NESAMONY TRANSPORT CORPORATION Vs. KOCHAMMAL

JUDGEMENT

(1.) THESE appeals have been preferred against the common award of the Motor Accidents Claims Tribunal (Sub Court), Padmanabhapuram, in M.A.C.P. Nos. 4, 5 and 16 of 1985. On 14.6.1984, at about 5.30 p.m. near Chunkkankadai near Kalliancadu Road, an accident took place involving the bus TMN 2690 belonging to Nesamony Transport Corporation plying on route No. 8 and a tourist bus bearing registration No. DEP 6111. Kochammal and Prema Sudha who are sisters, were returning from school to their house at Aloor in the bus TMN 2690 when the accident took place and both of them sustained several injuries. According to them, the bus TMN 2690 belonging to Nesamony Transport Corporation was proceeding from east towards west, while the bus DEP 6111 was driven from west towards east and the drivers of both the vehicles drove their buses rashly and negligently and that had caused the accident resulting in their sustaining injuries. In respect of the injuries so sustained by them in that accident, Kochammal and Prema Sudha claimed that compensation in a sum of Rs. 50,000/- each should be awarded to them. To the claim petitions filed by Kochammal and Prema Sudha in M.A.C.P. Nos. 4 and 5 of 1985 they impleaded the driver, owner and insurer of the bus DEP 6111 as respondents 1 to 3, the driver of the bus TMN 2690 as the fourth respondent and Nesamony Transport Corporation as the fifth respondent. In the counter filed by the driver and the owner of the bus DEP 6111, they put forward the plea that the accident took place only due to the rash and negligent driving of the bus TMN 2690 belonging to Nesamony Transport Corporation by its driver and that they were not in any manner responsible either for the accident or for the payment of compensation in respect of the injuries sustained by Kochammal and Prema Sudha. Besides, it was also claimed that the injuries sustained by the claimants were simple in nature and the compensation claimed by them was excessive and on the high side. In the counter filed by the Insurance Company, which had insured he tourist bus DEP 6111, it raised the plea that the rash arid negligent driving of the bus TMN 2690 belonging to Nesamony Transport Corporation by its driver caused the accident and that no liability could be fastened on it for the payment of compensation. It was also the further plea of the Insurance Company that as Kochammal and Prema Sudha were only school going children, the quantum of compensation claimed was excessive and on the high side. The driver of the bus TMN 2690 in his counter attributed the accident to the rash and negligent driving of the tourist bus DEP 6111 by its driver and stated that no liability could be fastened on him for the payment of compensation. Besides, it was also stated that the amount of compensation claimed was excessive. Nesamony Transport Corporation in its counter resisted the claim for compensation made by Kochammal and Prema Sudha on the ground that the bus TMN 2690 was being driven carefully and cautiously and at a normal speed observing all the traffic rules and the accident took place only due to the rash and negligent driving of the tourist bus DEP 6111 by its driver and a criminal case had been registered only against him. Disputing its liability to pay compensation, the Transport Corporation also stated that the injuries sustained by Kochammal and Prema Sudha were simple in nature and the compensation claimed was also excessive and on the high side. It would be necessary at this stage to refer to the filing of yet another claim petition in M.A.C.P. No. 16 of 1985 by Nesamony Transport Corporation, the owner of the bus TMN 2690, one of the vehicles involved in the accident, against the driver, owner and insurer of the tourist bus DEP 6111. In that claim petition, Nesamony Transport Corporation stated its bus TMN 2690 was proceeding from east towards west at a normal speed and driven carefully and cautiously and at the place of accident, the bus DEP 6111 came driven from the opposite direction rashly and negligently and dashed against the bus TMN 2690 as a result of which it sustained damage and the accident resulting in the damage to the bus TMN 2690 was due to the rash and negligent driving of the bus DEP 6111 by its driver. In respect of the damage sustained by the bus TMN 2690 and the loss of collection, estimated at Rs. 33,000/- M.A.C.P. No. 16 of 1985 was filed. In the counter filed to that claim petition by the driver and the owner of the tourist bus DEP 6111, they reiterated that the accident was only due to the rash and negligent driving of the bus TMN 2690 by its driver and not owing to the rash and negligent driving of the tourist bus DEP 6111. According to them, no damage at all was caused to the bus TMN 2690 by the rash and negligent driving of the tourist bus DEP 6111 and, therefore, no amount need be paid by way of compensation. Besides, it was also stated that they could not be made liable for loss of collection as there were spare buses to be plied on the route and no loss as such could have been sustained by Nesamony Transport Corporation. In any event, it was stated that the compensation claimed was excessive. The Insurance Company in its counter adopted the stand of the driver and the owner of the tourist bus DEP 6111 and in addition stated that while the driver of the bus DEP 6111 was driving it slowly and cautiously on the northern side of the road from west towards east, the accident had taken place and that would clearly indicate that the driver of the tourist bus DEP 6111 was not in any manner responsible for the accident and, therefore no liability could be fastened on it for payment of damages as claimed by Nesamony Transport Corporation. Since all the three claims arose out of the same accident they were dealt with together by the Tribunal on common evidence.

