Madras High Court
D.Sterling James Bhasker vs M/S.Coromandel Harley-Davidson on 22 August, 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.08.2022
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.S.No.67 of 2013
D.Sterling James Bhasker ...Plaintiff
Vs.
M/s.Coromandel Harley-Davidson
Lathangi Cycle and Carriage (P) Ltd.,
Rep. by its Managing Director,
Mr.M.P.Vikram Setti,
Old No.8, New No.15, Wallace Garden,
nd
2 Street, Nungambakkam,
Chennai – 600 006. ...Defendant
Prayer: Petition filed under Order VII Rule 1 CPC Read with Order IV Rule 1
O.S. Rules, to pass a Judgment and Decree against the defendant:
(a) for the recovery of the sum of Rs.2,10,60,000/- (Two crores ten
lakhs and sixty thousand only) due payable by the defendant being the
compensation for the amputation of the right arm and loss of pay, medical
expenses and disability.
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(b) to declare the termination letter dated 19.11.2012, issued by the
defendant terminating the services of the plaintiff as null and void.
(c) for a permanent injunction restraining the defendant their men,
agents and servants from in anyway implementing the termination of
employment of the plaintiff as issued by letter dated 19.11.2012.
(d) to pay the costs of the suit.
(e) to pass any such further orders as this Court may deem fit and
necessary on the facts and circumstance of the case and thus render justice.
For Plaintiff : Mrs.Uma Maheswari
for Mr.Ganesh
For Defendants : Served – name printed – no appearance
JUDGMENT
The suit has been filed by the plaintiff for the following reliefs:
(a) for recovery of a sum of Rs.2,10,60,000/- (Two Crores Ten lakhs and
Sixty Thousand only) due payable by the defendant being the compensation
for the amputation of the right arm and loss of pay, medical expenses and
disability.
(b) to declare the termination letter dated 19.11.2012, issued by the
defendant terminating the services of the plaintiff as null and void.
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(c) for a permanent injunction restraining the defendant their men,
agents and servants from in anyway implementing the termination of
employment of the plaintiff as issued by letter dated 19.11.2012.
(d) to pay the costs of the suit.
(e) to pass any such further orders as this Court may deem fit and
necessary on the facts and circumstance of the case and thus render justice.
2.The case of the plaintiff is as follows:-
(i) The plaintiff has been working in the automobile industry for about 17
years in sales and marketing and he has a very fair amount of recognition and
reputation in the industry and owing to his experience and knowledge in the
automobile industry, he was originally appointed by A&Z Motor Company (P)
Ltd, an authorized dealer of Harley-Davidson Motor Bikes for the territory of
Tamil Nadu on 01.07.2011. The plaintiff was appointed as the Business Head
and he was paid an annual salary of Rs.7,00,000/- per annum which was
subsequently revised to Rs.10,20,000/-.
(ii) Subsequently the defendant had bought over the business of A&Z
Motor Company (P) Ltd., and issued a fresh appointment order to the plaintiff
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on 08.06.2012. After taking over of the business of A&Z Motor Company (P)
Ltd., the defendant was issued a new dealership code by Harley Davidson
India Ltd., and thus, the defendant became an authorized dealer of Harley-
Davidson India Ltd. As a part of his scope of employment, the plaintiff had to
organize and conduct HOG (Harley-Davidson Owner's Group) rides for the
owners of Harley-Davidson motor bikes, which event is periodically conducted.
The first ride, the Founder's Day ride, was organized by Harley-Davidson India
th
Ltd., on 10 June 2012 with dealership support and then, every fortnight by
th
the dealership, first to Yelagiri (236 kms), 24 June 2012 and back to Chennai
on the same day (which included the Managing Director of the defendant
company Mr.Vikram and his entire family for the event in their cars and his
brother, Mr.Satish also riding a H-D bike on TCR plate), then to
th nd
Pulicat/Sriharikota 8 July, 2012 and then to Pondicherry on 22 July 2012.
th
(iii) Apart from that, the plaintiff had been to Bangalore on 10 July 2012
to get Harley-Davidson Company display bikes from Bangalore to Chennai for
th th
Chennai Auto Expo from 12 to 15 July 2012 and a colleague of the plaintiff
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and the plaintiff rode the bikes from Bangalore to Chennai. Thus, in
compliance of his scope of employment, the plaintiff arranged and organized a
Harley-Davidson Owner's Group ride on 22.07.2012. This is a periodical
program that is conducted by the dealership as a part of business promotion
and takes place every fortnight and this particular ride on 22.07.2012 was for
the purpose of formation of a HOG (Harley Owners' Group) Chapter for
Chennai.
(iv) The plaintiff started HOG ride on 22.07.2012 from the Coromandel
Harley-Davidson showroom at Chennai at around 7.00 A.M. along with 19
other bikes and riders (including 3 other dealership-owned vehicles driven by
other staff), which is part of his duty as a Business Head of the defendant
company. The ride was supposed to be on the Chennai – Pondicherry –
Chennai Sector on NH-45. The plaintiff on completion of the first leg of the ride
at Tindivanam had taken a break for breakfast alongwith other riders at round
8.30 A.M., after breakfast, the plaintiff was leading HOG ride so as to guide
the route of the ride.
