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A.P. Dorairaj Vs. the State of Madras - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. Nos. 332 and 456 of 1971
Judge
Reported inAIR1974Mad252
ActsMotor Vehicles Act - Sections 110-A
AppellantA.P. Dorairaj
RespondentThe State of Madras
Cases ReferredLtd. v. Dinkar Joshi
Excerpt:
.....the claimant is under a moral obligation to refund the amounts to his employee on his getting damages from the wrong doer to recompense him towards loss of wages. even if there had been no expectation of repayment on the part of the benefactors, principle demands that there should still be no reduction in the damages, as recompense to employers should depend only on the conscience of the plaintiff. therefore, even if there was no moral obligation on the part of the injured to refund the amounts to the persons who had paid him and even if there was no chance of the injured so repaying, the wrong d(sic) cannot be heard to say that there was no loss wages and that, therefore, he would not recompen(sic) the injured. in cases where the injured receive payment or other benefits..........period. we are also of the view that the claimant should be awarded a sum of rs. 7,000 towards loss of salary during the period when he was not able to attend his office (which is really special damages), and another sum of rs. 10,000 should be awarded for loss of future promotional prospects,8. it is not seriously contended before us that certain sum should be awarded as compensation for pain and suffering undergone by the claimant and surely a sum of rs. 3,000 cannot be said to be excessive under this head considering the nature of the injuries and suffering which the claimant should have undergone as a result of the injuries.9. but the question whether the claimant is entitled to any amount towards loss of salary is disputed. the contention on behalf of the respondent is that.....
Judgment:
1. These two civil miscellaneous appeals are out of O. P. No. 153 of 1967 on the file of the Motor Accidents Claims Tribunal, Madras. The appellant in C. M. A. 332 of 1971 by name Dorairaj filed the claim petition under Section 110-A of the Motor Vehicles Act, for compensation in respect of injuries sustained by him in a motor accident which occurred on the Mount Road on 19-11-1966 at about 8-50 a.m. Originally he claimed a total sum of Rs. 48,000 towards compensation but later he was allowed to amend the petition making a claim of total compensation of Rs. 1,30,000. The respondent to the petition is the State of Madras by Commissioner of Police, Madras, the Motor Vehicle involved in the accident being a Police van. The Tribunal below awarded a total sum of Rs. 10,000 in favour of the claimant, Rs. 4,000 towards moneys spent by the claimant for treatment etc., Rs. 1,000 towards moneys spent by him in respect of his betrothel ceremony which took place sometime prior to the accident and a sum of Rs. 5,000 towards permanent disability, physical and mental pain and for loss of promotion. C. M. A. 332 of 1971 is filed by the claimant praying for enhancement of the compensation. The other C. M. A. is filed by the respondent to the petition contending that the claimant was not entitled to any compensation on the ground that the accident was not as a result of rash and negligent driving of the police van.

2. The first question that arises in these two civil miscellaneous appeals is whether the accident was as a result of rash or negligent driving of the police van bearing registration No. MSR 1953. The accident occurred near Saidapet Police Station where the road runs north to south. The police van in question was originally parked in front of the police station which is west of the road, facing east. The road at the place in question is 48 ft. 6 inches wide. The police van was parked on the western extremity of the road just in front of the police station which is west of the road, facing east. The road at the place in question is 48 ft. 6 inches wide. The police van was parked on the western extremity of the road just in front of the police station. Dorairaj, the claimant, was going on his scooter from south of north. When he was approaching the place where the lorry had been parked, the driver of the van started it and took a 'U' turn in order to go southwards (originally the van was facing north). According to the claimant, the driver of the van did not give any indication whatsoever that he was taking a turn and that the van was so turned all of a sudden, there was an impact of the two vehicles in which the claimant's left leg was severely injured. The case of the State of Madras (who would hereinafter be referred to as the respondent) has been that the driver of the police van took the 'U' turn only after giving all necessary signals and taking the precaution that there was no traffic coming from South and approaching the van and that the impact between two vehicles happened only because of the rash and negligent driving of the scooter of the claimant. The material evidence regarding the accident is that of the claimant as P.W. 1, that of Ramanujam. the driver of the van, as R. W. 1 and that of Arumugham, a police constable who was in the police van, as R. W. 2. Seethapathi, P.W. 4, a Head Constable of police, investigated the accident, drew the rough plan Ex. P-34 and ultimately charge-sheeted R. W. 1, the driver of the van, for causing hurt by rash and negligent driving. However R. W. 1 had been acquitted by the criminal court.

