Bombay Electric Supply And ... vs Shri.Pradeep Gyanchandra Dubey
2023 Latest Caselaw 10249 Bom

2023:BHC-AS:29598


                                                                                FA-147-2019.doc


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                        FIRST APPEAL NO.147 OF 2019

                    Bombay Electric Supply and                       )
                    Transport Undertaking,                           )
                    Electric House, Colaba,                          )
                    Mumbai 400005                                    )... APPELLANT
                                Vs.

                    MR. PRADEEP GYANCHANDRA DUBEY                    )
                    Room No.51, Raghunath Chawl,                     )
                    Sanjay Gandhi Nagar, Opp. Ram Gopal Industries   )
                    Dr. R.P. Road, Mulund (West)                     )
                    Mumbai 400080                                    )...RESPONDENT

                    Mr.Bhavesh Wadhwani a/w. Mr.Aavish Shetty i/by M.V.Kini & Co.,
                    Advocate for the Appellant.

                    Mr.T.J.Mendon a/w. T.R.Kale, Advocate for the Respondent.


                                             CORAM        :     ABHAY AHUJA, J.
                                RESERVED ON               :     19st AUGUST 2023
                                PRONOUNCED ON             :     5th OCTOBER, 2023


                    JUDGMENT :

1. This Appeal has been filed under section 173 of the Motor Vehicles

Act, 1988 (the "M.V. Act") challenging the judgment and award dated 25 th

July, 2017 passed by the Motor Accident Claims Tribunal, Mumbai in

Motor Accident Claim Application No.772 of 2013 partly allowing the

AVK 1 of 20 FA-147-2019.doc

Application of the Respondent and awarding a sum of Rs. 13,50,073/-

towards total compensation along with interest at the rate of 8% per

annum.

2. Attempts were made by the parties to settle the matter before the

Lok Adalat but since there was no final outcome of the settlement, the

matter was once again listed for final hearing at the stage of admission.

3. The brief facts are as follows. That on 14 th November, 2012, the

Respondent who was then aged about 28 years, a self-employed person

conducting a pan shop from 9:00 pm till late hours of the night, after

closing his pan shop was returning home at about 1:00 a.m. on a motor

cycle ridden by him, moving from R.H.B. Road, Mulund towards Sanjay

Gandhi Nagar and was going along Kalidas Road to go to M.G. Road and

had reached beside Chanakya Society, Devidayal Road, when a BEST bus

bearing Registration No. MH-01-AP-0694 (the "Offending Vehicle") came

from LBS road side and gave a dash to the Respondent's motorcycle. The

Respondent fell down along with motor cycle on the road and sustained

fracture injuries to his person. The Respondent was treated in Raj Hospital

as an indoor patient from 14.11.2012 to 12.12.2012.

AVK 2 of 20 FA-147-2019.doc

4. The Respondent then preferred an application on 29.04.2013

claiming Rs.25,00,000/- from the BEST being the employer of the driver

along with costs of medical treatment, pain and suffering caused by the

accident and interest inter alia on the grounds that he did not recover well

from the accidental injuries, and is facing difficulties to continue his

business.

5. The Appellant vide its Written Statement filed before the Tribunal

denied the claim. The Appellant claimed that the BEST bus was being

driven in a proper manner and was going from Vashi to Mulund Bus Depot

and that when the bus reached near Mulund station, the Appellant while

riding his motorcycle tried to cross the bus from Kalidas road towards MG

road at an extremely fast speed in rash and negligent manner and while

doing so collided against the left side front portion of the BEST bus. The

Appellant claimed that it was due to the Respondent's own negligence that

he met with an accident and there was no negligence on the part of the

bus driver. The Appellant denied the personal particulars of the

Respondent as well as his claim for alleged disability and medical

expenses as well as damages claimed on account of other expenses under

the respective heads. The Appellant prayed for dismissal of the

Respondent's application with costs.

