High Court
Legal Reasoning
( 1 ) fa583.20IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 583 OF 2020Baban s/o. Dhondiba Shinde..AppellantAge. 49 years, Occ. Driver,R/o. Kasara Dumala, Tq. Sangamner,Dist. Ahmednagar.VersusThe Divisional Manager..RespondentMaharashtra State Road Transport Corporation Ltd., at Sarjepura,Tq. & Dist. Ahmednagar.Mr.K.N. Shermale, Advocate for the appellant.Mr.B.S. Deshmukh, Advocate for the sole respondent.CORAM: KISHORE C. SANT, J.RESERVED ON: 19.06.2024PRONOUNCED ON: 26.06.2024J U D G M E N T :-01.This Court by order dated 05.09.2022 had called for record andproceedings and had fixed the appeal for final hearing on 13.09.2022.Thereafter, it was heard on 13.09.2022 and adjourned for further argumentsto 27.09.2022. It was further adjourned to 10.11.2022 as part-heard. Theparties are thus ready for final hearing at the stage of admission. ( 2 ) fa583.2002.Heard the learned Advocates for the parties. Perused the recordand proceedings. Taken up for final disposal by the consent of the parties.03.This appeal arises out of the judgment and order passed by thelearned Member, Motor Accident Claims Tribunal, Sangamner dated13.11.2018 in MACP No. 88 of 2014. The appellant is original claimant,whose claim petition came to be partly allowed by the learned Member,directing the respondent to pay compensation of Rs. 4,92,000/- including theamount of ‘no fault liability’ with interest @ 8% p.a. from the date of filing ofthe claim petition till realization of the amount.04.The claimant is aggrieved by the judgment to the extent of notallowing the claim in its entirety. The claimant had prayed for compensationof Rs.15 lakhs, claiming that he has sustained 90% permanent disability andthus his capacity to work is lost by 90%. The second ground is that thelearned Tribunal has held the claimant liable for contributory negligence. Thethird ground raised is about non-grant of future medical expenses. 05.The facts in short are that the claimant was working as a driver.
Legal Reasoning
( 3 ) fa583.20On 01.01.2014 is was riding on motorcycle with his nephew. He wasproceeding from Nashik to Sangamner on motorcycle bearing registration No.MH-17-AV-5245. When he was in Mohadari Ghat near Ganpati temple, hemet with an accident. The offending vehicle i.e. State Transport bus bearingregistration No. MH-14-BT-1043 came in high speed. The driver was drivingthe bus in rash and negligent manner. Because of the dash, the claimant felldown from the motor-cycle and sustained multiple injuries. The driver of thebus lodged complaint with the police after the accident, in which the driver ofthe bus stated that the claimant dashed the bus when the claimant was tryingto overtake a truck and the same is the defence of the respondent. 06.The learned Member of the Tribunal held that it is a case ofcontributory negligence. He has accepted that the functional disability is tothe extent of 40% and not 90%. About future expenses, same is not granted.07.The learned Advocate Mr. Shermale for the claimant vehementlyargued the matter. He submits that the learned Tribunal granted lump-sumcompensation without considering the medical expenses, loss of futureincome, pain and sufferings and expenses for special diet. He further argued ( 4 ) fa583.20that the claimant in his evidence has clearly stated that it is the offendingvehicle, which was coming from opposite direction in high speed, gave dash tothe motor-cycle and this evidence is not accepted. The claimant has suffered100% functional disability and the same is not appreciated by the learnedTribunal. Though the learned Tribunal has accepted that the claimant hassuffered injuries, the learned Tribunal has not granted compensation towardsloss of future prospectus. He thus stated that the judgment suffers fromillegality on these three counts. 08.The learned Advocate for the respondent opposes the appealstating that it is clearly a case of contributory negligence. The claimant hasnot produced on record a driving licence to prove his case that he wasworking as a driver. The claimant also failed to prove that he is unable towork. Clear suggestion was given in the cross-examination that at the time ofaccident, the claimant was overtaking the truck. He has also further admittedthat the spot where the accident took place is a ghat section and there isalways rush of the vehicles. 