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(v) Due to brake failure, the vehicle went out of control and met with an
accident and the plaintiff sustained serious injuries including multiple fractures,
which cruelly resulted in the amputation of his right arm. The accident took
place at around 9.30 A.M., at Kiliyanoor and the riders who were following him
rushed him to the nearest hospital i.e. JIPMER Hospital, Pondicherry. After
having been taken to JIPMER Hospital, the defendant's representatives and
management did not inform the plaintiff's family about the accident in the first
instance and it was only later after the lapse of a 2 hours, the plaintiff's family
was informed about the accident and no expert medical assistance or
treatment was provided to the plaintiff since no Senior Doctor/Surgeon was
available, as it was a Sunday.
(vi) The plaintiff's family was therefore left with no other option but to
take a huge risk by having him transported from JIPMER Hospital,
Pondicherry to MIOT Hospital, Chennai. However, by the time, the plaintiff
could be brought to Chennai the damage to his right arm from the accident
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worsened with the main artery, nerves and blood vessels all having come to
be completely cut off. There was lack of oxygenation and severe blood loss
for several hours. Hence, the only option available to doctors to save the
plaintiff's life was to remove the right arm. The right arm was therefore
amputated from just 2 ½ inches from the shoulder which has now put him to a
bleak and clueless future and he is not in a position to actively work again as
he could earlier.
(vii) The plaintiff's right ankle had sustained multiple fractures and is
supported by steel plates and screws permanently to help in walking and is
also a permanent disability because it impedes running as well as other future
simple damages like twisting of the ankle etc. He is the sole breadwinner of
his family and his present situation has not only jeopardized his whole family
but also affected the future of his child. The plaintiff was shocked to receive a
letter dated 29.10.2012 from the defendant wherein it has been claimed as if
the plaintiff had virtually stolen the motor bike ridden by him on 22.07.2012 on
the ground that he had taken it without any authority, which is absolutely false
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on the part of the defendant to level such allegation against the plaintiff, who
has put in his sweat and blood in successfully establishing the dealership of
Harley-Davidson in this part of the country. It is also false to state that since
the vehicle was under temporary registration, the plaintiff had crossed the
permissible limit fixed by the insurance company with reference to the
distance upto which the vehicle could be taken out.
(viii) As per the insurance policy of the vehicle, the vehicle could be run
by the company staff within a radius of 160 km from the address of the
registered owner (the defendant) which is the office address at Old.No.8, New
nd
No.15, Wallace Garden, 2 Street, Nungambakkam, Chennai – 600 006. The
place where the accident took place is well within the radius of 160 km from
the office address, as stipulated by the terms of the policy. Originally, at the
time when the accident took place, the management of the defendant offered
all assistance in the world for his speedy recovery and early resumption of
office but owing to the best reasons known to the management of the
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defendant, they started behaving in a hostile manner and refused even to visit
the plaintiff at the hospital. When the plaintiff's wife tried to reach the higher
officials of the management of the defendant company, she was denied
access and was refused audience. The sudden change in colour of the
management was putting more pressure on the plaintiff and his family. This
hostile behaviour further traumatized the plaintiff which has a serious impact
on his recovery.
(ix) The defendant issued a letter dated 28.09.2012 to the plaintiff with
all frivolous and vexatious allegations, which are far from the truth, such
unscrupulous and callous allegations have been leveled with the sole intent to
cover up the lacuna of the defendant and to protect the brand name
"HARLEY-DAVIDSON". The defendant has resorted to all sorts of practices
and have gone to every conceivable extent to cover up the following defects
on their part in relation to the accident:
A.No official permission (Police/Government) sort for conducting HOG
ride.
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B.No proper insurance was taken for employees by the defendant
company nor had the A&Z Motor Company (P) Ltd.'s bike and rider insurance
been transferred.
C.Continuing with the same temporary registration and insurance in the
name of A&Z Motor Company (P) Ltd.
D.The brake failure of the vehicle which will cost serious disrepute to
the brand image ''HARLEY-DAVIDSON".
(x) It was only with the intent to get away with the above said defects
that the defendant has leveled false allegations against the plaintiff, as if he
had taken the vehicle without authority. The defendant has therefore rather
unfairly and cruelly reduced the plaintiff to no better than a common thief. This
allegation is nothing but a thorough afterthought to escape from all liabilities
and the allegaion of removing the vehicle without authority has been invented
only with intent to defeat and delay the lawful amounts due and payable to the
plaintiff. The plaintiff, had suitably replied to the allegations of the defendant
vide letter dated 27.09.2012 and email dated 25.09.2012 denying the same as
an afterthought and meaningless and that such allegations were the reward
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for his loyalty. The defendant had issued another letter dated 19.10.2012
wherein they claimed that the plaintiff had also removed stocks to the tune of
about Rs.12 lakhs and it is further mentioned in the said letter that the plaintiff
had prevented the company from taking out insurance policies for its
employees. All these allegations are baseless and have been made with
ulterior motives to deny the legitimate claims of the plaintiff.
