Case: G. Dhanasekar Vs. M.D., Metropolitan Transport Corporation Limited

The appellant, driver by profession and operating a tourist taxi himself, met with a motor accident on 05.09.2008. While driving the Tata Sumo car, a bus operated by the respondent, came from the opposite direction and dashed against the car. The appellant suffered fracture on right leg and right arm. According to the doctor, on account of the injuries suffered by the appellant and the operations undergone by him to fix a thick plate in the tibia bone with five screws, the appellant will not be in a position to bend his right knee beyond 90 degrees. There is shortening of the leg by one centimeter on account of nerve injury. He would be limping while walking. He cannot lift weight over 3 kilograms. His right hand movement is restricted to 25 degrees. He will not be able to drive two wheelers and he can drive four wheelers with difficulty. To quotethe incident, I cannot bend my right knee beyond 90 deg. I cannot use my right hand for lifting any weighty objects. The movements in my right hand elbow and wrist has almost been restricted. I am not in a position to drive the vehicles as before. I cannot use Indian toilet or squat or carry weight. I am walking with limping. Walking and standing for some time is a painful one. Because of the dislocation of bone in the lower jaw, I am not able to open my mouth fully and speak coherently. I find it very difficult to eat hard objects. I am suffering from intermittent head ache and giddiness. I have completely lost my earning capacity. I am having severe pain and suffering.The Tribunal awarded a total compensation of Rs.4,50,000/-. The Tribunal found that the appellant has contributed to the accident and, hence, the liability of the respondent was fixed at 50%. In appeal before the High Court, it was held that the contributory negligence on the part of the appellant is only 30%. The compensation was also refixed to an amount of Rs.3,20,000/-. Thus, the appellant was held entitled to Rs.2,24,000/- with interest @ 7.5% per annum.Thus, aggrieved, the claimant has filed these appeals. There is no appeal by the respondent.

Reasoning:
13. PW1 has stated that a passenger in the bus was thrown out of the bus through the front windscreen and that the car took a u-turn on account of the impact of the accident. Apparently, it was this evidence which lead to the first finding by the Tribunal that the negligence on the part of the driver of the bus was the root cause of the accident and it was the bus which dashed against the car. Having entered such a finding, another finding on contributory negligence is unsustainable. Unfortunately, without proper appreciation of the evidence, the High Court has fixed 30% negligence on the part of the appellant, which we find it difficult to sustain. Therefore, in the light of evidence available in this case, we restore the first finding of the Tribunal that the negligence on the part of the bus driver is the root cause of the accident.14. As noted above, appellant is a driver operating a tourist taxi. On account of the physical disability referred to above, it needs no elaborate discussion to hold that he would not be in a position to continue his avocation at the same rate, or in the same manner as before. He was aged 46 years at the time of accident. Therefore, we are of the view that it is a case where the appellant should be given just and reasonable compensation for his functional disability as his income has been affected. The court has to make a fair assessment on the impact of disability on the professional functions of the victim. In this case, the victim is not totally disabled to engage in driving. At the same time, it has to be seen that he cannot continue his career as earlier. In such circumstances, the percentage of physical disability can be safely taken as the extent of functional disability. In the assessment of the doctor, it is 35%. Since the appellant is compensated for functional disablement, he will not be entitled to any other compensation on account of physical disability or loss of earning capacity, etc. However, he is entitled to reimbursement towards medical expenses, etc. The Tribunal has fixed income of Rs.10,000/-. There is no serious dispute on this aspect. Therefore, applying the principle laid down by this Court inand Others case (supra), the appellant is entitled to compensation as computedd ofal expenses,d 30%Rajesh and Othersr ofg thethe appellant willbe entitled tot towardss to theed by theloss of earningon andt towardst towards. We shall first deal with the aspect of contributory negligence. There is no dispute that the vehicles were coming in opposite direction. It has also come in evidence that theof the bushas filed a complaint before the police and the police has registered an FIR. Except theth the vehicles and the doctor who treated the appellant, there is no other oral evidence. The FIR, disability certificate, medical bills, driving licence, RC book and permit were also marked.