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A. Subramani Vs. Mani and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicle
CourtChennai High Court
Decided On
Case NumberC.M.A. No. 239 of 1983
Judge
Reported inII(1989)ACC253; 1990ACJ37
AppellantA. Subramani
RespondentMani and ors.
Appellant AdvocateA.N. Viswanatha Rao, Adv.
Respondent AdvocateK. Padmanabhan, Adv. and Kurian Associates
Cases ReferredUnited India Ins. Co. Ltd. v. A.R. Sundari (supra
Excerpt:
- - mdh 4589 belonging to the third respondent and insured with the second respondent, being driven in a rash and negligent manner by the first respondent, fell down and sustained fracture of fibula as well as fracture of 2 metatarsus bones in the left leg......meaning of the term 'passenger', which is to the effect that passenger is one who travels. in a passenger vehicle the travelling could only be by remaining seated in the seating accommodation which the vehicle owner has to provide or in special cases, where the transport authority permits, as in town bus service, by standing also. where, therefore, one uses the entry or exit passage either before travelling or after travelling for the purpose of getting into the vehicle or for getting out of the vehicle, he cannot be said to travel at that exact point of time. when he does not travel, he is not a passenger but is only a third party.12. in the instant case, the tribunal has found that the bus had come to a stop at ayyampettai bus stop, wherein the appellant had to get down; that after.....
Judgment:

Padmini Jesudurai, J.

1. The injured victim of a motor accident, who has been awarded compensation by the Motor Accidents Claims Tribunal, has filed the present appeal contending that the compensation awarded by the Tribunal is grossly inadequate.

2. Facts briefly are: The appellant, while he was getting down from a passenger bus bearing registration No. MDH 4589 belonging to the third respondent and insured with the second respondent, being driven in a rash and negligent manner by the first respondent, fell down and sustained fracture of fibula as well as fracture of 2 metatarsus bones in the left leg. He filed M.O.P. No. 201 of 1981 under Section 110-A of the Motor Vehicles Act (hereinafter referred to as 'the Act') before the Motor Accidents Claims Tribunal (Additional Subordinate Judge-II), Chengalpattu, claiming a total compensation of Rs. 25,000/-.

3. Respondent Nos. 1 and 3 contended that it was the appellant who jumped out of the bus before the bus had been brought to a halt and that, therefore, the accident was due to the rash and negligent act of the appellant in jumping out of the bus and was not due to any rashness or negligence on the part of the first respondent in moving the vehicle before the appellant could get down. The claim was also said to be excessive. The second respondent, the insurance company, resisted the claim contending that since the appellant was a passenger in the bus at the time of the accident, its liability was limited to only Rs. 5,000/-.

4. Before the Tribunal, the appellant examined himself as PW1 and examined the Medical Officer, who treated him, as PW 2. Exhs. A-l to A-3 being the admission and discharge certificates from the hospital were marked on the side of the appellant. On the side of the respondents, A Sampath, Checking Inspector of the vehicle, was examined as RW1 and Exhs. B-l and B-2 were marked.

5. On the above evidence, the Tribunal found that the accident was due to the rash and negligent act of the first respondent in moving the vehicle before the appellant could safely land on the ground. Compensation was assessed at Rs. 4,000/- and an award was passed in favour of the appellant for the above amount, with a direction to the second respondent to deposit the amount. Contending that the amount is grossly inadequate, the injured victim has filed the present appeal.

6. Mr. AN. Viswanatha Rao, learned counsel for the appellant, contended that the Tribunal had not awarded any compensation for pain and suffering and the amount awarded for permanent disablement was grossly inadequate and no compensation had also been awarded for the actual expenses that the appellant had incurred in the prolonged treatment for fractures.

7. For contra, Mr. K. Padmanabhan, learned counsel for the second respondent, contended that the compensation awarded was reasonable and that since the appellant was a passenger at the time of the accident and since Exh. B-2, policy of insurance, showed that its liability was only Rs. 5,000/-for a passenger, the second respondent would not be liable for higher compensation, even if the court felt that enhancement was called for.

8. The following points arise for determination:

(1) Is the compensation awarded by the Tribunal just?

(2) If the compensation is to be enhanced, what is the liability of the second respondent?

Point No. 1

9. Exh. A-l shows that the appellant has sustained a fracture of the fibula and also fracture of the 3rd and 4th metatarsus bones on the left leg. Fracture of bones would require prolonged treatment and such treatment when it relates to the fracture in the lower limbs, would immobilise the victim causing great pain and suffering and also compel him to undergo expenditure for transport, extra nourishment and special care. The Tribunal has not awarded any compensation under any head and has merely stated that considering the occupation of the appellant, his period of treatment in the hospital for about three months, the disabilities spoken to by PW2 and the age of the petitioner, viz., 45, a sum of Rs. 4,000/- would be a reasonable compensation. In such cases, it is always desirable that the court should have shown split up figures to indicate what would be a just compensation under various heads which courts judicially recognise. In view of the nature of the injuries, the appellant would be entitled to a separate amount for pain and suffering undergone by him during the prolonged treatment. I award a sum of Rs. 2,000/- for pain and suffering.

