The Managing Director, Thanthai Periyar Transport Corporation Ltd., Villupurm vs Meerabai Ammal

This appeal is preferred by the Managing Director of the Thanthai Periyar Transport Corporation Limited, respondent in M.O.P. No. 312 of

1978, against the Award dated 22-9-1979 passed in the said M.O.P. which was disposed of along with M.O.P. No. 275 of 1978, by the Motor

Accidents Claims Tribunal, Cuddalore (111 Additional Subordinate Judge), Cuddalore,

In this appeal, we are concerned with the claim in M.O.P. No. 312 of 1978, which was filed for compensation of Rs.21,000/-for the injuries

sustained in a bus accident at about 11.30 a.m. on 26-3-1978 at Kannigapuram Village.

The cases disclosed the following facts: Palanisami, the decease(! in C.P. No. 275 of 1978, aged about 32 years, was a driver in the lorry

MDM 7,576 belonging to K.A. Subbayan, Kuttiappa Transport at Palladam, earning about Rs.600/- per month.

Meerabai Ammal, the petitioner in C.P-No. 312 of 1978 aged about 40 years is an agriculturist in Sarani Village in Tindivanam taluk earning

about Rs.300/-per month.

On 26-3-1978, at about 11.30 A.M., the deceased Palanisami was driving the lorry MDM 7576 Kuttiappa Transports from Palladam to

Madras. When he was proceeding near Kannigapurai in the Grand Southern Trunk Road, the bus with Registration No. TMN 702 belonging to

Thanthai Periya, Transport Corporation, Villupuram, the 2nd respondent in C.P.No.275 of 1978 and the respondent in C.P.No.312 of 1978

driven by Syed Anwar. Basba, the Ist respondent in C.P.No.275 of 1978 from Tindivanm to Mailam, in a rash and negligent manner in an attempt

to overtake a cyclist going ahead the bus dashed against the lorry MDM 7576. On account of the collision the driver of MDM 7576 received from

injuries and died instantaneously. A spare driver, Ayyasami, who was in the lorry also injured.

Meerabai Annual ,the petitioner in C.P. 312 of 1978 who was travelling in the said bus TMN 702 belonging to Thanthai Periyar Transport

Corporation, Villupuram, the respondent in C.P. 312 of 19178 had sustained injuries on her skull and all over her body. Her tongue was cut. She

took medical treatment in the Government Hospital at Tindivanarn and later in the Government Headquarters Hospital at Cuddalore for about one

week. Even after treatment, she is not able to walk properly for a long distance and speak clearly and thus move in the society freely and attend to

her normal duties as before. 9wause of this inability, she could not file the petition in time. She prayed for a compensation of Rs.12,000/- towards

loss of earnings, Rs.1000/- towards damage to clothing and articles Rs.1000/- towards medical expenses, Rs.2,000/- towards pain and suffering

and Rs.5,000/- towards permanent disability, all together Rs.21,000/-

The IstreWndentinC.P. 275of 1978, the driver of the bus TMN 702 Syed Anwar Batcha, in his statement, contended that it is not true that he

was driving the bus TMN 702 rashly and negligently, but at a moderate speed along the left side i.e., on the eastern side of the road, that when it

was coming near the, village Kannigapuram, the lorry MDM, 7576 coming from the opposite direction driven in a rash and negligent manner,

dashed against the bus while avoiding a cyclist going along the road and, therefore, the accident had occurred not due to the rash and negligent

driving of the bus, but due to the driving of the lorry in such a manner.

The Tribunal framed the following points for consideration :

1.Whether the accident has happened due to the rash and negligent driving lf the bus TMN 702?

2 . Whether the petitioners are entitled to compensation and if so, for how much?

Whether the petition are bad for non-joiner of parties?

Whether the delay in filing the petition C.P.312 of 1978 can be condoned?

To what relief, are the parties entitled

Thirumathi Meerabai Animal ,examined herself as P.W. 4 and also examined .one Shartmugham as P.W. 1 and one Velliangiri as P.W. 2.

Ex.A- I dated 26-3-1978 certified, copy of first information report., Ex-A-2 dated 26-3-1978 certified copy of Motor Vehicle Inspector''s

report, Ex.A-3 dated 26-3-1978 wound certificate of Meerabak Ex.A-4,dated 14-8-1979 certified extract from birth register, Ex.A-5 to Ex.A-7

GoodsVehicle records~ Ex.A-8 driving license of Palanisami and Ex.A-9 -Photostat copy of driving licence of Ayyasami were filed.

