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Madras High Court · body

1992 DIGILAW 57 (MAD)

Pandyan Roadways Corporation Limited, represented by its Managing Director v. Ranganathan-Minor represented by his father and guardian Somasundaram

1992-01-27

RATNAM

body1992
Judgment :- These appeals have been preferred by Pandian Roadways Corporation, against the common award of the Motor Accidents Claims Tribunal (Sub Court). Srivilliputhur in M.C.O. Nos. 158 to 164 of 1984. The 2nd respondent in these appeals, was the owner of the van TMZ 1157 insured with the 3rd respondent. On 5.4.1984 the 1st respondent in these appeals, were travelling in the van TMZ 1157 from Karaikudi to Kovilpatti and at about 5.15 pm while the van was proceeding on the Sathur by-pass road, an accident took place involving the van and the bus T.M.L. 6069 belonging to the appellant. According to the case of the 1st respondent/s in these appeals, the van was proceeding from North to South, while the bus TML 6069 was proceeding from west towards east and the drivers of both the vehicles drove the respective vehicles rashly and negligently and the accident took place at a road junction, resulting in the van TMZ 1157 being thrown off in the nearby land. In that accident, according to the case of the 1st respondent/s in these appeals, all of them sustained injuries and they were first taken to the hospital at Virudhunagar and later to the hospital at Madurai and they had sustained grievous injuries and fractures. In as much as, according to the 1st respondent/s in these appeals, the accident, in which they sustained injuries, was caused by the conjoint negligence of the drivers of both the vehicles, they claimed that in respect of the injuries sustained by them in the accident, compensation in a sum of Rs. 40,000/-, Rs. 40,000/-, Rs. 40,000/-, Rs. 50,000/-, Rs. 40,000/-, Rs. 40,000/-, and Rs. 15,000/- respectively, should be awarded to them, not only by the owner of the bus TML 6069, but also by the owner and insurer of the van TMZ 1157. 2. In the counter filed by the appellant, it denied that the accident took place on account of the rash and negligent driving of the bus TML 6069 by its driver. The appellant stated that the driver of the van TMZ 1157, by his rash and negligent driving of that vehicle, had caused the accident. 2. In the counter filed by the appellant, it denied that the accident took place on account of the rash and negligent driving of the bus TML 6069 by its driver. The appellant stated that the driver of the van TMZ 1157, by his rash and negligent driving of that vehicle, had caused the accident. The bus, TML 6069, according to the appellant, was driven carefully and cautiously and observing the rules of the road, but the driver of the van drove it rashly and at a high speed and came and dashed against the bus TML 6069, and had thus caused the accident. The appellant also disputed its liability for the payment of compensation. The amount of compensation claimed was also characterised as excessive and exorbitant. The owner of the van TMZ 1157 and its insurer, in their counters, put forward the plea that the van was not driven rashly or negligently, but was driven at a slow speed observing the rules of the road and it was only the bus belonging to the appellant TML 6069 that had been driven at a high speed and rashly, disregarding the traffic regulations and hit against the van and that caused the accident in which the 1st respondent/s in these appeals, sustained injuries. Stating that the driver of the bus TML 6069 was convicted in the criminal case launched against him, respondents 2 and 3, besides denying their liability for payment of compensation, characterised the amount of compensation claimed as very high and out of all proportion. 3. Since all the claims for compensation, arose out of the same accident all of them were dealt with together on common evidence. On behalf of the 1st respondent/s in these appeals, Exs. P1 to P61 were marked and P.Ws. 1 to 9 gave evidence while, on behalf of the appellant and respondent/s 2 and 3, Exs. B1 was filed and R.W. 1 was examined. On a consideration of the oral as well as the documentary evidence, the Tribunal found that the drivers of the bus and the van, had driven their respective vehicles rashly and negligently and had caused the accident and their contribution to the accident could be fixed at 75:25. Considering the compensation awardable to the 1st respondent/s in these appeals, the Tribunal held that they were entitled to be paid compensation in a sum of Rs. 20,800/-. Rs. 26,100/-, Rs. Considering the compensation awardable to the 1st respondent/s in these appeals, the Tribunal held that they were entitled to be paid compensation in a sum of Rs. 20,800/-. Rs. 26,100/-, Rs. 28,750/-. Rs. 37,700/-. Rs. 27,800/- Rs. 24,400/-, and Rs. 9,650/-together with interest at 12% p.a. from the date of claim petition till the date of payment. Consistent with the finding in regard to the contribution by the bus and the van to the accident, the Tribunal directed that the appellant should pay 75% of the compensation together with interest and the owner and insurer of the van were made liable for the payment of the balance of 25% of the compensation together with interest. It is the correctness, of the award so passed that is questioned by the appellant in these, appeals, while, in the memoranda of cross objections filed by respondents 2 and 3 in the appeals, they have questioned the correctness of the conclusion of the Tribunal in regard to the contribution of the driver of the van to the accident. 