Bombay High Court
Case Details
2025:BHC-AUG:13253 FA-4107-2017.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 4107 OF 2017 Maharashtra State Road Transport, Corporation, through it’s Divisional Controller, Divisional Offe Yeotmal [M.S.]. Maharashtra State Road Transport, Corporation, through it’s, Divisional Controller, Divisional Offer, Nanded. ….Appellants [Original Respondent Nos.1 & 2] VERSUS Dayanand S/o Maroti Raut, Age: 32 years, Offu: Skilled labour, New Nil, R/o: Shiur Camp, Post Shiur, Tq. Hadgaon, Dist. Nanded. …..Respondent [Original Respondent] 1. 2. 1. Ms. Reddy Ranjana D., Advofate for the Appellants Mr. G. N. Chinfholkar, Advofate for Respondent - Sole ….. ….. CORAM : NEERAJ P. DHOTE, J. : 17th April, 2025 Reserved On Pronounced On : 6th May, 2025 JUDGMENT : 1. This is an Appeal fled under Seftion 173 of the Motor Vehifles Aft, 1988 [hereinafter referred to as the ‘M.V. Aft’] by the Appellants – Maharashtra State Road Transport Corporation, fhallenging the Judgment and Award dated 23rd August, 2016, passed by the learned Motor Affident Claims Tribunal, Nanded, [hereinafter referred to as the ‘learned Tribunal’] in Motor Affident Claims Petition 1 FA-4107-2017.odt No.257/2012 [hereinafter referred to as the ‘Claim Petition’], by whifh, the Appellants are direfted to pay jointly and severally Rs.74,800/- [Rupees Seventy Four Thousand Eight Hundred Only] with interest @ 7.5 % per annum from the date of fling of the Petition till realization of the amount, to the Respondent - Sole. 2. The fafts giving rise to the present Appeal are as under :- [I] The Respondent - Sole fled the above referred Claim Petition before the learned Tribunal for fompensation of Rs.3,00,000/-, fontending that, on 24/03/2012 around 05:00 p.m at Pusad – Hingoli road, a State Transport Bus [For short the ‘Bus’] bearing No. MH-31-AP- 9713 fame in a rash and negligent manner and gave dash to the Stationary Autorifkshaw bearing No. MH-29-3510, in whifh, he was sitting. Due to the dash by the Bus to the Autorifkshaw, he sufered grievous injuries and was admitted to the Hospital for treatment. He sufered frafture in his right leg, injuries to the fhest, spine and head. Due to the said injuries, he sufered permanent disability and flaimed the fompensation from the Appellants. [II] The Appellants fontested the Claim Petition by fling Written Statement below Exhibit – 14. The fontentions of the Respondent - Sole were denied and pleaded for dismissal of the Claim Petition. [III] The learned Tribunal framed following issues below Exhibit – 15. “1. Whether petitioner proves that, on 24-03-2012 on Shembal Pimpri to Shiur Camp Road at Mulava Phata the S.T. bus bearing No. MH-31/AP-9713 driven by its driver came in high speed and in rash and negligent manner and gave dash to the auto bearing No. MH-29/3510 in which the petitioner was travelling and thus has caused permanent disability. 2. Do respondent Nos.1 and 2 prove that, the petition is bad on account of non-joinder of necessary party. 2 FA-4107-2017.odt 3. 4. Whether the claimants are entitled to get compensation ? If yes, what should be the quantum. What award ?” [IV] The Respondent - Sole examined himself by fling Evidenfe Afdavit below Exhibit – 16 and he was fross-examined on behalf of the Appellants. The Polife Papers, Copy of Disfharge Card and Form Comp – B were brought on reford in the Claim Petition. The Appellants examined the Driver of the Bus below Exhibit – 23 and he was fross-examined on behalf of the Respondent - Sole. Considering the evidenfe available on reford, the learned Tribunal passed the impugned Judgment and Award. 3. It is submitted by the learned Advofate for the Appellants that, the Driver of Bus and the Driver of Autorifkshaw were not made party to the Claim Petition. On this aspeft, relianfe is plafed on the Judgment in Machindranath Kernath Kasar Vs. D. S. Mylarappa and Ors.; LAWS [SC] 2008 4 88. No reasons are given by the learned Tribunal in support of fnding to Issue No.2. The Medifal Offer is not examined to prove the injuries. Only Form Comp – B is brought on reford. There was delay of about two [2] months in lodging the Report with the fonferned Polife Station. . Henfe, the Applifation be allowed. 4. It is submitted by the learned Advofate for the Respondent - Sole that, as the injured was hospitalized, there was delay in lodging the Report with the fonferned Polife Station. After the refovery, the injured was able to walk and thereafter, he lodged the Report. Non adding the Driver of ofending vehifle will not afeft the Claim 3 FA-4107-2017.odt Petition. In support of his submissions, he relied on the Judgment in New India Assurance Company Limited Vs. Sitaram Devidayal Jaiswal and Ors. ; 2012 [2] ALL MR 429. In the Evidenfe Afdavit, there is referenfe of medifal expenditure infurred by the injured and the learned Tribunal did not grant the same. The perfentage of disability in Paragraph No.17 of the impugned Judgment is wrongly mentioned as ‘12’ instead of ‘21’. There is no merit in the Appeal and the same may be dismissed. 