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State of Mysore and anr. Vs. Fatima Manvail Fernandis and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal Nos. 411 and 412 of 1972 with Cross Objections in M.F.A. No. 412 of 1972
Judge
Reported inAIR1979Kant138; 1979(1)KarLJ12
AppellantState of Mysore and anr.
RespondentFatima Manvail Fernandis and ors.
Excerpt:
.....normally, the driver could have taken care to see that a strong rope is used to tag the tar-mixing machine in the up gradient. the best evidence to prove such a contention would have been the agreement itself. in the circumstances, the tribunal was perfectly justified in rejecting such a contention raised by the respondents. thus, the compensation has to be awarded to rozin for loss of leg, for pain and suffering, for loss of amenities, for loss of earning capacity and for loss of prospects of marriage with a good boy. 10,000/- for pain and suffering and that should include not only for pain and suffering but also for loss of prospects of marriage with a good boy and rs. this compensation would also cover the compensation for loss of prospects of marriage with a good boy......evidence of the doctor-p.w. 8, makes the matter clear. such injured that were found on the legs of rozin and fatima could not have been caused if they had jumped into the gutter, but they could have been caused as a result of dashing of the machine against their legs. the evidence of these two witnesses is corroborated by the evidence of p.w. 6 subraya and p.w. 4 inus who came to the spot and rescued the girls. they have stated that they could see the accident sitting on the verandas of their houses. they are independent witness. nothing is elicited in their cross-examination to discredit their testimony. the tribunal had the opportunity of observing the demeanour of the witnesses. it is made clear in the judgment that their evidence appeared to be natural, probable and reliable. on.....
Judgment:

Sabhahit, J.

1. These two appeals arise out of a common judgment and awards passed by the Motor Accidents Claims Tribunal, Karwar, in Miscellaneous Application Nos. 13 of 1967 and 36 of 1970.

2. The two cases arise out of a common incident that occurred at about 5 P. M. On 25-1-1967 on Kumta-Sirsi road within the limits of Sirsi Municipality. A P.W. D. Truck was going the up gradient from Neelakani to Sirsi towing a tar mixing machine tagged to it with the help of a rope. Two girls Rozin (P.W. 1) and Fatima (P.W. 9) were returning from the school at that time. They were coming on their left side of the road. On seeing the truck they got up on the parapet wall of the drain. The truck passed by them. But, soon after, the tar mixing machine which was tagged to the truck with the help of the rope started sliding down as the rope snapped and it came and dashed against the girls. The right leg of P.W. 1 Rozin was crushed and the heels of both the legs of the other girl Fatima (P.W. 9) were also crushed. Subraya (P.W. 6) and Inus (P.W. 4) who saw the incident rushed to the spot and rescued the girls. Soon after, the parents of the girls took them to the K. M. C. Hospital. The girls were treated in the K. M. C. Hospital. But, since the right leg of Rozin was crushed, it was thought proper by the doctors to amputate her right leg below the knee-cap. In the case of Fatima skin grafting were done. Rozin was left without her right leg even though treatment was given and Fatima was rendered unable to walk as before on her heels. Thus, both the girls incurred permanent disability. Rozin was 6 years and Fatima was 7 years at t he time of the accident. On these allegations, the guardians of the two girls instituted two application viz., Misc. Application No. 13 of 1967 in the case of Rozin and Misc. Application No. 36 of 1970 in the case of Fatima, before the Claims Tribunal at Karwar, claiming compensation from respondents.

