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2010 DIGILAW 3559 (MAD)

C. Kuppusamy v. Sri. Elumalai

2010-08-17

M.Y.EQBAL, T.S.SIVAGNANAM

body2010
Judgment :- Appeal filed under Section 173 of the Motor Vehicles Act against the fair and decreetal order passed by the learned Additional Sub-Judge, Chengalpet in M.C.O.P.No.197 of 2005 dated 9th April, 2007 on the file of the Additional Subordinate Judge (FAC), Chengalpet. M.Y. Eqbal, J. This appeal is directed against the judgment and award dated 9th April, 2007 passed by the Motor Accidents Claims Tribunal, Chengalpattu in M.C.O.P.No.197 of 2005 on the claim petition filed by the claimant/appellant which was allowed in part holding that the appellant is entitled to compensation of Rs.25,000/- only under “No-Fault Liability”. 2. The facts of the case lie in a narrow compass:- The claimant filed the aforementioned claim petition for the injuries sustained by him in a motor vehicle accident. The appellant’s case was that on 27.7.2004 at about 9.00 a.m. while he was waiting at the bus stop, on the western side of the G.S.T.Road, the bus bearing Reg.No.TN-01-N-3399 belonging to the second respondent came from Guduvanchery and stopped at Perungalathur Bus Stop for collecting the passengers. The appellant tried to board the bus, but, at that time, all of a sudden the driver of the bus drove the vehicle rashly without seeing the rear view mirror, as a result of which the appellant fell down and the left rear side wheel of the bus ran over on the left leg of the appellant and thus resulted in grievous injuries on his left leg. The appellant’s case was that the accident took place solely due to the rash and negligent driving of the driver of the bus. Accordingly, he claimed compensation of Rs.20 lakhs. 3. The second respondent namely, the owner of the bus, contested the case on the ground that there was no rash and negligent driving on the part of the driver of the bus. As a matter of fact, while the bus was nearing Perungalathur bus stop, there was traffic jam and therefore, the bus stopped about 100 feet before the bus stop. The bus also moved slowly and at that time, the appellant rashly and negligently attempted to board the bus and lost his grip and fell down, which resulted in the accident. The second respondent’s further case is that the appellant itself gave a written statement regarding the accident admitting that he was alone responsible for the accident. 4. The bus also moved slowly and at that time, the appellant rashly and negligently attempted to board the bus and lost his grip and fell down, which resulted in the accident. The second respondent’s further case is that the appellant itself gave a written statement regarding the accident admitting that he was alone responsible for the accident. 4. On the basis of the above pleadings, the Tribunal formulated two points for consideration:- 1) Whether the accident was due to rash and negligent act of the driver of the bus No.TN-01-N-3399? 2) Whether the petitioner is entitled to any compensation and if so, what is the quantum? 4. On Point No.1, the Tribunal discussed the evidence of the witnesses put forth by the claimant-appellant. The claimant-appellant, apart from examining himself as P.W.1, has examined one Dr.Dharmarajan, Ortho Surgeon, Chengalpattu Medical College Hospital, as P.W.2. P.W.1 has deposed that while he was getting into the bus, the driver of the bus drove the bus in a rash and negligent manner, as a result of which he fell down from the bus and left rear side wheel of the bus ran over his left leg. The Tribunal also discussed the evidence of the Driver and Conductor of the bus, who were examined as R.W.1 and R.W.2. On the basis of the evidence and the letter alleged to have been written by the appellant, the Tribunal held that the accident occurred due to the negligence of the claimant-appellant, and the driver of the bus was at no fault. Consequently, while deciding on Point No.2, the Tribunal held that the claimant-appellant is entitled to compensation of Rs.25,000/- only under “No Fault Liability”. 5. We have heard the learned counsel appearing for the appellant, as also the learned counsel appearing for the second respondent-Metro Transport Corporation, and perused the evidence, both oral and documentary, adduced by the parties. 6. As noticed above, the claimant in his evidence has categorically stated that while he was trying to board in to the bus, the driver of the bus suddenly drove the vehicle, which resulted in the accident. He further denied that any such letter was written by him. The driver of the bus was examined, on behalf of the respondent, as R.W.1. He further denied that any such letter was written by him. The driver of the bus was examined, on behalf of the respondent, as R.W.1. In his examination-in-chief, he deposed that while he was driving the Government bus, which was proceeding from Guduvacherry towards Parrys corner, there was a heavy traffic jam at a distance of 200 feet ahead of Perungalathur bus stop, and as such he stopped the vehicle and watching it and at that time, a person came running and tried to get into the bus and