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Judgment
Ghulam Mohammed, J.—The injured/appellant filed the present appeal against the award in MVOP No.152 of 1992 of Motor Accidents Claims Tribunal, Chittoor, awarding a sum of Rs.3,59,200/-towards injuries sustained by the appellant and applying the theory of contributory negligence on both parties and thus making the respondent liable to pay the 50% of the awarded amount.
It is contended in the present appeal that in the absence of any cogent and categorical evidence and particularly in view of non-examination of the driver of the bus who was solely responsible for the accident and who was the actual person to speak about the accident. The Tribunal ought not to have applied the theory of contributory negligence. It is also contended that the finding of the Tribunal regarding contributory negligence on the part of the injured is unwarranted and unjustified in the given situation. The brief facts of the case areas follows:
That on 25-9-1991 at about 8-30 a.m., the petitioner was proceeding on his Hero Honda vehicle and a bus bearing No.TN 23-N 0232 belonging to the respondent driven by its driver in a rash and negligent manner dashed against the petitioner in between Gandhipuram and Perumallapalle on Tirupathi-Chandragiri road, as a result the petitioner received grievous injuries and was immediately shifted to SVRR Hospital, Tirupati and was admitted as inpatient and remained there till 7-11-1991 and as the crush fractures of bones are of serious nature, he was advised to take treatment at NIMS, Hyderabad and on 8-11-1991, the petitioner injured was admitted in NIMS, Hyderabad as inpatient. That at NIMS hospital the petitioner/injured was treated for wound debridement and reapplication of external fixation to Tibia and sequestrectomes on 11-11-1991 and later skin grafting and muscle grafting was also done and the petitioner/injured was discharged on 29-1-1992. It is stated that at the time of discharge the Doctor advised the petitioner for daily dressing and sugar tests and also advised for bedrest.
It is contended that at the time of accident the petitioner/injured was working as Head Master in MPP Elementary School, Nagaiahgaripalle and drawing a salary of Rs.1929-70 and was also undertaking tuitions and earning Rs.20,000/- per annum. It is further contended that during the period of hospitalisation at NIMS, Hyderabad his parents were attended to him by staying at Hyderabad for which he had incurred substantial expenditure. It is further stated that petitioner''s right leg and right hand developed deformity due to bone fracture and that the infirmity and that pain would continue for the whole life, that his future prospects of securing Executive posts as a Scientist became remote and that his movements restricted. It is further stated that the petitioner has passed the preliminary exams for Group II APPSC and has got an interview for the post of lecturer in the month of December, 1992 but he could not attend the same as he was bedridden and that due to physical deformity his prospects for marriage became bleak and that the same could not be compensated in terms of money.
Counter-affidavit filed by the respondent denying the allegation of rash and negligent driving on the part of the driver of the bus and stated that when the bus was proceeding slowly when reached Perumallapalle because a tractor was going ahead of the bus and on the opposite direction a lorry followed by the APSRTC bus, followed by the petitioner on his motor cycle was coming and that the petitioner over-took the RTC bus in a rash and negligent manner and lost control and that the driver of the respondent bus noticed the high speed of the petitioner and swerved the bus to the extreme left and stopped, however the petitioner proceeded on his right side and dashed the bus on its front right side and the vehicle dragged the petitioner to a distance of 15 feets, and thus attributed the negligence on the petitioner/ injured himself.
On the above pleadings, the trial Court framed necessary issues for consideration. To substantive his claim the petitioner/injured adduced both oral and documentary evidence. The injured examined himself as PW1 and PW2 is an independent eye-witness who was given complaint to the police, on the basis of which charge-sheet Ex.A2 was filed in the Court. On the other hand respondent examined the conductor of the Bus.
The Tribunal did not consider the version of PW2 who is an independent and impartial eye-witness whose evidence was in corroboration with that of the evidence of PW1 and Exs.A1 and A2 viz., FIR and charge-sheet. PW2 deposed about the rash and negligent driving of the driver of the bus and the manner of the accident and deposed that the bus came at a high speed from Chandragiri side and dashed towards its right side of vehicle of PW1 and proceeded further towards left side of the road and stopped at a distance of 150 feet and that the petitioner''s vehicle was dragged about 5 to 6 feets. There were no deviations in the cross-examination.
On the other hand, the testimony of the conductor of the bus (RW1) was partly believed by the Tribunal while applying the theory of contributory negligence, discarding and totally ignoring the testimony of the eye-witness PW2 whose version is in corroboration of Ex.A1 and Ex.A2. The crucial aspect of this case viz., non examination of the driver of the bus who was responsible for resulting the accident, which would be vital to the defence of the respondent so as to attribute the negligence on the part of the injured. Added to this, the material aspect in the instant case is the deposition of RW1, who deposed in different manners i.e., attributing negligence to bus driver in the evidence adduced in CC No.330 of 1991 and contrary to that, in the evidence adduced before the Tribunal, he was attributed the negligence on the part of the injured. In the factual background, the Tribunal ought to have discarded the version of RW1 as he is not a true eye-witness and his version cannot be relied upon. While applying the theory of contributory negligence, the Tribunal ought to have scrutinised the evidence in a careful and cautious manner. Instead of that, the Tribunal adopted a casual approach and reached to a conclusion of applying theory of contributory negligence.
The Apex Court in a celebrated case in Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, , held as follows :
"Normally 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. 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."