3. The respondents contested the claim stating that the incident was inevitable. Further they contended that there was delay in filing of the two applications and that the compensation claimed was excessive. During hearing, the claimants examined 9 witnesses. Rozin (P.W. 1), Fatima (P.W. 9) and Inus (P.W. 4) and Subraya (P.W. 6) are the eye-witnesses to the occurrence. John (P.W. 8) is the doctor who admitted these girls in the K. M. C. Hospital on 25-1-1967. He has spoken to the injuries found on the girls. As against that, the contesting respondents examined 2 witnesses. Ira (D.W. 1) is the Works Inspector of the P.W. D. Tedore (D.W. 2) is the cleaner in the truck. They are on the aspect that the truck was given on hire to a contractor by name Shetty. The learned Tribunal appreciating the evidence on record held that the two applications were in time; and that the accident was the result of rash and negligent driving of the truck in question, and in that view he awarded Rs. 28,000/- as compensation to Rozin and Rs. 20,000/- to Fatima, by his judgment and awards dated 6-12-1971. Aggrieved by the said judgment and awards, the respondents 1 and 2 have come up in appeal before this Court. The claimant in Misc. Application No. 13 of 1967 has also filed cross-objections against the judgment and awards passed by the learned Tribunal.

4. The learned Government Pleader appearing on behalf of the appellants did not seriously challenge the finding of the Tribunal that the applications were in time and in our opinion rightly so. Both the girls were minors at the time of the institution of the applications and they could be instituted at any time during their minority or with the statutory period after they attained majority. However, he contested the finding given by the Tribunal about the rashness and negligence by the driver in causing the accident and also the quantum of compensation awarded by the Tribunal. Further, he submitted that in any event, the Government was not liable to pay the compensation as the truck was given on hire at the time of the accident. The points therefore that arise for consideration in these appeals are:

(1) Whether the Tribunal was justified in holding that the accident was the result of rash and negligent driving of the truck?

(2) Whether the Tribunal was justified in holding the respondents liable for compensation and

(3) Whether the quantum of compensation awarded in two cases are just and proper?

5. P.W. 1 Rozin and P.W. 9 Fatima are the injured eye-witnesses, Rozin has deposed on the aspect of the rashness and negligence thus:

'On 25-1-1967 at about 5 p. M. After finishing the school, I was going home. At that time, a truck was coming from the front direction. A tar-mixing machine was ties to that truck with a rope. As we saw the truck coming I got up a katta near the gutter adjoining the road. That katta was on the side of Subraya's house. One Fatima who was with me also had come up the katta. That rope with which the tar mixing machine was tied to the truck was torn and the tar-mixing machine came and struck against my right leg. As a result of that tar-mixing machine dashing against my right leg, I fell down unconscious. That right leg of mine which was injured was amputated in the K. M. C. Hospital Hubli.'

In the cross-examination, nothing worth-while is elicited to disbelieve the witnesses. She has denied the suggestion that on seeing the tax-mixing machine coming down she jumped into the gutter and broke her leg.

6. Similar is the evidence of P.W. 9 Fatima. Except putting the same suggestion to her also, nothing worthwhile is elicited. The Tribunal rightly pointed out that the nature of the injuries that would have been caused to the two girls would have been entirely different if they had jumped into the gutter. The evidence of the doctor-P.W. 8, makes the matter clear. Such injured that were found on the legs of Rozin and Fatima could not have been caused if they had jumped into the gutter, but they could have been caused as a result of dashing of the machine against their legs. The evidence of these two witnesses is corroborated by the evidence of P.W. 6 Subraya and P.W. 4 Inus who came to the spot and rescued the girls. They have stated that they could see the accident sitting on the verandas of their houses. They are independent witness. Nothing is elicited in their cross-examination to discredit their testimony. The tribunal had the opportunity of observing the demeanour of the witnesses. It is made clear in the judgment that their evidence appeared to be natural, probable and reliable. On going through the evidence, we find no reason to differ with the Tribunal. We believe the evidence of these witnesses and hold that the accident was the result of the snapping of the rope tied to the tar-mixing machine.

7. If the tar-mixing machine suddenly slides back and hits the two girls, the doctrine of res ipsa loquitur is invoked. Normally, the driver could have taken care to see that a strong rope is used to tag the tar-mixing machine in the up gradient. The driver has not stepped into the box to explain how the snapping occurred. The burden was on him. Hence, it is obvious that actionable negligence on the part of the driver is amply established. There is no substance in the argument addressed to the contrary.

