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Hindustan Aeronautics Ltd. Vs. P. Venu Perumal and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 378 of 1969
Judge
Reported inAIR1972Kant255; AIR1972Mys255; (1972)1MysLJ384
ActsMotor Vehicles Act, 1939 - Sections 96, 110, 110A, 110A(3), 110B, 110C, 110D, 110E and 110F; Employees' State Insurance Act, 1948 - Sections 61
AppellantHindustan Aeronautics Ltd.
RespondentP. Venu Perumal and anr.
Appellant AdvocateR.V. Ravindra, Adv. for ;S.G. Sundara Swamy, Adv.
Respondent AdvocateR. Suryanarayanaswamy, Adv.
Excerpt:
.....before us that in a proceeding like the one before us in which compensation is claimed on the ground of negligence, the burden of establishing actionable negligence on the part of the driver who drove the bus is entirely upon the claimant is unexceptionable......by the claimant under items (c) and (e). we think that the learned counsel for the appellant is right in his contention that the tribunal ought not to have allowed compensation in excess of the claim made by the claimant. the learned counsel for respondent 1 though he did not dispute this position, his contention was that a sum of rs. 8,000/- which was awarded by the tribunal is not under items (c) and (e) but on the basis of assessment in a general way due to the injury sustained by the claimant. the hurdle in his way is that the tribunal has not stated so. on the other hand, a sum of rs. 8,000/- had been specifically awarded as general damages after rejecting the claim under items (a), (b) and (d). in these circumstances, the tribunal was not right in assessing the compensation in.....
Judgment:

Ahmed Ali Khan, J.

1. In an application filed by the petitioner who is respondent-1 in this appeal for compensation under Section 110-A of the Motor Vehicles Act (hereinafter referred to as the Act). the Tribunal awarded compensation of a sum of Rs. 8,700/-. The petitioner had claimed a sum of Rs. 35,240/-as compensation in the petition. Against the order of the Tribunal. Respondent 1, the General Manager, Hindustan Aeronautics Ltd., Bangalore has come in appeal before us.

2. It was alleged in the petition that on 15-12-1965 after the shift was over in H. A. L. he boarded the bus MYD 3378 belonging to H. A. L. at about 4-30 p. m. When the bus approached the military hospital at Damlur road, its right wheel went over the pit about 1.32 ft, in diameter which was on the right and suddenly took a turn right and dashed against a tree at a distance of 20 to 25 ft. which gave away and thereafter it dashed against another tree. The petitioner who was sitting near the windscreen on the seat by the side of the driver to his left side, as a result of the impact, sustained injuries which were of the nature of compound fracture. On the evidence adduced in the case, the Tribunal found that it is proved that the accident was due to rash and negligent driving. On the basis of its finding, the Tribunal awarded damages to the petitioner as mentioned above.

3. Mr. Ravindra, learned counsel for the appellant, advanced four contentions before us. His first contention was that the Tribunal was wrong in holding that sufficient cause has been shown for the delay in filing the claim petition for compensation. His grievance was that the Tribunal has wrongly placed reliance on the evidence of the petitioner P. W. 1 and P. W. 2 his brother who are interested witnesses. He submitted that it is in the evidence of the doctor P. W. 4 that the petitioner was alright when he was discharged viz., on 4-1-1966. He also contended in this contention that there Is no documentary evidence to show that the petitioner required rest after 15-2-1966. Even if Ex. P-2 to Ex. P-2K the certificates are taken into consideration, those documents go to show that the petitioner was not well from 5-1-1966 to 21-3-1966 and, even if this period is to be excluded, there would be a delay of 15 days in filing the petition which is a clear indication of the inaction on the part of the petitioner.

4. His second contention was that the claim petition filed by the petitioner under Section 110-A of the M. V. Act is barred by the provisions of Section 61 of the Employees' State Insurance Act. 1948 (which will hereinafter be referred to as the E. S. I. Act). Therefore, the claim petition is unmaintainable and, consequently, the Tribunal was wrong in awarding damages to the petitioner.