(xi) It is impossible to remove the stocks to the tune that the defendant
suggests without actually inviting the attention of the company and secondly,
no organization would run the risk of not taking out insurance policies solely
on the strength of one man's resistance to it. The defendant had constituted a
Disciplinary Committee headed by one Mr.Sathish and called upon the plaintiff
to appear before the Committee on 29.10.2012. It was very well known to the
defendant company/management that the plaintiff was not in a position to
move around and hence it was not possible for him to attend the hearing on
29.10.2012 which had been unilaterally fixed by the management.
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(xii) The plaintiff had not been issued with any show cause notice nor
was he aware of the charges leveled against him to submit his defense. The
plaintiff had suitably replied to the defendant through letter dated 25.10.2012
denying the allegations leveled against him as false frivolous, baseless and
vexatious and he had further informed the defendant about his inability to
appear before the so called Disciplinary Committee. It is unknown from where
the defendant had invented allegation against the plaintiff that he did not allow
the defendant company to insure the employees. In fact, the plaintiff who had
been following it up with the management of the defendant company right from
day one that insurance is a must and it should be done on top priority.
(xiii) It is rather unfortunate that the defendant is trying to take
advantage of the FIR and washing their hands off their liability to pay the
plaintiff the compensation for the injury suffered by him due to the accident
which took place while discharging his duty as a Business Head of the
defendant company. The defendant seems to be interested in only protecting
their brand name and not so keen on the welfare of their staff.
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(xiv) The plaintiff has spent about Rs.7,00,000/- towards his medical
expenses, which is the amount incurred only as on date. In addition, no salary
has been paid to him so far since the accident. The plaintiff has become
partially disabled and he cannot work or live normally as he used to be. Thus,
he is entitled to compensation on the following heads:
(i)Medical expenses : Rs.7,00,000/-
(ii)Opportunity loss since he cannot work
anymore in automobile industry Rs.85,000/- x : Rs.1,83,60,000/-
12 (months) x 18 (years) if you decide not to
retain the services of our client
(iii)Compensation towards mental trauma
and physical pain and suffering : Rs.10,00,000/-
(iv)Compensation towards partial disability : Rs.10,00,000/-
--------------------
Total compensation apart from medical Rs.2,10,60,000/-
expenses so far
--------------------
(xv) Instead of sympathizing with pain the plaintiff is undergoing both
physically and mentally due to the damage, loss and injury caused to him, the
defendant is trying to mock the genuine claim of the plaintiff by claiming
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compensatiion from the plaintiff and is trying to compete with the
compensation amount as well with such false claims adding to the agony of
the plaintiff. Hence, the plaintiff has no other remedy has approached this
Court in filing the above suit for the recovery of the payment receivable to the
tune of Rs.2,10,60,000/-. Further, the learned counsel for the plaintiff
relied on the following judgments in support of his contention:-
a) Judgment of Hon'ble Supreme Court Ramesh Gobindram (Dead)
through Lrs. Vs. Sugra Humayu Mirza Wakf [2010] 8 SCC 726 dated
01.09.2010.
b) Judgment of Hon'ble Supreme Court in Padma Ashok Bhatt Vs. Orbit
Corporation Ltd., and others [2017 (6) Mh.L.J.102] dated 26.07.2017.
c) Judgment of Hon'ble Supreme Court in the Premier Automobiles
Ltd., Vs. Kamlekar Shantaram Wadke of Bombay [(2017) 5 SCC 623] dated
26.08.1975
d) Judgment of Hon'ble Supreme Court Maharashtra State Cooperative
Housing Finance Corporation Ltd., Vs. Prabhakar Sitaram Bhandange (2017)
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5SCC 623 dated 30.03.2017.
e) Judgment of Hon'ble Supreme Court Ishwar Bhai C.Pate Vs. Harihar
Behera and Another (1999) 3 SCC457 dated 16.03.1999
f) Judgment of Hon'ble Supreme Court in Pradip Buragohain Vs.Pranati
Phukan (2010)11 SCC 108 dated 07.07.2010.
g) Judgment of this Court in Arasa Kumar Vs. Nallammal [2004(4) CTC
261] dated 19.03.2004
h) S.Suppiah Chettiar Vs. V.Chinnathurai AIR 1957 Mad 216 dated
10.08.1956
i) Judgment of High Court of Allahabad Dominion of India Vs. Kaniz
Fatma and Another [1961 SCC Online All 353] dated 17.04.1961
j) Judgment of High Court of Gujarat [Union of India Vs. Gopaldar
Varandmal] reported in 1965 SCC Online Guj] dated 13.08.1965
k) Judgment of High Court, Kerala in Minerals & Chemicals Vs.
T.A.Thevan [1992 (64) FLR 212] dated 26.09.1991.
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3. Though the defendant at an earlier point of time appeared before this
Court and filed the written statement, has not chosen to appear before this
Court at present and thereafter, notice was served and name has been printed
in the cause list, but there is no representation on behalf of the defendant
either inperson or through learned counsel. Further, the defendant has not
chosen to let in any evidence. The defendant, by way of written statement, has
denied the averments stated by the plaintiff as follows:-
(i) The plaintiff was appointed by letter dated 08.06.2012 under
probationary for a period of six months and the company is at liberty to
terminate his services, if his service is found not satisfactory and if he was
found to be indulged in activities prejudicial to the interest of the company at
any time.