4. Learned counsel for the appellant, while accepting the finding of the Tribunal that the accident was the out-come of the conjoint rash and negligent driving of the bus TML 6069 belonging to the appellant and the bus TMZ 1157 by their respective drivers, contended that the Tribunal ought to have held that the contribution to the accident was equal or 50:50. According to learned counsel, the evidence relating to the manner in which the accident took place, does not clearly and conclusively establish that the rashness and negligent driving of the bus TML 6069 by its driver, was of a higher degree than that of the driver of the van and therefore, the drivers of both the vehicles had equally contributed to the accident. On the other hand, learned counsel for respondent/s 2 and 3, submitted that the van was driven from south towards north on the National highway, while, the bus was driven from west towards east on the State highway and that the van was proceeding to the right side of the bus on the highway and had also a right of way and the circumstance that the accident had taken place at the junction of the National highway and the State highway, would clearly point out that the driver of the bus had not observed the rules of the road and that had caused the accident. Referring to the evidence of R.W. 1, learned counsel submitted that the driver of the bus, proceeding from west towards east, had seen the van proceeding from south towards north even at a distance of 100 feet and the driver of the bus, was under a duty to slow down the bus and allow the van going on his right, to pass the intersection, but he had not done so and that would clearly establish that the driver of the bus, had not only driven the bus rashly and negligently, but had also done so in violation of Regulations 6 and 7 of the Traffic Regulations in the Tenth Schedule to the Motor Vehicles Act. Reliance in this connection was also placed upon the decision reported in Sachdeva Rice Mills v. Raj Anand 1987 ACJ 821 . 5. Regarding the manner in which the accident took place, there is the evidence of P.Ws. 1 to 7, all of whom have stated that as the van was proceeding from south towards north along Sattur by-pass road in Vridhunagar, the bus of the appellant proceeding from west towards east, dashed against the middle portion of the van and in the impact, the van rolled and rested in a depression on the north-eastern side, resulting in the sustaining of injuries by its occupants. R.W. 1, the driver of the bus, in his evidence, stated that he observed the van proceeding from south towards north, even at a distance of 100 feet and that the accident had taken place at the intersection of the north-south National Highway and the east-west State highway and that the bus sustained damage in the front portion. R.W. 1, the driver of the bus, in his evidence, stated that he observed the van proceeding from south towards north, even at a distance of 100 feet and that the accident had taken place at the intersection of the north-south National Highway and the east-west State highway and that the bus sustained damage in the front portion. Though R.W. 1 attempted to blame the driver of the van for the accident by stating that he had stopped the bus that cannot be accepted in view of the damage sustained by the bus in its front portion and also the damage on the left side middle portion of the van. It is further seen from the plan. Ex. P. 20 that the bus of the appellant had crossed the intersection, after dashing against the van, as a result of which the van was pushed beyond the north-eastern corner of the intersection. Ex. P20 also shows that the bus had left tyre marks over a distance of 15 feet and this would also indicate that the bus had been attempted to be stopped, but that was of no avail. That again would show that the bus had proceeded to the intersection unmindful of the van approaching from south towards north, to the right side of the driver of the bus. The van had also proceeded from south towards north at a very high speed, unmindful of the traffic at the intersection, as otherwise, the accident would not have taken place, particularly, if the driver of the van had been careful and cautious. The report of the Motor Vehicles Inspector, Ex. P19 shows that the grill, head-light, wind-screen glass, etc. on the right side of the body of the bus TML 6069 had been damaged, while the left side body of the van had sustained damage. The manner in which damage had been sustained by both the vehicles, would also indicate that the bus travelling from west towards east had dashed against the left side of the van, almost in its middle, as it was proceeding from south towards north at the intersection. This would establish that the van was already in the intersection and the bus had dashed against the middle of the van. The plan, Ex. This would establish that the van was already in the intersection and the bus had dashed against the middle of the van. The plan, Ex. P20 also shows that the impact between the vehicles should have been rather heavy and violent, as otherwise, the van with several passengers in it