Bombay High Court

M.S.R.T.C. Dhule Thr Its Div. ... vs Santosh Devidas Dhondde And Anr on 3 April, 2025

2025:BHC-AUG:9807


                                                                             FA-148-18.odt




                           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                      BENCH AT AURANGABAD
                                     FIRST APPEAL NO.148 OF 2018
                    Maharashtra State Road Transport
                    Corporation, Dhule,
                    District Dhule,
                    Through its Divisional Controller,
                    M.S.R.T.C., Dhule, Tq. & Dist. Dhule        ....Appellant
                                                              (Orig. Respondent)
                          VERSUS

                    1)    Santosh Devidas Khondde,
                          Age: 36 years, Occ: Nil,
                          R/o. Fagane, Tq. & Dist. Dhule.     (Orig. Applicant)

                    2)    Ishwar Devidas Pardhi,
                          Age: 32 years, Occ: Driver,        (Dismissed vide Court's
                          R/o. Dharangaon, Dist. Jalgaon    order dated 28/03/2018)
                                                             ....Respondents
                                                              (Orig. Respondent)
                                             ....
                    Mr. D. S. Bagul, Advocate for the Appellant
                    Mr. Shriniwas Kulkarni h/for Mr. S. N. Lavekar, Advocate for
                    Respondent No.1
                                                    ....

                                       CORAM : NEERAJ P. DHOTE, J.

                             RESERVED ON :         24.03.2025
                         PRONOUNCED ON :           03.04.2025
                    JUDGMENT :

1. This Appeal is filed under Section 173 of the Motor

Vehicles Act (for short, MV Act) against the Judgment and

Order/Award dated 11.04.2016, partly allowing the Claim Petition

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No.636/2012 by which the learned Tribunal directed the Appellant,

who was the original Respondent No.2, and the original Respondent

No.1 jointly and severally to pay Rs.14,60,000/- including No Fault

Liability compensation to the Applicant with interest at the rate of 8%

per annum from the date of accident till realization with

proportionate cost of the Application.

2. The facts in brief giving rise to the present Appeal are as

under:

(a) The Respondent No. 1, who is the original Claimant before the

learned Tribunal, filed the Claim Petition contending that on

20.06.2012, around 2:00 p.m., when he was traveling on a

motorcycle with his friends from Dhule towards Faganegaon, and

reached near Netaji Day School on the Dhule-Parola road, the State

Transport bus bearing No. MH-14-BT-1059, owned by the Appellant,

i.e., MSRTC, and driven by Respondent No.2 (against whom the

Appeal is dismissed by order dated 28.03.2018) came from the wrong

side while overtaking two trucks, gave dash to the motorcycle which

resulted into accident. Due to the said accident, the Claimant suffered

severe injuries in his leg.

(b) The Claimant was admitted to the hospital for medical

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treatment, and the accident was reported to the Dhule Taluka Police

Station, where Crime No. 158/2012 was registered for the offence

punishable under Sections 279, 337, 338 and 427 of the Indian Penal

Code (for short, IPC) and under Section 184 of the MV Act against

the Respondent No.2. During the medical treatment, the right leg of

the Claimant came to be amputed and due to the disability suffered

by the Claimant in the said motor vehicular accident, the Claimant,

who was in the work of hair cutting and working in a salon, suffered

loss of income. The Claimant claimed total compensation of Rs. 20

lakh with interest at the rate of 18% per annum.

written statement at Exhibit-19. The contentions of the Claimant and

every material averment in the Claim Petition came to be denied.

(d) The learned Tribunal framed following issues at Exhibit-20.

(i) Whether the Applicant proves that he sustained injury/permanent

disability due to rash and negligent driving of driver of S.T. Bus No.

MH-14/BT-1059 which is owned by opponent No.2?

(ii) Whether the accident is outcome of contributory negligence on the

part of drivers of both the vehicles?

(iii) Whether the Applicant proves that the opponents are jointly and

severally liable to compensate him?


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                                      (( 4 ))               FA-148-18




      (iv) If yes, to what extent?

      (v) What relief and order?