3. From the evidence on record is quite clear that the accident was brought about only by the rash and negligent driving of the police van..........(Evidence omitted)...........

We are satisfied that the impact between the two vehicles had occurred only because the police van had been turned all of a sudden after the scooter had come very close to it and the evidence of P.W. 1 that the police van driver did not even show any sign before turning, is also acceptable.

4. The other question is about the quantum of compensation. After the amendment of the petition, the claim consisted of Rs. 15,000 for hospital and other charges, Rs. one lakh for loss of employment, permanent disability to drive a scooter, physical and mental discomfort and torture and Rs. 15,000 towards the cancellation of the claimant's marriage as a result of the accident, making up in all a sum of Rs. 1,30,000. This claim is undoubtedly very much exaggerated. But at the same time, from the evidence on record, we are satisfied that the sum of Rs. 10,000 fixed by the Tribunal below as the total compensation payable to the claimant is too low and it calls for enhancement.

5. The claimant was aged about 28 years on the date of accident. He is an employee in the company Heatley and Gresham Ltd., as a Junior Engineer in charge of sales. He is not an Engineering Graduate but a diploma-holder. His basic pay on the date of accident was Rs. 188 per month and he was drawing a total sum of Rs. 490 per month which included Rs. 302 towards dearness allowance. Admittedly he had received severe injuries on his left leg. There was compound fracture of both the bones of the left leg, the bones having broken at more than five places and he was an inpatient in the Madras General Hospital for about 14 1/2 months, i.e., from 19-11-1966 February 1968. For proper immobilisation of the injured limb, he had to be in plaster of paris upto his neck for six months and thereafter the plaster was reduced from neck to hip. On 24-11-1966, pin traction was done. Again, on 13-6-1967, an operation was performed and a fragment of the fractured fabula to a length of 4 to 5 inches (left leg) was removed. Naturally, he had to be put up under anaesthesia every time when the plaster was changed or operation was performed. In spite of all the treatment, the left leg has become shorter by 1 1/2 inches and the knee has also become stiff. He has to walk with the aid of a stick and certainly he cannot ride a scooter. Dr. Muthukumaraswami, P.W. 2, was the Medical Officer who attended on the claimant and his evidence on the above aspects is not challenged.

6. Considering the nature of the injuries, what is the proper quantum of compensation payable to the claimant, is the question. There cannot be much of dispute regarding the special damages of Rs. 5,000 awarded by the Tribunal below. The claimant has given a statement of account as per Ex. P-2, regarding the alleged expenditure that he incurred while he had been hospitalised. There he has shown a total expenditure of over Rs. 13,000. But the Tribunal below is justified in disallowing several of the items mentioned therein and also in this observation that the expenditure shown is exaggerated and extravagant. The actual hospital bills paid by the claimant come to Rs. 2,156-28. The claimant has stated that a sum of Rs. 110 per month had been spent for attending on him while he was in the hospital. There is no voucher for having paid Rs.110 per month to any attendant. Even so, considering the nature of the injury, it cannot be said that the claimant required no assistant during the period when he was an inpatient in the hospital. Therefore some amount has to be allowed as the charges for the assistant. We think a sum of Rs. 75 per month can be allowed for such charges. The claimant ought to have spent come money for extra nourishing food. Under these circumstances, the sum of Rs. 4,000 fixed by the Tribunal below as the amount payable to the claimant towards special damages for expenses actually incurred is correct and we accept the same. There is also no dispute now that the claimant's marriage had been fixed to take place on 26-2-1967, and because of the accident, the marriage did not come off. Earlier to the accident, there had been betrothal ceremony and the Tribunal below has fixed the expenses incurred by the claimant at Rs. 1,000 and that amount has been awarded as damages suffered by the claimant due to the accident. This finding of the Tribunal below is not challenged by either party. Therefore, we accept the finding of the Tribunal below that a total sum of Rs. 5,000 is payable to the claimant towards special damages.