5. His third contention was that the Tribunal erred in applying the principle of Res Ipsa Loquitur to the facts of this case. He submitted that the Tribunal was therefore, not right in shifting the burden of proof on the respondent-appellant and it was the duty of the petitioner to prove that the vehicle was driven rashly and negligently. He also argued that it is not established by the evidence produced in the case that the bus was driven rashly or negligently, and therefore, the conclusion of the Tribunal on the evidence adduced in the case is erroneous.

6. His fourth and the last contention was that the Tribunal erred in awarding compensation of Rs. 8,700/-without any reasonable basis and in particular Rs. 800/- for loss of amenities, injuries and for pain and suffering under-gone by the petitioner, when the petitioner had not proved that he had lost any amenities viz., sustain permanent disability or that his earning capacity is affected adversely.

7. Now we will consider the contention that had been advanced seriatim.

8. In Section 110-A (3) of theM. V. Act a period of 60 days is provided for filing the petition. It reads:

'(3) No application for compensation under this section shall be entertained unless it is made within sixty days of the occurrence of the accident: Provided that the Claims Tribunal may entertain the application after the expiry of the said period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time'. It was argued before us that the Tribunal has come to an erroneous conclusion that the petitioner has succeeded in proving sufficient cause for the delay in filing the petition. The words 'sufficient cause' are used in Sub-section (3) of Section 110-A of the M. V. Act. To our mind, the words 'sufficient cause', in this context must be regarded merely as indicating that the court must be satisfied that the delay is an excusable delay. It is clear from the document marked Ex. R-2 that the petitioner was unable to attend to his duties and payment was made to him from 16-12-1965 to 25-7-1966. This document Was produced by R. W. 1 the Manager and it is proved by him. The claim petition was filed before the Tribunal on 14-4-1965. The above proved circumstance by itself is sufficient to hold though it is not considered by the Tribunal, that there was sufficient cause for the delay in filing the petition. Moreover, the Tribunal applied its mind to the question whether having regard to the circumstances under which the petition before it Was filed after the period of limitation and came to the conclusion that the petitioner should be granted extension of time. It cannot be said that the Tribunal has not used its discretion judicially or reasonably. Much stress was made during the course of argument on the fact that there was inaction on the part of the petitioner in filing the petition. The complete answer to that contention, is the document Ex. R-2. If that document is held to be proved, as we have held it to be. no inaction or negligence can be attributed to the petitioner in filing the petition before the Tribunal. Therefore, viewed in any manner, the question of inaction on the part of the petitioner does not arise in this case.

9. The second contention is to the effect that Section 61 of the E. S. I. Act, is a bar to a claim arising under Section 110-Aof the M. V. Act. It was argued by Mr. Ravindra, that the claim arising under the Motor Vehicles Act i.e., Section 110-A is a claim arising out of an enactment and therefore, it is hit by the provisions of Section 61 of the E. S. I. Act. Section 61 of the E. S. I. Act reads:

'Bar of Benefits under other enactments.-- When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.'

(Note: Underlining is ours.)

10. From the language of this section it is quite clear that when a person is entitled to any of the benefits which are provided by E. S. I. Act the same is barred by Section 61 which are admissible under the provisions of any other enactment. It was argued by the learned counsel for the appellant that the provisions of Sections 110 to 110-F of the M. V. Act are by themselves a self-contained and complete code and evidently, it being a piece of enactment the claim petition is barred by Section 61 of the E. S. I. Act. In this connection reliance was placed on : AIR1969Delhi183 ; Smt. Ishwar Devi Malik v. Union of India, wherein it was observed :

'The Fatal Accidents Act is a general law providing for compensation to the representatives of a deceased person or to his estate for the loss occasioned by his death as a result of an accident. On the other hand, the Motor Vehicles Act is a special law which, by Sections 110 to 110-F provides for adjudication upon claims for compensation in respect of accidents involving the death of or injury to, persons arising out of the use of motor vehicles.'

11. That was a case under Fatal Accidents Act. But dependence was particularly made on the observations made in that case at page 190 of the report which reads:

'In this prospective, the Legislature has deliberately enacted the Motor Vehicles Act. and provided by virtue of Sections 110 to 110-F of that Act, not merely a self-contained code for the adjudication of claims to compensation on behalf of the victims of a motor accident but also a complete machinery for the adjudication of such claims.' (Cited from the Madras decision AIR 1067 Mad 123, Mohd. Habbeebulla v. Seethamma).'

