Bombay High Court
Subhash Pundlikrao Bhalerao vs The M.S.R.T.C., Thr Div. ... on 21 January, 2022
Bench: R. G. Avachat
FA.1658-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1658 OF 2018
The Maharashtra State Road Transport
Corporation, through Divisional Controller,
The Maharashtra State Road Transport
Corporation, Beed ..Appellant
Vs.
Subhash s/o. Pundlikrao Bhalerao,
Age:32 years, Occ. Nil,
r/o. Parli Vaijnath, Tq. Parli Vaijnath,
Dist. Beed. ..Respondent
----
Mr.S.R.Bagal, Advocate for appellant
Mr.S.B.Solanke, Advocate for respondent
----
AND
CIVIL APPLICATION NO.9558 OF 2021
IN FIRST APPEAL NO.1658 OF 2018
Subhash s/o. Pundlikrao Bhalerao,
Age:32 years, Occ. Nil,
r/o. Parli Vaijnath, Tq. Parli Vaijnath,
Dist. Beed. ..Applicant
Vs.
The Maharashtra State Road Transport
Corporation, through Divisional Controller,
The Maharashtra State Road Transport
Corporation, Beed ..Respondent
----
Mr.S.B.Solanke, Advocate for applicant
Mr.S.R.Bagal, Advocate for respondent
----
::: Uploaded on - 21/01/2022 ::: Downloaded on - 22/01/2022 10:36:42 :::
2 FA.1658-2018
CORAM : R.G. AVACHAT, J.
RESERVED : OCTOBER 06, 2021
PRONOUNCED ON : JANUARY 21, 2022
ORDER :-
This appeal is filed by Maharashtra Road Transport
Corporation, challenging the judgment and award dated 17.05.2017
passed by Motor Accident Claims Tribunal, Jalgaon, in Motor Accident
Claim Petition No.125 of 2011. Vide the impugned judgment and
award, a sum of Rs.12,64,000/- has been awarded as compensation
on account of injuries and permanent disability suffered in the
accident involving motor vehicles. The Tribunal considered it to be a
case of contributory negligence in proportion of 10:90 between the
claimant and the offending S.T. Bus. The challenge is mainly on the
ground of quantum and percentage of contributory negligence.
2. Heard learned counsel appearing for the parties.
3. Mr.S.R.Bagal, learned counsel for the appellant -
M.S.R.T.C., would submit that the Tribunal ought to have, at least,
considered it to be a case of contributory negligence in equal
proportion. Both the claimant and the bus driver are bound to give
self-serving evidence. The scene of accident panchnama would,
3 FA.1658-2018
undoubtedly indicate that the S.T. bus was proceeding closely along
the road median. The claimant tried to overtake S.T. Bus from its
left side. In the process, his motorbike dashed with the bus, as a
result of which, the claimant and his companion fell of the motor
bike. On the question of quantum of compensation, learned counsel
would submit that the claimant was 26 years of age. Multiplier of 17
would be applied and not 18. There was no concrete evidence of his
salary. There was no reason for the Tribunal to grant compensation
towards future prospects. After having recovered from the
accidental injuries, the claimant resumed his job. As such, there is
no loss of earning capacity. The compensation on that count ought
not to have been awarded. Learned counsel, therefore, urged for
modification of the impugned award.
4. Mr.S.B.Solanke, learned counsel for the claimant, would,
on the other hand, submit that the offending bus knocked the
claimant down. His monthly salary was Rs.18,000/-. A
representative of the employer was examined in proof thereof. The
claimant was working as a Sales Executive. As a result of the
permanent disability he suffered, there is necessarily functional
disability. The quantum of medical expenditure incurred by the
4 FA.1658-2018
claimant would itself suggest the severity and nature of disability
suffered by the claimant. Learned counsel reiterated the reasons
given by the the Tribunal in support of the impugned award.
5. It was an accident between the motorbike and the S.T.
bus. The Tribunal held the respondent/claimant (motorbike rider)
to be contributory negligent to the extent of 10%. The respondent
is not in appeal either for enhancement of compensation or for
setting aside the finding of the Tribunal, holding him to be
contributory negligent.
6. The respondent-claimant had come with a case that the
S.T. bus knocked his motorbike from behind. Said fact, however,
appear to have not been proved. The Tribunal, on appreciating the
evidence before it, found that the S.T. bus was proceeding closely
along the road median. It was the motorbike ridden by the claimant
that tried to overtake from the wrong side of the S.T. bus and in the
process, brushed therewith. From the reasoning given by the
Tribunal, it held the bus driver rash and negligent to the extent of
90%, only on the ground that in the rear-view mirror of the S.T. bus,
he could notice the motorbike approaching from behind and it was
he, who had a last opportunity to avoid the accident. As such, the
5 FA.1658-2018
reasoning given by the Tribunal does indicate that it placed entire
blame on the respondent-claimant. However, the S.T. bus, being a
heavy vehicle, and its driver had an opportunity to avoid the
accident, the Tribunal placed blame on him to the extent of 90%.
