Consumer Protection Council, Tamil Nadu          ... Complainant
Vs.
Chairman, Thiruvalluvar Transport Corporation      ...  Opposite Party

Before : Hon'ble Justice V. Balakrishna Eradi

      The facts of the case briefly are that late Shri K. Kumar was travelling from Kumbakonam to Thanjavur on the 3rd of June, 1990 in the Thiruvalluvar Transport Corporation (for short TTC) bus. According to the TTC, the bus met with an acciden wile overtaking a bullock cart. The bullocks got agitated and panicky and in order to avoid  a major accident, the bus driver swevered the bus to left, as a  result the right hand side rear portion of the bus dashed against the branches of a tree on the road side and damage was caused to side glasses. Further, on account of swerving the vehicle and suddenly applying the brake, one of the passengers sitting in the middle of the last row was thrown forward and he came into contact with the iron side bar (part of the frame which holds the seat) and sustained a head injury, as a result of which he died.

      There is some difference in the version of the complainant as to how the accident was caused and where the deceased was sitting in the bus, but that is not material to the disposal of this complaint.

      The basic question to be considered is as to how the death of Shri Kumar was caused and whether this was due to any negligence on the part of the opposite party TTC ?

      A complainant was filed before this Commission by the Consumer Protection Council, Tamilnadu on behalf of the family of the deceased. The complainant has alleged that the deceased was sitting in the last row and when the driver suddenly applied the brakes, he was thrown forward. The twin seats in front of him was without back rest and had only the iron frame. The deceased struck against the skeleton of the iron frame of the seat and sustained serious head injuries, as a result of which he died. According to the complainant the cause of accident was indisputable, the  result of the projecting  steel tube hitting and penetrating the fore-head of the victim. The absence of the back rest cushion leaving the steel tubes protruding dangeriously was negligence on the part of the opposite party TTC and constitutes deficiency in service in running the transport service.

      The deceased was working in Ashok Leyland, Madras and was drawing a salary of about Rs.3,000/- p.m. He was only 32 years old and would have continued to work for another 26 years had he not died in the accident. He was the only bread earner of his family which consisted of his wife (23 years), a daughter (3 1/2 years), a dependent aged father (72 years) and mother (60 years). He was the only son. As such, the complainant claimed compensation of Rs.15 lakhs and also punitive damages of Rs.5 lakhs from the opposite party TTC.

      In its counter, the opposite party TTC has challenged the locus standi of the petitioner Council to file a complaint it has stated that the claim of compensation, if maintainable, can be filed only by the affected party through the widow of the deceased has also been made a petitioner/co-signatory to the cocmplaint.

      According to the opposite party TTC, either on account of the swerving the vehicle or applying the brakes one of the passengers witting in the midddle of the last row was thrown forward and came into contact with the iron side of bar (part of the frame which holds the seat) and has sustained head injury. It has denied that the two-seater in front of the deceased passenger was without back rest and had only, the iron frame and that the deceased struck against the protruding skeleton tube of the seat and sustained serious head injuries. According to it, the postmortem certificate does not reveal any penetrating wound on the fore-head. It has also challenged the photographs of the vehicle showing the condition of the two seater against which the head of the deceased struck as not of the vehicle involved in the accident but of some other vehicle.

      We heard the parties at length and we have also gone through the records.

      We find that the opposite party TTC has been changing its statement of facts as to how the injury was caused to the deceased.

      In a letter on 7th of July, 1990 to 'The Hindu' the Chairman of the opposite party TTC, had stated that the particular seat occupied by the deceased was at the end of the gangway and there was no seat infront of it, hence he did not have anything to hold on to avoid falling. The deceased received injury on his fore-head near the left eye, as aresult of the swerving of the bus to the left and sudden application of the brakes to bring the vehicle to a halt. In the present counter statement as already noticed above, it has been stated that the deceased was thrown forward due to the swerving of the vehicle and/or the application of the brakes and thereupon he came into contact with the iron side bar (part of the frame which holds the seat) and  sustained head injury. In the written submissions on behalf of the opposite party, the opposite party TTC has stated that the back rest of the seat was there but it was possible that it got detached, as a result of the impact at the time of the accident. In its opinion in all probability, the back rest could have got derached on account of the impact of the overhead branch of the tree hiting the rear portion of the bus and that there was no negligence on its part.

      It will be evident from the narration of facts above especially the narration of the version of the opposite party TTC that it has been changing its version as to whether injury was caused by the absence of back rest cushion leaving the steel tubes of the seat frame protruding upwrd against which the deceased struck his head.

      The FIR filed by the driver of the bus on 3rd of June, 1990 state clearly that "one passenger travelling in my bus collided against the steel tubes on the side seats".

      Again the Inquest Report state that the passenger Sri Kumar collided against the steel tube of the seat in front of him and his fore-head was brokean. The  Inquest Report only confirms. The FIR filed by the driver of the bus. This should leave no room for doubt that there were Protruding steel tubes of the frame of the seat in front of the deceased and in all likeihood the back rest was missing, making the protruding of the steel tubes a serious hazard to the safety of passengers.

      Regarding the suggestion of the opposite party TTC that the photograph of the seats of the vehicle was fake or of some other vehicle and not necessarily of the vehicle which was involved in the accident, the Sub Inspector of Police, Thanjavur certified that these Photographs were of the very same vehicle which was involved in the accident.

      The nature of the injury is also relevant in determining whether the deceased received a serious wound, especially, when the opposite party TTC has stated catagorically that the post-mortem certificate does not reveal any penetrating wound on the fore-head.

      The post-mortem certicifate states that the lacetted wound was 6 cms. in length vertically over the right side of the forehead starting from above the innerend of right eyebow. The leceration of brain over the base of both frontal lobes noticed each measured 9+5+1/4 cms.

      These along with the other features of the wound described in the post-mertom certificate, would loave no room for doubt that the deceased had received a massive injury to the brain resulting in his death. The likely cause of such a massive injury could only be the dashing of head of the deceased against the protruding steel tubes of the seat in front.

      After considering the evidence, we belive the version of the complainant that the seats infron of the deceased did not have the back rest with the result that the bare steel frames of the seat were protruding and the deceased hit his forehead against the tube receiving a massive injury on the forehead, as a result of which he died. The absence of the back rest and the existence of protruding steel tubes clearly, constituted negligence and deficiency in service on the part of the opposite  party party TTC.

      As regards the compensation payable to the family of teh deceased, it is observed that during the negotiations between the parties for an out of court settlement, a sum of Rs.510 lakhs was agreed to be paid as compensation subject to the approval of the Board of Directors of the opposite party TTC. We consider that on the on the materials available on record it would be reasonable to fix the compensation at the said figure and we accordingly direct that the opposite party shall pay a compensation at Rs.5.10 lakhs to the complainant widow with interest at 18 % per annum from 1st of May 1992 onwards till the date of payment. Time for payment is fixed as three months from this date. We direct that the  opposite party shall also pay a sum of Rs. 10,000/- by way of costs to the  complainant within the same time limit.