REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  7320-7321       OF 2008 (Arising out of SLP (C) No. 23471-23472 of 2004)

G. GNANAM @ GNANAMOORTHY     … APPELLANT

Versus

METROPOLITAN TRANSPORT  CORPORATION              … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

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?

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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:

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“…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 sum of Re. 1 lakh in the following terms:  

Rs. 12,000/- towards loss of earning, Rs. 8,000/- towards transport

and  extra  nourishment,  Rs.  15,000/-  towards  pain  and  suffering,  Rs.

50,000/- towards permanent disability and Rs. 15,000/- towards loss of

amenities of life.

7. Respondent preferred an appeal thereagainst.  The High Court by

reason of the impugned judgment without there being any materials on

record, held:

“…In  the  Chief-Examination,  the  claimant admitted that he is working as a Helper in the same place  and  so,  it  cannot  be  said  that  the claimant cannot do any work at all  due to the injury.  Taking into consideration of the above

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reasons, certificate issued by the doctor P.W. 2 cannot  be  relied  on.   We  came  across  in  a number of cases that the said doctor is issuing certificates  fixing  the  permanent  disability which  is  not  proportionate  to  the injury.  The Division  Bench  of  this  Hon’ble  Court  has already found that it is not safe for the Tribunal to rely on solely his certificate, Even in this case as  stated  already though  the  claimant  has  not sustained any injury in the shoulder, he clearly establishes that the certificates are being given by P.W. 2, Dr. Thyagarajan, not on the basis of injury…”

8. On the aforementioned basis, the High Court held that the appellant

was guilty of contributory negligence to the extent of 50%.  As regards

the quantum of compensation towards the loss of earning power, the High

Court  purported  to be relying on  or  on the basis  of  a decision  of  this

Court  in  Divisional  Controller,  KSRTC vs.  Mahadeva  Shetty  &  Anr.

(2003) 7 SCC 197 without assigning any reason held that the appellant

was entitled to Rs.50,000/- towards permanent disability.   

9. In terms of Section 166 of the Motor Vehicles Act, 1988, a person

who has suffered injury in an accident is entitled to just compensation.

What would be a just  compensation,  however, would depend upon the

facts and circumstances of each case.  [See Divisional Controller, KSRTC

(supra)].

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10. Did the case involve a contributory negligence on the part of the

appellant?   Our answer  thereto  is  rendered in the negative.   The High

Court, with utmost respect, should not have disbelieved the evidence of a

Doctor  of  a  government  hospital  on  the  supposition  that  he  had been

issuing  certificates  fixing  ‘permanent  disability  which  was  not

proportionate to the injury’.  Even no such suggestion had been given to

him.   That  was  never  the  case  of  the  respondent.   In  his  cross-

examination, he categorically stated that he is a specialist surgeon and not

Orthopaedician  and  he  had  assessed  the  disability  correctly.   Except

putting a suggestion to him that there was a possibility of 5% error in

assessing the disability between doctor to doctor; no other question was

put to him.   

11. The  High  Court,  furthermore,  without  considering  the  relevant

facts, could not have arrived at a conclusion that the appellant in any way

was responsible for the injury.  The fact that the bus had hit with a lamp

post stands admitted.  The nature of the injury, as noticed hereinbefore,

suggests that the upper arm of his body had hit the body of the bus.  If he

had put  his  hand out,  his  upper  arm would  not  have  broken into  two

pieces by way of crush injury.   The injury would have been confined to

the wrist or the arm upto the elbow.  We are, therefore, of the opinion that

the appellant was not guilty of any contributory negligence.   

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12. The learned Tribunal did not accept the quantum of compensation

by loss of earning power as claimed by the appellant.   It has not  been

denied or disputed that in view of his aforementioned injury, he is not in a

position to work as a fitter.  He has merely been working as a helper.  The

fact that the appellant has suffered a functional disability is not in dispute.

In a situation of this nature and keeping in view the age of the appellant,

which on the date of accident was 29 years, if only a sum of Rs. 500/- per

month  was  considered  just  for  the  purpose  of  awarding  compensation

totaling a sum of Rs. 1,50,000/- only we do not see any reason as to why

the  High  Court  should  have  differed  therewith.   We have  noticed  the

reasonings of the High Court. There is no basis for arriving at the said

findings.   No reason was assigned in  support  of  the inferences  drawn.

The materials on record had not been considered by it at all.  

13. For  the  aforementioned  reasons,  we  are  of  the  opinion  that  the

impugned judgment of the High Court cannot be sustained.  It is set aside

accordingly and that of the tribunal is restored.  The appeals are allowed

with costs.  Counsel fee assessed at Rs.25,000/-.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.    

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[Cyriac Joseph] New Delhi; December 16, 2008

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