IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30-09-2008 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU C.M.A.(NPD)Nos.1794 of 2002 and 1671 of 2004 C.M.A.(N.P.D.) No.1794 of 2002 Metropolitan Transport Corporation (Chennai) Ltd., rep. by its Managing Director, Chennai 600002. ... Appellant/Respondent (C.T.Accepted vide order dated 25.7.02 in CMP.9213/02 by ASUJ & KGPJ) vs. Melvin Jothi Joshuah ... Respondent/Claimant C.M.A.(N.P.D.) No.1671 of 2004 Melvin Jothi Joshuah ... Appellant/Claimant vs. Metropolitan Transport Corporation (Chennai) Ltd., rep. by its Managing Director, Chennai 600002. ... Respondent/Respondent (C.T.Accepted vide as per order of court dated 10.6.02 made in CMP.6879/02 BY ASUJ & KGPJ) Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment dated 21.3.2001 made in MCOP No.3854 of 1996 on the file of the Motor Accident Claims Tribunal (IV Judge, Small Causes Court), Chennai. For Appellant in : Mr.P. Jagadeeswaran C.M.A.(NPD) No.1794 of 2002 and Respondent in C.M.A.(NPD) No.1671 of 2004 https://hcservices.ecourts.gov.in/hcservices/ For Respondent in : Mr.N.M. Muthurajan C.M.A.(NPD) No.1794 of 2002 and Appellanat in C.M.A.(NPD) No.1671 of 2004 COMMON JUDGMENT On 30.10.1996 at about 3.20 p.m., while the claimant was travelling in a bus bearing Registration No.TN-02-N-0141 (Route No.24-C) from Anna Nagar Chinthamani to Padi, the bus stopped in 12th Main Road and the claimant and others alighted so as to enable the other passengers to get down from the bus and afterwards before they boarded the bus the conductor blow whistle without seeing whether they have entered into the bus and the driver also without noticing it started the bus in a negligent manner and the bus dashed on the another bus which was going on the left side of the said bus which caused injuries to the claimant and others. Hence a sum of Rs.3 lakhs is claimed as compensation. Thereafter, it was raised to Rs.14 lakhs on filing of amendment application. 2. In the counter filed by the Transport Corporation it is stated that on 30.10.1996 the bus driver stopped the bus in Anna Nagar Bus Stop and after the passengers alighted from the bus the driver started it slowly and was overtaking another bus which was stationed ahead of the bus and at that time since the claimant was hanging in the foot-board of the bus, dashed against the right side of the bus which was standing, fell down and sustained injuries. Hence the claimant alone is responsible for the accident. There was no wrong on the part of the bus driver. The age, avocation and income of the claimant are denied. The compensation claimed is excessive and hence the petition has to be dismissed. 3. Mr.Jagadeeswaran, Learned counsel for the Transport Corporation, would vehemently contend that the Tribunal has observed wrongly in appreciating oral evidence and other records by saddling liability upon the bus driver. It is his further contention that the accident itself would show that the claimant himself invited the trouble and had he been cautious enough he might have averted fall from the bus. 4. On the contrary, Mr. Muthrajan, learned counsel for the claimant would submit that the first informant is third party, of course, who is friend of the claimant, his version could not be turned down on any account and the oral evidence would also show that the driver was fault at the time of accident. 5. This Court has carefully scrutinized the oral evidence of the witnesses as well as F.I.R. and Rough Sketch prepared in the site of the accident. In the F.I.R. one Kumar, an associate of the https://hcservices.ecourts.gov.in/hcservices/ claimant has alleged that while himself and the claimant alighted and after boarding the bus, without seeing the passengers who had been getting inside the bus the conductor blow whistle and the driver also without adverting the happenings going on in the foot- board, started the bus, moved and hit another bus which already overtook the bus, stationed ahead of the bus. Hence, the claimant fell down and received serious injuries. P.W.1 claimant also says as per the version in the F.I.R. 6. Conversely, R.W.1, the driver of the bus would depose that there was heavy crowd in the bus stop and the conductor gave whistle after some passengers alighted and some got in and hence he started the bus and at that time one person, who was hanging in the foot-board dashed against another bus and that he took the injured to the hospital. In the cross examination he says that the accident took place while he overtook another bus which was standing nearby. P.W.3 is Gr.I P.C. Attached to Thirumangalam Police Station Traffic Investigation, who says that on the basis of the F.I.R., Charge Sheet was lodged against the driver. 