8. It was nextly contended that the Government was not liable to pay compensation because the truck and the machine were given on hire to a contractor by name Shetty. The Tribunal has rightly rejected this contention. On going through the statement of objections filed by the respondents, we find no whisper about it. The normal presumption is that the driver drives the truck for and on behalf of the owner. It is not in dispute that the truck belonged to the Public Works Department. Therefore, the normal presumption would be that the driver was driving the truck for and on behalf of the Public Works Department. If that be so, the respondents would be liable to pay the compensation. If the respondents intend to escape the liability, the burden of proving that the truck with the tar-mixing machine was given on rent to one Shetty is on them. The respondents have not adduced any evidence in this behalf apart from not taking up such a contention in the statement of objections. D.W. 1 is the Works Inspector. He has no doubt in a vague manner averred in the chief-examination that the truck with the tar-mixing machine was given on rent to one contractor Shetty. But, in the cross-examination he has given a go-by to it. This is what he has stated:

' I do not know the conditions of the contract given to R. N. Shetty, I do not know the date of that agreement. I have not seen the agreement. I have nothing to do with that agreement.'

The other witness, D.W. 2 is only a cleaner. His evidence makes it doubtful whether he was a cleaner of that truck at all. He has stated in the cross-examination thus:

'I have heard that the tar-mixer came back and hit against the legs of the two girls'.

Hence, the evidence of these two witnesses will not be of any avail to the respondents in proving that the truck and the machine were given on hire to one Shetty, a contractor and that he was in full control of the truck and the machine. The best evidence to prove such a contention would have been the agreement itself. No such agreement is forthcoming. In the circumstances, the Tribunal was perfectly justified in rejecting such a contention raised by the respondents.

9. Adverting to the quantum of compensation, the learned Government Pleader submitted that the compensations awarded in the two cases were excessive. We would presently take up for consideration the evidence of P.W. 1 Rozin. It is not in dispute that her right leg was amputated. She has spoken about it and P.W. 8 the doctor had corroborated her evidence. He has also issued a certificate Ex. P. 3 Rozin was in the K. M. C. Hospital for about two months. Thus, the compensation has to be awarded to Rozin for loss of leg, for pain and suffering, for loss of amenities, for loss of earning capacity and for loss of prospects of marriage with a good boy. The Tribunal has awarded Rupees 28,000/- to Rozin. Though it may be pointed that the approach of the Tribunal in fixing the compensation is not quite proper, it cannot be said that the amount awarded is unduly high Rs. 3,000/- awarded both for artificial limb and for medical expenses is quite reasonable. The Tribunal has awarded Rs. 10,000/- for pain and suffering and that should include not only for pain and suffering but also for loss of prospects of marriage with a good boy and Rs. 15,000/- awarded for loss of future earnings. This is also quite just and proper as the disability is to the extent of 40%. Thus, Rs. 28,000/- awarded as compensation cannot be considered as unduly high. It is just and proper and is comparable with the consensus of opinion expressed in different ruling cited in the judgment of the Tribunal.

10. Adverting now to the compensation awarded to the other girl Fatima at Rupees 20,000/- it cannot be said that the same is unduly high. The Tribunal has awarded Rupees 5,000/- for medical expenses and other incidental expenses as also for pain and suffering. She has to be taken to the Hospital several times for skin grafting. The girl is left with disability in walking. Both her heels were crushed. The Tribunal has observed in the deposition-sheet of P.W. 9 Fatima that she is not able to walk properly and she can walk slowly on her toes. She has to suffer this throughout her life. Rs. 15,000/- are awarded to her for loss of earning capacity. This compensation would also cover the compensation for loss of prospects of marriage with a good boy. Therefore, it cannot be said that the global damages for Rs. 20,000/- awarded to this girl is unconscionably high.

11. In the result, therefore, M. F. A. Nos. 411 and 412 of 1972 are liable to be dismissed and they are dismissed with costs. The cross-objections filed by Rozin in M. F. A. 412 of 1972 are also dismissed. Advocate's fee in the two cases are fixed at Rs. 100/- each.

12. Appeals dismissed.


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