(ii) The defendant-company, M/s.Lathangi Cycle & Carriage took over
dealership of Corommandel Harley Davidon dealership from M/s.A&Z Motors
Pvt. Ltd., on 26.05.2012. The employees of A&Z Motors were offered jobs for
the same position they were holding at the time of taking over the charge of
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dealership only on the basis of their willingness and they were appointed for
the positions as specified in their appointment orders. The plaintiff being
Business Head has to organize HOG drives which literally means Harley
Davidson Owner's Group, means the Owners of Harley Davidson Bikes will go
together for a pleasure drive and the defendant being Dealer, Principal for
CHD (Corommandel Harly Davidson) have to organize chapters on a regular
intervals.
(iii) The plaintiff being Business Head and representative of Lathangi
Cycle and Carriage Pvt. Ltd., has to supervise the HOG Drive and he is
responsible to conduct the HOG Drive, as per the HOG Rules, which specified
that "every HOG Driver/rider has to sign a declaration form that they are
driving/riding the bike on their own volition and any injury suffered during the
raid the driver/rider is solely responsible for CHD (Dealer Principal) or HD
(Principal) are not responsible'.
(iv) It is very clear from the FIR, given by the brother of the plaintiff in
Kiliyanur Police Station that the plaintiff was negligent, reckless and rash in
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driving the vehicle. Further, in the reply of the plaintiff dated 18.09.2012, the
plaintiff has claimed that the accident was a result due to his high sugar levels
and subsequent black out due to high sugar levels.
(v) The Management of LCCPL took upon itself to help the plaintiff and
paid a sum of Rs.2,85,000/-, towards cost of treatment and supported the
family, this fact has been admitted by the plaintiff's spouse, vide her mail
dated 18.08.2012, but the plaintiff has chosen to hide this good gesture of
LCCPL management to this Court and has asked to put it for strict proof,
which itself shows his attitude of gaining undue monetary benefits through any
means, wherein the defendant is not liable to pay any amount to the plaintiff,
who drive the motorcyle by violating traffic rules, HOG Rules and Company
Rules which is also not in the name of the defendant.
(vi) In the insurance policy, it is clearly mentioned that the policy is
limited to geographical area, as per Motor Vehicles Act and there is no
mention of 160 km radius and the motorcycle and its insurance is not in the
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name of the company and he has taken the motorcycle on his own without
transferring the vehicle and insurance in the name of the defendant and
without the consent of the defendant. As such, the claim of the plaintiff is false
and far from the truth and the defendant is not liable to pay the compensation
as claimed.
(vii) The plaintiff has made loss to the company amounting to
Rs.14,31,920/-, being the landing cost of the bike, which was damaged not fit
to repair, due to the action of the plaintiff and the plaintiff was in probationary
period at the time of the accident. The company issued a show cause notice
calling for his explanation, a Disciplinary Committee, was constituted and after
giving opportunity on several times and on examining his misconducts, he was
terminated from the service on 19.11.2012 and the termination order was
given effect from that date and the same was implemented.
(viii).The defendant submitted that the management representatives
were dealt with hostile treatment by the spouse of the plaintiff, whenever they
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visited the hospital, they requested to give the copies of the receipts for the
payment made by the management at MIOT Hospital towards plaintiff medical
bills, the spouse of the plaintiff not only refused to provide copies of receipts
but made a demand for further release of payment and also abused the
representative of the defendant. This type of hostility came from the family
members of the plaintiff, despite the defendant's responsible behaviour and
helpful nature. The plaintiff has hidden the actual facts, if at all the
management was to be hostile why it would release a sum of Rs.2,85,000/-
and the amounts were paid in cash at MIOT Hospital in the name of the
plaintiff as MIOT Hospital demanded only cash payments.
(ix) The defendant further submitted that even though the plaintiff was
under probation and despite his hostile behaviour chose to give a personal
hearing and accordingly, the management consituted a 3 Member Disciplinary
Committee for personal hearing, so that the plaintiff can represent his case
and submit all documentary evidence and also submit his plea before the
Committee, since he expressed his inability to appear in person, the plaintiff
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was allowed to represent his case through his representative, but failed to
appear by himself or send representative on all the three dates viz.
29.10.2012, 05.11.2012 and 10.11.2012 and the version of the plaintiff that
management put every effort to prevent a complaint is far from truth and
baseless.
(x) On 23.07.2012, the Management sent its representative to Kiliyanur
Police Station and lodged a complaint stating that the plaintiff had driven the
said registered vehicle and met with an accident within the limits of Kiliyanur
Police Station by skidding and suffered injuries on his right hand elbow and
right leg, no third party was involved. Further, Kiliyanur Police acknowledged
above complaint and registered the same as complaint and issued receipt
No.0409361 dated 23.07.2012 and released the vehicle which was left in their
Police Station on 22.07.2012 after the accident.
(xi) At the time of changeover of dealership from M/s.A&Z Motors to
LCCPL it was informed to the plaintiff to get the insurance done for himself
and the other staff deployed under him, which he refused by stating that it was
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not necessary as no insurance existed during A&Z Motor tenure also. Further,
being Business Head and representative of management at the highest level,
the onus lies on the plaintiff to get the insurance for his division, which he
failed to do so. The management never stated that insurance will not be taken
for the CHD staff. On the contrary, the plaintiff rejected the offer by stating
that the same is a wasteful expenditure, now the plaintiff is trying to blame the
management.
