Apsrtc and anr. Vs. Telugu Narasayamma and anr. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the evidence on record also shows that even though the claimant has not completely boarded the bus, in the sense that she has not completely entered into the bus and some more passengers were behind her waiting for their turn to board the bus, driver has suddenly started the bus without bothering to verify whether all the passengers have entered the bus and it was safe to start the bus. the evidence on record clearly established that the accident occurred solely due to the rash and negligent act of driver rw-1, in starting the bus while the claimant-pw-1 was boarding the same. a-5 and a-6, clearly go to establish that the claimant sustained fractures of both the legs which required hospitalization for more than four months and she had to undergo seven operations during the course of treatment and still she has to live with permanent disability of 65% and she is unable to walk without crutches and she cannot do any hard labour or even attend to household duties. 2006 acj 1917, wherein the high court of madras, madurai bench, held that if circumstances so warrant, nothing precludes an appeal court from granting a well deserved relief having regard to the powers vested in it under order 41 rule 33 and also under section 151 of c. 2,200/- each, which cannot also be complained of.g.v. seethapathy, j.1. this appeal is preferred against the order dated 11-2-2000 in o.p. no. 627 of 1997 on the file of the motor accidents claims tribunal (district judge) vizianagaram, wherein the claim of the first respondent herein was allowed awarding rs. 2.00 lakhs with interest at 12% per annum and costs.2. the first respondent herein filed the claim application op no. 627 of 1997 before the tribunal against the appellants and the second respondent - driver, for a total compensation of rs. 2.00 lakhs. according to the first respondent, on 5-8-1996 at about 9.30 a.m., while she was boarding the aps rtc bus bearing no. ap-9/z-2551 at denkada bus stop, along with other passengers including her father and brother, the driver of the bus, in a rash and negligent manner, started the bus even before the claimant and others could get in and in the process, the claimant fell down from footboard and the rear wheel of the bus ran over two legs of the claimant, resulting in multiple fractures to both the legs. she was admitted in government headquarters hospital, vizianagaram, for treatment and later shifted to king george hospital, visakhapatnam, wherein she was inpatient for about four months, during which period she underwent as many as seven operations and she was discharged on 5-1-1997. the claimant further pleaded that the accident has resulted in permanent disability of legs due to which she is unable to move or do any work. she was aged 18 years at the time of accident and was going for labour work earning rs. 50/- per day. she was unmarried and because of the permanent disability, on account of the accident, her matrimonial prospects have also diminished. she, therefore, claimed total compensation of rs. 2.00 lakhs.3. the appellant herein filed written statement before the tribunal opposing the claim and denying the liability for compensation and further contented that the claimant was travelling on footboard of the bus, which is not permissible and she got slipped, fell down and sustained injuries and that the driver of the bus was not at fault.4. on the strength of the pleadings, the tribunal framed the following issues:(1) whether the accident occurred due to rash and negligent driving of the accident vehicle, as alleged in the o.p.?(2) whether r-1, r-2 and r-3, or any of them, are liable to pay any compensation, interest and costs, to the petitioner, and if so, to what amounts?(3) to what reliefs?5. the claimant was examined as pw -1 and dr. m.v. audinarayana, assistant professor, orthopedics, k.g. hospital, visakhapatnam, who treated the claimant, was examined as pw -2 and exs. a-1 to a-8 were marked on the claimant's side. p. simhachalam, driver of the bus, was examined as rw-1 and no documents were marked on behalf of the appellant - corporation. ex. x-1 is the case sheet pertaining to the claimant.6. on a consideration of the evidence on record, the tribunal held on issue no. 1 that the claimant was not a footboard passenger and that the accident occurred due to rash and negligent driving of driver of the bus. on issue no. 2, the tribunal awarded a compensation of rs. 2.00 lakhs, holding that the respondents before the tribunal are liable to pay the amount jointly and severally, with interest at 12% p.a. from the date of petition till realization and costs.7. aggrieved by the said award, the a.p.s.r.t.c. filed the present appeal.8. arguments of the learned counsel for the appellant and respondents were heard and the records are perused.9. the case of the first respondent/claimant is that on 5-8-1996 at about 9.30 a.m., she was waiting at denkada rtc bus stop along with her father and brother and when the bus bearing no. ap-9/z-2551 came, the claimant along with others was boarding the bus and even before she could completely get into the bus and was resting one foot on the footboard in the process of entering the bus, the driver in a rash and negligent manner started the bus, as a result of which the claimant fell down and the left rear wheel of the bus ran over both the legs of the claimant resulting in multiple fractures to both the legs leading to permanent disability.10. the appellant-corporation contended before the tribunal that the claimant was travelling on the footboard, which is not permissible and she fell down and sustained injuries for which the driver is not responsible. in a way, the appellant-corporation sought to contend, though not specifically pleaded, that the claimant by her own negligence, contributed to the accident.11. the claimant, as pw -1, has testified that her father and three other persons boarded the bus ahead of her and some more people were behind her waiting to board the bus and while she was in the process of boarding the bus, its driver suddenly started and, therefore, she fell down. in the cross-examination, pw -1 denied the suggestion that the accident took place due to her own fault in slipping from the bus. the driver, examined as rw-1, deposed that at denkada bus stage, he stopped the bus to enable the passengers to get in and get down and on the signal of the conductor, he started the bus and, therefore, he is not responsible. in the cross-examination, he admitted that denkada police filed a case against him. ex. a-1 is the certified copy of the fir in cr. no. 190 of 1996 registered against rw-1 driver and also the conductor, on the strength of complaint given by the claimant's brother, immediately after the accident. it can be seen from ex. a-1 that at the earliest point of time, it was alleged that while the claimant was boarding the bus, driver started the bus and the conductor also gave signal to start the bus, even though several passengers were still in the process of boarding the bus. after due investigation, the police filed charge-sheet against both driver and conductor under ex. a-4, alleging that the accident was due to the negligence of the conductor who gave starting call without closing the bus door, though passengers including the claimant, were still boarding and the driver started the bus, in a rash and negligent manner. the testimony of the claimant - pw -1, is duly corroborated by the contents of exs. a-1 and ex. a-4. the conductor of the bus is not examined before the tribunal to show that he has given the signal to driver to start the bus after satisfying himself that all the passengers boarded the bus. it is not the case where the claimant was travelling standing on the footboard for quite sometime and unable to withstand such travel, she slipped and fell on the road. the evidence on record shows that the claimant was boarding the bus after the bus halted at the bus stage and some passengers including her own father have boarded the bus just prior to her. the evidence on record also shows that even though the claimant has not completely boarded the bus, in the sense that she has not completely entered into the bus and some more passengers were behind her waiting for their turn to board the bus, driver has suddenly started the bus without bothering to verify whether all the passengers have entered the bus and it was safe to start the bus. the claim that he started the bus only after getting clearance from the conductor remains unsubstantiated inasmuch as the conductor is not examined before the tribunal. thus there is nothing on record to show that the driver started the bus only after getting clearance from the conductor. even otherwise, while starting the bus after regular half, at the bus stage, it was expected of a prudent driver to ensure that such start of the bus would not result in any untoward incident. it is also not a case where after the bus is started, the claimant came running from behind and tried to board the bus in motion. the driver is supposed to start the bus only after the door is closed and duly fastened. it is not the case of the appellant in the written statement nor is it the evidence of rw-1 that he started the bus after the door was closed. when the door is not closed and when the passengers were still in the process of boarding the bus, it is not expected of the conductor to give clearance for starting the bus nor expected of the driver to start the bus. the contention of the appellant that the claimant was travelling on the footboard, which is not permissible, and she slipped and fell down, deserves outright rejection for the simple reason that there is absolutely no reason as to why she was permitted to travel on the footboard, when it is not permissible. it is obvious that the appellant-corporation in order to get over the liability, on account of the rash and negligent act of its employee - the driver, has gone to the extent of raising a false plea, virtually seeking to throw the blame on the claimant. ex. a-2 motor vehicle inspector's report shows that the accident was not due to any mechanical defect in the vehicle. the evidence on record clearly established that the accident occurred solely due to the rash and negligent act of driver rw-1, in starting the bus while the claimant-pw-1 was boarding the same. the finding of the tribunal on this count, does not, therefore, call for any interference.12. it is not disputed that the claimant pw -1 sustained multiple fractures to both the legs, besides other simple injuries, pw -1 testified that the rear wheel of the bus ran over her legs and both the legs were fractured and she was inpatient in government hospital for eleven days and then shifted to king george hospital, where she underwent treatment for four months and she is now disabled and she cannot walk without the aid of crutches. pw -2, assistant professor, orthopedics, king george hospital, visakhapatnam, who treated the claimant, testified that pw -1 was brought to the hospital on 16-8-1996 referred by the government hospital, vizianagaram and she was discharged on 6-1-1997 and in the meanwhile, as many as seven operations were performed on pw -1. pw -2 in his evidence, has furnished the details of the operations performed. he further testified that on 16-12-1999, the date of his giving evidence, he examined pw -1 and found fracture of both bones of right legs is mal-united leading to deformity and there is a restricted painful movement of right ankle joint, left ankle joint is completely fused and there is no movement leading to pain and restricted joint movement. he further deposed that the patient is not at all able to use left leg due to severe pain and absence of left ankle movement and still she is using crutches, because of deformity of both the legs and both ankles. he further deposed that she is unable to attend any labour work or even household duties and also unable to attend natural calls, without the help of crutches. he issued disability certificate, ex. a-8, assessing the permanent disability at 65%. pw -2 gave evidence on the basis of the case sheet, ex. x-1, maintained by him. the testimony of pw -2 coupled with the wound certificate ex. a-3, disability certificate ex. a-8, case sheet ex. x-1 and photos exs. a-5 and a-6, clearly go to establish that the claimant sustained fractures of both the legs which required hospitalization for more than four months and she had to undergo seven operations during the course of treatment and still she has to live with permanent disability of 65% and she is unable to walk without crutches and she cannot do any hard labour or even attend to household duties.13. regarding quantum of compensation, the tribunal awarded rs. 1,25,000/- for the permanent disability, rs. 4,230/- towards loss of earnings for the period of four months 21 days @ rs. 30/- per day, rs. 21,350/-towards expenses for the attendant and conveyance charges and miscellaneous expenses during the hospitalization and rs. 24,104/- towards medical expenses covered by a bunch of 109 bills, ex. a-7; totalling to rs. 2,18,194/-, but restricted the same to rs. 2.00 lakhs, the amount claimed in the petition.14. the learned counsel for the appellant contended that the amount of rs. 1,25,000/- granted towards compensation for the permanent disability is on high side and without any basis, inasmuch as the tribunal has arrived at that figure by multiplying statutory compensation payable under no fault liability in a sum of rs. 25,000/- by five times and without any reference to suitable multiplier applicable to the age and income of the claimant.15. the learned counsel for the first respondent - claimant, on the other hand, contended that even if suitable multiplier, as per the second schedule to motor vehicles act, 1988, is applied, considering her age of 28 years and earning capacity of rs. 50/- per day, by way of coolie work, the claimant would be entitled to much more than what the tribunal has awarded. in that connection, he invited the attention to a decision tamil nadu state transport corporation v. vasantha and ors. 2006 acj 1917, wherein the high court of madras, madurai bench, held that if circumstances so warrant, nothing precludes an appeal court from granting a well deserved relief having regard to the powers vested in it under order 41 rule 33 and also under section 151 of c.p.c. in the facts of that case, it was held that it was a fit case for enhancement of compensation, even without a cross-appeal.16. the charge-sheet ex. a-4, the wound certificate ex. a-3 and the case-sheet ex. x-1, show that the claimant was aged 30 years by the date of accident. ex. a-4 further shows that her calling was coolie. it is also in the evidence of pw -1 that she is unmarried and she was eking out livelihood by going to coolie work earning rs. 50/-per day. the tribunal assessed the daily income of pw -1 by way of coolie work at rs. 30/- per day and accordingly assessed the loss of past earnings. the said estimation of daily income is quite reasonable. as per the second schedule to motor vehicles act, 1988, suitable multiplier for a person aged 30 years is 18. when the same is applied, the loss of income for the claimant comes to rs. 1,92,400/- (rs. 900/- per month 12 18 multiplier). inasmuch as, the permanent disability suffered by the claimant is estimated medically at 65%, the loss of earnings to that extent comes to rs. 1,26,360/-, which almost equals to the amount of rs. 1,25,000/-awarded by the tribunal. thus even after applying suitable multiplier for arriving at the amount of compensation, on account of permanent disability, the amount of rs. 1,25,000/- awarded by the tribunal, cannot be held to be excessive or unreasonable.17. regarding the other amounts awarded by the tribunal, there is no serious dispute. she is entitled for the loss of past earnings during the period of hospitalization for 4 months 21 days in a sum of rs. 4,230/-@ rs. 30/- per day. considering the fact that she was in hospital for a long period of more than four months and she underwent as many as seven operations, it is quite possible that she must have undergone untold pain and suffering and physical discomfort and, hence, an amount of rs. 38,000/-awarded by the tribunal is quite reasonable. for the three simple injuries sustained by the claimant, the tribunal awarded rs. 6,600/-@ rs. 2,200/- each, which cannot also be complained of. being a lady and immobilized for a period of four months of hospitalization, the claimant must have necessarily incurred expenditure on the attendant besides incurring miscellaneous expenditure, though the treatment at government hospitals is supposed to be free of cost. the amount of rs. 21,350/- granted by the tribunal on that score is modest. the tribunal has awarded rs. 23,104/- towards purchase of medicines, which is the actual expenditure incurred, as borne out by a bunch of 109 medical bills, under ex. a-7. though, the total amount of compensation came to rs. 2,18,284/-, the tribunal restricted the same to rs. 2.00 lakhs, as claimed by the claimant.18. viewed from any angle, the said amount of compensation of rs. 2.00 lakhs awarded by the tribunal cannot be termed excessive. there are no such circumstances warranting enhancement of compensation, in the absence of any cross-objections by the claimant. it is not a case of the tribunal awarding lesser compensation than what is claimed. the tribunal has allowed the claim in full and there are no reasons to interfere with the said award.19. in the circumstances, and for the reasons stated above, the award dated 11-2-2000 in o.p. no. 627 of 1997 on the file of the motor accidents claims tribunal (district judge), vizianagaram, granting total compensation of rs. 2.00 lakhs (rupees two lakhs) with interest at 12% per annum from the date of petition till realization and costs, is upheld.20. in the result, the appeal is dismissed. no costs.