7. The dispute is only regarding general damages. As we said, the Tribunal below has awarded a consolidated sum of Rs. 5,000 for permanent disability, physical and mental discomfort and loss of promotion and we think this is too conservative an estimate. Considering the nature of the injuries and the admitted fact that the claimant had to be an inpatient in the hospital for about 14 1/2 months, we think a sum of Rs. 3,000 can be awarded towards pain and suffering that the claimant underwent during that period. We are also of the view that the claimant should be awarded a sum of Rs. 7,000 towards loss of salary during the period when he was not able to attend his office (which is really special damages), and another sum of Rs. 10,000 should be awarded for loss of future promotional prospects,

8. It is not seriously contended before us that certain sum should be awarded as compensation for pain and suffering undergone by the claimant and surely a sum of Rs. 3,000 cannot be said to be excessive under this head considering the nature of the injuries and suffering which the claimant should have undergone as a result of the injuries.

9. But the question whether the claimant is entitled to any amount towards loss of salary is disputed. The contention on behalf of the respondent is that there was no loss of salary at all even though the claimant was not in a position to attend his office for the 14 1/2 months when he had been hospitalised and for some time more even after he was discharged, for the claimant's employer never withheld his salary and throughout the period the employer had been paying his salary. The contention is that when the employer has paid the salary of the claimant in spite of the latter having not gone to the office, the claimant has not suffered any loss. But from the evidence on record it is quite clear that the claimant was entitled to salary as a matter of right from his employer only for one month during the period when he did not attend office, that for the rest of the period he had no right to claim the salary from the employer and the payments made by the employer were only gratuitous, that the claimant has a moral obligation, though not a legal one, to refund that amount to the employer and that therefore the amount so paid by the employer gratuitously cannot be taken into consideration in assessing the damages payable by the wrongdoer. The leave rules governing the employees of the company in question (Heatley and Gresham Ltd.) has now been filed in the case and we also allowed certain other records consisting of the correspondence between the Madras Office of the company and its head office at Calcutta to be filed and also examined one Mr. Niranjan, the Manager of the Madras Office of the company, as an additional witness. It is clear from the evidence now on record that the Madras office had been paying the monthly salary to the claimant, even though he was in hospital and not attending office, only on compassionate grounds. According to the leave rules, an employee of the company is entitled only to 30 days in a year as sick leave. Therefore, only for one month the claimant could be granted sick leave with pay. For the period beyond the limit of 30 days, the claimant was not entitled to salary. However, the Madras office had been paying his salary gratuitously and the correspondence shows that the head office of the company at Calcutta had asked for explanation as to how salary was being paid to the claimant while he was in the hospital. Ultimately, by their letter dated 1-2-1968, the head office at Calcutta stated that the salary for January, 1968 and thereafter should not be paid to the claimant and in fact it had not been paid. Only upto the end of December, 1967, the salary was being paid. When the payment so made was only gratuitous and not as a matter of right to the claimant, the question is whether the wrong-doer can take advantage of such payment. We are of the opinion that he cannot do so.

10. In Liffen v. Watson, 1940-1 KB 556, a domestic woman servant, who had been receiving from her employer wage of 1 a week plus free boarding and lodging, was injured in an accident and while she was under treatment she was living with her father to whom she made no payment for boarding and lodging. In an action by her against the wrong-doer, whose negligence caused the accident, the court of appeal in England held that the injured was entitled to recover damages not only in respect of her loss of wages, but also in respect of the loss of free boarding and lodging which her employer had been providing her. It was pointed out that the fact that during the period when the employer was not giving her free boarding and lodging, she had received such free boarding and lodging from her father is no ground to disallow the claim for loss of free boarding and lodging. Slesser L. J. observed that if the claimant's father has provided her with board and lodging in his home, that is no reason why she should not be heard to say that her loss of the board and lodging previously provided by her employer was as much a loss to her as if she had lost the actual sum in money, for a wrong-doer must recompense a plaintiff for all the damages which naturally flows from wrong-doing.

