The duty of care for the safety of passengers and the assessment of compensation for loss of earning capacity and other damages in motor accident cases.

R. SUBBIAH, J.

1. Civil Miscellaneous Appeal No. 2054 of 2015 has been filed by the appellant/Transport Corporation questioning the correctness of the Judgment and Decree passed by the Tribunal in MCOP No. 5669 of 2013 in so far as it relates to the fastening of 50% liability on the Corporation as well as the quantum of compensation awarded in favour of the claimant.

2. Not being satisfied with the quantum of compensation awarded by the Tribunal as well as the correctness of the assessment of 50% towards contributory negligence imposed on him, Cross Objection No. 63 of 2007 has been filed by the claimant/injured

3. As both the appeal and cross objection arise out of the Decree and Judgment passed by the Tribunal in MCOP No. 5669 of 2013, they are taken up for hearing together and are disposed of by this common Judgment.

4. For easy reference of the parties to the appeal and cross objection, the appellant in CMA No. 2054 of 2015 shall be referred as 'Corporation' and the respondent therein shall be referred to as claimant.

5. The claimant has filed MCOP No. 5669 of 2003 before the Motor Accidents Claims Tribunal, Chennai contending that on 16.02.2013 at about 12.45 hours, he was travelling along with his friends – Balaji, Veerakumar, Ravichandran and S. Kumarappan in the bus bearing Registration No. TN 32 N 1616 from Tiruvannamlai to Chennai. The claimant was sitting along with his friend Kumar in the last but three seats on the right side corner. When the bus in which the claimant was travelling was proceeding in the G.S.T. Road, near Arunachalam Hotel, Koochikolathur, another bus bearing Registration No. TN 32 N 1482, belonging to the Corporation, was driven by its driver in the opposite side in a rash and negligent manner and scratched the side portion of the body of the bus in which the claimant was travelling. In the impact, the claimant sustained multiple fractures in his right upper arm, shoulder joint in the right hand and lacerations all over the body. Immediately, the claimant was taken to Chengalpattu Government Medical College hospital where he underwent treatment as an in-patient from 16.02.2003 to 26.03.2003. During the course of such treatment, his right hand was amputated three inches below his shoulder. According to the claimant, the accident had occurred due to the rash and negligent driving of the Driver of the bus bearing TN 32 N 1482, belonging to the Corporation and therefore, the Corporation is liable to pay compensation for the injuries sustained by him. It was also stated that at the time of accident, the claimant was aged 23 years, working as Graphic and Web Engineer in a firm called EN5X Soft Tech, Kilpauk, Chennai and earning a sum of Rs. 18,000/- per month. It was further stated that due to the injuries sustained in the accident, he had lost his employment and was left with no source for his livelihood. Therefore, the claimant has filed the claim petition claiming a sum of Rs. 50,00,000/- as compensation.

6. The Transport Corporation resisted the claim petition by contending that at the time of accident, the Driver of the bus bearing Registration No. TN 32 N 1482, belonging to the Corporation had driven it at a moderate speed. At the time when the bus in which the claimant was travelling crossed the bus bearing Registration No. TN 32 N 1482, the claimant was protruding his hands outside the window, due to which he sustained injuries and therefore, no negligence could be attributed as against the Driver of the bus bearing Registration No. TN 32 N 1482. The claimant sustained injuries due to his own negligence, while so, the corporation cannot be mulcted with any liability to pay compensation. As regards the quantum of compensation, the Corporation denied the age, occupation and other particulars furnished by the claimant in the claim petition.

7. Before the Tribunal, in order to prove the averments in the Original Petition, the claimant examined himself as PW-1 along with four other witnesses as P