In support of the Claim Petition, the Claimant examined himself

by filing an evidence affidavit at Exhibit-24 and brought on record the

Police Papers, Injury Certificates, and B-Form at Exhibits-25, 26, 27,

28 and 29. The Manager from the hospital where the Claimant was

treated was examined as Witness No. 2 at Exhibit-31, and the bills

towards the medical expenditure were brought on record at Exhibit-

32. The doctor of the hospital where the Claimant's leg was amputed

was examined as Witness No. 3 at Exhibit-33, and the medical papers,

such as the discharge card and bills, were brought on record. No

evidence was laid by the Appellant and the other opponent. After

hearing both the sides and considering the evidence available on

record, the impugned Judgment and Award came to be passed.

3. Heard both sides and perused the record.

4. It is submitted by the learned Advocate for the Appellant

that, the learned Tribunal failed to consider the Police Papers,

particularly the spot panchanama, which shows that the accident was

the result of contributory negligence. There were three (03) persons,

including the Claimant, on the motorcycle at the time of the accident.



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                                   (( 5 ))                 FA-148-18

The Insurance Company of the motorcycle of the Claimant was not

impleaded as a party Respondent in the Claim Petition. There was

two (02) days' delay in filing the Appeal. The accident was the result

of negligence by the Claimant, as the motorcycle gave dash to the bus

from the back side. The Doctor who issued the disability certificate

was not examined. The Claimant was a Barber, and no income proof

was submitted in support of the Claim Petition. The learned Tribunal

considered the monthly income of the Claimant at the rate of

Rs.4,000/- per month which was on the higher side. There was no

evidence to show that the Claimant owned the saloon. The

compensation granted towards future prospects and the rate of

interest were also on the higher side. In absence of age proof of the

Claimant, the age considered by the learned Tribunal was erroneous.

The learned Tribunal awarded the compensation much more than

what was necessary. The impugned Judgment and Award be quashed

and set aside and the Appeal be allowed.

5. It is submitted by the learned Advocate for the Claimant

that, proper issues were framed by the learned Tribunal on the basis

of the pleadings, and the material available on record was rightly

considered. There was sufficient material on record in support of the

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compensation awarded by the learned Tribunal. There were Separate

medical bills and medicine bills on the record. The learned Tribunal

considered all aspects of the matter and rightly calculated the

compensation. Therefore, the Appeal be dismissed.

6. There can be no dispute on the point that no strict rules

of evidence are applicable to the proceedings in claim Petition for

compensation under the MV Act. As regards the contention of the

learned Advocate for the Appellant about two (02) days' delay in the

registration of the First Information Report in respect of the accident,

it is amply clear from Exhibit-25, which is the FIR, that information in

respect of motor vehicular accident was received by the concerned

Police Station on 20.06.2012 itself, and the necessary entry in the

motor accident register and station diary was made. There is no

dispute on the point that, the motor vehicular accident took place on

20.06.2012. Therefore, considering the aforesaid aspect as referred

in the FIR itself, that the accident was reported to the concerned

Police Station on the very day of accident, the delay in registering the

FIR becomes inconsequential.

7. As regards the submission of the learned Advocate for the

Appellant that the accident was the result of contributory negligence,

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as the Motorcycle gave dash to the aforesaid bus from the backside,

and since it was a case of contributory negligence, impleadment of

the Insurance Company with which the Motorcycle was insured was

necessary, it was not established before the learned Tribunal that the

accident was the result of contributory negligence. Though in the

written statement it was pleaded that the Motorcycle came from

opposite side in a rash and negligence manner and gave dash to the

bus while overtaking on the wrong side, no evidence was laid to

prove the said contention, even by preponderance of probability.

Undisputedly, the crime was registered against the driver of the said

bus. Exhibit-26, which is the spot panchanama of the spot where the

accident took place shows damage at the front on the driver's side of

the bus. From the evidence laid before the learned Tribunal, even by

preponderance of probability, it is not shown that the said motor

vehicular accident was the result of contributory negligence. It is

needless to state that the Claimant, who is the Respondent in this

Appeal, was an eye-witness to the accident and he examined himself

by filing an evidence affidavit and nothing has come in the cross-

examination to accept the contention of the Appellant, that the

accident was due to contributory negligence. Thus non adding of the

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Insurance Company of the Motorcycle was not necessary.