AVK 3 of 20 FA-147-2019.doc

6. The Tribunal examined the FIR, spot panchnama and chargesheet

and the evidence being the examination of the Appellant with respect to

the issue of negligence. The Tribunal observed that in view of death of the

bus driver before he could be examined, it is only the version of the

applicant and police papers that are available on record to determine the

aspect of negligent driving of the BEST bus. After examining the above,

the Tribunal held that it did not appear that the Appellant was attempting

to cross the bus to go to the other side of the road. The Tribunal also

noted that it was in the FIR that the BEST driver did not provide any

assistance to the Appellant after the accident nor did he report the

accident to the police, rather he fled from the spot to avoid any liability.

The Tribunal concluded that the BEST driver was at fault and responsible

for the accident.

7. On the issue of loss of income due to functional disability, the

Tribunal, based on available evidence, estimated that the Respondent had

an earning of Rs.9000/- per month. The Tribunal also concluded that the

Respondent had suffered 45% loss of income due to functional disability

and in the same manner, 45% functional disability had to be considered to

determine the loss of future income to the Respondent.

AVK 4 of 20 FA-147-2019.doc

8. With respect to the quantum of compensation, the Tribunal after

taking into account hospital and medical expenses, rest period, special

diet, conveyance, services rendered by relatives, pain and suffering,

disability and loss of amenities in life and considering of loss of future

earnings in the ratio of 45% functional disability and after applying a

multiplier of 17, awarded a total compensation of Rs.13,50,073/-

(inclusive of No Fault Liability (NFL)) with interest @ 8% from the date of

application till realisation.

9. Aggrieved by and dissatisfied with the Impugned Judgment and

Award allowing the Application of the Respondent by awarding a sum of

Rs. 13,50,073/- towards total compensation along with interest at the

rate of 8%, the Appellant has preferred this Appeal as mentioned above.

10. The learned counsel for the Appellant submits that while awarding

compensation, the Tribunal failed to take into account the fact that the

Respondent was driving the motorcycle in high speed despite the traffic

being moderate coupled with the fact that the Respondent did not give the

particulars of the helmet which amounted to contributory negligence on

the part of the Respondent.

AVK 5 of 20 FA-147-2019.doc

11. The Appellant further submitted that the Tribunal did not consider

the fact that the Respondent had failed to establish his profession and

monthly income and physical disability. The Appellant relied on the

decision of the Hon'ble Supreme Court in the case of Raj Kumar v. Ajay

Kumar1 to submit that Dr. Mukhi cannot be said to be the treating doctor

because in the absence of continuous papers it was difficult to believe that

Dr. Mukhi was still treating the Respondent for injuries when his evidence

was recorded in April 2017 whereas the accident had taken place in

November, 2012, and therefore the Tribunal should have constituted a

medical board and referred the claimant to the medical board for

assessment of the disability as in Paragraph 18 of the said decision the

Hon'ble Supreme Court has stated that the Tribunals should act with

caution, if it proposed to accept the expert evidence of doctors who did

not treat the injured but who give "ready to use" disability certificates,

without proper medical assessment. The Hon'ble Supreme Court further

observed that there are several instances of unscrupulous doctors who

without treating the injured, readily give liberal disability certificates to

help the claimants. The Appellant also contended that the driver of a

vehicle is a vital witness and in this case he could not be produced or

1 (2011) 1 SCC 343

AVK 6 of 20 FA-147-2019.doc

examined by the Respondent. The Appellant submitted that therefore the

Tribunal erred in arriving at a conclusion that the Respondent is earning a

monthly income of Rs.9000/- per month and granting compensation of

Rs.13,50,073/- along with interest @8%. It was therefore prayed that the

Impugned Judgment and Award be set aside.