The High Court of Allahabad in Mahabir Prasad Goel v. Guru Saran Singh 1983 ACJ 99, observed as follows:
"..... The best evidence which could be produced to explain the manner of accident was of the driver but the same was not available. The respondents did not produce any other witness to support their contention. In the absence of any evidence produced on behalf of the respondents it was not open to the Tribunal to rely on the pleas raised in the written statement of the owner or in holding that the rickshaw must have dashed against the truck from its rear portion.
Learned Counsel for petitioner Mr. P.S. Narayana contended that the Tribunal committed an error in applying the theory of the contributory negligence and has failed to assess the just compensation as contemplated under the provisions of law. He has drawn our attention to the judgment of Delhi High Court in Delhi Transport Corporation v. Kumari Lalitha AIR 1982 Delhi 558, wherein it is held that the damages must be in tune with time and inflation and movement of money ought to be considered.
Whereas, learned Counsel for respondent vehemently contended that the Tribunal has given cogent reasons and granted just and proper compensation and that the award of the Tribunal does not call for any interference by this Court.
In the facts and circumstances of the case and after considering the material on record, we are of the considered view that the finding reached by the Tribunal with regard to contributory negligence is not just and proper and the same suffers from material irregularities and perversity, therefore, we hold that the accident resulted due to the rash and negligence driving of the driver of the bus.
As regards the determination of the just compensation as contemplated under the provisions of the Motor Vehicle Act is concerned, with regard to the injuries sustained, the appellant had adduced both oral and documentary evidence. PW3 is the Doctor who attended the petitioner at NIMS hospital. He deposed that the petitioner was admitted in NIMS on 8-11-1991 for the treatment of compound fracture of right leg, fracture to right wrist, fractures of fourth and fifth digits of the right hand and stated that the petitioner has underwent operations for more than ten times during his stay at hospital, and that the injured/petitioner underwent the operations for debridement, external fixation skin grafting and muscle cover. He stated that wound debridement and reapplication of external fixator of tibia and suquestrectomy was done on 11-11-1991 and split thickness skin grafting was done on 30-11-1991, soleal flab coverage was done to the right leg middle on 2-1-1992. He further stated that as per Ex.A24 the right leg of the petitioner was shortened by 2 cms, there was a stiffness of ankle with deformity and there was the restriction of movements of right knee. PW3 further stated that the petitioner underwent Ilizoro method of treatment which is an expensive one. He further deposed that the petitioner was advised to use crutches and branches for support during the course of the treatment. As per Ex.A26 the disability was assessed at 50% and PW3 deposed that the same was correct.
Ex.A6 is discharge card, Ex.A7 is Medical bills, and Ex.A8 is abstract relating to the medical bills, Ex.A9 is essentiality certificate, Ex.A14 is certificate issued by S.V. University for Ph.D course, Ex.A16 is Hall ticket of Group-II A service commission and Ex.A17 is Hall Ticker for Group-11 A main examinations.
At the time of accident, the injured/ petitioner was 28 years and having a bright future prospects and advancement in life and has completed his Ph.D course.
The Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , observed as follows:
"In Pickett v. British Rail Engineering Limited (1978 3 WLR 955), in an action for damages for personal injuries, the House of Lords overruling the decision of the Court of Appeal in Oliver v. Ashman (1961 3 All ER 323) and held that damages for loss of future earnings should include the whole period of earning life and not merely the post-accident expectancy. In other words, the plaintiff was held entitled to claim damages for lost earnings of lost years when the accident shortened his expectation of working life. On the same tines, the House of Lords in Gammell v. Wilson, (1981 1 All ER 578) held that in addition to conventional and moderate damages for loss of earnings of the lost years. Gammell case was followed by a Division Bench of the Madhya Pradesh High Court in Ramesh Chandra v. M.P. State Road Transport Corporation (1982 MPLJ 426)."
Considering the salary certificate Ex.A21, and in the facts and circumstances of the case, the approximate gross salary of the petitioner is taken as Rs.2760/- per month at the relevant point of time. The disability of the petitioner was assessed at 50%, then the 50% of the monthly earnings comes to Rs.1380/- and annually it comes to Rs.1380 x 12 = Rs.16560/- and appropriate multiplier in the present case, as per the judgment of the Supreme Court in UPSRTC v. Trilok Chandra 1996 (6) SCC 362 , is 16 of the petitioner was aged 28 years at the relevant point of time. Therefore, the loss of income of the injured is assessed as Rs.16,560 x 16 = Rs.2,64,960/-. As regards the non-pecuniary damages viz., pain and suffering, deprivation of amenities of life, future prospects of marriage, discomfort, displeasure, mental agony are concerned, in our view a just and reasonable compensation has to be granted. Considering the facts and circumstances and the medical evidence and judgment of High Court of Kerala High Court in Valiyakathodi Mohammed Koya Vs. Ayyappankadu Ramamoorthi Mohan and Others, , and a Division Bench judgment of Punjab and Haryana High Court in P.S. Bhatnagar Vs. State of Punjab and Others, and a judgment of this Court in K. Sapana v. B. Appa Rao 1988 ACJ 113, we hereby grant a sum of Rs.50,000/-towards non pecuniary damages. As per Exs.A7 to A9 the petitioner/injured incurred a sum of Rs.66,520/- towards cost of the medicines while he was inpatient in the hospital, therefore a sum of Rs.66,520/-is hereby awarded towards medical expenses incurred by the injured during hospitalisation.
In result, the award of the Tribunal is modified and the compensation is enhanced to Rs.3,81,480/- together with interest @ 12% from the date of petition till realisation. Accordingly, the appeal is allowed. No costs.