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Judgment
T. Mathivanan, J.—Challenge is made in this appeal to the award of Rs. 5,11,377/-, dated 29.09.2005 and made in MCOP No. 148 of 2008, on the file of the Motor Accidents Claims Tribunal/ (Additional District and Sessions Judge), FTC, Pudukottai.
The facts which are absolutely necessary for the disposal of this Civil Miscellaneous Appeal are as under: -
That on 02.07.1999 at about 11 a.m. when the bulldozer bearing registration No. NL-02/A-6046 was engaged in dismantling operation of the building of Royal Hotel, a small portion of the wall had fallen on the first Respondent/Claimant, while he was watching the dismantling operation as a spectator and as a result of which, he had sustained severe injuries below his hip. Since, he is suffering with permanent disability as the movement of his lower limbs were completely restricted, he had filed a claim petition before the Motor Accidents Claims Tribunal (Additional District & Sessions Judge), FTC, Pattukottai, claiming a sum of Rs. 10,00,000/-.
The first Respondent, being the owner of the Earth Mover(Bulldozer) had not contested the claim, as he remained ex-parte. On the other hand, the Appellant Insurance Company being the 2nd Respondent therein, alone had contested the claim petition on various grounds.
On appreciation of the evidences, both oral and documentary and other related materials available on record, the Motor Accidents Claims Tribunal had proceeded to pass an award of Rs. 5,11,377/- directing the Respondents 1 and 2 to pay this amount to the Claimant at the rate of 7.5% per annum from the date of petition till the date of realization.
Challenging the quantum as well as the liability, the Appellant Insurance Company has approached this Court by way of this appeal.
Heard both sides.
The learned Counsel appearing for the Appellant Insurance Company has advanced his arguments on the following grounds:
(a). The place in which the occurrence said to have been taken place is a private place and as such when dismantling operation was going on, the first Respondent/claimant was not supposed to go to that place even as a spectator to watch the demolition operation and therefore, he had fully contributed his negligence to the occurrence. Hence, no negligence could be tagged with the driver of the bulldozer.
(b). When the demolition of Royal Hotel building was going on, the first Respondent/claimant was standing behind the said building and therefore, the driver of the bulldozer could not have visualized that somebody would be standing behind the wall and hence, it is a case of "volenti non fit injuria'' and keeping in view of this factum, the Tribunal ought to have dismissed the claim.
(c). The conclusion of the Tribunal that the claimant is entitled to get a sum of Rs. 1 lakh towards loss of earing power and another sum of Rs. 2 lakhs towards permanent disability, is not justifiable as it is contrary to the Full Bench judgment of this Court reported in Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and Others, .
In so far the first ground is concerned, it is pertinent to note here that the Appellant Insurance Company has miserably failed to take this plea of defence before the claims Tribunal. Even in the grounds of appeal also, the Appellant Insurance Company has never raised this plea.
The learned Counsel appearing for the first Respondent/claimant has contended that the contention of the Appellant as if the occurrence was taken place in a private place belonging to Royal Hotel has not been probablised and that contrary to it''s contention, the Appellant Insurance Company has stated in paragraph 5 of their counter that:
It is learned that the Petitioner was standing on the road near the place where the operation was going on for breaking a private building.
It is also stated that when the wall was fallen down, the first Respondent/Claimant got frightened and jumped away from that spot and as a result of which, he had fallen down and sustained injury on account of his own negligence.
Having been admitted by the Appellant Insurance Company that the claimant was standing on the road side, the theory of private place is not sustainable.
As contemplated u/s 2 of Sub-clause 34 of the Motor Vehicles Act, 1988 the term "public place" means a road, street, way or other place whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage.
As defined in P. Ramanatha Aiyer''s , the Law Lexicon (Reprint 2004) at page 151 6 , ''public place'' means where the public in general have an access and wherein they congregate; a place owned by public authorities and open to the people in general.
In Pandurang Chimaji Agale and another Vs. New India Life Insurance Co. Ltd. and others, at page 252, it is observed that:
The expression ''public place'' means accessible to members of public whether permissive limited restricted or regulated by oral or written permission and available for their use, enjoyment avocation or other purpose.
From the admission of the Appellant Insurance Company in paragraph 5 of their counter, it is thus clear that the first Respondent/Claimant was standing on the road side near the place where the dismantling operation was going on. Keeping in view of this fact, the contention which is made on behalf of the Appellant Insurance Company that the first Respondent/Claimant was standing in the private place, belonging to the Royal Hotel and watching the dismantling operation as a spectator is rejected.
On coming to the 2nd ground in respect of the "maxim volenti non fit injuria", the learned Counsel appearing for the Appellant Insurance Company has submitted that since the first Respondent/Claimant had invited the accident voluntarily by making his presence near the place where the demolition operation was going on, knowing fully well, about the consequences, he is not entitled to claim compensation as he himself had contributed his negligence for the occurrence.
