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Andhra Pradesh State Road Transport Corporation Vs. Dodda Somayajulu Sitaramamurthy - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 687 of 1981
Judge
Reported inAIR1982AP436
ActsMotor Vehicle Act, 1939 - Sections 110-B and 110-D; Workmen's Compensation act, 1923 - Sections 2 and 4; Andhra Pradesh Motor Vehicle Rules, 1964 - Rule 533
AppellantAndhra Pradesh State Road Transport Corporation
RespondentDodda Somayajulu Sitaramamurthy
Appellant AdvocateC. Ananda Rao, Adv.
Respondent AdvocateB. Siva Reddy, Adv.
Excerpt:
.....if he is to succeed in his defence, must be overcome by contrary-evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part. rules, 1964 clearly provided for award of special damages and general damages. it includes compensation for pain and suffering and the like and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power. the appellate court will only interfere if it could be said in respect of the amount awarded 'good gracious me, as high as that' or 'good gracious me as low as that for these injuries',vide: with his rich experience in government services for over 35 years, he had every scope for further employment even after retirement, but..........excessive since the claimant could not establish real loss of earning power due to the loss of the hand.i negligence - onus of proof:8. this is a case of motor accident on a highway. it is common ground and it is spoken to both by the claimant as p. w. 1 and the driver as r. w. 1 that lorries were parked on either side of the road near the check-post of the nagarjunasagar dam, when the bus reached there at about 1 a. m. on 8-5-1979. very little space was left for the bus to pass through. when the bus was passing through, the bus hit the hook of the lorry. no doubt it is the case of the driver as r. w. 1 that the cabin door of the lorry which was kept open hit the window glass of the bus. in any case, the driver must have noticed what was the obstruction in front of him or to the side of.....
Judgment:

Chennakesay Reddy, J.

1. This appeal by the Andhra Pradesh State Road Corporation arises out of an application filed by the respondent under section 110-A of the M. V. Act before the Motor Accident Claims Tribunalcum-District Judge, Guntur, claiming a compensation of Rs. 50,000/- against the appellant referred to as the corporation herein after.

2. The relevant facts giving rise to the claim petition are these: on the night of 7th May, 1979 D. S. Sitarama Murthy, an Assistant Engineer, I & P., Nagarjunasagar Canals, was travelling by the bus A.P.Z. 9740 belonging to the Corporation from Chilakulripet to Hydrabad. Sitarama Murthy was seated in the rest seat of the bus to its extreme right. The bus reached Nagarjunasagar dam by about 1 A. M. on 8-5-1979. At the check-post lorries were parked on either side of the road. the driver of the bus above the vehicle in a rash and negligent manner in between the two rows of stationed lorries. As a result, the rear part of the lorry hit the glass panes of the window frame at which Sitaramamurty was seated. Because of the force with which the impact took place, the sliding glass of the window frame fell on his right hand where he had keep his hand to balance himself and severed the right hand. Only a stump of 8' was left. The victim was admitted into the Government Kamala Nehru hospital of the Nagarjunasagar dam. As the Doctors there felt that the hand of the victim had to be amputated, he was rushed to Hyderabad and was admitted in the Osmania General hospital. As a bone was protruding, the right hand was amplitude. Sitarama Murty, According to him, spent a sum of Rs. 3,500/- towards his medical expenses and on his personal attendants. It appears he had to spend another sum of Rs. 10,000/- for an electronic hand. He then filed the claim petition under Sec. 110-A of the M. V. Act claiming a total compensation for the permanent loss of his right hand and deprivation of future employment.

3. The claim was resisted by the corporation contending inter alia that the accident was not due to the rash and negligent driving of the bus by the driver, that the vehicle was being driven in a careful and proper manner and in any case the compensation claimed was excessive.