In view of this Court, said proportion needs to be as `25%:75%'. It
was, in fact, more.
7. On the question of quantum of compensation, the
Tribunal has considered the monthly income of the respondent-
claimant at Rs.18,000/- per month, deducted 10% towards tax,
made addition of 50% on account of future prospects and granted
compensation. The details of compensation granted by the Tribunal
are as under :-
Sr. Particulars Amount (Rs.)
No.
1 Future loss of income 10,45,440
2 Loss of income during hospitalisation 29,040
3 Medical bill and treatment expenses 3,13,915.50
4 Traveling expenses 5,000
5 For pain and sufferings 20,000
6 Future medical expenses 25,000
7 Loss of amenities and enjoyment of 10,000
life
8 Special diet/nourishment 10,000
9 Less NFL (-) 25,000
Sub-total 14,04,355.50
6 FA.1658-2018
10 Less 10% contributory negligence (-) 1,40,435.55
Total Rs.12,63,919.95
rounded of to
Rs.12,64,000/-
8. It is the case of the respondent-claimant that he was
working as Sales Executive and as a result of the permanent
disability suffered, he has become unable to pursue his job. The
respondent-claimant suffered disability (Exh.114) of the following
nature:-
Sr. Name of injury Dimensions of Nature of
No. injury Injury
1 Subtrochanteric fracture - Right femur Grievous
Right femur
2 Right tibia and fibula fracture Right tibia Grievous
3 Abrasions over back Multiple Simple
abrasions
Form Comp-"B" (Exh.32) issued by Medical College and Hospital,
Ambajogai, shows that the respondent-claimant was operated. It
has been stated as under :-
" c/o. RTA with fracture of right femur upper third
with fracture T/F Right. Operated with implant in
situ with partial ankylotis of right hip and right knee
joint."
It has been stated that the permanent disability is 20%.
7 FA.1658-2018
9. The employer was examined as witness in proof of the
income of the respondent-claimant. It has come in his evidence that
the respondent-claimant was serving as an Accountant. The same
suggest the respondent to have come with the false claim of having
been serving as Sales Executive. Moreover, it is not his case that as
a result of the permanent disability suffered in the accident, he has
been rendered jobless. As such, it is not the case of loss of his
earning capacity. The Tribunal, therefore, ought not to have granted
50% addition on account of future prospects.
10. On the question, whether multiplier of 17 or 18 is to be
applied, this Court is inclined to apply the higher multiplier. The
monthly income of the respondent-claimant is considered at
Rs.16,200/- (Rs.18,000 - 10% amount towards tax). As such,
considering the functional disability of the respondent-claimant as
20%, the future loss of earning capacity would be Rs.6,99,840/- i.e.
Rs.16,200 x 12 months x 18 (multiplier) x 20%. This Court is,
therefore, inclined to re-work out the compensation as under:-
Sr. Particulars Amount (Rs.)
No
1 Future loss of earning capacity 6,99,840
2 Loss of income during (+) 29,040
hospitalisation
8 FA.1658-2018
3 Medical bill and treatment (+) 3,13,915.50
expenses
4 Traveling expenses (+) 5,000
5 For pain and sufferings (+) 20,000
6 Future medical expenses (+) 25,000
7 Loss of amenities and (+) 10,000
enjoyment of life
8 Special diet/nourishment (+) 10,000
Sub-total 11,12,795.50
10 Less 25% contributory (-) 2,78,198.87
negligence
Total Rs.8,34,596.63
rounded of to
Rs.8,34,597/-
11. In view of the above, the appeal partly succeeds.
Hence, the following order:-
(i) The appellant-M.S.R.T.C. shall pay the
respondent/claimant a sum of Rs.8,34,597/- as
compensation with interest at the rate of 6% per annum
from the date of the claim petition to the date of deposit/
payment thereof.
(ii) The amount in deposit, either with this Court or the
Tribunal, be paid to the respondent/claimant with
interest accrued thereon.
(iii) Balance amount be paid back to the appellant -
M.S.R.T.C with interest accrued thereon.
9 FA.1658-2018
(iv) The appeal stands disposed of accordingly.
(v) Pending Civil Application stands disposed of.
[R.G. AVACHAT, J.]
KBP
