G. Gnanam @
Gnanamoorthy Vs. Metropolitan Transport Corporation  INSC 2173 (16
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 ...
S.B. SINHA, J.
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:
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 2 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%..."
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? 3
2. Whether the
Petitioner is entitled to compensation? If so, how much?"
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:
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..."
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
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..."
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.
preferred an appeal there against. The High Court by reason of the impugned
judgment without there being any materials on record, held:
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 5 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..."
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.
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)].
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
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
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
The materials on
record had not been considered by it at all.
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
8 [Cyriac Joseph]