4. The claims Tribunals framed the following issues for enquiry on the pleadings of the parties:

1. Whether the accident was due to the rash and negligent driving of the driver of the respondent?

2. To what damages if any petitioner is entitled?

5. The Tribunal, on an effective evaluation of the entire evidence adduced in the case found that the accident was due to the rash and negligent driving of the bus by the driver R. W. -1. On issue No. 2 the Tribunal held that the injured claimant was entitled to a sum of Rs. 33,600/- for permanent disability incurred as a result of the amputation of his right hand and a sum of Rupees 3,000/- towards the medical expenses and the expenses on his personal attendants. In all a sum of Rs. 36,600/- was granted as compensation. The sum of Rs. 10,000/- claimed towards having an electronic hand was disallowed on the ground that there was no concrete evidence let in, in that regard. In granting the sum of Rs. 33,600/- for loss of the hand, the Tribunal relied on the provisions of the Workmen's Compensation Act.

6. The Corporation has now preferred this appeal while the claimant has preferred cross-objection claming the balance of Rs. 13,400/- disallowed by the Tribunal.

7. The first and foremost submission of the appellant's learned counsel is that the negligence on the part of the driver of the bus at the time of the accident has not been established. Secondly it is pleaded that the assessment of damages on the basis of the provisions of the Workmen's Compensation Act was wholly improper and that the compensation awarded was excessive since the claimant could not establish real loss of earning power due to the loss of the hand.

I Negligence - onus of proof:

8. This is a case of motor accident on a highway. It is common ground and it is spoken to both by the claimant as P. W. 1 and the driver as R. W. 1 that lorries were parked on either side of the road near the check-post of the Nagarjunasagar dam, when the bus reached there at about 1 A. M. on 8-5-1979. Very little space was left for the bus to pass through. When the bus was passing through, the bus hit the hook of the lorry. No doubt it is the case of the driver as R. W. 1 that the cabin door of the lorry which was kept open hit the window glass of the bus. In any case, the driver must have noticed what was the obstruction in front of him or to the side of the vehicle for safe driving. The claimant who was seated on the right side of the rear row had kept his hand on the right window. This he did according to him in order to balance himself in the seat. When the clash between the vehicles took place, due to the jerk in the impact the sliding glass of the window suddenly fell on the right hand of the claimant with great force and practically severed the hand. There is no dispute and indisputably the hand was completely cut. This circumstance according to the claimant established that the impact between the two vehicles was so forcible which could not be the case when the bus to pass through two rows of lorries stationed on either side?

9. It is the normal rule that mere happening of a motor accident is no evidence of negligence on the part of the driver. The person claiming compensation for personal injury of loss suffered due to the injury but there is an exception to the normal rule. This exception is in respect of accidents, extracting the Doctrine of res ipsa loquitur. In these cases, the mere proof of accident raises the presumption of negligence unless rebutted by the wrong-doer. The Supreme Court in Pushpabai Purshottam Udeshi v. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd., : [1977]3SCR372 , held at p. 1735);

'Normally it is for the plaintiff to prove negligence but as in some case 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 principles of resipsa loquitur.'

10. To establish negligence, the claimant must prove that the driver did not stick to the standard of care in driving, expected of a reasonable person. A reasonable men who drives a motor car on a highway should have the skill of a competent drive and possess complete knowledge of highway code. In evaluating the evident, the courts should consider the cause of the accident not either as a scientist or metaphysician but as the 'man in the street', The question to be asked is, 'What does a layman think to be the cause of the accident? In other words, a broad view and not a microscopic analysis of the cause is the imperative in accident claims.

11. Charlesworth on Negligence, Sixth Edition observes at page 516 about reasonable care of a driver of a motor vehicle driving on a highway:

'.....the duty of a person who drives or rides a vehicle on the highway is to use reasonable care to avoid causing damage to persons, vehicles or property of any kind on or adjoining the highway. Reasonable care in this connection means the care which an ordinarily skilful driver or rider would have exercised under all the circumstances and connotes an 'avoidance of excessive speed, keeping a good look-out , observing traffic rules and signals and so on' and must include keeping reasonable control over his passengers.'

