Msrtc, Ahmednagar vs Tukaram Dagadu Marane
2017 Latest Caselaw 5489 Bom

                                  1                   FA 1002.2007.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                     FIRST APPEAL NO. 1002 OF 2007

             Maharashtra State Road Transport
             Corporation Through Divisional
             Controller Ahmednagar, Division Sarjepur,
             Ahmednagar.
                                             ...Appellant...
                                             Orig opponent.

             VERSUS

             Tukaram Dagadu Marane,
             age 50 yrs, Occ. Nil,
             R/o 50/339, Laxminagar,
             Parvati, Pune-9.                   ..Respondent..

                               ...
           Advocate for Appellant : Mr M K Goyanka 
       Advocate for Respondents : Mr Darandale Abhijit C. 
                               ...
                   CORAM : V.K. JADHAV, J.

Dated: August 03, 2017 ...

JUDGMENT :-

1. Being aggrieved by the judgment and award

passed by the Chairman, Motor Accident Claims

Tribunal, Ahmednagar, dated 8.6.2007 in MACP

No.751/2001, original respondent MSRTC has preferred

this appeal.

2. Brief facts, giving rise to the present appeal are as

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     follows :-

     a]      on   29.10.1997   at   about   3.15   p.m.   the   claimant 

alongwith his wife was travelling in his Maruti Van from

Pune to Ahmednagar. On way, one S.T. Bus bearing

registration No.MH-12/1029 came from opposite

direction towards Pune side in high, excessive speed and

gave dash to the Maruti van of the claimant. In

consequence of which, the claimant sustained crushed

injury on his right leg. He was immediately shifted to

Civil Hospital, Ahmednagar and he was treated there for

compound fracture of tibia fibula right side with

multiple abrasions. Thereafter he was shifted to

Sassoon Hospital, Pune, but the claimant opted to take

treatment in the private hospital of Dr. Hardikar, where

fixtures were implanted and necessary treatment was

given to him for six months and surgical operations

were performed on his leg. The claimant has incurred

huge medical expenses. The claimant thus approached

the tribunal by filing MACP No.751/2001 for grant of

compensation under various heads. The claimant has

claimed compensation of Rs.10.00 lacs from the MSRTC.

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     b]      The   appellant-MSRTC   has   strongly   resisted   the 

     claim   by   filing   written   statement.     It   has   been   denied 

that the accident had taken place due to rash and

negligent driving on the part of the driver of the S.T.

Bus. The claimant himself was rash and negligent in

driving the Maruti Van and, therefore, he was at fault in

committing the accident. In the alternate, it has also

been contended that the claimant had contributed the

accident and the appellant MSRTC is thus not liable to

pay the compensation.

c] The claimant has adduced oral and documentary

evidence in support of his contentions. The respondent

MSRTC has not adduced any evidence. The learned

Chairman, Motor Accident Claims Tribunal,

Ahmednagar by its impugned judgment and order dated

8.6.2007 partly allowed the claim petition and thereby

directed that the opponent shall pay compensation of

Rs.7,80,500/- excluding the amount of no fault liability

to the petitioner with interest @ 9%p.a. from the date of

petition till realization of the entire amount. Being

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aggrieved by the same, the present appeal is preferred

by the MSRTC.

3. The learned counsel for the appellant-MSRTC

submits that, there was head on collusion between the

S.T. Bus and Maruti Van being driven by the claimant

himself. The learned counsel submits that, the claimant

was entirely responsible for the accident. The accident

had taken place in the hilly area and S.T. Bus was in

ascending direction, where as Maruti Van was in the

descending direction of the hilly area. However, the

Tribunal has not considered the same and erroneously

held that the driver of the S.T. Bus was entirely

responsible for the accident. Learned counsel submits

that in the alternate, the Tribunal ought to have held

the contributory negligence on the part of the claimant

who was driving Maruti Van at the time of accident.

Learned counsel submits that, the Tribunal has

erroneously recorded the facts and pleadings to the

effect that the claimant was constrained to leave the

service by availing voluntary retirement due to

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permanent disablement sustained by him in the

accident. Learned counsel submits that, there is no

pleadings to that effect and even the respondent-

claimant has not adduced any evidence to that effect. It

is a part of record that the respondent-claimant has

voluntarily retired from service on his own, however,

tribunal has worked out the difference of the salary by

considering his remaining span of service and awarded

the compensation erroneously under the head of loss of

future income. Learned counsel submits that, there is

no evidence on record to indicate that the Department

where the claimant was working has directed the

claimant to take voluntary retirement, otherwise the

department would retired him compulsorily. It is also

not the case of the claimant that he was not in a

position to carry out his work and therefore he was

constrained to take voluntary retirement. On the other

hand, it is a part of record that after taking voluntary

retirement, the claimant has received monetary benefits

one time by way of lump-sum amount, however, tribunal

has considered loss of future income and awarded a

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huge amount of compensation of Rs.6,77,300/- under

the head of loss of future income. Learned counsel

submits that, though the claimant has examined P.W.2

Dr.Hardikar, he neither deposed about percentage of

permanent disablement sustained by the claimant, nor

mentioned the same in his permanent disablement

certificate Exh.27. Learned counsel submits that the

claimant has failed to substantiate his contention that

due to permanent disablement, he is unable to perform

his work as earlier.