could not have been thrown to the north-eastern corner of the intersection. The nature of the damage sustained by the vehicles and the position of the vehicles after the accident, considered in the light of the evidence of P.Ws. 1 to 7 and R.W. 1 clearly make out that the drivers of the bus and the van, had both entered the intersection without ascertaining whether there was any traffic on the north-south road and the east west road near about the intersection. The drivers of the bus and the van had also not driven their respective vehicles at a moderate or low speed, as otherwise, the accident would not have taken place at all. Thus, on a consideration of the manner, in which the accident took place, there cannot be any doubt that the drivers of both the vehicles were, by their rash and negligent driving, responsible for the accident. In regard to the degree of contribution by the respective drivers to the accident, though both of them had been driving their respective vehicles rashly and negligently, there had been, on the part of the driver of the bus, violation of traffic rules to a greater extent than by the driver of the van. When the driver of the van, proceeding from south towards north on the highway, was approaching the intersection, he was under a duty to slow down the vehicle and also not to enter the intersection, till he was certain that he may do so without endangering the safety of persons thereon. A similar duty was also cast on the driver of the bus TML 6069 as he was proceeding from west towards east, when he was nearing the intersection. Regulation 6 of the Driving Regulations provided in the Tenth Schedule to the Motor Vehicles. Act states that the driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon. Act states that the driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon. There has, therefore, been a violation on the part of the drivers of the van and to adhere to Regulation 6. In addition, in so far as the driver of the bus TML 6069, is concerned, he was entering the national highway from west towards east and it was, therefore, his duty to give way to the vehicles proceeding along that road and particularly to traffic approaching the intersection from his right side. When even according to the evidence of R.W. 1 he was able to see the van proceeding from north towards south on the National highway at a distance of 100 feet, it was his duty to follow the traffic regulation regarding the right of way for the traffic on his right and that was ignored by him. Regulation 7 of the Traffic Regulations, provides that the driver of a motor vehicle, on entering the road intersection, if the road entered is a main/road designated as such, shall give way to the vehicles proceeding along that road and in any other case, give way to all traffic approaching the intersection on his right hand. From this, it would follow that the driver of the van should have been allowed to proceed along the National highway which is a main road and the driver of the bus ought to have allowed the driver of the van to pass the intersection as the van was proceeding from south towards north on the right hand side of the driver of the bus. In other words, though both the drivers of the bus and the van had committed breach of the traffic regulations, the driver of the bus had violated Regulation Nos. 6 and 7, while, the driver of the van had disobeyed Regulation 6 alone. From this, it is manifest that the degree of contribution to the accident by the driver of the bus was higher than that of the driver of the van. In this connection reference may be made to the decision reported in Sach adeva Rice Mills v. Raj Anand 1987 A.C.J. 821. From this, it is manifest that the degree of contribution to the accident by the driver of the bus was higher than that of the driver of the van. In this connection reference may be made to the decision reported in Sach adeva Rice Mills v. Raj Anand 1987 A.C.J. 821. where an identical question regarding the degree of contribution to the accident owing to violation of regulations 6 and 7 of the Traffic Regulations found at the Tenth Schedule of the Motor Vehicles Act, arose. In that case also, an accident took place between a bus and a truck and the drivers of both the vehicles, were found by the Tribunal to have contributed equally to the accident in the middle of the crossing. Considering the question of negligence, in the light of breach of Regulation Nos. 6 and 7, it was pointed out that a driver who contravenes more traffic regulations, should be taken to have contributed to the accident in a larger measure than the driver, who had contravened lesser number of traffic regulations. In so holding the earlier decision in Piar Singh v. Gian Kaur 1985 ACJ 758 (P&R) was modified to the extent that the negligence of the bus driver, was apportioned at 2/3 and that of the driver of the track at 1/3. Similar is the situation in this case where the driver of the van had violated Regulation 6, while the driver of the bus violated both Regulation 6 and Regulation 7 and in that context the contribution by the driver of the bus to the accident could be regarded as one of a higher degree than that by the driver of the van. Thus, on a consideration of the extent of contribution by the driver of the bus and the driver of the van to the accident, the Tribunal was quite justified in concluding that the negligence has to be apportioned in the ratio of 75:25%. 