12. In Radley v. London Passenger Transport Board, (1942) 1 All ER 433, Humphreys, J., held:

'It was the duty of the driver of the omnibus to keep a look-out for obstructions, whether on or above the level of the road, and, in the absence of evidence to the contrary, it was to be assumed that he had failed to perform that duty.'

13. In that case, the accident occurred at mid-day. While the bus was proceeding along the country road, the upper part of the bus brushed against the branches of a tree overhanging the road, and some of the windows were broken. A splinter of glass penetrated the infant plaintiff's eye and necessitated its removal. The learned judge held that the driver was guilty of negligence and awarded damages to the plaintiff.

Interference of Negligence:

14. Negligence could be inferred by the applicability of doctrine of res ipsa loquitur. If the accident by its very nature more consistent with its being caused by negligence of the driver, than by the other causes, then the mere fact of the accident is prima facie evidence of such negligence. In such a case it is on the driver of the vehicle to explain as to how the accident occurred without negligence on his part. The driver has to show any specific cause not connoting negligence on his part or that he used all reasonable care expected of him. In this case that bus was passing thorough two rows of lorries stationed on either side. The driver of the bus belonging to the Corporation in passing through the two rows of stationed vehicles struck the lorry which resulted in the accident and loss of the right hand of the claimant. The burden is on the driver to show that he had taken Vide Randall v. Tarrant, (1955) 1 All ER 600.

15. The learned counsel for the appellant - Corporation contends that the injury to the claimant was obviously caused due to his own carelessness in stretching the hand out of the bus when the bus was being driven between the two rows of lorries parted on either of the side and that the maxim res ipsa loquitur is not attracted to the facts of this case. The driver as R. W. 1 admitted that he did not see as to how the accident took place. Therefore, there is no acceptable evidence to establish that the claimant stretched his hands outside the bus and that there was negligence on the part of the claimant. It was not doubt suggested to P. W. 1. the claimant that while door of the proceeding slowly, the cabin door of the lorry was opened without noticing the bus and his hand was severed when the cabin door of the lorry forcibly hit the hand of the claimant. The suggestion was denied. Moreover, the driver as R. W. 1 stated that he did not see the claimant holding his hand outside the bus. In any case, even if the cabin door of the lorry was kept open it would be the duty of the driver of the bus as a reasonable person to notice what obstruction is there in front or to the side of the vehicle for safe driving. The lorry was stationary and the collision was between the moving bus and a stationary vehicle. In such circumstances the onus is on the driver of the moving vehicle to show that he had taken all reasonable care. The driver, as R. W. 1. has failed to discharge the said onus.

16. The following passage is from Halsbury's Laws of England, 2nd Edition, Col. 23 at page 671:

'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 immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary-evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.'

17. The Supreme Court in Municipal Corporation of Delhi v. Subhagwanti, : [1966]3SCR649 . dealing with the onus of proof in a motor accident, observed (at p. 1752):

'It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstance surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening in such as does not occur in the ordinary course of things without negligence on the defendant's part.'

Keeping the hand on the window frame whether amounts to negligent way of sitting:

18. It was quite likely that the claimant was putting his right elbow on the window frame while sitting in the bus. In our opinion, it does not amount to negligent way of sitting. It is not uncommon that passengers who travel by buses rest their elbow on the window frame of the bus. There is no prohibition against, it. Even according to the driver, R. W. 1, he was informed by a co-passenger that the claimant kept his hand outside the bus and that there was a board published in the bus that no passenger should keep any of his limbs of body outside the vehicle. But there is no definite evidence in this case that the claimant had kept his hand outside the vehicle.