In C.P. No. 312 of 1978, the Tribunal held that there will be an award against the respondent therein for a sum of Rs.4,000/- with interest at

6% per annum from the date of the petition, 19-10-78, till the date, of payment, and further held that since the parties succeeded in part there will

be no order as to costs, Aggrieved against the said decision, Thanthai Periyar Transport Corporation has come forward with this appeal.

The point that arises for consideration in this appeal is, whether it is proved. beyond doubt, that the vehicle in question had been driven rashly

and negligently and as such the appellant herein is liable to pay compensation, and if so, what is the amount?

Even at the outset it has to be mentioned that the evidence on record shows that the Tribunal has come to the correct conclusion regarding the

liability of the appellant herein with respect to the occurrence that took. place as. pointed out above. The Thanthai Periyar Transport Corporation

(appellant herein) is the owner of the bus in question.

About 11/2 years prior to the trial of the 0. Ps., at about 7.00A. M., the husband of the Ist petitioner in C.P. No. 275 of - 1978 went for duty.

She was informed at 3.00 P. M. on the next day by the owner of the lorry, Kuttiappan, that her husband, on his way to Madras, had met with a

lorry accident and died. She went to Tindivanam hospital and saw the body of her husband. It was buried there.

Shatimugharn who deposed as P.W. I stated that on 25-3-1978 at about 9.00 P.M., himself and Palanisami had loaded their lorries with

tobacco and were proceeding from Palladarn to Madras. The lorry driven by Palanisamy was going ahead followed by his lorry. They were

proceeding at about 11. 10 A.M. on 26-3-1978 south-north in the Trichy Madras trunk road, one mile north of Couteripet cross road. There was

distance of 100 feet in between their lorries. According to him, the lorry MDM 7576 was going on the left side i.e., on the western side of the

road. Then Thanthai Periyar bus which was coming from north to south very fastly dashed against the lorry MDM 7576. He. stopped his lorry

.and went and saw the lorry MDM 7576. The driver Palanisami has died on the spot. The spare driver Ayyasami had sustained an injury on his leg

and right eye. He (P. W. 1) took him in his lorry to Tindivanam and admitted him there in a hospital. He did not see who was driving the lorry

before the accident. When he went and saw the lorry after the accident, as Palanisami, was found in the driver''s seat, he is slating that the lorry

was driven by him. On his left, side, the cleaner Velliyangiri was there. The next left seat was vacant. Ayyasami was in the full seat behind the

driver''s seat. When he went and saw the lorry, Palanisanii was dead and Ayyasami was, unconscious. He could not talk.

According to P.W. I the tar road in that place will be about 30 feet broad with mud roads to a width of 10 feet to 15 feet on either side. That

lorry was going with its left side wheel on the mud road and the right side wheel on the tar road. He was also proceeding only that way. They were

going at about 40 kms. per hour south-north. He saw Thanthai Periyar bus at a distance of one furlong in the opposite direction. It was coming in

the center portion of the tar road. The bus came in a cross, manner and dashed against the lorry in the confirm portion of the tar road. If the bus

had. gone straight, the accident would not have happened.

The petitioners examined the cleaner of the lorry, Velliangiri, as P.W. 2. He has deposed that he was working as cleaner in the Kuttiappa

Transports Lorry, MDM 7576 for the past 3 years prior to the trial before the Tribunal and that deceased Palanisami wag the driver of that lorry.

P. W. 2 has further deposed that on 25-3-1978 at about 9.30 P.M., they loaded their lorry with tobacco and were proceeding towards

Madras. Another lorry TNS 6256 was also coming along with them loaded with tobacco. That lorry was driven by P.W. 1. The lorry MDM 75T6

was going in the front followed by the lorry TNS 6256 driven by P.W. 1. They bad crossed Villupuram and were going south-north on the left side

of the Tricky-Madras road at a speed of 35 to 40 kms. per hour. Thanthai Periyar Transport bus was coining from the opposite direction. When it

was coming at a distance of 10 feet, it suddenly turned to the right and dashed against their lorry. There were no cyclists on the road at that time.