4. Learned counsel for respondent-original claimant

submits that, the claimant has examined P.W-3 Vijay

Wani, who has produced on record about salary being

paid to the claimant as well as extract indicating the

emoluments which the claimant could have been

received had he been continued in the service. Said

extract is marked at exh.62. The claimant had taken

Voluntary retirement w.e.f. 2.9.1999 and his date of

retirement is 31.5.2007. It further shows that had the

petitioner been continued with the service, he would

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have received total salary of Rs.10,41,947/- up to his

retirement on superannuation. However, the claimant

was constrained to take voluntary retirement and as

such, he could not get full salary and as per the

Voluntary Retirement Scheme he would get

approximately 35% of the regular salary. The tribunal

has, therefore, rightly worked out the loss suffered by

the claimant to the extent of 65% of his emoluments

which amounts comes to Rs.6,77,300/-. The tribunal

has thus considered said amount of loss of future

income of the claimant due to permanent disablement

sustained by him. The tribunal has observed that

decision to retire voluntarily is because of the

permanent disablement sustained by the claimant.

Learned counsel submits that, even though, the

respondent-claimant has not preferred any appeal or

cross objection, the claimant is entitled to just and

reasonable compensation under all the admissible

heads. Learned counsel submits that, the tribunal has

awarded very meager amount under the heads of pains

and sufferings, loss of amenities in future life and future

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medical expenses. Even the tribunal has not awarded

any compensation separately for having sustained

permanent disablement by the claimant.

5. On careful perusal of the pleadings, evidence

adduced by the parties and the impugned judgment and

award passed by the Tribunal, it appears that, the

tribunal has correctly recorded the finding about

negligence on the part of the driver of the S.T.Bus.

Learned counsel appearing for appellant-MSRTC

submits that, the FIR and spot panchnama are not duly

proved by the claimants and, thus, those documents

cannot be read in evidence. On perusal of the record, it

appears that, certified copies of those documents are

produced before the tribunal and even the tribunal has

referred those documents in the impugned judgment

and award. Even, the parties also referred those

documents in their respective submissions before the

Tribunal. On careful perusal of the contents of the spot

panchnama and, particularly, observations made by the

learned Chairman of the tribunal in paragraph No.6 of

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the impugned judgment, it appears that, road at the

spot of accident is 22 feet in width having 5 feet kaccha

road to both sides. It is East-West in direction on the

spot. The bus was coming from Ahmednagar. Thus,

southern side of the road is correct side for Bus and

northern side of the road is correct side for the Maruti

Van. Spot of accident is shown as two feet away from the

northern edge of the road. The learned Chairman of the

Tribunal has thus rightly observed that there is 20 feet

tar road towards south side of the spot. Thus, the only

irresistible inference could be drawn that Maruti Van

was running from its correct left side of the road i.e.

northern side but the driver of the S.T.Bus must have

taken longer turn to pass the curve and thus made

encroachment upon portion of wrong side and dashed

against Maruti Van. It appears that, the learned

Tribunal has correctly recorded the findings to issue

no.1 and 2. No interference is required.

6. Respondent-Claimant was auditor prior to the

accident and even considering the nature of permanent

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disablement in the form of stiffness to right knee and he

will not be able to bend the right knee fully and the leg

is weak and there is shortening of 1 ½ inch in his right

leg, it cannot be inferred that, the claimant was not able

to continue with his job. There is no pleadings to the

effect that due to said disablement, the claimant was

constrained to take voluntary retirement and therefore,

he is getting less salary compared to his regular salary

till his date of retirement on superannuation. Even the

claimant has not stated so in his oral evidence before

the tribunal. However, the tribunal on his own assumed

the same and inferred that the claimant has taken

voluntary retirement on account of the disablement

sustained by him in the said accident. Though the

claimant has examined auditor Mr. Wani of his

department, said witness Wani has also not deposed

before the Court that claimant was constrained to take

voluntary retirement. Respondent-claimant has not

produced any documents on record to show that

department was not willing to continue him on said job

and as such the claimant was constrained to take

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voluntary retirement. On perusal of the exh.62, extract

produced by witness Mr. Wani, it appears that reference

has been given to the voluntary retirement taken by the

claimant in terms of the Government resolution. It

appears that, the tribunal on its own considered this

aspect even though it is nobody's case. The tribunal has

considered this aspect in its own way. The learned

Chairman of the Tribunal has worked out difference

between the salary after voluntary retirement and salary

would have been paid to the claimant till his retirement

on superannuation. This entire exercise has no

meaning. Considering the permanent disablement and

its nature, and employment of the claimant prior to the

accident, I do not think that the claimant has sustained

any loss of future income. The tribunal has awarded

near about Rs.6,77,300/- for loss of future income. I do

not find any justification for the same. Respondent-

claimant is not entitled for the said compensation.

