G. GNANAM @ GNANAMOORTHYversusMETROPOLITAN TRANSPORT CORPORATION

                           [2008] 17 S.C.R. 767


                   G. GNANAM @ GNANAMOORTHY                             A
                                     v.
             METROPOLITAN TRANSPORT CORPORATION
                (Civil Appeal No. 7320-7321 of 2008)
                          DECEMBER 16, 2008
                                                                        B
               [S.B. SINHA AND CYRIAC JOSEPH, JJ.]

           MOTOR VEHICLES ACT, 1988:
\.(
             s. 166- Motor accident- Injuries suffered by passenger
        - Claim for loss of earnings and permanent disability -         c
        Tribunal allowing Rs.1,50,0001- towards loss of earning and
        Rs.1,00,0001- under other heads including Rs.50,0001- towards
      · permanent disability - High Court holding the claimant guilty
        of contributory negligence and reducing compensation only
        to Rs.50,0001- towards permanent disability- HELD: In terms     D
        of s.166, injured is. entitled to just compensation - In the
        instant case, claimant was not guilty of contributory
        negligence - High Court has not assigned any reason in
        support of inferences drawn - Judgment of High Court set
        aside and that of Tribunal restored.
                                                                        E
             A bus of the respondent-Transport Corporation
        dashed against a lamp post and in the accident the
        appellant's upper arm was broken into two pieces. The
        doctor opined that the appellant could not do work by
        holding objects with grip and assessed the permanent
        disability as 65%. Prior to the accident, the appellant was     F
X'      a fitter and thereafter he started working as helper. He
        filed a claim liefore the Motor Accident Claims Tribunal
        for Rs.6,00~000/- as damages. The Tribunal allowed
        Rs.1,50,000/- towards loss of earning capacity. It further
        granted a sum of Rs.1,00,000/-which included Rs.50,000/         G
        - toward's permanent disability. On appeal by the
        Corporation,- the High Court held that the claimant was
        guilty of contributory negligence to 1the extent of 50% and
      , that he was entitled to Rs.50,000/- towards permanent
                                     767                                H
    768       SUPREME COURT REPORTS             [2008] 17 S.C.R.


,A disability. Aggrieved, the claimant filed the appeal.
          Allowing the appeal, the Court
        HELD: 1.1. In ,terms of Section 166 of the Motor
   Vehicles Act, 1988, a person who has suffered injury in an
                                                                     ,.    '
   accident is entitled to just comper,isation. What would be
 B a just compensation, however, would depend upon the
   facts and circumstances of each case. [Para 9] [772-C]
        Divisional Controller, KSRTC vs. Mahadeva Shetty &
   Anr. (2003) 7 SCC 197, relied on.
                                                                     .. ,. .
 c facts,1.2.could
              The High Court, without considering the relevant
                   not have arrived at a conclusion that the
                                                                           r-
   appellant in any way was responsible for the injury.
   Further, the High Court should not have disbelieved the
   evidence of the doctor of a government hospital on ttie
   supposition that he had been issuing certificates fixing
 D 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. [Para 10 and            ~
   11] [772-0-E]                                                           i'
       1.3. The fact that the appellant has suffered a
E functional disability is not in dispute. In a situation of this
                                                                           i-
  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.
F 1,so,0·001- only, there is no reason for the High Court to
  have differed therewith. The High Court has not a~signed
                                                                    )I..
  any reason in support of the inferences drawn. The
  materials· on·;record were not considered by it at· all. The
  judgment of the High Court is set aside and that of the
  Tribunal restored. [Para 13] [773-B-E]
G
                        Case Law Reference:
          (2003) 1 sec 197         relied on            para 8
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
                                                                     ~I
                                                                      ,
                                                                           .~!




H 7320-7321 of 2008.


                                                                            ..
                                                                           --'
 G. GNANAM @GNANAMOORTHY v. METROPOLITAN                        769
          TRANSPORT CORPORATION

     From the final Judgment and Order dated "l-0-.8.2004 of the       A
High Court of Judicature at Madras in CMA No. (NPD) No. 167
of 1999 and C.M.P. No. 2100of1999 and Cro~s Objection No.
9 of 2000.
    Vipin Nair, P.B. Suresh ancf S. Balaji (for M/s. Temple Law
Firm) for the Appellant.                                               8
    A Mariarputham and Aruna M~thur (for M/s. Arputham
Aruna & Co.) for the Respondent.
     The Judgment of the Court was delivered by
     S.B. SINHA, J. 1. Leave granted.                                  c
    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:
                                                                       0
     " ... 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         E
     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           F
     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% ... "                                                     G
      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         H
                                                                          ..
    770          SUPREME COURT REPORTS               [2008] 17 S.C.R.


A 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
B 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
c                 of the driver of the Respondent?
                                                                           l.
                                                                           i
           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
0
    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
E
          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
F         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 of1the Respondent's bus driver ... "
                                    I
G        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 fitte~ 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
H


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                                                                               •
                                                                                I
.3. GNANAM @ GNANAMOORTHY v. METROPOLITAN                      771
   TRANSPORT CORPORATION [S.B. SINHA, J.]

was adduced by him, the learned Tribunal held:                        A
    " ... 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             B
    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            c
    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:                                                      D
     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          E
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 $aid that the claimant cannot do any work at all due to       F
     the injury. Taking into consideration of the above 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   G
     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     H
    772        SUPREME COURT REPORTS               [2008] 17 S. C.R.    -
A         on the basis of injury ... "
         8. On the afer-ementioned basis, the High Court held that
   the app~llaflt-was guilty of contributory negligence to the extent
   of 50%. As regards the qua.ntum of compensation towards the
   loss of earning power, the High Court purported to be relying
B" on or on the basis of a decision of this Court in Divisional
   Controller, -KSRTC vs. Mahadeva Shetty & Anr. (2003) 7 SCC
   197Without assigning any reason held that the appellant was
   entitled to RS350,000/- towards permanent disability.
          9. In terms of Section 166 of the Motor Vehicles Act, 19$8,
C a persen who has suffered injury in an accident is entitled to
  just corn-p_ensation. What would be a just compensatio·n,
  Ila.waver. wou)d_depend upon the facts and circumstances of
  each case. [See Divisional Controller, KSRTC (supra)].
       10. Did the case involve a contributory negligence on. the
D part of fbe 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'.
E Even no such suggestion had been given to him. That was
  never the .case of the respondent. In his cross-examination, he
  categorfcall.y- 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
F 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 rutwith a lamp post stands admitted. The nature
G of the tnjury, 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
H opinion that the appellant was not guilty of any contrib_utory
G. GNANAM @GNANAMOORTHY v. METROPOLITAN                        773
   TRANSPORT CORPORATION [S.B. SINHA, J.]

negligence.                                                           A
     12~ The learned Tribunal did not accept the quantum of
compensation by loS's 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             B
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.                c
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.                                              D
     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             E
assessed at Rs.25,000/-.
R.P.                                            Appeal allowed.