Shajan v. N Raman Pillai — 1994 DIGILAW 284 (KER)

JUDGMENT K.J. Joseph, J. 1. The claimant in O. P. (M. V.) No. 255/84 on the file of the Motor Accidents Claims Tribunal, Ernakulam is the appellant. The first respondent is the owner of the vehicle involved in the accident, viz. KRE 982. The 2nd respondent was the driver of the said bus and the 3rd respondent is the Insurance Company with whom the respondent owner had entered into a contract of insurance in respect of his vehicle bearing registration no. KRE 982. 2. It is the case of the appellant that he sustained injuries at the age of 26 on 3-12-1982 at 12.00 Noon. He was a door checker in the stage carriage bearing registration No. KRE 982. When the bus driven by the 2nd respondent was passing a bridge at Tripunithura on 3-12-1982 he sustained injuries. According to the appellant, the side of the bus brushed aside of an electric post. Hearing the sound, the appellant who was standing on the footboard peeped out. Then his head stuck against the post and thereby he sustained severe head injuries. The appellant was immediately removed to the Medical Trust Hospital, Ernakulam where he was treated as an in - patient and thereafter, he continued his treatment as an out -patient. According to him, the accident had taken place due to the rash and negligent driving of the 2nd respondent. He, therefore, claimed a total amount of Rs. 1,00,000/- by way of compensation from the respondents. 3. On notice, the driver of the vehicle viz. the 2nd respondent in the claim petition contended that he was not negligent. According to him, the accident was caused due to the negligence of the appellant himself. He put his head outside while he was standing on the footboard, for which the driver is not responsible is the substance of the contention raised by the 2nd respondent driver. He further contended in the written statement that the electric post was 1 1/2 ft. away from the bus and the injuries alleged to have been sustained was only due to the fact the appellant put his head outside the bus which resulted in causing injury to the appellant. He disputed the quantum claimed in the petition. According to him, the entire claim is exaggerated. He also disputed the permanent disability claimed by the appellant. 4. Third respondent, viz. He disputed the quantum claimed in the petition. According to him, the entire claim is exaggerated. He also disputed the permanent disability claimed by the appellant. 4. Third respondent, viz. insurance company also made similar contentions that had taken by the 2nd respondent, the driver. It was also contended by the insurance company that the maximum liability of the Company, if any, is for an amount of Rs. 37, 800/- as calculated under the Workmen's Compensation Act. The insurance company admitted the policy. 5. For sustaining the claim, the claimant had examined three witnesses on his side. He himself had given evidence as PW 1. PW 2 was the doctor who treated the appellant in the Medical Trust Hospital. To substantiate his contentions, he had produced and proved Exts. A1 to A5 before the Tribunal. On behalf of the respondents, the insurance policy issued by the 3rd respondent was produced and marked as Ext. B1. 6. On consideration of the evidence adduced in the case, the learned Tribunal accepted the case of the appellant that he sustained injuries in the accident on 3-12-1982 while travelling in the bus driven by the 2nd respondent bearing registration No. KRE 982. PW 2 was the conductor of the bus. According to him, the appellant put his head outside which resulted in causing injuries on the appellant's head. According to PW 2, when the bus slanded towards left, the appellant who was standing on the footboard fell on the door and the head hit against the electric post. The learned Tribunal considered the evidence of the injured, the appellant herein, and the evidence adduced of PW 2 came to the conclusion that the appellant was travelling on the footboard of the bus and while so, he put his head outside which resulted in causing of the injuries on his head and therefore, the appellant also is negligent. In the light of the evidence adduced before the Tribunal, the Tribunal came to the conclusion that the appellant also is guilty of contributory negligence. According to the Tribunal, there was no valid reason for taking the vehicle so close to the rail of the bridge and the electric post which resulted in the accident and therefore, the driver is also held negligent in the accident. According to the Tribunal, there was no valid reason for taking the vehicle so close to the rail of the bridge and the electric post which resulted in the accident and therefore, the driver is also held negligent in the accident. Therefore, the Tribunal fixed the liability between the appellant and the driver of the bus in the proportion 60:40 and on the basis, he had awarded only an amount of Rs. 21,400/- with interest to the appellant at 12% per annum. Aggrieved by the said award, the appellant has come up in this appeal before this Court. 7. We heard the learned counsel appearing for the appellant and also learned counsel appearing on behalf of the respondent. Learned counsel for the appellants submits that there is absolutely no justification for the Tribunal to find contributory negligence on the part of the appellant on the facts proved in this case. 8. Admittedly, the appellant was employed as a door-checker in the bus bearing registration No. KRE982 driven by the 2nd respondent. According to the evidence, he was assisting the conductor and verifying whether all passengers had taken tickets for the journey. As per the scene mahazar, Ext. A2, it can be seen that the width of the road at the place of the accident is 5.35 metres on the bridge. The appellant was standing on the footboard. According to the appellant, the bus was driven very close to the rails of the bridge which resulted in causing the injury on the head of the appellant. Even though in the evidence, he had stated that the bus do not grace the