Compensation cannot be guaranteed on permanent disability basis every time written by Diksha Sharma student of Government Law College, Mumbai

The Branch Manager vs Agilan

Facts:

A petition was filed by the respondent for merely spectate of a demolition of a building being carried out, due to which a part of debris fell on the respondent and sustained several injuries. The claimant started to suffer from permanent disability in the lower limbs. The Tribunal decided on awarding compensation to the claimant on the basis of two heads i.e. loss of earning power and permanent disability, however, aggrieved by this decision the appellant that is Insurance Company filed an appeal in the High Court.

Issues:

• Is the area of demolition to be considered as a private place?
• Has the respondent contributed to negligence?

Legal Provisions:

• Tort of Negligence
Motor Vehicles Act,1988

Appellant’s Contention:

The learned counsel appearing on behalf of the appellants submitted that the place of incidence that is the area of demolition is a private place and knowing that is not safe to enter in the respective arena, the claimant decided to spectate in close premises, hence, he has deemed to contribute negligence on his own. It was also contended that since the respondent was spectating from the backside of the building, it couldn’t have been foreseeable for the bulldozer driver to check any individual’s presence. As per this contention, this is a case of volenti non fit injuria. It was further submitted the basis of deciding compensation by the Tribunal was contrary to the judgment of Full Bench in Cholan Roadways Corporation Ltd vs Ahmed Thambi.

Respondent’s Contention:

It was contented by the counsel on behalf of the respondent that the contention presented by the appellant’s counsel regarding private place doesn’t stand. The counsel drew the attention of the court on the definition of ‘public place’ explainable under the Motor Vehicles Act, 1988 and said that road is a public place to which the public carries a right to access. The counsel relied on the judgment of Pandurang vs New India LIC Ltd. The driver of the bulldozer was solely responsible, therefore, there is no negligence on the part of the claimant.

Observations of the court:

The court was of the view submitting that there was 20% negligence on the part of the claimant as well as 80% on the driver of the bulldozer. The Tribunal had erred in the calculation of the claim of compensation. It was the duty of the driver of the bulldozer to issue a warning in the public place. Compensation awarded on the grounds of permanent disability should be set aside.

Judgment:

The sum decided on account of permanent disability is deducted and the claimant is subjected to a compensation of Rs. 4,11,377 from earlier Rs. 5,11,377 .





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