6. Learned counsel for the appellant next contended that though the Tribunal was justified in awarding compensation to the claimants in respect of the injuries sustained by them, resultant disability, etc., there was no evidentiary basis whatever for the award of Rs. 5,000/-, Rs. 5,000/-, Rs. 10,000/-, Rs. 5,000/-, Rs. 5,000/-, Rs. 7,000/-, and Rs. 3,000/-, respectively, under the head of ‘other claims’. 5,000/-, Rs. 5,000/-, Rs. 10,000/-, Rs. 5,000/-, Rs. 5,000/-, Rs. 7,000/-, and Rs. 3,000/-, respectively, under the head of ‘other claims’. According to learned counsel though the 1st respondent/s in these appeals, had produced Ex. P7 and had the incurring of expenditure in regard to treatment and other expenses of the 1st respondent/s in these appeals, apart from those documents themselves, which are a day book and ledger there is no other independent supporting evidence to establish the incurring of the expenditure, as detailed in these account books and the Tribunal was, therefore, not at all justified in awarding compensation under the head of other claims. On the other hand, learned counsel for the 1st respondent/s-claimants in these appeals, relying upon the evidence of P.W. 1 and the entries in Exs. P7 and P8 submitted that a lot of expenditure had been incurred, when the 1st respondent/s/claimants in these appeals were undergoing treatment and such expenditure had all been entered in the day book and the ledger and the Tribunal was, therefore, justified in awarding compensation under the head ‘other claims’ as done. 7. P.W. 1 in the course of his evidence, stated that in order to facilitate the undergoing of treatment by all the injured persons, he had taken a house on rent and the injured persons were all looked after there with the help of other employees as well and expenditure in that connection had been incurred, as shown in Exs. P7 and P8. Though P.W. 1 had given evidence thus, merely on the basis of the entries found in Exs. P7 and P8 the amount of compensation claimed on that footing cannot be awarded. On perusal of Exs. P7 and P8, it is clear that they have all been written up to buttress the claim for a higher compensation. Though entries are found therein regarding the expenditure incurred for the purpose of several items of house-hold articles, provisions, medicines, beverges, over some months no other independent evidence such as bills or receipts to support such expenditure, had been placed by the 1st respondent/s in these appeals. Besides, the items of expenditure, have also been inflated as could be seen from the entries in Exs. P7 and P8. Obviously, this had been done with a view to claim a higher compensation. Besides, the items of expenditure, have also been inflated as could be seen from the entries in Exs. P7 and P8. Obviously, this had been done with a view to claim a higher compensation. At the same time, it is not improbable that during the period when the 1st respondent/s in these appeals were undergoing treatment, in respect of the injuries sustained by them in the accident, particularly in a rented house, as spoken to by P.W. 1 some amounts had been spent in respect of the running of the household and other incidental expenses. It would be fair, just and reasonable to allow to the 1st respondent/s/claimants in these appeals 50% of the amount awarded by the Tribunal in regard to the claim made under the head ‘other claims’. Thus the 1st respondent/s in these appeals would be entitled to recover Rs. 2,500/-, Rs. 2,500, Rs. 5,000/-, Rs. 2,500/-, Rs. 2,500/-, and 3,500 Rs. 1,500/-, respectively, instead of Rs. 5,000/-, Rs. 5,000/- Rs. 10,000/-, Rs. 5,000/-, Rs. 5,000/-, Rs. 7000/-and Rs. 3,000/-. The amount of compensation awarded by the Tribunal to the let respondent/s - claimants in these appeals under other heads was not in any manner questioned and it is, therefore, unnecessary to consider the propriety of the award of compensation, other than what had already been dealt with. Thus, the 1st respondent/s in these appeals will be entitled to recover from the appellant and respondent/s 2 and 3 compensation in a sum of Rs. 27,300/-, Rs. 23,600/-. Rs. 23,750/-, Rs. 35,200/-, Rs. 25,300/-, Rs. 20,900/- and Rs. 8,150/- respectively, together with interest at 12% p.a. from the date of claim petition till date of payment. Out of the amount of compensation so payable to the 1st respondent-claimant/s, the appellant shall pay 75% thereof together with interest, while respondents 2 and 3 will be liable to pay the balance of 25% together with interest, as stated earlier. The C.M.As are, therefore allowed in part to the extent indicated and the common award of the Tribunal will stand modified accordingly. The C.M.As are, therefore allowed in part to the extent indicated and the common award of the Tribunal will stand modified accordingly. In view of the finding already arrived at on the question of negligence, there is no substance in the memorandum of cross objections, in which respondents 2 and 3 in the appeals have raised objection regarding the apportionment of negligence between the driver of the bus and the driver of the van as 75:25 and the memoranda of cross objections are, therefore, dismissed. There will be no order as to costs either in the C.M.As. or in the memoranda of cross objections.