rails of the bridge, but he was standing on the footboard. The evidence in the case is that he sustained injuries while travelling in the bus and according to the evidence of PW 2, the conductor, when the bus slanded towards the left, the appellant who was standing on the footboard, fell on the door and his head hit against the electric post. Therefore, it is clear that the bus slanded towards left which resulted in the falling of the appellant on the door. The reason why the bus slanded had not been explained by PW 2. Admittedly, the driver who is competent to say the reason for slanding the bus was not examined in the case. Therefore, it is clear that the bus slanded towards left which resulted in the falling of the appellant on the door. The reason why the bus slanded had not been explained by PW 2. Admittedly, the driver who is competent to say the reason for slanding the bus was not examined in the case. He did not give any evidence before the Tribunal how the bus slanded when the bus reached near the bridge. The evidence given by PW 2, the conductor shows that the appellant was standing on the footboard near the door of the bus, and his head hit against the electric post. PW 2 has further stated that when the front wheel of the bus passed over a big stone, the bus slanded to left side which resulted in throwing the appellant who was standing on the footboard near the door. Even accepting the said version given by PW 2, it can be seen that the appellant was standing on the footboard and the bus slanded towards left which resulted in the throwing of the appellant on the door and his head hit against the electric post. In the absence of a contrary evidence adduced either by the driver or the insurance company, it cannot held that the appellant in any way contributed for the accident. 9. It is the duty of the conductor to see that the bus is set in motion only after the alighting passengers have alighted and the passengers intending to travel in the bus boarded the bus. Boarding a bus does not mean merely entering the footboard. Boarding the bus means getting into the bus and either sitting in a seat or standing in the place reserved for passengers Conductor has a statutory duty to seat hat there are no footboard passengers. If a passenger is on the footboard and there is no space at all for him to sit or stand inside, the bus, he must be asked to get down and the bus can be set in motion only after he alights. When there is sitting or standing space available inside the bus, it is the duty of the conduct to see that a passenger who is on the footboard gets inside the bus and sits himself or stand in the space reserved for standing passengers before giving signal for the bus to start. When there is sitting or standing space available inside the bus, it is the duty of the conduct to see that a passenger who is on the footboard gets inside the bus and sits himself or stand in the space reserved for standing passengers before giving signal for the bus to start. This corresponds with the driver's duty to ensure that the bus is moved only after ensuring the safe travel conditions. This has been held so by a Division Bench of this Court in Bhaskaran v. Raveendran ( 1990 (1) KLT 607 .) This principle is equally applicable to an employee in the bus also. There is no provision under the Motor Vehicles Act or the Rules framed thereunder permitting any person to travel standing on the footboard either as a passenger or as a crew. Footboard is provided not to make use while the bus was moving. It is only to facilitate entry in the bus as well as alighting from the bus. Therefore, it is the duty of the conductor to see that no person travels in the bus using the footboard whether he be a passenger or an employee of the bus. In the absence of any provision enabling the driver or the conductor of the bus to drive the vehicle with a standing passenger or crew on the footboard of the bus, it cannot be held that the passenger or the crew would not get compensation for the injury sustained in the course of the journey. 10. Learned Tribunal fixed the negligence on the part of the appellant at 60% mainly on the ground that the appellant was standing on the footboard. Accepting the evidence of PW 2. it is to be held that the appellant who was allowed to stand on the footboard sustained injuries when the bus slanded towards left while running over a big stone which resulted in the appellant's thrown on the door. As stated earlier, the driver of the vehicle was not examined in the ease and he did not adduce any evidence to explain his conduct why the vehicle was taken very close to the rails of the bridge. As stated earlier, the driver of the vehicle was not examined in the ease and he did not adduce any evidence to explain his conduct why the vehicle was taken very close to the rails of the bridge. Under such circumstances the contention raised by the learned counsel appearing on behalf of the appellant that it was only because the driver of the vehicle had taken the bus very near to the rails of the bridge, the entire accident had taken place is acceptable and if the bus was taken through the centre of the bridge, there was no occasion for the bus to sland towards the left side and thereby providing an opportunity for the appellant to fall down on the door and hit his head on the electric post. The road has sufficient width at: She point of accident on the bridge, viz. 5.35 metres. In the above circumstances, there is no legal justification for the Tribunal to come to the conclusion that the appellant has contributed to the accident and his contributory negligence would be to the extend of 60% in the accident. The Tribunal did not state in the award the, reasons and basis to come to the conclusion that the appellant is guilty to the extent of 60% of the contributory negligence. Learned counsel appearing on behalf of the appellant is perfectly justified in his submission that the said finding was arrived at by the Tribunal without any legal and factual basis. The evidence on record would show that the bus driven by the 2nd respondent very close to the rails of the bridge slanded towards left which ultimately resulted in causing head injury on the appellant, The finding that the appellant also had contributed for the accident is, therefore absolutely without any legal basis. We therefore, set aside the said finding. The accident had taken place only because of the rash and negligent driving of the driver, the 2nd respondent, for which the first respondent owner is vicariously liable. The owner is indemnified by the insurance company. Therefore, the insurance company is liable to pay the entire amount of compensation awarded by the Tribunal. 