, the quantum of compensation

awarded by the Tribunal, for the pain, suffering and deformity, which is a sum of Rs. 10,000/-. Even so, I am not inclined to disturb the award in

so far as it relates to the sum of Rs. 1,320/- representing the loss of pay for 1 1/2 years which was in fact restricted to only one year.

Lastly, however. I am not impressed that the Respondent is entitled to compensation under the head of expenses for his treatment. It is the

admitted case of the Respondent that he secured this amount from his own Department and such reimbursement by the Department was made

obviously because he was a servant of the Government. Certain Government servants have certain privileges annexed to their office and one such

amenity is to get reimbursement by the Government for such medical expenses incurred by them during such accidents and otherwise. 1 am unable

to agree with the Tribunal, that the sum of Rs. 2,000/- was paid by the Department to the Respondent by way of ex gratia payment. In fact the

decision cited by the learned Counsel for the Respondent in The Kotah Transport Ltd., Kotah and Others Vs. The Jhalawar Transport Service

Ltd. and Others, , is a pointer to my view. There the learned Judges would say that if a person sustained bodily injury as a result of a motor

accident and the expenses for the medical treatment were not claimed by the doctor who treated the person on the ground that he was his friend,

then it would not matter at all, as the doctor, should have treated him ex gratia and as a friend and such benefaction on the part of the doctor ought

not to deprive the claimant from those who are liable to pay such compensation. That is not the case here. The Department by virtue of the

contract and rules of service paid the Respondent the medical expenses and he has not been out of pocket for such treatment in any manner. Thus

the sum of Rs. 2,000/- which he has secured from the Government cannot be said to be an ex gratia payment. Whilst, therefore, differing from the

Tribunal, on this aspect, I set aside the award in so far as it granted a sum of Rs. 2,000/- towards medical expenses, the appeal is dismissed in the

main except for the modification of the award as indicated above. There will be no order as to costs.

A part of compensation is said to have been despatched. Time for deposit of the balance three months.