High Court
Legal Reasoning
FA-148-18.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.148 OF 2018Maharashtra State Road TransportCorporation, Dhule,District Dhule, Through its Divisional Controller, M.S.R.T.C., Dhule, Tq. & Dist. Dhule ….Appellant(Orig. Respondent)VERSUS1)Santosh Devidas Khondde, Age: 36 years, Occ: Nil,R/o. Fagane, Tq. & Dist. Dhule.(Orig. Applicant)2)Ishwar Devidas Pardhi,Age: 32 years, Occ: Driver,(Dismissed vide Court’s R/o. Dharangaon, Dist. Jalgaon order dated 28/03/2018)….Respondents (Orig. Respondent) …. Mr. D. S. Bagul, Advocate for the AppellantMr. Shriniwas Kulkarni h/for Mr. S. N. Lavekar, Advocate for Respondent No.1….CORAM: NEERAJ P. DHOTE, J.RESERVED ONPRONOUNCED ON:: 24.03.2025 03.04.2025JUDGMENT :- 1.This Appeal is filed under Section 173 of the MotorVehicles Act (for short, MV Act) against the Judgment andOrder/Award dated 11.04.2016, partly allowing the Claim Petition 1 of 13 (( 2 ))FA-148-18No.636/2012 by which the learned Tribunal directed the Appellant,who was the original Respondent No.2, and the original RespondentNo.1 jointly and severally to pay Rs.14,60,000/- including No FaultLiability compensation to the Applicant with interest at the rate of 8%per annum from the date of accident till realization withproportionate cost of the Application.2.The facts in brief giving rise to the present Appeal are asunder:(a)The Respondent No. 1, who is the original Claimant before thelearned Tribunal, filed the Claim Petition contending that on20.06.2012, around 2:00 p.m., when he was traveling on amotorcycle with his friends from Dhule towards Faganegaon, andreached near Netaji Day School on the Dhule-Parola road, the StateTransport bus bearing No. MH-14-BT-1059, owned by the Appellant,i.e., MSRTC, and driven by Respondent No.2 (against whom theAppeal is dismissed by order dated 28.03.2018) came from the wrongside while overtaking two trucks, gave dash to the motorcycle whichresulted into accident. Due to the said accident, the Claimant sufferedsevere injuries in his leg.(b)The Claimant was admitted to the hospital for medical 2 of 13
Legal Reasoning
(( 3 ))FA-148-18treatment, and the accident was reported to the Dhule Taluka PoliceStation, where Crime No. 158/2012 was registered for the offencepunishable under Sections 279, 337, 338 and 427 of the Indian PenalCode (for short, IPC) and under Section 184 of the MV Act againstthe Respondent No.2. During the medical treatment, the right leg ofthe Claimant came to be amputed and due to the disability sufferedby the Claimant in the said motor vehicular accident, the Claimant,who was in the work of hair cutting and working in a salon, sufferedloss of income. The Claimant claimed total compensation of Rs. 20lakh with interest at the rate of 18% per annum.(c)The Claim Petition was resisted by the Appellant by filingwritten statement at Exhibit-19. The contentions of the Claimant andevery material averment in the Claim Petition came to be denied.(d)The learned Tribunal framed following issues at Exhibit-20.(i) Whether the Applicant proves that he sustained injury/permanentdisability due to rash and negligent driving of driver of S.T. Bus No.MH-14/BT-1059 which is owned by opponent No.2?(ii) Whether the accident is outcome of contributory negligence on thepart of drivers of both the vehicles?(iii) Whether the Applicant proves that the opponents are jointly andseverally liable to compensate him? 3 of 13 (( 4 ))FA-148-18(iv) If yes, to what extent?(v) What relief and order? In support of the Claim Petition, the Claimant examined himselfby filing an evidence affidavit at Exhibit-24 and brought on record thePolice Papers, Injury Certificates, and B-Form at Exhibits-25, 26, 27,28 and 29. The Manager from the hospital where the Claimant wastreated was examined as Witness No. 2 at Exhibit-31, and the billstowards the medical expenditure were brought on record at Exhibit-32. The doctor of the hospital where the Claimant's leg was amputedwas examined as Witness No. 3 at Exhibit-33, and the medical papers,such as the discharge card and bills, were brought on record. Noevidence was laid by the Appellant and the other opponent. Afterhearing both the sides and considering the evidence available onrecord, the impugned Judgment and Award came to be passed.3.Heard both sides and perused the record.4.It is submitted by the learned Advocate for the Appellantthat, the learned Tribunal failed to consider the Police Papers,particularly the spot panchanama, which shows that the accident wasthe result of contributory negligence. There were three (03) persons,including the Claimant, on the motorcycle at the time of the accident. 4 of 13 (( 5 ))FA-148-18The Insurance Company of the motorcycle of the Claimant was notimpleaded as a party Respondent in the Claim Petition. There wastwo (02) days' delay in filing the Appeal. The accident was the resultof negligence by the Claimant, as the motorcycle gave dash to the busfrom the back side. The Doctor who issued the disability certificatewas not examined. The Claimant was a Barber, and no income proofwas submitted in support of the Claim Petition. The learned Tribunalconsidered the monthly income of the Claimant at the rate ofRs.4,000/- per month which was on the higher side. There was noevidence to show that the Claimant owned the saloon. Thecompensation granted towards future prospects and the rate ofinterest were also on the higher side. In absence of age proof of theClaimant, the age considered by the learned Tribunal was