09.On these submissions, this Court has gone through the judgment ( 5 ) fa583.20and the evidence. So far as evidence of PW-1 claimant is concerned, he hasstated that he was working as a driver on a goods carrier with one JollyTransport Ltd., Pune. He was receiving salary of Rs.10,000/- per month andRs.150/- towards daily allowance. The bus was in high speed and the busdriver could not control the bus and gave dash to the motor-cycle. There isFIR lodged about the accident. He produce on record the certificate issued byDr.Dange (PW-2). He also stated about treatment he took at various hospitalsand that he was required to pay more than Rs.1 lakh. He received functionaldisability to his right leg and right hand. He cannot do a job of a driver again..In the cross-examination, he accepted that he has not producedon record his driving licence. He accepted that he came to Court by walk. Hecould not state as to what statements are recorded by police in the complaintfiled by him. He could not state that whether any other person has seen theaccident. 10.PW-2 Dr. Dange, who was examined by the claimant stated that inthe year 2014 he was attached to Tambe Hospital, Sangamner. On08.01.2014 the claimant was admitted in the said hospital and he was treatedby this Doctor. The claimant has received fracture to his right femur, right ( 6 ) fa583.20tibia, right clavicle with brachial plexus injuries and thus this witness issuedthe injury certificate. He stated that the petitioner is suffering frompermanent disability to the extent of 90%. In view of the disability, thepetitioner is unable to work as a driver. .In the cross-examination, he stated that he has mentioned in thecertificate that the claimant is a driver at his instance. He accepted that thecertificate does not bear registration number and seal of this witness. Thethumb impression on the certificate is also not attested. 11.Third witness examined on behalf of the claimant is one VilasHinge working with Jolly Transport Ltd.. In his evidence, he has stated thatthe claimant was working as a driver. He was paid salary of Rs.10,000/- incash. After the accident, he did not come on his job for two years and now heis not working as a driver..In the cross-examination, he stated that no register of theemployees is kept in the office of the transport company. There is no musterand salary register maintained, though it is mandatory under the law. Hecould not produce any document to show that the applicant was working withJolly Transport. ( 7 ) fa583.2012.The respondent has examined only one witness i.e. MahendraSonawane, a driver working on the offending bus. In his evidence he statedthat he was driving the bus with due care. When the bus came to MohadariGhat, the bus was in moderate speed. One motor-cycle came from theopposite direction overtaking a truck. The said motor-cycle came on the rightside of the bus and was trying to overtake the truck from middle of the truckand the bus. The bus therefore turned towards south side extreme edge of theroad. The rider of the motor-cycle could not control speed of the motor-cycleand dashed right side front wheel of the bus. This witness took the rider ofthe motor-cycle to hospital and lodged FIR with Sinnar Police Station. In thecross-examination, nothing much is taken.13.The learned Member on the basis of this evidence came to aconclusion that it is a case of contributory negligence. There is functionaldisability to the extent of 40%. The learned Tribunal considered 30%negligence on the part of the claimant. The loss of earning is taken to beRs.6,24,000/- - 1,87,200/- (30% towards contributory negligence). ThusRs.4,36,800/- is granted towards future loss of income. Rs.22,400/- is ( 8 ) fa583.20awarded towards hospital and medicine expenses, Rs.7000/- is awardedtowards special diet, Rs. 10,000/- is awarded towards conveyance andtowards pain and suffering an amount awarded is Rs.15,000/-. Thus, totalrounded off amount of Rs.4,92,000/- is awarded.14.Coming to the judgment cited by the claimant, first judgment is inthe case of Mangla Ram Vs. Oriental Insurance Co. Ltd., 2018 AIR SCW 1900.In the said case, there was no evidence of negligence on the part of the riderof the motorcycle. The respondent also did not produce any evidence. In thatcase the Hon’ble Apex court held that it cannot be taken as contributorynegligence. In the present case, however, the FIR immediately lodged withthe police shows that it is the claimant, who was overtaking a truck in theghat. The claimant himself has admitted in his cross-examination that theroad was a