10. The appellant has taken pains to examine PW2, the Orthopaedic Surgeon, who had treated him in the Government Hospital at Chengalpattu. According to PW 2, the appellant has suffered permanent disablement as a result of the fracture of the fibula. PW 2 has stated that the movement in the ankle joint has become rigid, that the appellant cannot walk without support and any work involving walking or running could not be done by the appellant and he could stand only with one foot and he had become unfit for any skilled work. The skin at the back portion of the left foot was not normal. The permanent disability of the appellant has been fixed by PW 2 at 60 per cent. Exh. A-4 is the disablement certificate issued by PW 2. These aspects of disablement have also been spoken to by the appellant when examined as PW 1. The appellant is a coolie aged 45 and the disablement suffered by him is bound to affect his work, particularly when PW 2 places the disablement at 60 per cent. A sum of Rs. 7,000/- would be a reasonable compensation for the permanent disablement suffered by the appellant. It is common knowledge that during the prolonged treatment of three months for fracture, the victim would have incurred extra expenditure. Extra nourishment would also be taken so that the body is kept fit for the treatment and also in the hope that the treatment would leave him without any permanent disablement. It would be unrealistic to disallow such claims merely because parties do not preserve several bills and vouchers. A sum of Rs. 1,000/- would be a bare minimum to which the appellant would be entitled under this head. The compensation, therefore, is enhanced from Rs. 4,000/- to Rs. 10,000/-.

Point No. 2

11. According to the learned counsel for the second respondent its liability is only Rs. 5,000/- as per Exh. B2, the policy of insurance. No doubt, according to Exh. B-2, the second respondent has undertaken to indemnify the third respondent only to the extent of Rs. 5,000/- in the case of passengers; whereas there is no restricted limit in the case of third parties. A question, therefore, arises as to whether the appellant at the time when the accident occurred, is to be construed as a passenger or as a third party. I have today held in Thozhilalar Transport Co., Vaniyambadi v. Valliammal C.M.A No. 851 of 1982; decided on 13.1.1989, that one who is either getting into the bus or getting down from the bus is not a passenger and is only a third party. I have referred to the various decisions of this court, viz., Damodaran v. Santhanam, AAO. No. 558 of 1979; decided on 28.7.1981; Southern Motors, Madurai v. C. Sivajothiammal 1982 ACJ (Supp) 85; Uvaraja v. Parvathi Ammal 1986 ACJ 506 and New India Assurance Co. Ltd. v. Subramani C.M.A No. 120 of 1988; decided on 8.7.1988, wherein this court had held that a person attempting to get into the bus is not a passenger. I have also referred to the judgment of S.A. Kader, J., in United India Ins. Co. Ltd. v. A.R. Sundari, C.M.A. No. 55 of 1981; decided on 24.12.1986, wherein the learned Judge had held that one who is getting down from the bus at the time of the accident, is not a passenger. I have also made reference to a judgment of another single Judge of this court in Venkataswami Motor Service v. C.K. Chinnaswamy 1989 ACJ 371 before whom the judgment of SA. Kader, J., in United India Ins. Co. Ltd. v. A.R. Sundari (supra) had not been placed and who had held that persons getting down from the bus are passengers. I have also referred to the Oxford Universal Dictionary, Third Edition, for the meaning of the term 'passenger', which is to the effect that passenger is one who travels. In a passenger vehicle the travelling could only be by remaining seated in the seating accommodation which the vehicle owner has to provide or in special cases, where the Transport Authority permits, as in town bus service, by standing also. Where, therefore, one uses the entry or exit passage either before travelling or after travelling for the purpose of getting into the vehicle or for getting out of the vehicle, he cannot be said to travel at that exact point of time. When he does not travel, he is not a passenger but is only a third party.

12. In the instant case, the Tribunal has found that the bus had come to a stop at Ayyampettai bus stop, wherein the appellant had to get down; that after the bus had come to a stop, the appellant was getting down from the bus, when the first respondent in a rash and negligent manner, moved the vehicle before the appellant could safely land on the ground. The appellant, therefore, was not travelling at the time of the accident. He is, therefore, not a passenger and is only a third party. The second respondent, therefore, is liable to pay the entire compensation awarded to the appellant.

13. In the result, the appeal is partly allowed and there will be an award for a sum of Rs. 10,000/- in favour of the appellant, the entire amount to be paid by the second respondent together with interest at 9 per cent per annum on the enhanced amount of Rs. 6,000/- from the date of the filing of the claim petition before the Motor Accidents Claims Tribunal, viz., 23.6.1981 till the date of deposit. No costs.


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