7. While the copy of the Rough Sketch Ex.P.14 would show that the accident took place as per the statement of the driver, the cumulative effect of the above said oral accounts and the allegations in the F.I.R. would amply show that the bus driver was fault at the time of accident. It is in the evidence of the driver that he started the bus immediately after hearing the whistle given by the conductor. Worthwhile it is to note that he did not state that after hearing the whistle, when he intended to overtake the stationed bus whether he ascertained that anybody else was alighting from the bus or getting inside the bus. Even after hearing the whistle, the driver would have ensured that nobody was getting into the bus through foot-board, and then he should have over taken the stationed bus. If he was careful enough, he might have avoided the accident. It is the primordial and foremost duty of the bus driver to ensure the safety of the passengers while they board, travel in the bus and to reach a safe place after they get down from the bus and if any deviation is found in discharging their duty, necessarily they have to be anchored with liability. It cannot be accepted that merely because one person was standing in the foot-board, the bus driver may be careless enough to start the bus without ensuring the safety of the passengers. However, as far as the facts in this case are concerned, the assertion in F.I.R. and oral testimonies would eventually indicate that the bus crew were callous at the time of accident and hence there is no impediment for this Court to fasten the liability on driver. In this regard, observations of the Tribunal are confirmed. 8. Insofar as the quantum of compensation assessed and awarded by the Tribunal is concerned both the appellants are at loggerheads. The claimant contends that the quantum of award does not reflect the gravity of the injuries and his sufferings, while https://hcservices.ecourts.gov.in/hcservices/ the Transport Corporation would submit that the quantum fixed by the Tribunal is on the higher side. 9. The claimant was aged about 20 years at the time of accident. It is evident from Ex.P.8 and Ex.P.9 that he has completed Diploma Course in Civil Engineering in Alagu Paltechnic, Puzhal, Chennai. Ex.P.1 is the Discharge Summary issued by the Sri Devi hospital, Chennai-40, where he was admitted on 30.09.1996 and was inpatient till 18.11.1996. It was diagnosed that he suffered fracture "Ischiopubic Rami Right and Left with Rupture Urethra. Extensive Perivesial Haematomadistended Bladder". Treatment given to him in the hospital is as follows: "I. Supra Pubic cystostomy Findings – Extensive perivesical haemostasis Distended bladder -confirmed by aspiration of blood stained urine. II. Pelvic stabilisation by A.O. External fixation Procedure : Under GA external stabilisation done by using 4 shanz pin of 5mm shanz pins and stabilised the pelvic # with A.) rods. " This document would show the gravity of the injuries sustained by him and treatments offered to him. 10. Ex.P.7 is the Discharge Summary issued by the Department of Urology in Government Stanley Medical College Hospital, where he was admitted on 11.2.1997 and discharged on 27.2.1997. There is also a reference that he was operated on 2.4.1997. It was diagnosed that he was suffering from Stricture Urethra and Urethro plasty operation was done. References are available from this document showing that he was admitted to the said hospital on various occasions as inpatient for considerable periods. He was readmitted on 20.3.1997 and discharged on 12.5.1997 and a surgery was undertaken on 2.4.1997 i.e., ENDTOEND URETHROPLASTY. The said hospital performed dilatation seven times as seen from the documents, normally once in three months. 