Madras High Court
S.Sakthivel vs K.Kulandaivel on 19 April, 2021
C.M.A.No.1305 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.1305 of 2011
S.Sakthivel ... Appellant
Versus
1.K.Kulandaivel
2.United India Insurance Company Limited,
No.38, Anna Salai,
Chennai-2 ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 01.03.2011 made in
MACT.OP.No.3210 of 2006 on the file of the Motor Accident Claims
Tribunal (In the Court of V Small Causes), Chennai
For Appellant : M/s.A.Subadra
for M/s.S.Malar
For Respondents
For R2 : Mr.M.J.Vijayaraghavan
R1 : Exparte
Page 1 of 12
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C.M.A.No.1305 of 2011
JUDGMENT
This appeal has been laid as against the judgment and decree dated
01.03.2011 made in MACT.OP.No.3210 of 2006 on the file of the Motor
Accident Claims Tribunal, Court of V Small Causes, Chennai, thereby
awarded the compensation to the tune of Rs.6,15,000/-.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The case of the claimants is that on 18.04.2004 when the
petitioner was travelling in a State Express Transport Bus as a passenger,
the driver of the lorry owned by the first respondent herein drove his lorry in
a rash and negligent manner from the opposite direction and hit the right
hand side of the bus and as such he sustained injuries on his right hand, due
to which the entire right hand was amputated and he also sustained head
injury and multiple injuries all over the body. Therefore, his disability was
assessed by doctor as 80% and he could not even go for any of his
avocation. He is a painter and aged about 20 years. He was earning Rs.200/-
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C.M.A.No.1305 of 2011
per day at the time of accident and due to injury, he could not even go for
any work. Therefore, he filed claim petition seeking compensation at
Rs.10,00,000/-.
4. Resisting the same, the second respondent filed counter stating
that the entire claim of the petitioner is false, baseless and untenable. As
such, the second respondent is not at all liable to pay any compensation for
the injury sustained by the petitioner on his own. The petitioner projected
his right hand outside the bus and as such when the first respondent's driver
drove his lorry from the opposite direction and hit the right hand. Therefore,
he sustained injury and as such the second respondent is not at all liable to
pay compensation as claimed by the petitioner and sought for dismissal of
the claim petition.
5. On the side of the claimants, they examined P.W.1 to P.W.3 and
marked Ex.P.1 to Ex.P.11. On the side of the respondents, neither oral nor
documentary evidence was let in. On the basis of the evidence available on
records and also considering the submission made by the learned counsel
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C.M.A.No.1305 of 2011
appearing on either side, the Tribunal awarded a sum of Rs.6,15,000/-.
Aggrieved by the same, the claimant preferred this appeal for enhancement
of the award amount.
6. The learned counsel for the appellant would submit that at the
time of accident, the petitioner was aged about only 20 years. He was
working as painter and was drawing salary of Rs.200/- per day. Though the
Tribunal concluded that the accident took place only because of rash and
negligence of the first respondent's vehicle's driver, awarded very less
compensation and thereby applied multiplier method of 16 instead of 18.
Further, the Tribunal failed to consider the future prospects of the petitioner
since he has lost his entire right hand and as such rightly had taken 100%
permanent disability as far as his functional disability. Even then, did not
consider future prospects. He was 20 years at the time of accident and as
such he is entitled for future prospects at 40%. The Tribunal also failed to
award any compensation under the head of attenders charges and amenities,
since the petitioner was admitted as inpatient from 18.04.2004 to
17.05.2004. He lost his right hand and as such without help of the attender,
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C.M.A.No.1305 of 2011
he could not do anything during his treatment. During his entire life, he lost
his right hand and as such he should be awarded some amenities.
7. Per contra, the learned counsel for the second respondent
would submit that while petitioner was sitting in the window seat and he
projected his right hand outside the bus. Therefore when the driver of the
first respondent drove his lorry with full care. Even then, it hit the right
hand which was projected by the petitioner outside the bus and as such he
sustained injury. Therefore, the second respondent is not only to be held
liable to pay compensation but also on the negligence of the petitioner, the
accident took place. Therefore, the Tribunal ought to have fixed 50%
contributory negligence on the part of the petitioner. In support of his
contention, he also relied upon the judgment in the case of Humera Bhanu
And Ors. vs Cholan Roadways Corporation reported in 1995 ACJ 325.
8. Heard M/s.A.Subadra, learned counsel appearing for the
appellant and Mr.M.J.Vijayaraghavan, learned counsel appearing for the
second respondent.
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C.M.A.No.1305 of 2011
9. On 18.04.2004, when the petitioner along with other
passengers travelled in a bus belongs to State Express Transport
Corporation, in between Ayyur Agaram to Chintamani, the lorry owned by
the first respondent was driven by its driver in a rash and negligent manner
hit the bus and scratched the petitioner's right hand and he sustained
compound fracture of right forearm upper third, due to which, his right hand
was amputated. The doctor who assessed the disability of the petitioner
issued disability certificate to 80%. The petitioner was a painter in his
profession and he was earning Rs.200/- per day. Due to amputation of his
right hand, his livelihood had gone and he cannot work as a painter as he
lost his right arm above the elbow. The functional disability of the petitioner
has to be assessed and fixed at 100% as the right hand of the petitioner is
totally functionless, due to the disability sustained by him.