(xii) The plaintiff being Business Head with A&Z Motors and also with
LCCPL, his responsibility was to ensure that all the documents which were in
the name of A&Z Motor transferred in the name of LCCPL, which he failed to
do so till 22.07.2012 i.e. till 58 days of take over. On the contrary, the
management time and again reminded the plaintiff of his duties and asked the
plaintiff to ensure smooth transition from M/s.A&Z Motor to LCCPL, which he
failed to do so, the plaintiff claims of having more than 17 years of experience
in automobile industry with unblemished track record, which is doubtful by his
lacklustre approach, despite being Business Head he is trying to shift the onus
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on the management rather than accepting his failure to get the documents
such as Temporary Registration and insurance from A&Z Motor Company to
LCCPL.
(xiii) The plaintiff alleged that the management is trying to prevent any
legal settlements is not true, the plaintiff is not entitled to any amount from the
management/defendant. On the contrary, the management/defendant had
compensated and paid towards medical bills to the tune of Rs.2,85,000/- at
MIOT Hospital and Rs.2,000/- for ambulance which is more than the
compensation, which if at all he is entitled, the good gesture of management
was stalled by the plaintiff and his family members by their hostile behaviour
towards managment, thereby pleaded in the written statement to dismiss the
suit.
4. Heard the learned counsel for the plaintiff and perused the
documents / pleadings filed and the judgments referred by the plaintiff as well
and the written statement filed by the defendant.
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5. This Court had framed as far as five issues for consideration on
06.06.2014, thereafter, vide order dated 16.10.2014, admitted the present suit
by raising ten Substantial Questions of Law, which are as follows:-
Issues:-
1. Whether the plaintiff is entitled to the compensation as claimed in the
suit?
2. Whether the plaintiff is entitled to a decree of declaration that the
Letter dated 19.11.2012 terminating his service is null and void?
3. Whether the plaintiff is entitled to a decree of injunction restraining the
defendant from implementing the termination of employment by letter dated
19.11.2012?
4. Whether the plaintiff is entitled to reimbursement of medical expenses
incurred by him during his employment as an employee of the defendant?
5. Relief & Cost
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Substantial Questions of Law:
(1) Whether the plaintiff is authorised to drive the bike being business
head or he has to driver in the escort car which is provided for him?
(2) Whether the plaintiff had obtained permission from management to
drive the motor cycle?
(3) Whether the accident was due to the mechanical failure of the bike
or because of rash and negligent ride by the plaintiff?
(4) Whether the plaintiff has been covered already under ESI Act or not?
(5) Whether the plaintiff is entitled to compensation towards loss of
income for the permanent disability suffered by him due to the accident?
(6) Whether the plaintiff is entitled to compensation for the pain and
suffering and mental agony?
(7) Whether the counter claim filed by the defendant is maintainable?
(8) Whether the suit is maintainable as filed?
(9) Whether the plaintiff is entitled to ride the vehicle based on the
temporary registration without following the motor vehicle rules?
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(10) Whether the plaintiff is entitled to any other relief?
6. For Clarity and better appreciation, this Court, would like to answer
Issue No.1 and Substantial Question of Law No.5 together and Issue No.4, at
the end.
7. As far as Issue Nos. 2 & 3 are concerned, It is an admitted fact on
either side that the plaintiff was issued with a fresh appointment order on
08.06.2012 by the defendant. The plaintiff was designated as 'Head Business
Operations' Coromandel Harley Davidson Division, on a consolidated pay of
Rs.85,000/- which is evident through Ex.P.1. On a perusal of the same, it is
seen that effective date of appointment was mentioned as 26.05.2012 and the
probationary period was mentioned for a period of 6 months from the date of
joining. Further, it is made clear that only on a successful completion of
probation, the services of the plaintiff would be confirmed. The accident had
occurred on 22.07.2012, which is well within the period of probation and
period of employment. Hence it is correct to state that only after the
occurrence of the accident, the plaintiff was terminated. There is a clear
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distinction between public employment governed by statutory rules and private
employment, which is governed purely by contract. The test for deciding the
nature of relief, viz., damages or reinstatement with consequential reliefs is
whether the employment is governmed purely by contract or by a statute or
statutory rules. Even where the employer is a statutory body, where the
relationship is purely governed by contract with no element of statutory
governance, the contract of personal service will not be specifically
enforceable. Conversely, where the employer is a non-statutory body, but the
employment is governed by a statute or statutory Rules, a declaration that the
termination is null and void and that the employee should be reinstated can be
granted by courts, as per decision of Hon'ble Supreme Court reported in
Manu/SC/7605/2008 [State Bank of India & Others Vs. S.N.Goyal]. That
apart, the High Court of Rajasthan in a case reported in 2011 LLR 654
[Suresh Chander Vs. Nagar Palika, Rajsamand & Another] has observed
that "Even when the termination of the workman is held to be illegal, the relief
of reinstatement with backwages is not automatic since the courts can grant
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compensation in lieu of reinstatement and back wages". Keeping in mind the
said decisions of Hon'ble Supreme Court as well as High Court of
Rajasthan, this Court is of the view that the plaintiff is not entiled to a decree
of declaration that the termination letter dated 19.11.2012 is null void. In view
of the above, Issue Nos.2 and 3 does not arise for consideration and the said
issues are answered accordingly.