12. Mr. Mendon, learned counsel for the Respondent has opposed the

submissions made on behalf of the Appellant. He has drawn my attention

to the FIR at Pg. 30 of the Appeal wherein the BEST driver has been

charged under Sections 279 and 338 of the Indian Penal Code, 1860 as

well as Sections 184, 134(A) and (B) of the MV Act, all of which he

submits, are serious in nature. He also submits that as mentioned in the

FIR the driver ran away immediately after the accident and there were

some pedestrians who noted the bus number and reported the matter to

the police. He submits that the driver was driving the BEST bus in a rash,

dangerous and negligent manner as a result of which the Respondent

suffered serious injuries which resulted in permanent partial disability. The

learned counsel for the Respondent would submit that the BEST driver

was also in clear violation of Sections 134 and 184 of the MV Act.

AVK 7 of 20 FA-147-2019.doc

13. On the claim of contributory negligence raised by the Appellant, the

learned counsel for the Respondent submits that the BEST driver was

chargesheeted and criminal case was filed before the Magistrate.

14. The learned counsel for the Respondent further submitted that the

Appellant failed to examine the driver before the Tribunal and that unless

the driver was examined no contributory negligence could be attributed to

the Respondent as per the law laid down by the Hon'ble Supreme Court in

the case of Jiju Kuruvilla & other v. Kunjujamna Mohan and others 2. The

learned counsel would submit that it is well settled law 3 that the person

who is driving a heavy vehicle or the bigger vehicle has to be more

cautious than smaller vehicle and therefore the bus of the Appellant being

a heavy transport vehicle was required to be cautious and take extra care

and caution of another vehicle.

15. On the issue of compensation, the learned counsel for the

Respondent relies on the decision of the Hon'ble Supreme Court in the

case of Shiva Kumar M. v. Managing Director, BMC 4 to submit that the

compensation was correctly calculated by the Tribunal.

2 2013 ACJ 2141.

3 Yerramma & other v. G. Krishnamurthy & Anr. (2014 ACJ 2161) 4 2017(2) TAC-11 (SC).

AVK 8 of 20 FA-147-2019.doc

16. I have heard Mr. Wadhwani learned counsel for the Appellant and

Mr. Mendon, learned counsel for the Respondent at length and with their

able assistance, I have perused the papers and proceedings in the matter

and considered the rival contentions.

17. The Appellant has raised two primary grounds to challenge the

Impugned Judgment and Award, the first ground being that the Tribunal

while granting compensation failed to take into account the fact that the

Respondent was driving the motorcycle in high speed despite the traffic

being moderate and therefore there is contributory negligence on the part

of the Respondent and the second ground being that the Respondent

failed to establish the profession and monthly income and physical

disability and therefore the Tribunal erred in arriving at a conclusion

based on guess work that the Respondent is earning a monthly income of

Rs.9000/- inspite of categorical admission by the Respondent in cross

examination of not having any documentary proof to establish

employment.

18. But before that a bit on the negligence of the driver of the BEST

bus. The Tribunal relied upon the decision of the Hon'ble Supreme Court

AVK 9 of 20 FA-147-2019.doc

in the case of Dulcina Fernandes and Others v. Joaquim Xavier Cruz and

Another5 wherein it was held that the plea of negligence under the MV Act

is required to be decided by the Tribunal on the touchstone of

preponderance of probability and not on the basis of proof beyond

reasonable doubt. The Tribunal held that in view of the principles laid

down in the case of Dulcina Fernandes and Others (supra), in all

eventualities, it was BEST driver who was negligent and responsible for

occurence of the accident and that no any part of negligence can be

attributed to the Respondent.