12. It is true that the Motor Vehicles Act is a special law. It is also true that it is an enactment. But the crucial point for determination is whether the provisions of Sections 110 to 110-F of the. Motor Vehicles Act are the provisions relating to procedural law or of substantivelaw. Reading the Sections 110 to 110-F of the M. V. Act, it is evident that thee provide for adjudication upon claims of compensation in respect of accidents involving the death or injury to persons arising out of the motor vehicles. Sec-Ion 110-A creates a right to make an application for compensation arising out of an accident. Section 96 creates a liability to pay such compensation on the part of the insurer. Section 110-F bars the jurisdiction of the Civil Courts to make adjudication which could be made by the Claims Tribunal for the area for which such Tribunal has been constituted. It is thus clear that a claim for compensation could be made only under the provisions of Chapter VIII of the Motor Vehicles Act by the Claims Tribunal, but the right to sue is quite different matter which originates from substantive law namely, the law of Torts. Evidently, the law of Torts is not an enactment. Consequently, the provisions of Section 61 of the E. S. I. Act cannot be attracted to such a case. Unless and until a claimant establishes an actionable negligence, he cannot succeed in his claim. All that the Motor Vehicles Act has provided is to enforce that right which accrues to the claimant on the basis of actionable negligence on the part of the respondent. It is thus clear that the liability of the owner of a vehicle for damage for the injury caused by the negligence of his driver arises not on the Motor Vehicles Act but under the common law. In a decision of this Court in Ariyamma v Narasimhiah, (1971) 2 Mys LJ 373 = (AIR 1972 Mys 73) it is observed :

'The effect of Sections 110-A to 110-F- of the Motor Vehicles Act is to provide a new forum and period of limitation, which are matters of procedure. but the substantive law as to what gives rise to liability for damages and who are liable for damages remains unaltered by those provisions of the Act.'

Therefore, on the above reasons, we do not find any substance in the second contention.

13. With regard to the third contention it was argued by the learned counsel for the appellant that the negligence on the part of the driver is not established by the evidence adduced in the case. Before adverting to the contention advanced, we must refer to the contention of the learned counsel for the appellant which was advanced by him at one stage of the argument. He submitted that in the application for claim under Section 110-A of the Motor Vehicles Act, applicant has not alleged negligence in it. He submitted that even after the amendment, the allegation made by the petitioner was that 'the accident occurred due to the rash and negligent act of the driver'. It contained no particulars or details of thesame. By his argument what we understand is that he asked this court that the applicant should be non-suited. But there is one difficulty in his way and that is, it is more than abundantly clear that every one who contested the claim had no doubt that the action was one founded on negligence. In the affidavit dated 2-3-1968 filed by the counsel for the applicant, it is stated that 'the accident was the result of rash and negligent driving of the driver'. Although the respondents did not file any additional written statement thereafter, they denied their liability to pay any compensation, Evidence was let in on behalf of the applicant and respondent-1 in that regard. In these circumstances, the contention advanced on behalf of the appellant cannot have any materiality in the case. The contention that the Tribunal was not right in applying the principles of res ipsa loquitur we think is not of much importance at this stage.

14. The question before this court for determination would be whether the negligence as alleged by the applicant is established by the evidence adduced in the case. In proof of the same, the applicant has examined himself as P. W. 1-The driver R. W. 3 was examined on behalf of respondent 1 in rebuttal. It was however argued on behalf of the appellant that P. W. 1 is the petitioner himself who is a solitary witness to prove the required negligence and he. being an interested witness, no reliance should be placed upon his evidence. But, this limitation does not apply to R. W. 3 who has also given evidence in this respect and he is the witness examined on behalf of the respondents. The learned counsel for the appellant conceded that the question of onus of proof at this stage of appeal is not of much importance. But he placed the proposition before us that in a proceeding like the one before us in which compensation is claimed on the ground of negligence, the burden of establishing actionable negligence on the part of the driver Who drove the bus is entirely upon the claimant is unexceptionable. It is for the claimant to prove such negligence and the question is whether it has been proved. Before we consider the evidence it must be mentioned here that it is a firmly established rule? that a person driving a motor vehicle must drive it with reasonable care. So what is to be established is that the driver R. W. 3 drove the bus without exercising that reasonable care that was expected of him. P. W. 1 the applicant has given evidence that his shift in H. A. L. was over at 4.30 p. m. Than he proceeds to state:

'I boarded a bus and the bus left with great speed nearly 60 miles perhour. The bus was bearing No. HAL 105 MYD 3378. When the bus came near military hospital, on Domlur Road them is a hump on the road and the driver used to slow down at that spot, but that day he did not. Then he took the turn towards the right and dashed against a tree, that tree gave way and he dashed against another tree. I was sitting near the wind screen on the seat by the side of the driver left side.'