single lane. In the cross-examination of the driver of the bus, therewas also suggestion given about the presence of the truck. The learnedTribunal rightly held that the evidence of the driver is consistent with thestatement in the FIR. The learned Tribunal has still held the extent ofcontributory negligence only to the extent of 30%. This Court does not findany perversity in the findings. ( 9 ) fa583.2015.The next judgment cited is in the case of Mohammed Siddique &Ors. Vs. National Insurance Co. Ltd. & Ors., (2020) AIR (SC) 520. It was acase where the Apex Court held that the violation of law by itself leads tocontributory negligence. A person cannot be held liable for contributorynegligence. In the present case, it has come in the evidence that it is thismotor-cycle, who was trying to overtake a truck. Thus, this fact needs to beconsidered. Considering this, it is clear case of contributory negligence.16.In the case of Namrata Anil Yadav & Ors. Vs. Bhupendra ManoharBhoir & Anr., F.A. No.463 of 2020, this Court at Principal Seat at Mumbairecorded that there was no evidence to show negligence on the part of theclaimant.17.On the point of permanent disability, the learned Advocate for theappellant relied upon judgment in the case of Jitendran Vs. The New IndiaAssurance Co. Ltd., (2021) AIR (SC) 5382. In the said case there wasevidence to show that the injured has suffered 69% permanent disability andis unable to perform regular activities. He was requiring constant support ( 10 ) fa583.20even in the confined life. In that case, the Hon’ble Apex Court has consideredthat the loss of income needs to be taken as 100% as the claimant had becamepermanently incapacitated from doing any work. In the present case, theclaimant was in a position to move. He accepted that he came to Court on hisown without any support. Therefore, the judgment in the case of Jitendran(supra) is not applicable to the present case.18.In the case of Pappu Deo Yadav Vs. Naresh Kumar & Ors., (2020)AIR (SC) 4424, the Tribunal had awarded compensation for loss of futureprospectus. The High Court refused the said amount on the principles ofproportionality. There the assumption of disability was claimed to be 89%,which was considered to be 45% by the High Court. The Hon’ble Apex Courtassessed the same at 65% in the circumstances of that case. This Court doesnot find that the said judgment is applicable to the present case.19.So far as functional disability is concerned, the learned Advocaterelies on the judgment in the case of Jakir Hussein Vs. Sabir & Ors., (2015)AIR (SCW) 1496. In that case, there is specific finding recorded that theclaimant would never be able to work as a driver and in that case loss of ( 11 ) fa583.20earning capacity was considered to be 100%. This judgment needs to beconsidered in the light of the present facts. In the present case, the applicanton one hand has not produced any document or even driving licence to showthat he was working as a driver. Witness No.3, who was working with JollyTransport also could not produce a single document to show that the claimantwas working as a driver with the said transport. Thus, the very fact that theclaimant was working as a driver is not proved. Thus, even the judgment inthe case of Jakir Hussein (supra) is not applicable to the present case.20.Coming to the point of compensation for pain and suffering, thelearned Tribunal has awarded an amount of Rs.15,000/-. This Court findsthat the claimant had suffered various injuries. Though the claimant couldnot prove exact extent of disability, the learned Tribunal has rightly consideredit to be 40%. An amount of Rs.15,000/- towards paid and suffering appearsto be too meager. It ought to have granted Rs.1,00,000/-. Since Rs.15,000/-towards pain and suffering is already awarded, it would be appropriate toaward Rs.85,000/- more to the appellant. No other modification needs in theimpugned order. Hence, the following order :- ( 12 ) fa583.20ORDER(i)The appeal is partly allowed.(ii)The appellant-claimant shall be entitled to Rs.85,000/-(Rupees Eighty Five Thousand) over and above the award passedby the learned Tribunal. Rest of the award is maintained as it is.(iii)The award be modified accordingly.(iv)The respondent-insurance company shall pay Rs.85,000/-(Rupees Eighty Five Thousand) to the appellant-claimant withinterest @ 8% p.a. from the date of filing of the claim petition tillits realization.[KISHORE C. SANT, J.] snk/2024/JUNE24/fa583.20