8. The Substantial Question of Law Nos.1 and 2, are interlinked and
hence they are taken up together.
Though the defendant by way of written statement averred that the
plaintiff being Business Head and Representative of Lathangi Cycle and
Carriage Pvt., Ltd., has to supervise the HOG drive and that the plaintiff is
responsible to conduct the HOG drive, as per the HOG Rules, which specified
that 'every HOG Driver / rider has to sign a declaration form that they are
driving / riding the bike on their own volition and any injury suffered during the
raid the driver / rider is solely responsible and CHD (Dealer Principal) or HD
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(Principal) are not responsible' however, the defendant has not chosen to
substantiate such contention by filing necessary documents and the
appointment order is also silent about the same, hence, the said substantial
questions of law are answered in favour of the plaintiff.
9. As far as Substantial Question of Law No.3 is concerned, the stand of
the plaintiff is that due to brake failure of the defendant owned demo bike, the
plaintiff fell down, thereby sustained grievous injuries. The defendant in their
written statement has stated that the accident had occurred due to the rash ad
negligent driving of the plaintiff. Further, in the FIR No.430 of 2012, viz.,
Ex.P.3 dated 10.08.2012 lodged by the plaintiff's brother under Sections 279
and 338 of IPC, it is alleged that the plaintiff stumbbled and fell down and
there is no further evidence to corroborate the same during trial by either
party. The discharge summary of the plaintiff in the JIPMER hospital, viz.,
Ex.P.4 would go to show that the plaintiff skid and fell down, which led to the
injury and amputation of the right arm. The contention of the plaintiff is not
established by examining the brake inspector or by producing necessary
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documents. Though this Court had held that the accident had occurred in the
course of employment, this Court is unable to ascertain the actual cause of
accident, since there are no substantial evidence on either side to prove the
accident had occurred due to brake failure or rash driving. The said issue is
answered accordingly.
10. With regard to Substantial Question of Law No.4 is concerned, it is
no doubt that in order to cover under ESI Act, the worker / Employee must
contribute 1.75% of their salary, while the employer contributes 0.75% towards
ESI Scheme. Further, the existing wage limit for coverage under the Act is
fixed at Rs.21,000/- and Rs.25,000/- per month, in the case of a person with
disability. The worker contributes 1.75% of their salary while the employer
contributes 4.75% towards the ESI scheme, in the present case, it is clear that
the plaintiff earns a sum of Rs.85,000/-, as consolidated pay, which is evident
through Ex.P.1, appointment letter, hence it is clear the plaintiff is not covered
under ESI Act.
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11. As far as Substantial Question of Law No.6 is concerned, since the
plaintiff is in the managerial cadre, he cannot claim compensation before the
Labour Court or any other court, therefore, the plaintiff has comeforward
before this Court. That apart, a perusal of the discharge summary from MIOT
Hospital, viz., Ex.P.5, shows that the plaintiff suffered severe crush injury and
the plaintiff underwent above Elbow Guillotine Amputation right arm and it is
crystal clear that the plaintiff would have undergone severe pain and
sufferings. Keeping in view of the Judgment of the Hon'ble Supreme Court in
the case reported in (2011) 1 SCC 343 [Rajkumar Vs. Ajay Kumar], this
Court is inclined to award a sum of Rs.1,00,000/- under the head 'pain and
sufferings'
12. As far as Substantial question of Law No.7 is concerned, the
defendant has taken a stand in their written statement that the plaintiff had
blocked the defendant from taking insurance for the display bikes, removed
the stocks of the company to the tune of Rs.26,39,821/- and sought to pay the
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landing cost Rs.14,31,920/- of the bike which was a part of accident. There is
no ample evidence / documents to substantiate that the plaintiff had blocked
the defendant company from taking insurance, moreover, this Court finds
some force in the contention of the plaintiff that no organization would run the
risk of not taking out insurance policies solely on the strength of one man's
resistance to it. Further, the stand of the defendant that the plaintiff had
removed the stocks of the defendant company, also cannot be accepted, in
view of the fact that definitely, the security personnel, computerized codes,
CCTV cameras would have been available for all the products of the
defendant and the defendant has neither proceeded to conduct any enquiry
nor lodged a police complaint with regard to the alleged theft. Further, after
filing written statement in the year 2013, the defendant had not chosen to
appear before this Court in further hearings. Though the learned counsel for
the defendant had reported no instructions in the year 2018, they were set ex-
parte only in the year 2021. Inspite of granting several opportunities, the
defendant has not entered appearance nor let in any evidence to prove their
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claim, hence this Court is unable to accept the contention and counter claim of
the defendant.
13. With regard to Substantial Question of Law No.8 is concerned, the
plaintiff is residing at Chennai and the defendant-company is also situated at
Chennai. Further, this Court has jurisdiction to try the suits valued above Rs.1
Crore and the present suit is valued for a sum of Rs.2,10,60,000/-, the present
suit is maintainable.
