M.S.R.T.C. Through Its Depot ... vs Palsingh Lakhansingh June And ...
2017 Latest Caselaw 5922 Bom

                                              1




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                       NAGPUR BENCH : NAGPUR



First Appeal No. 1074 of 2013 

Appellant              :          Maharashtra State Road Transport 

                                  Corporation, through its Depot Manager,

                                  Wardha

                                  versus

Respondents            :          1)  Palsingh Lakhansingh June, aged 

about 27 years, Occ: Nil, resident of

Talegaon (SP), Tahsil Ashti, Dist. Wardha

2) Shyam Manoharrao Lawale, aged adult,

Occ: Driver, resident of Goyanka Nagar,

Tahsil Murtizapur, District Akola

Shri V. H. Kedar, Advocate for appellant

Shri M. B. Naidu, Advocate and Shri J. D. Bastian, Advocate

for respondent no. 1

Appeal dismissed against respondent no. 2

Coram : S. B. Shukre, J

Dated : 14th August 2017

Oral Judgment

1. This is an appeal preferred against the judgment and order

dated 22nd October 2012 rendered in Motor Accident Claims Petition No.

52 of 2011 by the Chairman, Motor Accident Claims Tribunal, Wardha.

2. Respondent no. 1 in the present appeal is the one who

sustained injuries to his right leg and other parts of the body which led to

his suffering of permanent disability to the extent of 45% in accident

which occurred on 4.5.2009 on Amravati-Napur Road near Khadka

bridge at Talegaon. The accident was in the nature of dash given head-on

to the motor-cycle by MSRTC bearing registration No. MH-40/8775.

Registration number of the motor-cycle was MH-41/Q-7902.

3. When the claim petition was filed under Section 166 of the

Motor Vehicles Act, it was contested by the appellant. However, upon

consideration of the evidence available on record and arguments of

learned counsel for the parties, learned Chairman of the Tribunal found

that the accident had occurred due to rash and negligent driving by ST

Bus driver which resulted in suffering of permanent disability to the

extent of 45% by the claimant. Therefore, learned Chairman of the

Tribunal partly allowed the claim petition and granted Rs. 8,00,000/- as

compensation together with interest @ 7.5% per annum by the impugned

and order. Being dissatisfied with the same, the appellant is before this

Court.

4. I have heard learned counsel for the appellant and learned

counsel for respondent no. 1. Appeal is already dismissed as against

respondent no. 2. I have gone through the Record and Proceedings.

Now, the following points arise for my determination:

(1) Whether respondent no. 1 proves that the accident occurred

due to rash and negligent driving of ST Bus in question by respondent no.

2 ?

(2) Whether respondent no. 1 has proved that he is entitled to

compensation and if so, whether the compensation awarded by the

Tribunal is just and proper ?

5. In the instant case, there is no oral evidence except for the

evidence of the claimant as P. W. 1. As seen from his evidence, on the

point of rashness and negligence, it has virtually gone unchallenged.

There is just one suggestion given to him during his cross-examination

taken on behalf of the appellant that the accident occurred due to

rashness and negligence of the motor-cycle rider which was promptly

denied by respondent no. 1. Criminal offences punishable under Sections

279, 337 and 427 of the Indian Penal Code and Section 184 of the Motor

Vehicles Act were registered against respondent no. 2 by Arvi Police

Station. These facts and circumstances, in my view, are sufficient to hold

that the accident occurred only due to rashness and negligence exhibited

in driving of bus in question by respondent no. 2. If it were not so,

respondent no. 2 who was an eye witness of the incident, would have

been examined by the appellant. However, the other eye witness, who

was respondent no. 1, examined himself. So, it is a case where the best

possible evidence has been adduced by respondent no. 1 which was

within his control, as held by the Tribunal. This would mean that on one

had, evidence of respondent no. 1 would have to be accepted as

trustworthy and on the other hand, adverse inference against the

appellant would have to be drawn that it suppressed best possible

evidence from the Tribunal because that evidence did not favour the case

of the appellant.

6. Thus, I do not find any illegality or perversity in the findings

recorded by the learned Chairman of the Tribunal with regard to the

rashness and negligence on the part of respondent no. 2 in driving the

bus. The first point is answered as in the affirmative.

7. Once it is found that the accident occurred only because of

fault on the part of the driver of the ST Bus involved in the accident, the

person who suffered the injuries, who is respondent no. 1 in the present

case, would be entitled to receive compensation and it would be payable

jointly and severally by appellant and respondent no. 2, which I hold to be

so.

8. As regards the compensation granted by the Tribunal, it being

just and proper, I do not see any illegality or perversity in the findings

recorded in this regard by the Tribunal. There is, of course, no

documentary evidence led by respondent no. 1 to prove his income and

this fact has also been accepted by the Tribunal. But, there is no evidence

made available on record by the appellant to show that respondent no. 1

was not earning anything or circumstances were such that respondent no.

1 could not have been presumed to be earning any income at the time of

accident. No such suggestions during the course of cross-examination of

P. W. 1 have been given to him by learned counsel for the appellant in a

specific manner. Respondent no. 1 was an able-bodied man and,

therefore, a presumption that he was earning reasonable amount to live

his livelihood would go along with this fact. If this is so, the court would

be under an obligation to compute the notional income earned by

respondent no. 1 at the time of accident. From the impugned award, it is

seen that the monthly income for respondent no. 1 is determined to be at

Rs. 3000/- considering the prevailing rate of daily wages by the Tribunal.

I do not see that any fault could be found with this finding. The Tribunal

has also rightly deducted 1/3rd of the amount from this income and by

considering the age of respondent no. 1 which was 27 years at the

relevant time and also the permanent disability to the extent of 45%, the

Tribunal has rightly considered the net loss of income to be at Rs.

4,64,400/-.

9. At this stage, learned counsel for the appellant submits that

the permanent disability certificate at exhibit 38 was not duly proved by

respondent no. 1 as the issuing doctors or anyone of them were or was

not examined by him. I do not find any substance in this argument, the

reason being that in cross-examination of P. W. 1 taken on behalf of the

appellant, no challenge whatsoever has been posed to the Disability

Certificate (exhibit 38). This Disability Certificate (exhibit 38) has been

issued by a Medical Board constituted at the District General Hospital,

Wardha. The Medical Board comprised three doctors and the certificate

has been issued after examining respondent no. 1, as seen from its

contents. It is nobody's case that this document is basically not

admissible in evidence. The opposition made by appellant to admitting

this document in evidence is based only on the ground that the issuing

doctors or any of them have or has not been examined as witness by the

claimant. This objection pertains to only procedural requirement not

adopted by respondent no. 1. But, during the course of cross-

examination, no serious objection has been raised to this Disability

Certificate and, therefore, it would have to be said that the procedural

requirement of law has been waived by the appellant. Therefore, I do not

see any difficulty in admitting this document in evidence which I do so.

Therefore, contention of learned counsel for the appellant in this regard

stands rejected.

10. I do not see any merit in the appeal. The compensation

granted by the Tribunal for 45% loss of earning capacity together with

medical expenses cannot be said to be calculated in unjust manner. In

fact, this compensation is just and proper and it is payable to respondent

no. 1 by the appellant and respondent no. 2 jointly and severally together

with the same rate of interest, as granted by the Tribunal. Second point is

answered accordingly.

11. In the result, appeal stands dismissed with costs.

S. B. SHUKRE, J

joshi