(2.) BEFORE the Tribunal, on behalf of the claimants Kochammal and Prema Sudha, Exhibits A-1 to A-22 were marked and P.Ws. 1 to 4 were examined, while, on behalf of the contesting respondents, Exhibits B-1 to B-5 were filed and the driver of the tourist bus and three others gave evidence as R.Ws. 1 to 4. On a consideration of the evidence relating to the manner in which the accident took place, the Tribunal found that the accident was due to the rash and negligent driving of the drivers of TMN 2690 belonging to Nesamony Transport Corporation and the tourist bus DEP 6111 and was thus the outcome of the composite negligence of both the drivers of the two buses. Dealing with the claims for compensation made by Kochammal and Prema Sudha, the Tribunal, on a consideration of the medical evidence, determined the compensation awardable to them at Rs. 19,000/- and Rs. 7,500/- respectively and passed awards accordingly against the respondents in M.A.C.P. Nos. 4 and 5 of 1985. Regarding the claim made by Nesamony Transport Corporation with reference to the damage sustained by the bus TMN 2690, the Tribunal found that to set right the damage sustained by the bus TMN 2690 in the accident, a total sum of Rs. 6,502/- had been spent and that owing to the detention of the bus for repairs for 35 days, Nesamony Transport Corporation had sustained loss of collection during that period in a sum of Rs. 26,893.63. The Tribunal thus computed the total amount lost to Nesamony Transport Corporation at Rs. 33,395.66 and in view of its finding on the question of negligence, halved that amount and awarded to Nesamony Transport Corporation Rs. 16,697.83 against the driver, owner and the Insurance Company of the tourist bus DEP 6111. C.M.A. Nos. 324 and 325 of 1986 have been preferred by Nesamony Transport Corporation against the awards in M.A.C.P. Nos. 4 and 5 of 1985, while the owner and the insurer of the tourist bus DEP 6111 have preferred C.M.A. Nos. 391 to 393 of 1986 against the awards in M.A.C.P. Nos. 4, 5 and 16 of 1985. In C.M.A. Nos. 391 and 392 of 1986, the claimants Kochammal and Prema Sudha have also preferred memoranda of objections praying for enhanced compensation. The fifth respondent in C.M.A. Nos. 324 and 325 of 1986, viz. the driver of TMN 2690 belonging to Nesamony Transport Corporation has been given up as unnecessary party in the above appeals. Likewise, the second respondent in C.M.A. Nos. 391 to 393 of 1986 the driver of the tourist bus DEP 6111 has been given up, vide endorsement made by Counsel on 17.9.1991.