15. The evidence of the driver R. W. 3 was that:

'Military hospital is about 3 miles from H. A. L. The road before the Military hospital gate is not level. It is a tar road. There is a pit there about one and half foot in diameter in front of the gate at a distance of 10 to 12 feet on the road. The right front wheel went over the pit. There was a jerk. The axle central bolt was cut. Steering turned towards right. It went out of control. It went and dashed against a tree at a distance of 20 or 25 feet away.'

In Ms cross-examination he has admitted that he was driving the bus on that route even prior to the accident. He stated that he was going to Austin town from H. A. L., and that he had seen the pit in front of the Military hospital even on earlier days. Further on in his cross-examination he has stated :

'The brakes were in condition. I applied the brakes. The bus did not stop even though I applied brakes. It dragged till it dashed the tree.'

16. The evidence establishes that while passing over the pit the bus was dragged to the right side of the road to a distance of about 20 to 25 feet from the direction in which the driver was proceeding and dashed against a tree which gave way and then it dashed against another tree. We think, there is considerable force in the argument advanced on behalf of Respondent 1 that this circumstance is not only indicative of the fact that the speed was excessive but is also a prima facie evidence of negligence. In the circumstances proved, in this case, it is not difficult to think that it was extremely unreasonable on the part of the driver to drive the bus in that way. That there was a pit in the road he fully knew. It is in the evidence of P. W. 1 that before approaching the pit the driver used to slow down the speed of the bus. This is what he has stated in his deposition:

'When the bus came near Military hospital on Domlur road there is a hump on the road and the driver used to slow down at that spot, but that day he did not.'

17. There is nothing in the evidence of R. W. 3 to show that he i. e.,the driver R. W. 3 had slowed down thespeed or attempted to do so when thebus approached the Pit on that day,R. W. 5 did not explain why and forwhat reason he did not slow down thespeed. As mentioned earlier, nowhere inhis evidence he has stated that he hadslowed down the speed when the busapproached the pit. What he stated byway of explanation was that the axlecentral bolt was cut. the vehicle wentout of control and the steering turnedtowards the right and the bus draggedto the right side. The suggestions put tothe S. I. of Police, who has been examined as P. W. 3 in the case that the busswerved to the right because the driverwanted to avoid collision with anotherbus is destructive of the theory of thebreakage of the bolt put up indifferenceas deposed to by R. W. 3. AlthoughP. W. 1 did not state the exact speed atwhich the bus was driven at the timeof the accident, the effect of his evidence is that it was being driven atspeed. The fact that it dragged to adistance of 20 to 25 feet and dashedagainst a tree shows that it was beingdriven at excessive speed. R. W. 3 thedriver does not say that the bus wasbeing driven at slow speed. It is alsoseen from his evidence that he did notslow down the speed of the bus when itapproached the pit which shows that hemust have driven the bus at that time,at a speed which was excessive. Whatwe have discussed so far is sufficientto establish such negligence as theclaimant had to prove, In this view of thematter, we do not find ourselves justifiedin interfering with the conclusion arrived at by the Tribunal to the effect thatthe bus was being driven rashly andnegligently.

18. The fourth and the last contention relates to the quantum of dama-ges. At the very outset it must be mentioned here that interference by an appellate court in assessment of damages or compensation would be justified only when the amount has been reached by an application of some wrong principle of law or the amount is unreasonably low or high. The criticism levelled against the assessment of compensation made by the Tribunal were twofold: (1) that the assessment of compensation payable made by the Tribunal is in excess of the total amount of Items (c) and (e) which the claimant had claimed and (2) the Tribunal did not take comparable cases in assessing the compensation to be awarded to the claimant. The grievance of the learned counsel for the appellant was that the cases which were taken into consideration by the Tribunal while assessing the compensation cannot be said to be comparable cases.