8. Coming to the other aspects of the matter, it is clear, and

there is no dispute, that the Claimant was hospitalized for treatment

of the injuries suffered during the said motor vehicular accident. The

medical papers were brought on record in the evidence of the

witnesses who were attached to the said hospital where the Claimant

was medically treated, in the capacity of Medical Manager and

Resident Medical Officer. The medical evidence established that the

Claimant was hospitalized from 20 th June to 27th June 2012, and his

right leg was amputed. Nothing has come on record to discard the

medical evidence brought on record by the Claimant. According to

the Claimant, he was a Barber having salon. However, no document

to show that, he owned the saloon was brought on record. At the

same time, there is nothing to discard the Claimant's case that he was

engaged in the work as a Barber. In absence of the income proof of

the Claimant, the learned Tribunal considered Rs.4,000/- as the

monthly income of the Claimant. Even if it is considered that the

Barber shop remains closed for four (04) days in a month, for the

remaining 26 days, the said notional income is appropriate, as the

Barber's earning per day can be to the extent of Rs.150/-. This shows

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that the notional income was considered by the learned Tribunal. It

cannot be said that the notional income of Rs.4,000/- per month was

exorbitant.

9. The learned Trial Court considered 100% functional

disability of the Claimant. The work as a Barber is necessarily to be

done by standing. The consequence of amputation of one leg, would

be that, the Claimant will not be able to do his work as a Barber. At

Exhibit-29, the Form-B issued by the Civil Surgeon, General Hospital,

Dhule is brought in evidence. It corroborates the Claimant's case in

respect of amputation of right leg though the said certificate indicates

disability as 80%, the functional disability of the Applicant is 100% by

considering his nature of work as a Barber. In this regard useful

reference can be made to the judgment of the Hon'ble Supreme Court

of India in Raj Kumar vs. Ajay Kumar and Another (2011) 1 SCC 343.

In the said Judgment, it is observed as under:

"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after

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assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). The Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference on the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the

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head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under that head"

On the basis of evidence on record, consideration of 100%

functional disability of the Claimant to carry his work as Barber by

the learned Tribunal cannot be faulted.

10. As regards the contention of the learned Advocate for the

Appellant in respect of age of the Claimant is concerned, admittedly,

no birth certificate was brought on record by the Claimant. In the

police papers, the Claimant's age is shown as 33 years, in injury

certificate Claimant's age is shown as 35 years. In the Claim Petition,

which was filed in the year 2012, the age of Claimant is shown as 32

years. In the evidence affidavit which was filed in the year 2015 the

age of Claimant is shown as 34 years which shows that the Claimant

was within the age between 30 and 35 years. The learned Tribunal

considered the age of the Claimant as 32 years at the time of

accident. As per Judgment in Sarla Verma and others Vs. Delhi

Transport Corporation and another - (2009) 6 SCC 121, the

multiplier for the age between 31 and 35 year is the same and

therefore, no interference is required with the consideration of age by

the learned Tribunal. As regards the interest is concerned, the

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learned Tribunal has granted interest from the date of accident till

realisation. The same needs to be modified to the extent that, it

should be from the date of filing the Claim Petition pursuant to the

provisions of Section 171 of the MV Act. As regards the

compensation on the other hand, the following calculations have been

done by the learned Tribunal.

Notional Income                  +      Rs.00,04,000.00
50% future prospect              +      Rs.00,02,000.00
Monthly income                   +      Rs.00,06,000.00
Yearly loss(6000X12)             +      Rs.00,72,000.00
Multiplier 16(72000X16)          +      Rs.11,52,000.00
Medicine bill                    +      Rs.00,23,670.00
Medical bill                     +      Rs.00,65,000.00
Artificial living                +      Rs.01,00,000.00
Pain and suffering               +      Rs.01,00,000.00
Attendance conveyance            +      Rs.00,25,000.00
Loss of amenities                +      Rs.00,25,000.00
Total payable compensation       =      Rs.14,60,000.00

11. Considering the facts and circumstances and the evidence

available on record, the compensation awarded by the learned

Tribunal cannot be said to be exorbitant or unjust. It is needless to

state that it is the settled position under the law that, just and fair

compensation is to be awarded to the Claimant in matters of motor

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vehicular accident.

12. In view of the above discussion no interference is called

for in the impugned Judgment and Award. Hence, the following

order.

::ORDER::