19. The Tribunal concluded that the issue of negligent driving could

only be decided on the basis of the Respondent's version and on the basis

of the police papers available on record. On the basis of the damage to the

motorcylce recorded in the spot panchnama, the cross examination of the

Respondent and the conduct of the driver as recorded in the FIR, the

Tribunal concluded that the BEST driver was at fault and responsible for

the accident. In this context it would be useful to quote the relevant

portion of Paragraph 8 of the Impugned Judgment and Award as under:

"8.....In this matter, BEST bus was not negotiating the turn rather it is the case of the opposite party that applicant was

5 2013 (4) TAC 827 (SC)

AVK 10 of 20 FA-147-2019.doc

moving on his motorcycle from left to right side. There is no dispute that heavy passenger vehicle must take more precaution and care of other vehicles driven on the road. It was late night hours and moderate traffic on road when the accident occurred. In view of death of BEST driver, it is only the version of applicant and police papers available on record to determine the aspect of negligent driving of vehicles. At the time of recording the spot panchnama, it is noted therein that motorcycle was lying by the side of road in a damaged condition. It's right side handle, rear side indicator were damaged in the accident. The applicant has denied that he was moving on motorcycle from left to right side and his evidence is that BEST bus was to his left side the eventuality as suggested to applicant in cross examination looking to the right hand side of motorcycle was damaged, it does not appear that applicant was attempting to cross the bus to go to the other side of the road. It is the FIR that BEST driver did not provide any assistance to applicant after accident nor reported the accident to police. It shows that BEST driver was to avoid any liability fled away from the spot...."

20. In a recent judgment in the case of Mathew Alexander v.

Mohmmed Shafi and Another6 , the Hon'ble Supreme Court has reiterated

the principles laid down in the case of Dulcina Fernandes and Others

(supra). Paragraph 13 of the said judgment is relevant and is quoted as

under:

"13....Similarly, in (2009) 13 SCC 530, in the case of Bimla Devi v. Himachal Road Transport Corporaton ("Bimla Devi"), it was observed that in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, the Tribunal has to determine the amount of fair compensation to be granted in the event of an accident has taken place by reason of negligence of a driver of a

6 2023 SCCOnLine SC 832

AVK 11 of 20 FA-147-2019.doc

motor vehicle. A holistic view of the evidence has to be taken into consideration by the Tribunal and strict proof of an accident caused by a particular vehicle in a particular manner need not be established by the claimants. The claimants have to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be applied while considering the petition seeking compensation on account of death or injury in a road traffic accident. To the same effect is the observation made by this Court in Dulcina Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646 which has referred to the aforesaid judgment in Bimla Devi."

(emphasis supplied)

21. From a perusal of the FIR, the spot panchnama, other police papers,

the examination in chief and cross examination of the Respondent, it

appears that on 14th November, 2012, the Respondent was returning home

at about 1:00 a.m. and was driving towards Sanjay Gandhi Nagar. The

Respondent was along Kalidas Road to go to M.G. Road and when the

Respondent reached beside Chanakya society, Devidayal road, the BEST

bus came from LBS Road and gave a violent dash to the Respondent's

motorcycle due to which the Respondent fell down and sustained fracture

injuries on the left side of his body after which he was taken to Raj

Hospital at Mulund for treatment. It is also clear from the FIR that the

BEST driver fled from the spot and did not offer any assistance to the

Respondent. The BEST driver was also chargesheeted and criminal case

was filed before the Magistrate. It is not in dispute that the BEST driver is

AVK 12 of 20 FA-147-2019.doc

no more and died during the pendency of the proceedings before the

Tribunal and was not examined before the Tribunal.

22. Therefore on a preponderance of probabilities, as gathered from the

evidence of the FIR, the spot panchnama, other police papers, the

examination in chief and cross examination of the Respondent, this Court

is of the view that the Respondent sustained injuries in an accident which

occurred due to the rash and negligent driving of BEST bus bearing No.

MH-01-AP-0694.

23. Now coming to the question whether there was any contributory

negligence on the part of the Respondent in this case, one must examine

the well-settled principles of law on this issue. In this regard, it would be

relevant to quote paragraph 8 of the decision of the Hon'ble Supreme

Court in the case of Pramodkumar Rasikbhai Jhaveri vs. Karmasey

Kunvargi Tak7

"8. But before that, what is negligence ? Negligence ordinarily means breach of legal duty to care, but when used in the expression contributory negligence, it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, 7 (2002) 6 SCC 455

AVK 13 of 20 FA-147-2019.doc

so that he becomes blameworthy in part as an 'author of his own wrong'. The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused and is of such a nature that it may be properly described as negligence."