(3.) REGARDING the manner in which the accident took place, there is the evidence of one of the claimants, Prema Sudha (P.W. 1), the Driver of the tourist bus DEP 6111 (R.W. 1) and the driver and the conductor of the bus TMN 2690 (R.Ws. 3 and 4). P.W. 1 in the course of her evidence had stated that on the evening of 14.6.1984, after school hours, at about 5 p.m., she boarded the bus TMN 2690 along with her sister and while her bus, which was proceeding from east towards west, was nearing Kalliancadu Road, a tourist bus came from the opposite side driven at a high speed and the buses collided and she sustained injuries. In her cross-examination, she stated that near the place of the accident, the bus in which she travelled was driven at a very high speed and that she did not notice any other vehicle except the two buses. In the course of her further cross-examination, she had stated that the tourist bus which came from west towards east was also driven at a very high speed and both the buses were driven rashly at a high speed and collided. R.W. 1 in his evidence stated that he was the driver of the tourist bus DEP 6111 on the date of the accident and that the bus belonging to Nesamony Transport Corporation which came from the opposite direction came very fast and was swerved to the right side in the process of overtaking a cyclist and that the accident took place only owing to the rash and negligent driving of the driver of the bus TMN 2690. In his cross--examination, R.W. 1 had denied the suggestion that it was the composite negligence of both the drivers that had caused the accident. However, he was obliged to accept that he did not state in his counter that the bus TMN 2690 was overtaking a cyclist and in that process it swerved to the right side of the road. R.W. 1 admitted that he saw the bus TMN 2690 at a distance of about 150 feet and after he had proceeded to 25 to 30 feet, the accident took place and that he had not stated in his counter that the bus TMN 2690 was swerved to the right side. R.W. 1 also admitted that the road at the place of the accident was straight and of a breadth of 30 to 35 feet. R.W. 1 disclaimed any knowledge about any criminal case against him. R.W. 1 admitted that he did not report the accident to the police. R.W.3, who was the driver of TMN 2690 on the date of the accident, stated that he was proceeding at a speed of about 15 kilometres from east towards west and at that time, the tourist bus DEP 6111 which came from west towards east came to the right side of his bus and collided against it. The place of the accident, according to R.W. 3 was at a distance of abut 50 feet from the bus-stop and the road was a straight one with a width of 30 feet of which 18 feet was tarred. R.W. 3 also stated that a criminal case was lodged against the driver of the tourist bus DEP 6111. In his cross-examination, R.W. 3 accepted that he was a casual labourer and that he did not have any order of appointment, but had driven the bus for 57 days before the accident and that nobody made any enquiry regarding the accident. R.W. 3 also stated that while the bus was being slowed down while approaching the bus-stop, the accident took place and he did not inform any one that the accident took place owing to brake failure. R.W. 3 admitted that only the two buses and a cycle were there at the time of the accident and that he saw the tourist bus DEP 6111 even at a distance of about 4 furlong away and that the rear wheels of the bus were along the tar road. R.W. 3 denied that the rear wheels were at a distance of 13 feet away from the southern portion of the east-west road at the time of the accident. R.W. 4 is the conductor who was in duty in the bus TMN 2690 on the date of the accident. According to him, he was near the front foot-board when he saw the tourist bus DEP 6111 which was coming from the opposite direction at a high speed and that bus came and hit against the right side of the bus TMN 2690. R.W. 4 also stated that the accident took place at a distance of 200 feet away from the bus-stop. In his cross--examination, R.W. 4 stated that the bus TMN 2690 was plying on a town bus route and that it was not correct to state that the accident took place at 35 feet east of the bus-stop. A suggestion that the driver of the bus TMN 2690 by his rash and negligent driving had caused the accident was denied by him. Besides the evidence referred to above, there is also other evidence available in the shape of First Information Report, rough sketch, etc., which will be referred to In Exhibit A-1 dated 14.6.1984, which is the copy of the First Information Report given by one Padmanabhan, who was injured in the accident, it had been stated that the bus TMN 2690 was attempting to overtake a cyclist and with a view to do that, the bus was swerved to the right and at that time, the bus DEP 6111 which came from west towards east driven rashly and negligently hit against the front right side of the bus TMN 2690 and stopped and as a result of that, injuries were sustained by him. Exhibit B-1 is the plan of the scene of accident. There from, it is seen that the tarred portion of the road is 22 feet broad with mud portion in the north and also south measuring about 6 feet and 2 feet respectively. From this, it is clear that the total available width is about 30 feet. The bus TMN 2690 proceeding from east towards west is found to be well towards the northern half of the road beyond the middle and the tourist bus is also seen almost near the extreme left side of the road on the northern side. Exhibit B-1 had also been admitted by R.W. 1. Exhibit B-2 is the copy of the mahazar of the scene of accident and there from, it is seen that the width of the road was about 30 feet inclusive of the tarred portion and the bus DEP 6111 was 7 feet 8 inches away, while the distance between the bus TMN 2690 and the southern extremity was nearly 15 feet. Exhibit B-3 is the charge-sheet filed against R.W. 3 and that proceeds on the footing that the bus TMN 2690 had dashed against the bus DEP 6111. Exhibit B-4 is the Motor Vehicle Inspector's report and that states that the accident was not due to any mechanical defect. It is in the background of the aforesaid oral and documentary evidence that the precise manner in which the accident had taken place, has to be determined.