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2009(1) Supreme 3
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
G. Gnanam @ Gnamamoorthy — Appellant
versus
Metropolitan Transport Corporation — Respondent
Civil Appeal Nos. 7320-7321 of 2008
Decided on : 16-12-2008
Facts of the Case :
1.A tribunal awarded Rs. 2,50,000, to appellant who sustained fracture of right hand while traveling as passenger in a bus of respondent. On appeal, High Court held that appellant was guilty of contributing negligence to extent of 50% and awards Rs. 50,000/- to appellant towards permanent disability.
2.Present appeals have been filed against said order of High Court.
Findings of the court :
High Court without considering relevant facts could not have arrived any way was responsible for injury – Nature of injury suggested that upper arm of body of appellant had hit body of bus – If appellant had put his hand out, his upper arm would not have been broken into two pieces by way of crush injury – Appellant was hence not guilty of any contributory negligence – No dispute that appellant had suffered a functional disability – No reason for High Court to differ with award of Rs. 1,50,000/- by tribunal – No reasons assigned in support of inferences drawn – Impugned a conclusion that appellant in any was responsible for injury. Nothing to show that appellant was guilty of any contributory negligence – Since appellant had suffered a functional disability. There was no reason for High court to differ with award of Rs. 1,50,000/- by tribunal. Impugned judgment of High Court could not be sustained.
Result : Appeals allowed.
JUDGMENT
1.Leave granted.
2.Appellant was travelling as a passenger in a bus belonging to the respondent herein on 14.6.1995. It met with an accident. Injuries suffered by him as noted by Dr. J.R.R. Thiagarajan, Retired Prof. of Ortheo in Stanley Medical College Hospital, Chennai, are as under:
“...His right upper arm was broken into two pieces by way of crush injury and plate was inserted. As the nerves got affected, his right hand wrist and finger movements are completely arrested for which, he was given treatment. He has sustained contusion and pain in right hand. There was infection in the plate inserted part and muscle contraction as well. He has to be operated again for removal of the plate. He could raise his right hand upto shoulder only, upto 80 o. He cannot fold his right hand elbow beyond 50 o. Eating is also difficult. His right hand wrist and fingers power has lost and it is only 3/5. He cannot do work by holding the objects with grip and eating is also difficult. His right hand bone was fractured. The Right hand disability was at 15%; right shoulder at 15%, right hand elbow at 15% and right hand wrist and fingers disability at 20%. In all 65%...”
3.Appellant prior to the accident was said to have been working as a fitter. In view of the disability suffered by him, he started working as a helper. On the date of the accident, he was aged about 29 years. He filed an application before the Motor Accidents Claims Tribunal, Chennai claiming a sum of Rs. 6,00,000/- by way of damages. The contention in the said proceeding raised by the respondent was that the appellant himself, being responsible for the accident, was not entitled to payment of any damages towards loss of earning capacity.
The tribunal in view of the rival contentions of the parties framed the following two issues:-
“1.Whether the accident took place on 14.6.1995 was caused due to the rash and negligence on the part of the driver of the Respondent?
2.Whether the Petitioner is entitled to compensation? If so, how much?”
4.Before the learned tribunal, the appellant as also the driver of the bus examined themselves. Disbelieving the statement of the driver and having regard to the fact that the bus dashed with a ‘Central Median Lamp Post’, it was opined:
“...RW.1 has stated that at the time of accident, the Petitioner was keeping his hand out side in the back seat. It was the duty of the driver to caution the passengers to keep the hands inside and took them safely to the destination. From the evidence of RW.1 the negligence is clearly proved on his part. Further, the Respondent has also not proved that the bus has dashed against the Lamp post by marking the M.V. Inspector’s report. Under the circumstances, P.W.1’s evidence has to be accepted, and R.W.1’s has to be rejected. Hence from the above analysis and Exhibits and the evidence, it is clear that the accident took place on 14.6.1995 is solely due to the rash and negligence on the part of the Respondent’s bus driver...”
5.As regards the quantum of compensation, the evidence adduced on behalf of the appellant was that he used to earn Rs. 200/- per day as a fitter and as a helper, he has been earning only a sum of Rs. 30/- per day.
Keeping in view the fact that no documentary evidence was adduced by him, the learned Tribunal held:
“...Having sustained grievous injury of bone fracture, he would have lost his earnings at least for 6 months and his earnings may be around Rs.2,000/- per month. Accordingly, a sum of Rs.12,000/- is awarded for the loss of earning for 6 months. At the time of accident, the Petitioner is aged 29 years. On verifying the disability, for the fracture sustained in the right hand even though he would not have lost his complete earning power, definitely, there would be reduction in his earning capacity. Assessing the loss of earning capacity at Rs.500/- per month, for 25 years, it comes to Rs.1,50,000/- (500 x 12 x 25) and the same is awarded, under loss of earning power...”
6.He was granted another
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