(emphasis supplied)

24. The facts of the present case clearly indicate that the Respondent

was driving on his motorcycle along Kalidas Road to go to M.G. Road and

when the Respondent reached beside Chanakya society, Devidayal road,

the BEST bus came from LBS Road and gave a violent dash to the

Respondent's motorcycle due to which the Respondent fell down and

sustained fracture injuries. From the FIR, spot panchnama, the other

police papers, the examination in chief and cross examination of the

Respondent, it does not appear that the Respondent was attempting to

cross the BEST bus or was in any manner not using reasonable care or

safety. On the contrary, the BEST driver should have been aware of the

fact that he was driving a heavy passenger motor vehicle and that it was

necessary for him to take extra care and caution of the other vehicles on

the road. There is therefore no act or omission on the part of the

Respondent which has materially contributed to the damage caused.

Further, in the case of Meera Devi and Another vs. Himachal Pradesh

AVK 14 of 20 FA-147-2019.doc

Road Transport Corporation and Others8, the Hon'ble Supreme Court has

observed that to prove contributory negligence, there must be cogent

evidence. The word 'cogent' means clear, logical and convincing. In the

facts of the present case, there does not appear to be any cogent evidence

to prove the contributory negligence of the Respondent. Also in the case of

Jiju Kuruvilla (supra) relied upon by the learned counsel for the

Respondent, the Hon'ble Supreme Court has held that in the absence of

direct or corroborative evidence, the court cannot give any specific finding

about negligence on the part of any individual.

25. That, not giving particulars of the helmet, in no way proves that

there was contributory negligence on the part of the Respondent. It was

for the Appellant to prove that absence of those details has led to the

accident in question. There is nothing to suggest that the Respondent got

injured as he was not wearing a helmet. There is no whisper of any head

injury but fracture injuries on the left side of the body. Therefore, in my

view, nothing would turn on the Appellant's submission on the aspect of

not giving any particulars of helmet. In any event, it was for the Appellant

to dwell further on this aspect in evidence, which the Appellant has failed

to do.

8 (2014) 4 Supreme Court Cases 511

AVK 15 of 20 FA-147-2019.doc

26. In the present case, therefore, there is no direct or corroborative

evidence about the negligence of the Respondent and hence no

contributory negligence can be attributed to him.

27. Appellant has further contended that the driver of vehicle was vital

witness and could not be produced and examined by the Appellant. It is

quiet surprising that such a submission is coming from the Appellant who

was the employer of the driver. In my view, it was duty of the Appellant to

examine driver in the first place to prove the allegation of contributory

negligence, that duty cannot be pushed on to the Respondent-Claimant.

28. In the light of the above, I am of the view that the Tribunal was

correct in holding that the BEST driver was negligent and responsible for

the accident and that no any part of negligence can be attributed to the

Respondent.

29. I now come to the second issue raised by the Appellant, that the

Respondent failed to establish the profession and monthly income and

physical disability.

AVK 16 of 20 FA-147-2019.doc

30. The Respondent has disclosed his occupation as panwala in the FIR

which is the same as in the Claim Application where it is stated that he is

the owner and conductor of Jai Matadi Pan Shop. It cannot be said that in

the application before the Tribunal, he has altogether shown a different

profession than disclosed in the FIR. No contrary evidence has been

brought on record by the Appellant. Therefore the Respondent has to be

believed that he was conducting a pan shop at the time of the accident.