11. The accident had taken place only because of the rash and negligent driving of the driver, the 2nd respondent, for which the first respondent owner is vicariously liable. The owner is indemnified by the insurance company. Therefore, the insurance company is liable to pay the entire amount of compensation awarded by the Tribunal. 11. The learned counsel for the appellant submitted before us that in the light of the evidence given by PW 3, the doctor who treated the appellant, the compensation awarded by the Tribunal on the count of medical expenses is very meagre. The claimant had claimed an amount of Rs. 6,000/- for medical expenses, but the Tribunal had granted an amount of Rs. 2,500/-. It should be remembered that the claimant had not produced any bill in support of his claim for medical expenses. It is difficult to believe that in the hospital where PW 3 is working, no bills will be issued for medical expenses. In the absence of any documentary evidence, we see no justification to interfere with the award of compensation of an amount of Rs. 2,500/- by way of medical expenses by the Tribunal in this case. 12. Learned counsel submitted before us that the Tribunal had granted only an amount of Rs, 7,500/- for loss of amenities. A further amount of Rs. 30,000/- is claimed as loss of earning power. Considering the disability caused and evidenced by Ext. A5 disability certificate issued by the doctor, the learned counsel submits that the Tribunal was not justified in not awarding any amount for the permanent disability of the appellant evidenced by Ext. A5 certificate. 13. In Ext. A5, the doctor had certified the following injuries :- "1) 5" lacerated injury right temporoparietal region, withunderlying depressed fracture causing brain injury. 2) 2 "lacerated injury left temporal region. 3) Laceration due to brain injuries." In Ext. A5, PW 3, the doctor has certified that the appellant had a large bony defect on right temporoparital region for which he will need a crainoplastry. The doctor also had certified that appellant had constant head ache, loss of memory and lack of concentration and hence he is unable to pursue the old occupation as a door checker and cleaner in the bus. PW 3, the doctor had further certified that the defects are as a result , of the laceration of the brain. The doctor also had certified that appellant had constant head ache, loss of memory and lack of concentration and hence he is unable to pursue the old occupation as a door checker and cleaner in the bus. PW 3, the doctor had further certified that the defects are as a result , of the laceration of the brain. In the light of the above medical evidence, learned counsel for the appellant submits before us that the disabilities noted by the doctor in Ext. A5 certificate are permanent disabilities and therefore, the learned Tribunal was wrong in not awarding any further compensation for permanent disability. 13. As stated earlier, the Tribunal had awarded, an amount of Rs. 7,500/- for the loss of amenities and Rs. 30,000/- as loss of earning power. The Tribunal, therefore, found that when compensation is awarded for loss of amenities and loss of earning power, no further compensation need be paid for permanent disability. Permanent disability give rise to loss of earning power. The earning power had been lost due to the disability. Therefore, the Tribunal is perfectly correct in coming to the conclusion that when entire amount claimed by the appellant as loss of earning power and loss of amenities is allowed, there is no further justification to pay any amount by way of compensation for permanent disability. The loss of earning power is the result of the permanent disability, it is after taking into consideration the permanent disability, the Tribunal decided to grant the entire amount claimed as loss of earning power by the appellant. It is true that loss of earning power and loss of amenities are different concepts. But it is not correct to say that the loss of earning power has no nexus or connection with the permanent disability. As stated earlier, the disability has resulted the injured from making his earning that he was making before the accident. Under such circumstances, we see no justification to interfere with the said finding arrived at by the Tribunal. 14. In the result, the total compensation of Rs.53,500/- awarded by the Tribunal requires no interference from this Court in this appeal. The said amount is a reasonable compensation for the injuries sustained by the appellant. The appellant is entitled to recover the said amount from the 3rd respondent insurance company. No limit of the policy was pleaded or proved. 14. In the result, the total compensation of Rs.53,500/- awarded by the Tribunal requires no interference from this Court in this appeal. The said amount is a reasonable compensation for the injuries sustained by the appellant. The appellant is entitled to recover the said amount from the 3rd respondent insurance company. No limit of the policy was pleaded or proved. The appellant is also entitled to get 12% interest for the entire amount from 28-3-1984. The appellant also is entitled to get his costs before the Tribunal and before this Court. The advocate fee in this appeal is fixed at Rs.1,000/-. The award passed by the Tribunal is modified to the extent stated above and the appeal is disposed of accordingly.