11. Dennis v. London Passenger Transport Board, 1948-1 All ER 779 is a case where a person who was injured in an accident, which was as a result of wrongful act on the part of the defendant, during the period when he was out of employment had received certain amount from the Minister of Pensions and certain amount from his employers themselves and all the amounts so received have earned if he had gone to work. But the court of appeal held that the amount taken into consideration in awarding the special damages payable by the wrong-doer. Denning J. observed that a wrong-doer is not to be allowed to reduce damages by the fact that the other persons have made up to the plaintiff his wages and that in point of law the plaintiff should have his wages paid by the wrong-doer as he lost the same. It is also observed that the plaintiff was under a moral obligation to refund the amounts to the Minister of Pensions and the plaintiff's employer, viz., the London County Council, on his getting damages from the wrong-doer to recompense his towards loss of wages. In Mayra and McGregor on Damages, 12th Edn. page 663, para 773, the above case is referred to and it is stated that even if there had been no expectation of repayment on the part of the benefactors, it would seem that principle demands that there should still be no reduction in the damages, as recompense to employers should depend only on the conscience of the plaintiff. Therefore, even if there was no moral obligation on the part of the injured to refund the amounts to the persons who had paid him and even if there was no chance of the injured so repaying, the wrong-doer cannot be heard to say that there was no loss of wages and that therefore he would not recompense the injured. Thus it would be clear that in cases where the injured receives payment or other benefit gratuitously which might equal his wages, such payments are not to be taken into consideration in assessing the liability of the wrong-doer to recompense the injured regarding loss of wages.

12. There is another line of cases which say that even if the payments received by the injured were not gratuitous and that the injured had a right to receive the payment, still those payments are not to be taken into account in assessing damages payable by the wrong-doer if such payments are due not as wages or salary but such as disability pension, etc. In Payne v. Railway Executive, 1952-1 KB 26, a sailor serving in the Royal Navy was injured while travelling in a railway train and he became an invalid and therefore received a disability pension from his employers. Such pension was payable to him under an order in council which corresponded to the relevant Royal warrant. The court held that in assessing the damages payable by the wrong-doer, the plaintiff's disability pension could not be taken into consideration in reduction of damages since the plaintiff became entitled to the pension by reason of his naval service, it being one of the benefits such service affords. It was again pointed out that just as a wrong-doer cannot appropriate to himself insurance moneys (the benefit of premiums paid by the injured party to cover accident risks), so he cannot appropriate benefits arising from the service of the injured party which similarly entitle him to those benefits. Judd v. Hammersmith etc. Hospitals, 1960-1-All ER 607, applied the principle stated in the above case. In Perry v. Cleaver, 1969 Acc CJ 363 the House of Lords also held that disablement pension paid to the injured should not be deducted from the damages payable by the wrong-doer as such pension was in the nature of deferred wages payable under a contract of employment for pas service.

13. However, in Browning v. War Office, 1962-3 All ER 1089, the court of appeal held that the veteran's benefit received by the injured in that case, who was a person serving in the United States Airforce in England, should be taken into account in assessing the damages to which the plaintiff was entitled in respect of financial loss. In this case, Payne v. Railway Executive, 1952-1 KB 26 = (1951-2 All ER 910), has not been followed. This decision appears to go contra to the decision of the House of Lords in Perry v. Cleaver, 1969 Acc CJ 363.

14. Anyway, in the present case we are not concerned with the question whether payments like disability pension or veteran's benefit, etc. to which the injured is entitled as a matter of right, should be taken into consideration in assessing the damages payable by the wrong-doer. As we said earlier, the payments received by the claimant in this case, except for a period of 30 days after the accident, were only gratuitous payments made on compassionate grounds. The law is quite clear that such gratuitous payment should not be taken into consideration in assessing the damages payable by the wrong-doer.

15. In Samaraj Oil Mills and Fertilisers v. D. Kothandaraman, 1970 Acc CJ 405 (Mad.), Ramaprasada Rao, J. held that the expenses of treatment of the injured which had been reimbursed by his employer as per the service rules cannot be recovered as part of damages from the wrong-doer. That again is a case where the injured was entitled to get a reimbursement of the medical expenses from his employer under the service rules. The payment by the employer was not gratuitous. Therefore this decision would not have any application to the present case. Gwalior and Northern India Transport Co., Ltd. v. Dinkar Joshi, AIR 1955 Madh Bha 214 is a case where the injured got free treatment for his injuries through his doctor friends. At page 220, the Madhya Bharat High Court points out that he fact that the doctors who treated the plaintiff on account of their friendship with him or for some other reason did not claim any fees from him, is a matter which is completely collateral to damage and that if the plaintiff got free medical benefit, the wrong-doer cannot appropriate such benefit.