11. Ex.P.10 is Case Sheet maintained by JIPMER Hospital, Pondicherry, where the claimant took treatment continuously. It is claimant's evidence that the urinary bladder become septic, he went to JIPMER Hospital, Pondicherry. P.W.2 Doctor would say that in the accident the left side hip bone got fractured and hence urethra was cut and urinary track was modified, that he could not control passing of stools, for which treatment was given, that continuous treatment was given to him for his contusion in urethra and he passed urine in small quantities, that stones were formed in urethra and then and there they were removed, that contamination occurred in Ureithra, that his penis has become small size and https://hcservices.ecourts.gov.in/hcservices/ hence his marital life would be affected. that both the pelvis fractures malunited and hence he suffers from disability to the tune of 90%. He further stated that the claimant could not reproduce children. From the medical evidence it has come to light that the claimant has suffered a lot due to accident. The following are the descriptions of the medical terms relatable to the injuries, diagnoses and treatment of the claimant (Reference: The British Medical Association Medical Dictionary – First U.K. Edition, 2002) "Cystostomy : The surgical creation of a hole in the bladder usually performed to drain urine when the introduction of a catheter is inadvisable or impossible. Incontinence, urinary: Involuntary passing of urine, often due to injury or disease of the urinary tract. There are several types. Stress incontinence refers to the involuntary escape of urine when a person coughs, picks up a heavy package, or moves excessively. It is common in women, particularly after childbirth, when the urethral sphincter muscles are stretched. In urge incontinence, also known as irritable bladder, an urgent desire to pass urine is accompanied by inability to control the bladder as it contracts. Once urination starts, it cannot be stopped. Total incontinence is a complete lack of bladder control due to an absence of sphincter activity, which may be associated with spinal cord damage. Overflow incontinence occurs in long-term urinary retention, often because of an obstruction such as an enlarged prostate gland. The bladder is always full, leading to constant dribbling of urine. Incontinence may also be due to urinary tract disorders (including infections, bladder stones, or tumours) or prolapse of the uterus or vagina. Incontinence due to lack of control by the brain commonly occurs in the young (see enuresis) or elderly and those with learning difficulties. If weak pelvic muscles are causing stress incontinence, pelvic floor exercise may help. Sometimes, surgery may be needed to lighten the pelvic muscles or correct a prolapse. https://hcservices.ecourts.gov.in/hcservices/ Anticholinergic drugs may be used to relax the bladder muscle if irritable bladder is the cause. If normal bladder function cannot be restored, incontinence pans can be worn; men can wear a penile sheath leading into a tube connected to a urine bag. Some people can avoid incontinence by self-catheterization. Permanent catheterization is necessary in some cases. Plasty: A suffix meaning shaping by surgery; performing plastic surgery on. Urethral dilatation: The procedure in which a urethral stricture in a male is widened by inserting a slim, round tipped instrument through the opening of the urethra at the tip of the penis. Urethral stricture: A rare condition in which the male urethra becomes narrowed and sometimes shortened as a result of shrinkage of scar tissue within its walls. Scar tissue may form after injury to the urethra or after persistent urthritis. The stricture may make passing urine or ejaculation difficult or painful, and it may cause some deformation of the penis when erect. Treatment is usually by urethral dilatation." 12. The Tribunal has fixed the permanent disability at 65% even though the doctor has assessed at 90%. It appears that the Tribunal Judge was on the impression that the doctor has given only 65% of permanent disability but the disability certificate Ex.P.11 shows that his total percentage of permanent disability is 90%. In the circumstances of this case, it is appropriate to adopt the percentage assessed by the Doctor. Hence the claimant has to be compensated for the disablement to the tune of 90%. 