10. The learned counsel for the second respondent relied upon the
judgment in the case of Humera Bhanu And Ors. vs Cholan Roadways
Corporation reported in 1995 ACJ 325, wherein it is held as follows:
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C.M.A.No.1305 of 2011
12. We have already set out the facts in detail. The accident
took place on 14.2.1984. The deceased was riding on the motor
cycle and his daughter was riding on the pillion. The motor cycle
was going in a normal speed on the left margin of the metal road. In
between the motor cycle and the left margin of the road there was a
gap of two feet. It means the motor cycle cannot go further towards
left. While so, the respondent Corporation's bus which was coming
behind the motor cycle attempted to overtake the motor cycle and in
that process the body of the bus came into contact with the right
handle bar of the motor cycle and as a result thereof the rider of the
motor cycle lost his control and fell on his right side and was run
over by the bus. The pillion rider fell on her left side and she
sustained injuries. The fact remains that the bus attempted to
overtake the motor cycle. The motor cycle was proceeding on the
left margin of the road and the motor cycle cannot go further left as
there was only 2 feet gap. The bus, which attempted to overtake the
motor cycle, ought to have taken care and caution while doing so.
The fact that the body of the bus came into contact with the right
handle bar of the motor cycle would itself go to show that the driver
of the bus was rash and negligent in driving the bus. The
circumstances leading to the accident would go to show that the
principle of res ipsa loquitur (the thing speaks for itself) would
apply. PW 1 was examined as a witness. She narrated the incident.
There was no contra evidence on the side of the respondent
Corporation to show that there was no negligence on the part of its
bus driver. The appellants herein also filed several documents to
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C.M.A.No.1305 of 2011
show the nature of the accident that took place. The circumstances
leading to the accident and the evidence produced by the appellants
herein would go to show that the accident took place solely on
account of the rash and negligent driving of the bus by the
respondent Corporation's driver. The deceased was having his
minor daughter on the pillion and hence he would not have driven
the vehicle in a rash and negligent manner. There is no evidence on
record to show that the motor cycle was driven by the deceased in a
rash and negligent manner. The Tribunal failed to appreciate the
facts arising in this case on this aspect in proper perspective.
Therefore, we set aside the finding of the tribunal that the deceased
also contributed negligence on his part in the accident. Accordingly,
we hold that there is no negligence on the part of the deceased in
riding the motor cycle and respondent Corporation's bus driver
alone was responsible for the accident as he drove the bus in a rash
and negligent manner.
The above judgment is pertaining to accident which took place while
overtaking two wheeler by the bus, the bus hit the two wheeler and accident
took place. Therefore, the above judgment is not at all applicable to the case
on hand.
11. On perusal of cross examination of the petitioner, who was
examined as PW1, there is no whisper about the projection of his right hand
outside the bus, due to which he lost his hand. In fact, one more person who
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C.M.A.No.1305 of 2011
was travelling in the bus and also sustained same injury. Therefore, the
driver of the first respondent drove the lorry in a rash and negligent manner
and hit the bus and as such the petitioner and another sustained injuries on
their right hand. Therefore, the Tribunal rightly fixed the entire liability on
the respondents. Insofar as the multiplier is concerned, the petitioner was
aged about 20 years at the time of accident and as such the compensation
has to be calculated by adopting the multiplier at 18. Admittedly, the
petitioner was a painter at the time of accident and aged about 20 years.
Therefore, the Tribunal ought to have considered the future prospects of the
petitioner. For age of 20 years, future prospects is calculated at 40%.
Accordingly, the petitioner is entitled for compensation under the head of
future prospects at 40%. The Tribunal also failed to award any
compensation under the head of attenders charges and amenities. The
petitioner was admitted into hospital as inpatient from 18.04.2004 to
17.05.2004 and also his right hand was amputated above the elbow.
Therefore, he is entitled for compensation under the head of attenders
charges and amenities.
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C.M.A.No.1305 of 2011
12. Accordingly the compensation awarded by the Tribunal stands
modified as under :-
Sl. Head Amount awarded by Amount awarded
No. the Tribunal by this Court
1 Loss of income Rs.5,76,000/- Rs.9,07,200/-
2 Pain and sufferings Rs.20,000/- Rs.20,000/-
3 Medical expenditure Rs.3,000/- Rs.3,000/-
4 Extra nourishment Rs.5,000/- Rs.5,000/-
5 Transport expenditure Rs.1,000/- Rs.1,000/-
6 Damage to clothes and Rs.1,000/- Rs.1,000/-
articles
7 Temporary loss of Rs.9,000/- Rs.9,000/-
income
8 Future medical NIL Rs.5,000/-
expenses
9 Attenders charges NIL Rs.5,000/-
Total Rs.615,000/- Rs.9,56,200/-
13. In the result the Civil Miscellaneous Appeal is allowed as
follows:-
(i) The award passed by the Tribunal is enhanced from Rs.6,15,000 /-
to Rs.9,56,000/-.
(ii) The award amount will carry the interest at the rate of 7.5% per
annum from the date of the claim petition till the date of deposit.
(iii) The second respondent herein / insurance company is directed
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C.M.A.No.1305 of 2011
to deposit the award amount, less the amount, if any, already deposited,
along with accrued interest within a period of six weeks from the date of
receipt of copy of this Judgment.
(iv) On such deposit, the appellant / claimant is permitted to
withdraw the amount awarded as above by filing proper application before
the Tribunal.
(v) The appellant/claimant is not entitled to any interest for the
condoned delay (default) period, if any.
(vi) The claimant shall pay requisite Court fee before the receipt of
the copy of the judgment for the enhanced compensation.
(vii) There shall be no order as to costs.
19.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
lok
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C.M.A.No.1305 of 2011
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Judge, V Small Causes Court,
Motor Accident Claims Tribunal,
Chennai
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
C.M.A.No.1305 of 2011
19.04.2021
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