erroneous.The learned Tribunal awarded the compensation much more thanwhat was necessary. The impugned Judgment and Award be quashedand set aside and the Appeal be allowed.5.It is submitted by the learned Advocate for the Claimantthat, proper issues were framed by the learned Tribunal on the basisof the pleadings, and the material available on record was rightlyconsidered. There was sufficient material on record in support of the 5 of 13 (( 6 ))FA-148-18compensation awarded by the learned Tribunal. There were Separatemedical bills and medicine bills on the record. The learned Tribunalconsidered all aspects of the matter and rightly calculated thecompensation. Therefore, the Appeal be dismissed.6.There can be no dispute on the point that no strict rulesof evidence are applicable to the proceedings in claim Petition forcompensation under the MV Act. As regards the contention of thelearned Advocate for the Appellant about two (02) days' delay in theregistration of the First Information Report in respect of the accident,it is amply clear from Exhibit-25, which is the FIR, that information inrespect of motor vehicular accident was received by the concernedPolice Station on 20.06.2012 itself, and the necessary entry in themotor accident register and station diary was made. There is nodispute on the point that, the motor vehicular accident took place on20.06.2012. Therefore, considering the aforesaid aspect as referredin the FIR itself, that the accident was reported to the concernedPolice Station on the very day of accident, the delay in registering theFIR becomes inconsequential.7.As regards the submission of the learned Advocate for theAppellant that the accident was the result of contributory negligence, 6 of 13 (( 7 ))FA-148-18as the Motorcycle gave dash to the aforesaid bus from the backside,and since it was a case of contributory negligence, impleadment ofthe Insurance Company with which the Motorcycle was insured wasnecessary, it was not established before the learned Tribunal that theaccident was the result of contributory negligence. Though in thewritten statement it was pleaded that the Motorcycle came fromopposite side in a rash and negligence manner and gave dash to thebus while overtaking on the wrong side, no evidence was laid toprove the said contention, even by preponderance of probability.Undisputedly, the crime was registered against the driver of the saidbus. Exhibit-26, which is the spot panchanama of the spot where theaccident took place shows damage at the front on the driver’s side ofthe bus. From the evidence laid before the learned Tribunal, even bypreponderance of probability, it is not shown that the said motorvehicular accident was the result of contributory negligence. It isneedless to state that the Claimant, who is the Respondent in thisAppeal, was an eye-witness to the accident and he examined himselfby filing an evidence affidavit and nothing has come in the cross-examination to accept the contention of the Appellant, that theaccident was due to contributory negligence. Thus non adding of the 7 of 13 (( 8 ))FA-148-18Insurance Company of the Motorcycle was not necessary.8.Coming to the other aspects of the matter, it is clear, andthere is no dispute, that the Claimant was hospitalized for treatmentof the injuries suffered during the said motor vehicular accident. Themedical papers were brought on record in the evidence of thewitnesses who were attached to the said hospital where the Claimantwas medically treated, in the capacity of Medical Manager andResident Medical Officer. The medical evidence established that theClaimant was hospitalized from 20th June to 27th June 2012, and hisright leg was amputed. Nothing has come on record to discard themedical evidence brought on record by the Claimant. According tothe Claimant, he was a Barber having salon. However, no documentto show that, he owned the saloon was brought on record. At thesame time, there is nothing to discard the Claimant’s case that he wasengaged in the work as a Barber. In absence of the income proof ofthe Claimant, the learned Tribunal considered Rs.4,000/- as themonthly income of the Claimant. Even if it is considered that theBarber shop remains closed for four (04) days in a month, for theremaining 26 days, the said notional income is appropriate, as theBarber’s earning per day can be to the extent of Rs.150/-. This shows 8 of 13 (( 9 ))FA-148-18that the notional income was considered by the learned Tribunal. Itcannot be said that the notional income of Rs.4,000/- per month wasexorbitant.9.The learned Trial Court considered 100% functionaldisability of the Claimant. The work as a Barber is necessarily to bedone by standing. The consequence of amputation of one leg, wouldbe that, the Claimant will not be able to do his work as a Barber. AtExhibit-29, the Form-B issued by the Civil Surgeon, General Hospital,Dhule is brought in evidence. It corroborates the Claimant’s case inrespect of amputation of right leg though the said certificate indicatesdisability as 80%, the functional disability of the Applicant is 100% byconsidering his nature of work as a Barber. In this regard usefulreference can be made to the judgment of the Hon’ble Supreme Courtof India in Raj Kumar vs. Ajay Kumar and Another (2011) 1 SCC 343.In the said Judgment, it is observed as under:“Where the claimant suffers a permanent disability as aresult of injuries, the assessment of compensation under thehead of loss of future earnings, would depend upon theeffect