19. The Delhi High Court in Delhi Transport Undertaking v. Smt. Krishna Wanti, : AIR1973Delhi196 , held (at p. 197):

'It is the duty of the driver of the public buses to take all steps, which a person of ordinary prudence would take to ensure the safety of the passengers. The driver of the bus in question cannot be said to be unaware of the fact that the passengers were in the habit of putting their hands outside the bus. He could thus foresee that while overtaking a moving cart if he would not leave sufficient space between the cart and the bus, there was a likelihood of the passengers' arms being injured. The respondent had put her elbow on the window while sitting in the bus. This cannot be said to be a negligent way of sitting. On the other hand it may be called a slightly more comfortable way of sitting.'

20. In that case the driver of the bus while trying to overtake a cart loaded with long logs of wood swerved the bus so suddenly at a high speed that one of the logs of wood hit the arm of the respondent, who was sitting next to the window on the left side of the bus and injured her. She suffered a compound fracture of her left arm bones in addition to other bruises all over. In an application filed by her for compensation, it was pleaded that the claimant was negligent in putting her elbow outside the window of the bus resulting in the fracture of her hand. Repelling the said contention, damages were awarded to the claimant.

II. Assessment of damages- Workmen's Compensation Act - Applicability:

21. The learned counsel for the appellant pleads that the Courts below was in error in awarding compensation on the basis of Schedule IV of Section 4 of the Workmen's compensation Act. In support of his submission, he relied on a decision of the Gujarat High Court in Bharat Premjibhai, 1979 ACJ 264:

: AIR1978Guj196 . In that case, the injured was a boy of 15 years. He suffered an injury on the foot. it was stated by the Doctor to be of a permanent disability. In awarding the compensation, the Claims Tribunal was guided by Schedule IV of the Workmen's Compensation Act. The High Court observed at page 273 (of ACI) : (at p. 205 AIR Guj);

'The Tribunal, in our opinion, misdirected itself in being guided by the table under the workmen's Compensation Act, 1923 in assessing damages for the prospective kiss if earning. As pointed out in Ranjitsingh Gopalasingh v. Meenaxiben, (1972) 13 Guj LR 662 the workmen's compensation tables which are often referred to for judging the actual extent of the loss may not be strictly relevant. In personal injury cases instituted under the M. V. Act, 1939 the Tribunal has to assess damages in the of the evidence and guided by its own expertise and experience and awarded in similar cases but uninhibited by any statutory formula'.

22. It is true that in this case the Tribunal adopted the statutory formula under the Workmen's Compensation Act as the sole guide for the assessment of damages. The claimant in this case is an Assistant Engineer drawing a salary of Rs. 1,350/- p.m. He is not a 'workman' as defined under section 2(n) of the Workmen's compensation Act, 1923. Before the Tribunal the learned counsel for the claimant contended that the claimant would be entitled to a minimum compensation of at least Rupees 40,000/- as he suffered permanent disability in the loss of his right hand. he appears to have placed reliance on Schedule IV of the Workmen's Compensation Act which prescribes compensation of Rs. 42,000/- when the monthly wages of the workman are more that Rs. 900/- for any permanent disablement suffered. The Tribunal below found on the basis of part 2 of schedule IV that the disablement was only 80% and granted a compensation of 80% of Rs. 42,000/- i.e., Rs. 33,600/- for the loss of the hand. In our opinion, the Tribunal was in error in taking the statutory figure fixed in the Workmen's Compensation Act as the sole guide for fixing the compensation under the M. V. Act.

23. The Andhra Pradesh M . V. Rules, 1964 clearly provided for award of Special Damages and General Damages. The Explanation to Rule 533 defines special damages and general damages:

'533. xx xx

Explanation :- For the purposes of above sub-rule,- (I) 'Special damages: is one which has to be specially pleaded and proved. It consists of out of pocked expenses and loss of earnings incurred down to the date of trial, and is generally capable of exact substantial calculation; and (ii) 'general damages' is one which the law implied which is not specially pleaded. It includes compensation for pain and suffering and the like and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power.'

