VIJAYA CHAKRAVARTHY Vs. B. MANIVANNAN

JUDGEMENT

(1.) ON the 24th of August, 1977 at about 4-30 p.m , Manivannan, the appellant in C.M.A. No. 302 of 981 proceeded on his bicycle along Foxen Street, Perambur. At that time, a tractor driven by RW 2, Purushothaman, entered the street from the other end. Entry from the other end is prohibited and there is a board with "No Entry" sign. Manivannan, on seeing the tractor, stopped his bicycle and rested his foot on the pavement. But the tractor, according to the allegations of the appellant, Manivannan, was driven rashly and negligently and knocked Manivannan. He fell down and sustained injuries. Spleen was cut. There was also a cut in the liver. He was taken to the hospital. Spleenectomy was performed on him. The liver that was torn was sutured. He also underwent an emergency operation. He was an in-patient for about fifteen days in the hospital and then was an out-patient. He filed an application through his father-guardian claiming a total compensation of Rs. 1,00,000/-. The Tribunal found that the accident was due to the rash and negligent driving by the driver of the tractor The Tribunal also found that the driver of the tractor, RW 2, did not have a licence on the date of occurrence. In the end, the Tribunal awarded a compensation of Rs. 13,600/-directing the owner of the vehicle, the first respondent in the petition, to deposit the entire amount. The claimant is aggrieved as the compensation awarded is not adequate and as the Tribunal has dismissed the petition as against the insurance company. He has filed C.M.A. No. 302 of 1981. The owner of the vehicle has filed C.M.A. No. 165 of 1981 questioning the finding that the vehicle was driven rashly and negligently by the driver of the tractor. She has also questioned the quantum.

(2.) THERE is clear evidence of the fact that Foxen Street has got entry on only one side. There is also a "No Entry" signboard. There was some dispute whether this sign board was there on the date of the occurrence But the evidence of the police officer and the two witnesses, PWs 3 and 4, prove that the sign board was there. The occurrence was witnessed by PW 3 The ocular witness, PW 3, has clearly stated that when the tractor came from the opposite direction ignoring the "No Entry" board the boy on the cycle rested his foot on the pavement and when the trailer knocked the appellant-boy, he fell down unconscious. Some criticism was levelled against the evidence of this witness on the ground that he could not have seen the occurrence from a distance of nearly 400 feet or 400 yards (witness says both feet and yards). But then his evidence relating to the occurrence is clearly corroborated by the evidence of P-4, the victim himself. It was suggested that these injuries on the person of the injured are sustained when he fell down. There is clear evidence that the cycle was knocked down by the tractor and the boy fell down and was caught underneath the tyre of the tractor. His spleen was cut. The street is 4.5 metres wide and the tractor itself measures 40 ft. in length and the driver of the tractor has entered the lane when there is prohibition for such entry from the other side in the narrow lane. He has driven the tractor which knocked down the cyclist who stopped his cycle and was resting his foot on the pavement. The Tribunal has pointed out that this is per se negligence and rashness. The Tribunal is not wrong in its view Having entered the lane from the wrong end where entry is prohibited, the tractor driver, when he found that there is no space for both the cycle and the tractor to move, should have stopped the tractor and allowed the cyclist to proceed. The cyclist on his part has stopped his cycle. It is therefore manifest that the accident was caused by the negligence and rashness on the part of the driver of the tractor. We confirm that finding.

(3.) THE question now to be considered is as to what compensation is payable. Dr. Janardhanam, RW 1 has stated that Manivannan, the appellant, was admitted on 24th August, 1977 and was discharged on 8th September, 1977, that he was alleged to have been knocked down by the tractor when he was proceeding on a cycle, that on opening the abdomen, he found about 1000 C.C. of blood aspirated and found the spleen cut, the Spleenec-tomy was performeds and that there was also a tear on the liver which was sutured. Though he would say that there was nothing pathologically wrong with him, one has to take note of the fact that the spleen was removed. He has been an in-patient from 24th August, 1977 to 8th September, 1977. He was also treated as an out-patient for about three or four months. That is the evidence of his father. Ex. P-1 series are the out-patient tickets. They would show that he was taking treatment as an out-patient till August, 1977. The claimant appellant made various claims under different heads. In regard to transport to hospital, he claimed Rs. 750. He claimed Rs. 2,000/- towards extra-nourishment and Rs. 50 towards damage to clothing and also Rs. 1.200 towards legal expenses. He claimed a sum of Rs. 16,000 as compensation for pain and suffering and n sum of Rs. 80,000 as compensation for continuing and permanent disability. The Tribunal has negatived the claim for legal expenses as well as the claim for damage to clothing on the ground that there was no sufficient evidence. But, in regard to extra-nourishment, the Tribunal granted Rs. 500. Even though the Tribunal found that the agony and suffering will be considerable, it has granted only Rs. 3000 when the appellant has made a claim for Rs. 16,000. As regards the compensation for continuing permanent disability, the boy has to depend upon others throughout his life and the marital prospects are also remote. Finding that there is no precise medical evidence about the implication of the absence of spleen, the Tribunal fixed the compensation on that head at Rs. 10,000 and in the end granted Rs. 13,600.