14. With regard to Substantial Question of Law No.9 is concerned, the
temporary registration of a vehicle is dealt under Section 43 of the Motor
Vehicle Act, 1998, for ready reference, the same is extracted as follows:-
43. Temporary registration.—
(1) Notwithstanding anything contained in Section 40 the
owner of a motor vehicle may apply to any registering authority or
other prescribed authority to have the vehicle 1. Subs. by Act 54 of
1994, Section 11, for “original registering authority” (w.e.f. 14-11-
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1994). 28 temporarily registered in the prescribed manner and for
the issue in the prescribed manner of a temporary certificate of
registration and a temporary registration mark.
(2) A registration made under this section shall be valid only
for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chassis to
which a body has not been attached and the same is detained in a
workshop beyond the said period of one month for being fitted 1
[with a body or any unforeseen circumstances beyond the control
of the owner], the period may, on payment of such fees, if any, as
may be prescribed, be extended by such further period or periods,
as the registering authority or other prescribed authority, as the
case may be, may allow. 2 [(3) In a case where the motor vehicle
is held under hire-purchase agreement, lease or hypothecation,
the registering authority or other prescribed authority shall issue a
temporary certificate of registration of such vehicle, which shall
incorporate legibly and prominently the full name and address of
the person with whom such agreement has been entered into by
the owner.]
On a careful reading of the said section, extracted above, it is clear that
the only mandate given under Section 43 is that the registration should not
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exceed more than one month and shall not be renewed. In the present case
on hand, there is no document / evidence whatsoever has been produced by
the defendant to establish that the plaintiff is not entitled to ride the vehicle
and the vehicle driven by the plaintiff was under temporary registration and
the plaintiff had driven the vehicle without following the motor vehicle Rules,
hence it is construed that the plaintiff is entitled to ride the vehicle.
15. Issue No.5 and Substantial Question of Law No.10 are taken up
together :-
The plaintiff is not entitled to any other relief.
16. The Issue No.1 and Substantial Question of Law No.5, are taken up
and answered together.
As dealt above, it is clear that the accident had occured only during the
course of employment. In a case reported in Ramachandrappa Vs. Manager,
Royal Sundaram Alliance Insurance Co., Ltd., reported in 2011 ACJ 2436
(SC), the Hon'ble Apex Court has held that "The term 'disability', as so used,
ordinarily, means loss or impairment of earning power and has been held not
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to mean loss of a member of the body. If the physical efficiency because of
the injury has substantially impaired or if he is unable to perform the same
work with the same ease as before he was injured or is unable to do heavy
work which he as able to do previous to his injury, he will be entitled to
suitable compensation. When it is crystal clear that the accident had occurred
during the course of employment and there is no rebuttable evidence /
documents produced by the defendant that the plaintiff was not an employee
at the time of accident, the 'Employer becomes liable to pay compensation as
soon as personal injury is caused to workman by accident which admittedly
arose out of and in course of emploment', as opined by the Hon'ble
Supreme Court in Civil Appeal No.5669 of 2012 (Arising out of SLP (C)
No.9516 of 2010) dated 31.07.2012) [The Oriental Insurance Company
Ltd., Vs. Siby Gerge and Others]. That apart, the Hon'ble Supreme Court
in the case reported in (2011) 1 SCC 343 [Rajkumar Vs. Ajay Kumar] laid
down the heads under which the compensation is to be awarded for personal
injuries. Besides the above, eventhough the right arm of the plaintiff was
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amputated and he cannot perform his work, as he was performing earlier, the
plaintiff has failed to mark doctor's certificate with regard to his disability,
therefore, in view of the said judgments rendered by the Hon'ble Supreme
Court, this Court holds that the plaintiff is entitled to the compensation,
but not as claimed in the suit.
17. With regard to Issue No.4, when this Court holds that the plaintiff is
entitled for claiming compensation owing to the fact that at the time of
occurence the plaintiff was an employee of the defendant-company, this
Court, taking note of the fact that the plaintiff has marked the medical bills and
the discharge summary from Jipmer Hospital as well as MIOT Hospital, vide,
Ex.P.4 and Ex.P.5 to show that he has spent a sum of Rs.7,00,000/- towards
his medical expenses, considering the grievous injuries suffered by the plaintiff
and the treatment / surgery undergone by him, is of the view that a sum of
Rs.7,00,000/- is a just and reasonable amount under the head 'medical
expenses' and the same is hereby awarded and the said issue is answered in
favour of the plaintiff.