24. The general damages include compensation for pain and suffering, for permanent disability and for loss of earning power. In assessing loss of earning power, the life expectancy is a factor to be considered. Now the average life expectancy has gone up high in this country. Indians are fairly long lived. 70 to 75 years may be considered as a reasonable span of Indians life. The compensation awarded under the workmen's Compensation Act purely on the basis of permanent disability without taking any of the aforesaid factors into consideration is, our opinion, contrary to the principles laid down for the award of compensation under the M . V. Act.

25. Normally, this court, as an appellate court will be slow to interfere with the findings of the Tribunal in the assessment of the amount of compensation, unless the figure is arrived at by the Tribunal by the application of a wrong principle or that amount awarded is shockingly low or high. The appellate Court will only interfere if it could be said in respect of the amount awarded 'Good Gracious me, as high as that' or 'Good Gracious me as low as that for these injuries', Vide: Flint v. Lovell, (1935) 1 KB 354 and Shekhpura Transport Co. Ltd. v. Northern India Transporters' Insurance Co. Ltd. : AIR1971SC1624 .

26. In this case, the claimant undoubtedly suffered permanent loss of earning capacity because of loss of the right hand. he is an Engineer drawing a salary of Rs. 1,350/- per month. No doubt he is now 56 and due to retire in another 2 years. With his rich experience in Government Services for over 35 years, he had every scope for further employment even after retirement, but for the loss of his right hand. Now with the loss of his right hand, he lost that scope further employment. He is otherwise said to be in sound health. He can be safely expected to live at least up to 70 years. He claimed only a sum of Rs. 50,000/- both under special damages and general damages. The Tribunal awarded a sum of Rs. 36,600/- comprising of Rs. 33,600/- towards permanent loss of earning capacity and a sum of Rs. 3,000/- towards medical expenses and expenses on his personal attendant. No compensation amount was however awarded for pain and suffering. In a case for compensation for personal injury the question is whether the amount awarded is a fair compensation. The Act and the Rules provided for determination of fair compensation. The factors to be considered for such determination as mentioned above are : It is always not necessary to consider each item individually. As observed by Lord Denning, M. R. in Fletcher v. Autocar and Transporters Ltd., (1968-1 All ER 726):

'I think that the judge was wrong to take each of the item separately and then just add them up at the end. The items are not separate heads of compensation. that was made clear by the decision of this Court I Watson v. Powles, (1967-3 All ER 721), given after the Judge had given his judgment.

'there is only one cause of action for personal injuries, not several causes of action for the several items. The award of damages is, therefore, an award of one figure only, a composite figure, made up of several parts ......... At the end all the parts brought together to give fair compensation for the injuries....'

27. The Karnataka High Court in Karnataka State Road Transport Corporation v. A. R. Satischandra, 1981 ACJ 138 awarded a compensation of Rs. 10,000/- for pain and suffering to the boy, for the loss of his left hand. It was observed that the boy Satischandra, suffered agony for the loss of his left hand and has to suffer loss of amenities as he cannot do anything with his left hand. In this case, the claimant who is an Assistant Engineer has lost his right hand which is a great necessity in his day to day life and work.

28. The Tribunal apparently did not take into consideration either the life expectancy or loss of future happiness and in awarding compensation was purely guided by the statutory figure prescribed under the workmen' s compensation Act. We think a total sum of Rs. 45,000/- would be reasonable and just compensation.

29. It was lastly urged though feebly that the claimant alleged a particular type of negligence in his application and sought relief on another kind of negligence. For the said proposition, great support is sought to be gathered from the decision of the Punjab and Haryana High Court in Prem Lata v. State of Punjab, 1968 ACJ 398. We do not think the decision is applicable to the facts in this case. The case of the claimant throughout has been that the moving bus had collided with the rear portion of the stationary lorry. In his evidence he has amplified his statement by stating that the hook of the lorry hit against the right side of the glass shutter.

30. We accordingly dismiss the Appeal C. M. A. No. 687 of 1981 and partly allow the cross- Objections in enhancing the compensation to Rs. 454,000/- from Rs. 36,6000/-. There shall be no order as to costs.

31. Appeal dismissed.


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