31. Further, in the case of Shiva Kumar M. (supra) relied upon by the

learned counsel for the Respondent, the Hon'ble Supreme Court, when

posed with a similar issue of lack of documentary evidence with regard to

the income of a painter going house to house, held that for a casual

worker it was difficult to get evidence of income and therefore the

evidence of the claimant has to be accepted. The Appellant has not

brought any contrary evidence to disprove the claim of the Respondent. In

the present case although the Respondent had claimed that his income

was Rs.15,000/- per month from the pan shop, the Tribunal estimated his

earning only to be Rs.9000/- per month. The Respondent has accepted

the calculation of notional income and not challenged the same.

AVK 17 of 20 FA-147-2019.doc

32. On the issue of lack of evidence of physical disability, the

examination in chief and cross examination of Dr. Mukhi, clearly bears

out that it was Dr. Mukhi was the Doctor who treated the Respondent and

the reliance placed by the learned counsel for the Appellant on the case of

Raj Kumar (supra) to claim that the Tribunal should have constituted a

medical board and referred the Respondent to such medical board for

assessment of the disability is misplaced in the facts of the case. In fact in

the present case, in line with the principles laid down by the Hon'ble

Supreme Court that mere production of disability certificate or discharge

will not be proof of the extent of disability stated therein unless the doctor

who treated the claimant or who medically examined and assessed the

extent of disability of the claimant is tendered for cross examination with

reference to the certificate, Dr. Mukhi was cross examined on the

Disability Certificate. I have perused the Certificate dated 1 st April, 2013

issued by Dr. Mukhi who is stated to have treated the Respondent and has

medically examined and assessed the injury to the Respondent, in which

he has described the injuries of the Respondent as well as the certificate

dated 31st December, 2013 in which Dr. Mukhi has also clearly stated that

the Respondent is having 50% total partial disability. The Appellant has

not brought on record any contrary evidence in this regard. In the present

AVK 18 of 20 FA-147-2019.doc

case, Dr. Mukhi being the doctor who treated the Respondent and also

assessed the disability of the Respondent, was tendered for cross

examination with reference to the disability certificate.

33. This is not a case where an unscrupulous Doctor has without

treating the injured given the certificate. No evidence to this effect has

been brought on record and hence the reference to the medical board is

clearly not necessary in the facts of this case. In fact, the Tribunal has

considered functional disability of 45% instead of 50% which has been

accepted by the Respondent.

34. Ergo, the calculation of 45% loss of future earnings, the mulitplier

of 17 considering the age of the Respondent being below 30 years at the

time of the accident, hospital and medical expenses, a lumpsum amount

towards rest period of four months, expenses of special diet, conveyance

and services rendered by relatives, have, in my view, been correctly

computed totaling to a compensation of Rs.13,50,073/- inclusive of NFL

along with interest at the rate of 8% to be paid from the date of the

application till realization, in accordance with the principles settled in the

decisions of the Hon'ble Supreme Court in the case of National Insurance

AVK 19 of 20 FA-147-2019.doc

Company Limited v. Pranay Sethi and Ors.9 as well as Sarla Verma & Ors.

v. Delhi Transport Corp. & Anr.10

35. In the circumstances, I do not find any error or illegality or

perversity in the findings and the decision of the Tribunal. There is no

merit in the appeal. The Appeal deserves to be dismissed and is hereby

dismissed. Parties to bear their own costs. Interim order stands vacated.

36. The Respondent is entitled to total compensation of Rs.

13,50,073/-along with interest at the rate of 8% per annum and is

permitted to withdraw the claim amount less the amount already

withdrawn, with proportionate accrued interest at the above rate.

37. Let the Record and Proceedings lying in this court be transferred to

the Motor Accident Claims Tribunal, Mumbai.

(ABHAY AHUJA, J.)

9 (2017) 16 Supreme Court Cases 680 10 (2009)6 SCC 121

AVK 20 of 20

Signed by: Mrs.Arti V. Khatate Designation: PS To Honourable Judge Date: 07/10/2023 19:58:58