5. Both the sides fited the above referred Judgments on the point of efeft of not impleading the Driver of the ofending vehifle as party Respondent to the Claim Petition. On going through the said Judgments fited by both the sides, the legal position, whifh gets fulled out, is that, the Claim Petition fannot be dismissed or gets vitiated for non-joinder of the Driver of the vehifle involved in the Affident as the party to the Claim Petition. Both the Judgments fame to be
Legal Reasoning
fonsidered by this Court in National Insurance Company Limited vs. Ashok Rajaram Bambulkar and Others ; 2022 ACJ 2188, whifh was an Appeal under the M.V. Aft from the defision of the MACP for fompensation in respeft of death from the motor vehifular Affident, wherein, one of the point for fonsideration was, whether non- impleadment of the Driver of the ofending vehifle or absenfe of notife to the Driver under Rule 260 of the Rules, vitiated the profeedings before the Tribunal. This Court elaborately fonsidered the 4 FA-4107-2017.odt said issue in the light of the Judgments, in New India Assuranfe Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and Others; 2010 [2] Mh.L.J 177, in Mafhindranath Kernath Kasar Vs. D. S. Mylarappa and Others [Supra] and New India Insuranfe Company Limited Vs. Sitaram Devidayal Jaiswal and Others [Supra], and rejefted the fontention of the Appellants therein that, non-impleadment of the Driver of the ofending far or absenfe of notife to the Driver, under Rule 260 of the Rules vitiated the profeedings before the Tribunal. 5.2 In the fase at hand, the Driver of the Bus, whifh was involved in the motor vehifular affident, though was not party to the Claim Petition, was examined as the Witness by the Appellants before the learned Tribunal. Thus, no fault fan be found with answering of Issue No.2 in the Negative by the learned Tribunal, though no reasons in so many words are given. 6. The Respondent - Sole, being the injured, is an eyewitness to the Affident. His evidenfe shows that, he lodged the Report with the Khandala Polife Station, Taluka Pusad, Distrift Yeotmal and Crime No.48/2012 fame to be registered against the Driver of Bus for the ofenfe punishable under Seftions 279 and 338 of the Indian Penal Code, 1860 [hereinafter referred to as ‘I.P.C’]. The said Report is lodged after more than one and half [1½] months by the Respondent - Sole. In his fross-examination before the learned Tribunal, the 5 FA-4107-2017.odt explanation for delayed reporting to the Polife has fome on reford, whifh shows that, due to the injuries in the leg, there was delay in lodging the Report. The F.I.R. forroborates his evidenfe, wherein, it is mentioned that, due to the frafture in his leg, he was unable to move and he fould not lodge the Report with the Polife. This shows that, the delay in lodging the Report is explained. This being the matter relating to the fompensation under the M. V. Aft, the said delay in lodging the Report, when explained, will not be of mufh signiffanfe. The learned Tribunal has rightly fonsidered this aspeft. The learned Tribunal has also fonsidered Artifle – A, the referral letter by Publif Health Center, Sembal Pimpri to the Sai Hospital, Pusad, whereby the Respondent - Sole was immediately taken to the Publif Health Center after the Affident. 7. Though the Bus Driver denied the Affident due to the rash and negligent driving of the said Bus, in his fross-examination, he admits of driving the Bus on the route, where the Affident took plafe, on the date and time of Affident stated by the Respondent - Sole. In fross-examination of the Respondent - Sole, it has fome that, he had given the history about the Affident to Dr. Bang of Umarkhed. It is fortifed in the fross-examination of the injured that, he was in the Autorifkshaw, whifh was stationery at the time of Affident. The Respondent - Sole’s fontention that, the Autorifkshaw was stationery at the time of Affident, fnds forroboration from the Polife Papers. 6 FA-4107-2017.odt The evidenfe of Claimants, the evidenfe of the Bus Driver, fopies of Polife Papers and dofuments showing the hospitalization of the Appellant for Affident injuries, are suffient to hold the faftum of motor vehifular affident due to rash and negligent driving of the Bus by its Driver. On the basis of evidenfe available on reford, no fault fan be found with the fndings of the learned Tribunal that, the Respondent - Sole sufered injuries in the motor vehifular affident involving the Bus while he was sitting in the Autorifkshaw. 