In Ratanlal & Dhirajlal''s the Law of Torts , 24 th edition 2002 at page 92, the term ''volenti non fit injuria'' has been defined. It has been stated that:
Harm suffered voluntarily does not constitute a legal injury and is not actionable. This principle is embodied in the maxim volenti non fit injuria (where the sufferer is willing no injury is done). A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his free will. It is also stated that the one who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong.
On coming to the instant case on hand, the first Respondent/Claimant has qualified in B. Sc. (Computer Science) and he was also aged about 22 years at the time of occurrence. He is an ordinary man of prudence, he could differentiate between the act of right and wrong. He can also foresee the consequences of an act. In his claim petition, it is stated that on 02.07.1999 at about 11 a.m. after taking tea, he was watching the dismantling operation as a spectator at Royal Hotel. While so, a portion of debris of the wall had fallen on him and as a result of which, he had sustained severe injury over the limbs below his hip.
Obviously, the first Respondent/Claimant was not having any business. As submitted by the learned Counsel appearing for the Appellant Insurance Company, he was standing on the public place i.e. on the road and watching the demolition operation as a spectator.
On the other hand, the learned Counsel appearing for the first Respondent/Claimant has submitted that the driver of the bulldozer alone was responsible for the accident and that no negligence could be attached with the first Respondent/Claimant.
In support of his arguments, he has placed reliance upon the decision in National Insurance Company Limited Vs. Chitra and Others, . In this decision, after referring the Full Bench judgment in United India Insurance Co. Ltd., v. Parvathi Devi and others, reported in 1999 T.N.L.J.144, it was held that the public place includes where public have an access whether free or controlled in any manner. In the above cited case, the occurrence was taken place in a private quarry and not in a public place. Hence, the Appellant Insurance Company had contended that, it was not liable to pay the compensation. But a Division Bench of this Court has held that public place includes where public have an access whether free or controlled in any manner and hence, the Insurance Company was liable to pay compensation.
On coming to the instant case on hand, the facts and circumstances are completely different. It is pertinent to note here that the demolition operation was going on in a private place, the first Respondent/Claimant was standing on the road and watching the demolition operation as a spectator. While so, a small portion of the wall had fallen on the first Respondent/Claimant, which caused his permanent disablement.
Having taken into consideration of the voluntary act of the first Respondent/Claimant, there is reason to presume that he had contributed his own negligence considerably to the extent of 20% and 80% may be attached with the driver of the bulldozer. Keeping in view of this fact, the negligence to that extent may be apportioned, in the ratio specified above.
On coming to the quantum, the learned Counsel appearing for the Appellant Insurance Company has submitted that the Tribunal has committed serious error in awarding a sum of Rs. 1,70,000/- towards loss of earing power and Rs. 1,00,000/- towards permanent disability, which is contrary to the Full Bench judgment of this Court reported in 2006(4) CTC in the case of Cholan Roadways Corporation Ltd., rep. by its Managing Director, Kumbakonam-612 001 v. Ahmed Thambi and others.
On appreciation of the evidences available on record, the Tribunal had totally awarded a sum of Rs. 5,11,377/- with interest @ 7.5% p.a. from the date of petition till the date of realization in the following manner:
Since the deceased was aged about 21 years at the time of occurrence, the Tribunal has considered him as a non-earing person and hence, as per Second Schedule to Section 163-A of Motor Vehicles Act, Rs. 15,000/- was taken into account towards his annual income and 1/3rd deduction was given and after applying the multiplier of ''17'', the Tribunal has determined that the first Respondent/Claimant is entitled to get a sum of [Rs.10,000/- x 17] Rs. 1,70,000/- towards loss of income. Another sum of Rs. 25,000/- towards loss of matrimonial life. Rs. 1,00,000/- towards permanent disability. Rs. 25,000/- towards compensation for pain and suffering. Besides this, on the basis of Exs.B4 to 9, 25 and 26, the Tribunal had awarded a total sum of Rs. 1,91,377/- towards medical expenses. In total, the Tribunal had award a sum of Rs. 5,11,377/-.
In this case, the learned Counsel appearing for the Appellant Insurance Company has contended that at the first instance the Tribunal has awarded a sum of Rs. 1 lakhs towards permanent disability at 100% and subsequently, the tribunal had awarded Rs. 1,70,000/ towards the loss of earning capacity, which is contrary to the ratio laid down by the Full Bench judgment of this Court in Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and Others, .
With regard to the assessment of disability at 100%, it has not been disputed by the Appellant Insurance Company. Though the first Respondent/Claimant was watching the demolition operation as a spectator by standing on the road, the concerned authority or the driver of the bulldozer should have given warning to the public, not to stand near the wall, since the demolition operation was going on. But that was not done either by the driver of the bulldozer or by any other concerned person. When such being the case, the entire negligence could be attached with the driver of the bulldozer. It may be relevant to note here that the claims tribunal should not have awarded compensation on both heads viz., 1.loss of earning power and 2. permanent disability. Hence, the award in respect of permanent disability to the extent of Rs. 1,00,000/- is set aside.
Keeping in view of the above facts and circumstances of this case, the award of the Tribunal is reduced from Rs. 5,11,377/- to Rs. 4,11,377/-. Accordingly, this Appeal is allowed. No costs.