and impact of such permanent disability on his earningcapacity. The Tribunal should not mechanically apply thepercentage of permanent disability as the percentage ofeconomic loss or loss of earning capacity. What requires tobe assessed by the Tribunal is the effect of the permanentdisability on the earning capacity of the injured; and after 9 of 13 (( 10 ))FA-148-18assessing the loss of earning capacity in terms of percentageof the income, it has to be quantified in terns of money, toarrive at the future loss of earnings (by applying the standardmultiplier method used to determine loss of dependency).The Tribunal has to first decide whether there is anypermanent disability and if so the extent of such permanentdisability. This means that the tribunal should consider anddecide with reference on the evidence: (i) whether thedisablement is permanent or temporary; (ii) if thedisablement is permanent, whether it is permanent totaldisablement or permanent partial disablement, (iii) if thedisablement percentage is expressed with reference to anyspecific limb, then the effect of such disablement of the limbon the functioning of the entire body, that is the permanentdisability suffered by the person. If the Tribunal concludesthat there is permanent disability then it will proceed toascertain its extent. After the Tribunal ascertains the actualextent of permanent disability of the claimant based on themedical evidence, it has to determine whether suchpermanent disability has affected or will affect his earningcapacity. Ascertainment of the effect of the permanentdisability on the actual earning capacity involves three steps.The Tribunal has to first ascertain what activities theclaimant could carry on in spite of the permanent disabilityand what he could not do as a result of the permanentability. The second step is to ascertain his avocation,profession and nature of work before the accident, as also hisage. The third step is to find out whether (i) the claimant istotally disabled from earning any kind of livelihood, or (ii)whether in spite of the permanent disability, the claimantcould still effectively carry on the activities and functions,which he was earlier carrying on, or (iii) whether he wasprevented or restricted from discharging his previousactivities and functions, but could carry on some other orlesser scale of activities and functions so that he continues toearn or can continue to earn his livelihood. Whencompensation is awarded by treating the loss of futureearning capacity as 100% (or even anything more than50%), the need to award compensation separately under the 10 of 13 (( 11 ))FA-148-18head of loss of amenities or loss of expectation of life maydisappear and as a result, only a token or nominal amountmay have to be awarded under that head”On the basis of evidence on record, consideration of 100%functional disability of the Claimant to carry his work as Barber bythe learned Tribunal cannot be faulted.10.As regards the contention of the learned Advocate for theAppellant in respect of age of the Claimant is concerned, admittedly,no birth certificate was brought on record by the Claimant. In thepolice papers, the Claimant’s age is shown as 33 years, in injurycertificate Claimant’s age is shown as 35 years. In the Claim Petition,which was filed in the year 2012, the age of Claimant is shown as 32years. In the evidence affidavit which was filed in the year 2015 theage of Claimant is shown as 34 years which shows that the Claimantwas within the age between 30 and 35 years. The learned Tribunalconsidered the age of the Claimant as 32 years at the time ofaccident. As per Judgment in Sarla Verma and others Vs. DelhiTransport Corporation and another – (2009) 6 SCC 121, themultiplier for the age between 31 and 35 year is the same andtherefore, no interference is required with the consideration of age bythe learned Tribunal. As regards the interest is concerned, the 11 of 13 (( 12 ))FA-148-18learned Tribunal has granted interest from the date of accident tillrealisation. The same needs to be modified to the extent that, itshould be from the date of filing the Claim Petition pursuant to theprovisions of Section 171 of the MV Act. As regards thecompensation on the other hand, the following calculations have beendone by the learned Tribunal.Notional Income+Rs.00,04,000.0050% future prospect +Rs.00,02,000.00 Monthly income +Rs.00,06,000.00Yearly loss(6000X12) +Rs.00,72,000.00Multiplier 16(72000X16)+Rs.11,52,000.00Medicine bill +Rs.00,23,670.00Medical bill +Rs.00,65,000.00Artificial living +Rs.01,00,000.00Pain and suffering +Rs.01,00,000.00Attendance conveyance+Rs.00,25,000.00Loss of amenities +Rs.00,25,000.00Total payable compensation=Rs.14,60,000.0011.Considering the facts and circumstances and the evidenceavailable on record, the compensation awarded by the learnedTribunal cannot be said to be exorbitant or unjust. It is needless tostate that it is the settled position under the law that, just and faircompensation is to be awarded to the Claimant in matters of motor 12 of 13
Decision
(( 13 ))FA-148-18vehicular accident. 12.In view of the above discussion no interference is calledfor in the impugned Judgment and Award. Hence, the followingorder. ::ORDER::(i)The Appeal is partly allowed to the extent that, theinterest will be from the date of filing the Claim Petition.(ii)Rest of the impugned Judgment and Award is upheld.(iii)The Record and Proceedings be sent back to the learnedTribunal. [ NEERAJ P. DHOTE, J.]HRJadhav 13 of 13