13. As far as quantum of compensation towards Transport, clothing, Treatment from Sri Devi Hospital, Medical expenses, Attendersl agony is concerned the award of Tribunal is correct. For extra nourishment Rs.10,000/- granted by the Tribunal is enhanced to Rs.15,000/-. The medical evidence candidly depicts the sufferings of the claimant and it could be observed that it would have been a difficult exercise to put him in a marital life. Even if it was possible, it may be impossible for him to procreate children. Considering this aspect, the Tribunal has awarded https://hcservices.ecourts.gov.in/hcservices/ Rs.16,000/- alone. In view of this Court, it is not adequate and for which Rs.75,000/- has to be awarded. For pain and sufferings Rs.25,000/- has been granted and it is increased to Rs.30,000/-. He is entitled to compensation for loss of amenities. Accordingly allowing Rs.25,000/- will meet the ends of justice. It is in his evidence that he earned Rs.2,000/- per month by working in Thirumurugan Mosaic Tiles and after the accident he was stopped from the employment. The Tribunal has observed that since he was a student, loss of income could not be considered and in opinion of this Court, the said finding has to be set aside. For loss of future prospects a sum of Rs.25,000/- may be allowed. 14. A conscious scrutiny of the medical evidence would show that the claimant is suffering from complications in urino genetal system hampering him from entering into blissful marital life and pleasant home life. Those aspects have to be carefully considered by the Court. Even though an urologist has not been examined by the claimant, this Court could not shut its eyes by not granting compensation to the claimant. Of course, if an urologist was examined before the Tribunal, he would have enlightened the court by adducing his valuable evidence as regards the medical complications occurred in urino genital system of claimant and future consequences. After dealing and considering with the medical evidence of urologist and the special features of urology, a Division Bench of this Court has rendered a Judgment reported in 2001 (3) T.A.C. 361 (Mad.) [B. Imtiaz Ahamed vs. G. Banumathi and Another] wherein the learned Judges. Were of the opinion that the grievance of the claimant has to be borne in mind and the gravity of the injuries have to be appreciated in the matter of granting compensation. The learned Judges have enhanced the compensation to Rs.13,60,000/- from Rs.5,00,000/- awarded by the Tribunal. 15. Hence, following the view already taken by this Court as well as considering the medical problems which the claimant has already faced and its consequences, this Court deems it fit to fix Rs.2,000/- to be for awarded each percentage of permanent disability. Hence for 90% of Permanent Disability, not less than Rs.1,80,000/- shall be awarded in the facts and circumstances of the case. So this Court has enhanced the compensation under the various heads and enlisted below: Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Transport Rs. 15,000/- Rs. 15,000/- 2 Clothing Rs. 200/- Rs. 200/- 3 Treatment from Devi Hospital Rs. 28,000/- Rs. 28,000/- 4 Medical Expenses Rs. 20,000/- Rs. 20,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 5 Attenders Rs. 10,000/- Rs. 10,000/- 6 Mental Agony Rs. 10,000/- Rs. 10,000/- 7 Loss of Marriage Prospects Rs. 10,000/- Rs. 75,000/- 8 Pain and Sufferings Rs. 25,000/- Rs. 30,000/- 9 Extra Nourishment Rs. 15,000/- Rs. 15,000/- 10 Loss of amenities --- Rs. 25,000/- 11 Loss of future prospects Rs. 1,00,000/- Rs. 25,000/- 12 Permanent Disability Rs. 60,000/- Rs. 1,80,000/- Total Rs.2,93,200/- Rs.4,33,200/- In the light of the observations rendered in this Judgment, the compensation is enhanced to Rs.4,33,200/- 16. In fine C.M.A.No.1671 of 2004 is allowed in part enhancing the compensation to Rs.4,33,200/- and the respondent corporation shall deposit the same along with interest at the rate of Rs.7.5% for the enhanced compensation from the date of filing of the petition till the date of deposit before the Tribunal within eight weeks from this date and on deposit, the claimant is at liberty to withdraw the same. 17. C.M.A.No.1794 of 2004 is dismissed. No order as to cost in both the appeals. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ggs To 1.The Motor Accidents Claims Tribunal (IVJudge, small Causes Court)Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2.The Registrar, Court of Small Causes, Chennai-600104. Copy to the Section Officer, V.R.Section, High Court,Madras. 1 CC To Mr.N.M. Muthurajan, Advocate, SR NO.56148 1 CC To Mr.P. Jagadeeswaran, Advocate, SR NO.56082 1 CC To Mr.S.Ramachandran, Advocate, SR NO.55960 C.M.A.(NPD)Nos.1794 of 2002 and 1671 of 2004 CK(CO) PMK/4.11.2008. https://hcservices.ecourts.gov.in/hcservices/