P.W. 2 fell unconscious. P.W. I gave, him water. When he regained consciousness and looked inside the lorry, he found Palanisami dead and

Ayyasami injured and suffering. P.W. 2 and P.W. I lifted Ayyasami and brought him down, removed him to the lorry TNS 62% and took him to

Tindivanain hospital.

According to PW 2, no bus came in front of Thanthai Periyar bus. According to him no cyclists suddenly came across the road and in order to

avoid them from being hit, Thanthai Periyar bus had to turn towards the right side. The petitioners, in addition have produced before the Tribunal

certified copies of the1irst information report, Motor Vehicle Inspector''s report and the wound certificate which have been marked as Ex. AI to

Ex.A-3 respectively.

It is common ground that there was an accident between the lorry MDM 7576 and the Thanthai Periyar bus TMN 702 at about 11.30 A.M.

on 26-3-1978at Kannigapuram in the Grand Southern Trunk Road Palanisami who was in the lorry MDM 7576 had passed away. But while the

petitioners contend that the said lorry was driven at that time by Palanisami and the accident has happened due to the rash and negligent driving of

the bus, the respondent contends that the said lorry was driven by one Ayyasami and not by Palanisami. It is admitted by the respondents

themselves that the accident has happened by their bus going on the right side and dashing against the lorry coming from the opposite direction.

This is also supported by the sketch drawn by the Motor Vehicle Inspector as found at page 7 of the certified copy of the report marked as Ex.A-

2 which shows that the bus TMN 702 proceeding from Tindivanam to Villupuram north-south had crossed the-middle portion of the tar road,

gone to it right hand side and dashed against the lorry MDM 7576 coming from Villupuram to Tindivanam, south-north on the western side of the

mud road. As the accident has happened on the wrong side of the bus, the doctrine res ips loquitur comes into play and the burden falls upon the

respondents to show that the accident has not happened due to the rash and negligent driving of the bus. But they have not let in any evidence to

discharge the said burden. The doctrine of res ipsa loquitur reads as follows : -

The general purport of the words res ipsa loquitur is that the accident ""speak for itself'' or ""tells its own story"". Res ipsa loquitur (thing speaks for

itself) is a principle which in equality belongs to the law of tort and is not applicable to a criminal prosecution. The application of doctrine of res

ipsa loquitur depends upon the nature of the accident and the surrounding circumstances. Where there is evidence to show as to how the accident

happened, there the question of applying the rule of res ipsa loquitur does not arise.

In an action for negligence, the legal burden of proof rests on the claimants. But, barring exceptional cases, it may not be possible for the claimant

to know what precisely led to the accident. It may peculiarly be within the means of knowledge of the driver or the owner. This hardship to the

claimant can be avoided by the application of the maxim res ipsa liquate which is not a principle of liability but a rule of evidence, The principle is

that there are certain happenings which do not occur normally, unless there is negligence. Therefore, in the case of such happenings, the claimant ""is

entitled to rely, as evidence of negligence, upon the mere happening of such accident. Having regard to the local conditions prevailing in this

country, when res ipsa loquitur is attracted, it should be given as wide an amplitude and as long a rope as possible in its application to the case of a

motor accident. The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible of the accident. Where the

principle of res ipsa loquitur is attracted the burden shifts to the respondent and the initial burden has to be on the driver/owner to prove that he

had not been negligent. When a prima facie case of negligence of the driver has been established under the doctrine of res ipsa loquitur, it is

incumbent on the part of the driver of the offending vehicle not merely to say that he had acted carefully but to rebut that presumption by proving

that there was no negligence on his part, even though he could not prove how the accident happened.:-

Applying the above principle, it is seen from the evidence available on record, both oral and documentary, that the accident has happened due

to the rash and negligent driving of the bus TMN 702 belonging to the Thanthai Perivar Transport Corporation.

So far as the quantum of compensation that had been awarded by the Tribunal, we find that the strict principles of law regarding the

ascertainment of the compensation have been strictly followed by the Tribunal and as such, the same is hereby confirmed. The amount of

compensation that has been awarded by the Tribunal and which is in turn confirmed by this Court will carry interest at the rate of 6 per cent per

annum from the date of the petition. This part of the Order of the Tribunal regarding interest is also hereby confirmed. There is no merit in this

appeal and the same is, therefore dismissed. 14here is no order as to costs.

Appeal dismissed.