8. Admittedly, the Respondent - Sole did not examine the Medifal Offer or treating Doftor to prove the extent of injuries and disability sufered by him. He has relied on Exhibit – 21, whifh is the Form Comp - B showing frafture in ‘Tibia fbula 1/ 3rd under knee with restricted movement and difculty in walking and 21% permanent disability’. This being the Injury Claim, proftable referenfe fan be made to the Judgment in Raj Kumar Vs. Ajay Kumar and Another (2011) 1 SCC 343, wherein, the general prinfiples relating to the fompensation in injury fases are enumerated as follows :- “6. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) 7 FA-4107-2017.odt (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 7. Assessment of pecuniary damages under item (i) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a).” 8.1 Though the said Form Comp – B indifates 21% permanent disability to the Respondent - Sole, there is no evidenfe as to whether the said disablement was permanent or temporary. There is no evidenfe to show that, the said injury sufered by the Respondent - Sole afefted the earning fapafity of the Respondent - Sole. In fross- examination, the Respondent - Sole admitted that, he has not fled any dofument showing that, he took medifal treatment at the Primary Health Center, Sembal Pimpri and he has not fled any dofument showing that, he was referred to another Hospital. There are no Medifal Bills on reford, though it is fontended that, he infurred Rs.34,000/- towards Medifines, Doftor Fees, Hospital Charges, Spefial 8 FA-4107-2017.odt Diet, Travelling Expenses, Stay Charges and other Expenses. However, from the evidenfe available on reford, partifularly, the fopy of Disfharge Card at Exhibit – 19, it is flear that, the injured was admitted to the Hospital on 24/03/2012 and disfharged on 27/03/2012. Considering the days of hospitalization in the Hospital for treatment to the leg injury, overall expenditure as flaimed by the injured for the above referred purposes appears reasonable and affeptable. Further, due to the injury in the leg, the injured must have experienfed pain and suferings, for whifh, Rs.3000/- appears to be reasonable amount. It is true that, there is no medifal evidenfe in respeft of medifal advife for taking rest from work. Considering the days of hospitalization and the injuries as referred above, one [1] month rest from the work fan safely be presumed and, therefore, Rs.3,000/- as the one month’s earning fonsidered by the learned Referenfe Court, is fonsidered as one month’s loss of earning. If the said amount are added [Rs.34,000/-, Rs.3,000/- and Rs.3,000/-], the amount of fompensation fomes to Rs.40,000/-. 9. As per the observations in the above referred Judgments, the perfentage of disability fannot be applied as it is, as the extent of permanent disability of the limb fannot be fonsidered to be the funftional disability of the body nor fould it be assumed to result in a forresponding extent of loss of earning fapafity as observed in the above referred Judgment. It would not be out of plafe to reprodufe 9 FA-4107-2017.odt the relevant observations from the above referred Judgment on this aspeft :- “19. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” 9.1. In view of the above referred legal position, the learned Tribunal erred in multiplying the perfentage of permanent disability to the amount of Rs.36,000/- infurred by the injured for his medifal treatment. There are no reasons in the impugned Judgment as to how the permanent disability is taken by the learned Tribunal at 12%. Further, in absenfe of Expert / Medifal Evidenfe to show the future loss of earnings, applying the Multiplier of ‘15’ will not be sustainable. 10. In the bafkdrop of the above disfussion based on the evidenfe available on reford, on reassessing the evidenfe available on reford and the prinfiples laid down in the above referred Judgments, the fompensation awarded by the learned Tribunal, vide the impugned 10 FA-4107-2017.odt Judgment and Award needs to be modifed to the above extent, with no interferenfe in the rate of interest granted by the learned Tribunal. Henfe, the following order :-
Decision
ORDER [I] The Appeal is partly allowed with no order as to fosts. [II] The amount of fompensation awarded by the learned Tribunal, influsive of no fault liability amount, is modifed to Rs.40,000/- [Rupees Forty Thousand, influsive of no fault liability amount]. [III] Rest of the operative order in respeft of joint and several liability and rate of interest is upheld. [IV] The Reford and Profeedings be sent bafk to the learned Tribunal. [NEERAJ P. DHOTE, J.] Sameer/- Signed by: Md. Sameer Q. Designation: PA To Honourable Judge Date: 06/05/2025 15:47:03 11