Bombay High Court
Bombay Electric Supply And Transport, ... vs Shukhdeo Rameshankar Prasad on 12 June, 2025
2025:BHC-AS:23605
Digitally
signed by
WAKLE
WAKLE
MANOJ
MANOJ
JANARDHAN
Manoj 10-FA-232-2022.doc
JANARDHAN Date:
2025.06.16
19:28:56
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.232 OF 2022
WITH
CROSS OBJECTION (ST.) NO.7408 OF 2022
IN
FIRST APPEAL NO.232 OF 2022
Bombay Electric Supply and Transport
Undertaking, a Public Undertaking of
Municipal Corporation of Greater Mumbai
Having its office at Electric House, Colaba
Mumbai- 400 005 ...Appellant
V/s.
Shri Sukhdeo Ramshankar Prasad,
Age : 22 years, residing at 9/U/11, Indian
Airlines Colony, Kalina, Santacruz (West)
Mumbai- 400 029 ...Respondent
WITH
INTERIM APPLICATION NO. 985 OF 2024
IN
FIRST APPEAL NO.232 OF 2022
Shri. Sukhdeo Ramashankar Prasad
Presently aged 32 years, Presently : Nil,
9/U/11, Indian Airlines Colony,
Kalina, Santacruz (West),
Mumbai 400 029. .... Applicant
In the matter between :-
Bombay Electric Supply and Transport
Undertaking, a Public Undertaking of
Municipal Corporation of Greater Mumbai
Having its office at Electric House,
Colaba, Mumbai- 400 005 .... Appellant
1/18
::: Uploaded on - 16/06/2025 ::: Downloaded on - 21/06/2025 20:32:18 :::
Manoj 10-FA-232-2022.doc
V/s.
Shri Sukhdeo Ramashankar Prasad,
Presently aged 32 years, Presently : Nil,
9/U/11, Indian Airlines Colony,
Kalina, Santacruz (West),
Mumbai 400 029. .... Respondent
Mr. Saurabh Pakale a/w Ms. Heena Shaikh i/by M/s. M. V. Kini
& Co. for the Appellant.
Mr. Amol A. Gatne a/w Mr. Uday Mehta i/by Ms. S. U. Mehta
for the Respondent.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 05th MAY, 2025.
PRONOUNCED ON : 12th JUNE, 2025.
JUDGMENT :
-
. Present Appeal is filed under Section 173 of the Motor
Vehicle Act, 1988 ("the Act") by the Appellant/Original Respondent
being aggrieved by the Judgment and Award dated 14/08/2021, in
M.A.C.P. No.2525 of 2013 ("the claim"), passed by the Motor Accident
Claims Tribunal, Mumbai. The aforesaid Cross-objection has been
filed by the Respondent/Original Claimant in the said claim.
1.1) The Appeal has been filed on the grounds that there was
total negligence on the part of the Claimant and that, the award
amount is exorbitant/excessive, whereas the Cross-objection has been
filed on the premise that, there was no negligence on the part of the
Claimant and that, just compensation is denied by the Tribunal. The
Manoj 10-FA-232-2022.doc
learned Advocate for the Claimant submitted the compilation of
documents as per Court's Order dated 14/03/2022, for final hearing
in the matter. Hence, and considering the nature of the disability
suffered by the Claimant, the Appeal and Cross-objection taken up for
final hearing and being decided by this common Judgment.
2) Heard Mr. Pakale, the learned Advocate for the Appellant
and Mr. Gatne, learned Advocate for the Respondent. Perused the
record and the written Notes of Arguments submitted by the parties.
3) The case of the Claimant was that on 25/10/2013, at about
11:05 a.m., he was proceeding on his motorcycle bearing No.MH-02-
BX-2443 ("M/cycle") from Geeta Vihar Junction, Kalina bus stop,
Mumbai with due care, caution and following the road traffic rules. At
that time and place, the BEST bus bearing No. MH-01-AL-5233
("bus") came there from opposite direction, driven at a fast speed,
rashly and in a negligent manner. As a result, the bus dashed the
M/cycle. The Claimant fell down on the road and sustained serious
injuries. Immediately, the Claimant was taken to V.N. Desai Hospital
and thereafter, he was shifted to KEM Hospital and then to Guru
Nanak Hospital and Research Centre, Mumbai. Despite medical
treatment, the injuries caused certain disability to the Claimant. The
claimant was working as a driver with Air India thereby he was
earning Rs.10,000/- per month. The bus was owned and driven by
Manoj 10-FA-232-2022.doc
the authorized driver of the Appellant. Therefore, the Claimant
prayed to award a sum of Rs.1,00,00,000/- as compensation along
with interest.
