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2008 Supreme(Raj) 1275
2009(1) CCR 188 (SC)
(Supreme Court)
G. Gnanam Vs. Metropolitan Transport Corpn. (Sinha, J.)
HON'BLE S.B. SINHA, J.
HON'BLE CYRIAC JOSEPH, J.
G. Gnanam @ Gnanamoorthy
Versus
Metropolitan Transport Corporation
Civil Appeal NoS. 7320-7321 of 2008, decided on 16.12.2008
M/s. Temple Law Firm, for Appellant;
M/s. Arputham Aruna & Co., for Respondent
Headnote:(a) Contributory negligence — Bus dashed against Central Median Lamp Post — Passenger sitting on back seat sustained injuries in his right arm and hand — Since passenger kept his hand outside the window, so he was himself negligent — Driver did not caution passengers to keep hands inside — Tribunal held that bus driver was rash and negligent — High Court held the passengers contributory negligence to the extent of 50% — Held — The nature of the injuries suggest that upper arm of the injured hit the body of the bus and the injured is not guilty of any contributory negligence. (Para 11)
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¼in la[;k 11½
(b) Quantum of Compensation for fracture in arm and hand of right side — Injured 29 years of age — Working as fitter — Suffered 65% disablement — Now working as helper — Held — Injured is entitled to Rs. 1,50,000/- towards loss of earning capacity, Rs. 12,000/- for loss of income, Rs. 8,000/- for transportation and nourishing diet, Rs. 15,000/- for pain and suffering Rs. 50,000/- for permanent disablement and Rs. 15,000/- for loss of amenities.
Appeals allowed. (Paras 12 & 13)
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Hon'ble SINHA, J.— 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