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18. Taking into account the judgments laid down by the Hon'ble
Supreme Court mentioned supra and considering the fact that there is no
appropriate evidence or documents produced on the side of the defendant to
disprove the claim of the plaintiff, this Court is inclined to accept the claim
made by the plaintiff to the extent indicated below and grant the compensation
to the plaintiff accordingly. That apart, the Hon'ble Supreme Court in the
case of Binny Ltd., & Another Vs. Sadasivan & Ors., reported in (2005) 6
SCC 657, has observed that 'even if there is illegal termination of services, it is
not possible to grant damages as claimed inasmuch as the principle of
mitigation of damages squarely applies. As per this principle of mitigation of
damages enshrined in Section 73 of the Contract Act, 1872, even if an
employee is illegally terminated from services, he cannot sit at home and he
must take sufficient steps to procure alternative employment'. In the present
case, the percentage of permanent disability has not been proved by way
producing a disability certificate from a authorised doctor with reference to the
amputation of right hand. However, it is not in dispute that the plaintiff has
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suffered such a permanent disability, subsequent to which, the plaintiff was
terminated from service, but that does not mean that the plaintiff is not capable
to do any other job. Having experience in automobile industry for more than
17 years, as averred by the plaintiff in the plaint, he can perform any job where
an application of mind is required than physical work.
19. Considering all the above stated facts and circumstances of the
case and keeping in mind the judgments rendered by the Hon'ble Supreme
Court as stated supra and taking note of the fact that the right hand of the
plaintiff was amputed, he cannot perform his job, as he was doing before the
accident, this Court is of the view that the plaintiff has suffered Partial
Permanent Disability and therefore, inclined to fix 50% of his salary as monthly
income and awards a sum of Rs.91,80,000/- towards 'Loss of Opportunity' &
'Partial Disability' [Salary is fixed at Rs.42,500/-, which is 50% from
Rs.85,000/-, (as per Ex.P.1, Appointment order of the plaintiff dated
08.06.2012, issued by the defendant) *12(months)*18 (pending Years of
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service, since in Tamilnadu, the retirement age of the employee is fixed at 60
and at the time of accident, the plaintiff was aged 42 years, multiplicand '18' is
adopted)]. Further, considering the grievous injuries suffered by the plaintiff,
which is evident as per Ex.P.4 and Ex.P.5, discharge summary along with
medical bills from JIPMER Hospital, Puduchery and Discharge summary along
with medical bills issued by MIOT hospital respectively, this Court is inclined to
award a sum of Rs.7,00,000/- towards medical expenses and Rs.1,00,000/-
under the head 'pain and sufferings'. In total, the plaintiff is entitled to a sum
of Rs.99,80,000/-, as compensation and the defendant is directed to pay the
same within a period of six months from the date of receipt of copy of this
Judgment and if the defendant fails to pay the same within the prescribed
period, the compensation shall carry an interest of 7.5% per annum.
In the result, the suit is partly decreed in the following manner:-
(i) The defendant shall pay a sum of Rs.99,80,000/- as
compensation as specified above [Rs.91,80,000/- under the head 'Loss of
Opportunity', Rs.7,00,000/- towards 'Medical Expenses' and Rs.1,00,000/-
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towards 'Pain and Sufferings'] within a period of six months from the date of
receipt of copy of this Judgment.
(ii) If the defendant fails to pay a sum of Rs.99,80,000/- within the
prescribed period, the said compensation shall carry an interest of 7.5% per
annum.
(iii) No costs.
22.08.2022
Index:Yes/No
Internet:Yes/No
Speaking Judgment / non speaking Judgment
Exhibits produced on the side of the plaintiff:
S.No. Exhibits Date Description
1. Ex.P-1 08.06.2012 Appointment order of the plaintiff issued
by the defendant
2. Ex.P-2 13.02.2012 The original reliance general insurance
policy no.1203322345000033 dated
13.02.2012 filed by the defendant
3. Ex.P-3 10.08.2012 Certified copy of the FIR registered with
Kiliyanoor Police Station
4. Ex.P-4 Photocopy of the discharge summary
as issued by JIPMER Hospital,
Puducherry along with medical bills.
5. Ex.P-5 Original discharge summary issued by
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S.No. Exhibits Date Description
MIOT Hospital, Chennai along with
medical bills
6. Ex.P-6 28.08.2012 Original letter from the defendant to the
plaintiff
7. Ex.P-7 03.09.2012 Original amendment letter from the
defendant to the plaintiff
8. Ex.P-8 18.09.2012 Original reminder letter from the
defendant to the plaintiff
9. Ex.P-9 18.09.2012 Office copy of the letter from the plaintiff
to the defendant
10 Ex.P-10 19.10.2012 Original letter from the defendant to the
plaintiff on appointment of disciplinary
committee
11 Ex.P-11 Email and reply issued by the plaintiff
on the appointment of disciplinary
committee.
nd
12 Ex.P-12 26.10.2012 Original 2 letter on the disciplinary
committee hearing
th
13 Ex.P-13 10.11.2012 Original 4 letter on the disciplinary
committee hearing
14 Ex.P-14 09.02.2009 Office copy of legal notice along with
postal acknowledgement
15 Ex.P-15 07.11.2012 Original legal notice on behalf of the
plaintiff issued to the defendant
16 Ex.P-16 05.12.2012 Original reply notice on behalf of the
defendant addressed to the plaintiff
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S.No. Exhibits Date Description
17 Ex.P.17 19.11.2012 Original termination Order passed by
the Defendant
Witnesses examined on the side of the plaintiff:
P.W.1. - Mr.D.Sterling James Bhasker (P.W.1)
22.08.2022
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V.BHAVANI SUBBAROYAN, J
ssd
C.S.No.67 of 2013
22.08.2022
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