3.1) The Appellant filed the Written Statement (Exh.10) and
opposed the claim. The Appellant denied that the accident occurred
due to the rash and negligent driving of the bus. It was also denied
that the Claimant was working and earning as above; that, the injures
caused him 100% disability etc. The Appellant contended that, at the
relevant time, the bus was going from Santacruz Station to Kurla
Station. When the bus reached near Kurla-Santacruz road, its driver
slowed down the bus to negotiate the left turn to proceed towards
Kalina. After taking the left turn, when the bus proceeded further a
little, the Claimant came towards the bus from the opposite direction,
riding his M/cycle at an extremely fast speed, rashly, negligently and
in a dangerous manner. The driver of the bus, therefore, immediately
swerved the bus to the left hand side of the road and applied urgent
brakes to avoid the collision. Yet, the M/cycle dashed the bus because
the Claimant could not control the M/cycle it being in an extremely
fast speed. Thus, according to the Appellant, the Claimant alone was
responsible for this accident.
4) Hence, the Tribunal framed the issues (Exh.13). To prove
the claim, the Claimant presented the evidence of following witnesses.
Manoj 10-FA-232-2022.doc
Sr. No. Witness Exh. Nature of the evidence
No.
AW1 Sukhdeo Prasad Ex.26 Claimant
AW2 Dr. Satish Puranik Ex.31 Disability Certificate (Exh.32)
AW3 Dr. Vinayak Joshi Ex.37 Disability Certificate (Exh.38)
AW4 Rakesh Deokar, - Air India Ex.50 Occupation of the Claimant.
AW5 Anil Kadam, - Air India Ex.55 Income of the Claimant
AW6 Vinay Paradkar Ex.57 Admission and medical expenses
AW7 Steven D'souza Ex.61 Admission and medical expenses
AW8 Nicholas Antao Ex.73 Medical Treatment
AW9 Dr. Balwindersingh Sahani Ex.75 Medical Treatment
AW10 Kamlesh Hariharan Gond Ex.81 Attendant service
AW11 Dr. Bhavana Doshi Ex.88 Medical examination
AW12 Dr. Anil Bhatia Ex.91 Medical Treatment
AW13 Sunil Bhawar Ex.100 Admission and medical expenses
AW14 Atul Sasode Ex.105 Admission and medical expenses
5) In rebuttal the Appellant examined DW1 Dattu Jaysingh
Jadhav, driver of the bus (Exh.110) and then closed its evidence.
6) The learned Advocate for the Appellant submitted that
there was total negligence on the part of the Applicant because
despite the road was sufficient wide, the Claimant straight away came
from the opposite side riding his M/cycle in a rash and negligent
manner and dashed the driver's side of the bus. However, the
Tribunal held the DW1 guilty of 75% negligence, which is incorrect.
7) In contrast, Mr. Gatne, the learned Advocate for the
Claimant vehemently submitted that when DW1 took the left turn, he
did not keep proper look out at the road. As a result, DW1 failed to
Manoj 10-FA-232-2022.doc
notice that the Claimant was coming from opposite side riding the
M/cycle. Therefore, the bus dashed the M/cycle. As such there was
total negligence on the part of the DW1. As a result, the F.I.R. was
registered against the DW1. However, the Tribunal attributed 25%
negligence to the Claimant, which is against the evidence on record.
8) In view of the rival submissions, I have carefully perused
the evidence. The evidence of the Claimant and DW1 is verbatim to
the assertions and the contentions in the Claim Petition and the
Written Statement, respectively. It is an admitted fact that, the bus
and the M/cycle were proceeding from opposite direction when it met
with the accident. However, neither the Claimant nor DW1 informed
as to how and exactly where their respective vehicle were positioned
on the road, just before the accident.
9) The F.I.R. (Exh.27) was filed by Mr. Prashant Barve, who
was pillion with the Claimant. In the F.I.R. Mr. Prashant Barve clearly
stated that the bus came from opposite direction and gave dash to the
M/cycle. The F.I.R. was filed immediately after the accident therein it
has been clearly stated that the bus was driven rashly and negligently
at the time of the accident and therefore it caused the accident. DW1
failed to explain as to why the police register the F.I.R. against him.
Thus, the F.I.R. supported the evidence of the Claimant.
10) The Spot Panchnama (Exh.28) does not mention exactly
Manoj 10-FA-232-2022.doc
where the bus and the M/cycle were found to the police, i.e., to the
left, in the centre or to the right of the road. The Spot Panchnama is
also silent about the width of the road. It is not the case that the
accident occurred at the turning point. Therefore, it is safe to presume
that the road was straight where the accident occurred. The Claimant
did not explain as to why he could not avoid the accident particularly
when he was driving the M/cycle with due care, caution and following
the traffic rules. Even he did not explain as to why he could not stop
the M/cycle instantly seeing that the bus was coming in his direction.
11) In the cross-examination DW1 admitted that the width of
the road was 30 feet and two vehicles could have easily passed over.
He saw the M/cycle for the first time when it was at the distance of
around 15 feet. From this evidence in the cross-examination, it is easy
to infer that when DW1 could see the Claimant, the Claimant could
equally see the bus because it is not the case of either of them that
their vision was obstructed by some vehicle or any other object which
was in between their vehicles. