TAMIL NADU POLLUTION CONTROL BOARD Vs. MURTUZA

JUDGEMENT

(1.) In a case where two vehicles were involved in an accident, the insurance company of one of the vehicles and the claimant have come forward with two separate appeals, the former for apportioning the liability and the latter for enhancing the compensation awarded.

(2.) On 10.04.1992 at about 8.50 a.m., an auto bearing No. TC V 1607 belonging to the third respondent before the Tribunal and insured with the fourth respondent, the Oriental Insurance Company, proceeded from north to south direction along Santhome High Road. When it reached the Pollution Control Board, the jeep bearing Registration No. TM G 4484 belonging to the Tamil Nadu Pollution Control Board came out of its office premises and as the auto crossed the jeep, the left leg of a certain child named Murtuza who is seated inside the auto came into contact with the bumper of the jeep and in this accident the boy Murtuza eventually lost his left leg below the knee as the same required amputation. The boy was aged 11 years and was studying in VI standard in a premier school in the city and for the injuries suffered on various heads, compensation of Rs.3,55,000/- was sought before the Tribunal against which the Tribunal has passed an award of Rs.2,63,000/-. So far as the permanent disability of the child is concerned, the medical assessment made available through P.W.2 is 55% and the Tribunal has awarded consolidated sum of Rs.1,00,000/- on this head.

(3.) The learned counsel for the appellant argued that it is a case where the said auto was loaded heavily with school going children and was plying from north to south along Santhome High Road, and the driver of the jeep who was examined as R.W.1, took all the precautions before emerging from Pollution Control Board office on to the main road, and therefore, there was no negligence on his part. It is not a case argued the counsel where two vehicles came from opposite direction and the accident had occurred on an error of judgment of both the drivers, but it is an accident where the alleged offending vehicle was coming from inside the campus of Pollution Control Board on to the main road almost perpendicular to the line of motion of the auto and since the offending vehicle moved from a static position it could not have been driven rashly or negligently lest there would have been a major injury to all the inmates of the auto. It is in evidence that no damage was caused to both the vehicles and only the left leg of the claimant came hit on the bumper of the jeep resulting in the accident. Could the accident have occasioned if the child's left leg was not protruding outside the auto? It is therefore obvious that the victim-boy could not even keep his limbs intact inside the auto and therefore the driver of the auto cannot escape liability arising out of his own negligence in not taking care of young children to who he owed special duty in law and therefore, that the liability fastened exclusively on the Pollution Control Board and its insurer namely the appellants in CMA.No.253 of 2002 must be reduced and shall be apportioned equally with the owner and the insurance company of the auto rickshaw.