while he tried to board the bus, he fell down and at that time, he was moving the bus very slowly and on account of falling down from the bus, the person sustained injuries. In his cross examination, he has stated about the letter and admitted that the contents of the letter were written by the Conductor in his own handwriting. On the other hand, the conductor of the bus, who was examined as R.W.2, has stated that on the date of the accident, he was on duty as conductor and the bus was proceeding from Guduvanchery to Parrys corner and on its way, when the bus was nearing a place at a distance of 200 feet ahead of the Perungalathur bus stop, the petitioner all of a sudden carrying a bag in his hand came running and boarded the bus through the front side entrance and at that time, the handle of the bag, which was hanging on his shoulder, caught entangled, as a result of which he could not able to board the bus and fell down. On a perusal of the evidence of the driver and conductor of the bus, it is evidently clear that the evidence of these two witnesses are contradictory to each other. According to the driver of the bus, the accident took place when the claimant-appellant tried to board the bus when the bus was moving slowly. Whereas, as per the evidence of the conductor, the bus was stationary at the time when the claimant tried to board into the bus, but since the handle of the bag entangled, and the bus started moving, the claimant fell down. 7. Whereas, as per the evidence of the conductor, the bus was stationary at the time when the claimant tried to board into the bus, but since the handle of the bag entangled, and the bus started moving, the claimant fell down. 7. So far as the liability part is concerned, it is well settled that if the accident takes place in a public service vehicle or a hired bus, at the time of boarding or alighting from the bus, the owner and the insurance company are liable to pay compensation. In this connection, reference may be made to the decision of the Supreme Court in the case of Noorjahan (TMT)) v. Sultan Rajia TMT reported in 1997 (1) SCC 6 . 8. Hence, the question that falls for consideration is as to whether, on the basis of the evidence brought on record, the findings of the Tribunal that the accident was due to the negligence of the claimant and that the driver of the bus was at no fault, can be justified? 9. After having considered the evidence, particularly, the evidence given by the driver and conductor of the bus, the principle of “res ipsa loquitur” will apply and in such a case, it is for the owner and the driver of the vehicle to prove that the accident did not take place due to the rash and negligent driving of the vehicle. The Doctrine of res ipsa loquitur has been elaborately discussed by the Supreme Court in the case of Pushpabai v. Ranjit G & P Co. reported in AIR 1977 SC 1735 , wherein Their Lordships held: - (Para 6, page 1739) “The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states: “The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused”. In Halsbury’s Laws of England, 3rd Edn., Vol. 28, at p. 77, the position is stated thus: “An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant’s negligence, or where the event charged a; negligence “tells it own story” of negligence on the part of the defendant, the story so told being clear and unambiguous”. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part”...” 10. Applying the principles laid down by the Supreme Court to the facts of the present case, we are of the definite opinion that the findings recorded by the Tribunal that the accident took place due to the negligence of the claimant cannot be sustained in law. 11. Having held above, the next question that arises is as what should be the quantum of compensation the claimant is entitled to for the injuries sustained in the said accident. The claimant sustained fracture over left femur and left fibula, and according to the doctor’s certificate, 30% disability was shown. 11. Having held above, the next question that arises is as what should be the quantum of compensation the claimant is entitled to for the injuries sustained in the said accident. The claimant sustained fracture over left femur and left fibula, and according to the doctor’s certificate, 30% disability was shown. According to the appellant, out of the total expenses met, he paid Rs.54,000/- from his Employees Provident Fund and the balance amount was reimbursed by the Indian Airlines where from he took voluntary retirement. Since the evidence of incurring medical expenses to the extent of Rs.54,000/- has not been controverted, we are of the view that the claimant is entitled to Rs.54,000/-towards medical expenses. So far as compensation for the injuries and the pain and agony suffered by the claimant is concerned, it can safely be assessed at Rs.1 lakh. Hence, we hold that the claimant-appellant, in all, is entitled to compensation of Rs.1,54,000/-. 12. The appeal is allowed. The appellant is entitled to compensation of Rs.1,54,000/-, which shall carry interest at the rate of 6% from the date of the award passed by the Tribunal. No costs.