19. By way of general damages the claimant had claimed:

(a) Probable loss offuture pay computed forone year ... Rs. 2,000/-

(b) For further medicaltreatment ... Rs. 1,OOO/-

(c) Mental shock, painand suffering Rs. 3,000/-

(d) Loss of earningcapacity computed atRs. 100/- per mensem fortwenty years Rs. 24.000/-

(e) Loss of expectationof life, enjoyment of lifedue to disability ... Rs. 3,000/-

The Tribunal rejected the claim of Items (a), (b) and (d) and allowed the amounts claimed as compensation under the remaining items viz., (c) and (e). It is thus seen that the total amount of- those items comes up to Rs. 6,000/-. But the Tribunal awarded a sum of Rs. 8,000/- as general damages which is admittedly in excess of the amount claimed by the claimant under Items (c) and (e). We think that the learned counsel for the appellant is right in his contention that the Tribunal ought not to have allowed compensation In excess of the claim made by the claimant. The learned counsel for Respondent 1 though he did not dispute this position, his contention was that a sum of Rs. 8,000/- which was awarded by the Tribunal is not under Items (c) and (e) but on the basis of assessment in a general way due to the injury sustained by the claimant. The hurdle in his way is that the Tribunal has not stated so. On the other hand, a sum of Rs. 8,000/- had been specifically awarded as general damages after rejecting the claim under Items (a), (b) and (d). In these circumstances, the Tribunal was not right in assessing the compensation in excess of which the claimant had actually claimed i. e., under Items (c) and (e). The other contention is that the cases upon which the Tribunal relied while assessing the amount of compensation are really not comparable cases. It was argued that the assessment made in those cases was of permanent disability, while in the instant case it is in evidence of the Doctor P. W. 5 that the claimant (Patient) was all right when he was discharged i. e., on 4-1-1966. We think that the contention is not devoid of force. The Doctor P. W. 5 has also stated that:

'The patient with treatment can be completely cured and restored to his original condition; it would require about three and a half months in the ordinary course.'

20. It is thus abundantly clear that the injury that was sustained by the claimant was not of permanent disability. We therefore, think that thereis considerable force in the argument advanced on behalf of the appellant that the Tribunal was not right in assessing the compensation on the basis of the three cases which it referred to in its order, in the first case viz.. Leeladhar Chaturbhuj v. Harilal, AIR 1937 Bom 155 a boy of 13 years knocked down by a motor car had sustained fracture in the leg as a result of which he had to limp during the rest of his life. In the second case, viz., B. B. Rajinder Kaur, 1966 Ace CJ 207 (Punj). Rajinder Kaur was a girl of 7 years who had suffered serious injuries in her right leg and she had developed permanent limp due to injuries sustained by her. In the third case, viz., Kotah Transport Service. , the left leg of the injured person had to be amputated. Thus, all the three cases cannot be said to be comparable cases with the instant case. Thus it has to be concluded that the assessment of compensation made by the Tribunal was neither on the right principle nor it could be construed to be reason-able. Having come to this conclusion, the Question for consideration is how much compensation or damages should be computed in this case. The injury sustained by the claimant is not of permanent nature. According to the medical evidence, he was quite all right when he was discharged. It is not disputed before us that he has joined his duty and in fact obtained his increment. Taking all these circumstances into consideration and also the fact that the claimant himself had claimed compensation under Items (e) and (c) amount to Rs. 6,000/- we think it would be reasonable and proper that the compensation of Rs. 5,000/- should be awarded to the claimant under general damages. He will, however be entitled to a sum of Rs. 700/- in addition, under special damage as awarded by the Tribunal.

21. As per the modification, this appeal is dismissed. Taking into consideration all the circumstances of the case, we make no order as to costs of this appeal.

At the stage of the learned counsel for respondent 1 submitted that according to the direction of this court the claimant has drawn the amount deposited in the Tribunal by furnishing security and the security so furnished should be cancelled. If the claimant had furnished any security as submitted by his counsel, he may make necessary representation before the Tribunal.


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