7. Though, the claimant without any pleadings

deposed before the Tribunal that, he had asked for the

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sitting job, however, the same was not allowed and

therefore, he has taken voluntary retirement. However,

in order to substantiate the same, the claimant has not

produced any documentary evidence on record. On the

other hand, job of the auditor is basically a sitting job

and I do not find any reason for the claimant to take

voluntary retirement. Moreover, shortening of the leg is

not mentioned in the certificate at exh.27. The claimant

has deposed before the tribunal about shortening of the

leg and other side has not cross examined the claimant

on that point.

8. So far as other heads are concerned, though

respondent-claimant has not preferred any appeal or

cross objection, in the light of the ratio laid down in

case of The State of Maharashtra (through the

Collector Nashik and others) Vs. Smt. Kamaladevi

Kailashchandra Kaushal and others dated 15.3.2017

in FA 103/2017 (M.S.Sonak, J.), the respondent-

claimant is entitled for just and reasonable

compensation. It appears that, the tribunal has not

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awarded just and reasonable compensation under other

heads. Tribunal has not awarded the compensation

separately to the claimant for having sustained

permanent disablement. Though witness Dr. Hardikar

has not specifically mentioned percentage of permanent

disablement, witness Dr. Hardikar has deposed before

the Court that there is stiffness to the right knee of the

claimant and he will not be able to bend right knee fully

and power of the leg is weak. He has also specified that,

there is shortening of one and half inch of his right leg.

In his expert opinion, right leg of the claimant is

disabled. Witness Dr. Hardikar has specifically deposed

that he has not given the percentage of permanent

disablement and he has advised the claimant to take

permanent disablement certificate from Pune where he

was treated. The claimant has produced on record

certificate issued by Sasoon Hospital Pune wherein

percentage of the permanent disablement is prescribed

as 70%, however, said certificate is not in form Comp. 'B'

and tribunal has not exhibited said certificate. However,

considering the nature of the disablement and

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particularly shortening of the right leg of the claimant,

the claimant is entitled for an amount of Rs.1,00,000/-

(Rs.One lac) for having sustained permanent

disablement in the aforesaid nature. It is a part of

record that the claimant was treated in various

hospitals and he was operated twice for insertion of the

implant and for removal of the same. The claimant was

also advised to use leg brace for entire life. In view of the

same, the claimant is entitled for an amount of

Rs.50,000/- for pains and sufferings, Rs.50,000/- for

loss amenities in future life. The claimant is also

entitled for an amount of Rs.50,000/- for future medical

expenses.

9. In view of the above discussion, break up of the

compensation under different heads award-able to the

claimant which can be broadly categorized is as under :-

1 Permanent disablement Rs.1,00,000/-

     2       Medical expenses                         Rs.0,35,200/-
     3       Pains and sufferings                  Rs.0,50,000/-

as against Rs.7,500/- awarded by the tribunal 4 Special diet Rs.0,07,500/-

     5       Conveyance                               Rs.0,07,500/-


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                                             15                    FA 1002.2007.odt

     6       Attendant charges                             Rs.0,48,000/-
     7       Loss of amenities in future life      Rs.0,50,000/-

as against Rs.7,500/- awarded by the tribunal 8 Future Medical expenses Rs.0,50,000/- 9 Purchase of artificial support Rs.0,07,500/-

TOTAL Rs.3,55,700/-

10. Thus, the respondent-claimant is entitled for the

total compensation of Rs.3,55,700/- (Rs. Three Lacs

Fifty Five Thousand Seven Hundred only). The judgment

and award passed by the tribunal requires modification.

Hence, following order.

O R D E R

1. The appeal is hereby partly allowed. No costs.

2. The judgment and award passed by the Chairman, Motor Accident Claims Tribunal, Ahmednagar dated 8.6.2007 in M.A.C.P. No.751/2001 is hereby modified in the following manner :-

a] The opponent shall pay compensation of Rs.3,55,700/- (Rs.Three Lacs Fifty Five Thousand Seven Hundred) excluding the amount of 'No fault Liability' to the claimant with interest @ 9% p.a. from the

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date of claim petition till realization of the entire amount.

3. Rest of the judgment and award stands confirmed.

4. Award be drawn up as per the above modification.

5. If, any amount is paid as per the judgment and award passed by the Tribunal, the same shall be the part of the award after modification and, the claimant is permitted to withdraw the compensation amount as per the modified award, and, the compensation amount in excess, if deposited by the appellant-MSRTC, the same shall be refunded to it alongwith accrued interest to that extent.

6. Appeal is accordingly disposed of.

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( V.K. JADHAV, J. ) aaa/-

...

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