16. We hold that in the present case, the amounts paid by the claimant's employer gratuitously should not be taken into account in assessing the damages. It is admitted that a sum of Rs. 7,000 has been so paid gratuitously by the company Heatley & Gresham Ltd. That amount cannot be deducted from compensation payable towards loss of salary. Therefore we hold that the claimant is entitled to a sum of Rs. 7,000 towards loss of salary.

17. The only remaining question is whether the claimant has lost promotional benefit and if so, to what extent. As the evidence regarding this aspect was not quite satisfactory, we allowed additional evidence being recorded before us and as already mentioned, Mr. Niranjan, the manager of the Madras office of Heatly and Gresham Ltd. Has been examined before us. But even his evidence is not very helpful. When the learned counsel for the claimant examined the witness, he no doubt stated that prior to the accident there was a proposal to promote the claimant to a senior post carrying very high salary and that because of the accident, that proposal had been dropped. But from the answers he gave in cross-examination by the Additional Government Pleader for the respondent, it is quite clear that what he said earlier is only hearsay and that he does not know anything personally about the alleged proposal to promote the claimant to a senior post. Admittedly there has been no break of service for the claimant. After hospitalisation and recoupment, the claimant has been allowed to work in the same post which he originally occupied. The staff service record, which is one of the additional documents filed before us shows that till 1970, the claimant had been receiving only the same salary which he had been receiving prior to the accident. As we said, the basic salary which he had been receiving prior to the accident, the basic salary on the date of accident was Rs. 188/-. He had been receiving the same salary till September, 1970, though the dearness allowance had been increased from Rs. 295 to Rs. 317 by that time. In October, 1970, the company has given him an increment and he drew in all a sum of Rs. 655. In October, 1971, this amount was raised to Rs. 755 and in October 1972, the total emolument came to be increased to Rs. 855 per month. It is clear from the evidence that the employer company is not expected to give increments every year. It is all in the discretion of the employer. It is all in the discretion of the employer. It is not possible to say that the claimant had not got increment after the accident and upto September, 1970, only because he had been injured. From the evidence of Mr. Niranjan, it is clear that the claimant is holding the same post which he held prior to the accident.

18. Though there is no evidence to show that but for the accident the claimant would have been promoted to a higher post, it is not unreasonable to hold that the claimant has, as a matter of fact, lost promotional prospects to a certain extent. The employer company is dealing in sophisticated machinery. The claimant, as a Junior Engineer-cum-Salesman, is expected to move around, meet people, discuss with them and push the goods of his employer. As the claimant has been permanently disabled due to the shortening of his left leg and as he is not in a position to ride a scooter, he cannot be expected to go out freely for canvassing orders. In this background, naturally the promotional prospects of the claimant are affected. As a matter of fact, the Tribunal below has stated that it cannot be disputed that the claimant lost his chances of getting promoted to a higher post due to the permanent disability he suffered. Under these circumstances, we think it is not unreasonable to hold that the claimant has lost about Rs. 50 a month on an average for the rest of his service. As lump sum payment towards such loss is being made, we consider that a sum of Rs. 10,000, on this ground would be a just and proper estimate of the loss suffered by the claimant. That means, the claimant is entitled to a total sum of Rs. 20,000 apart from the sum of Rs. 5,000 awarded towards hospital charges etc., and other expenditure incurred by the claimant.

19. In the result, C. M. A. 332 of 1971 is partly allowed and the award is modified in that the respondent shall pay the claimant a total sum of Rs. 25,000 as compensation, which amount shall be paid within one month from this date. C.M.A. 456 of 1971 is dismissed. There would be no order as to costs in C.M.A. 456 of 1971. The injured to get proportionate costs in C.M.A. 332 of 1971.

20. Order accordingly.


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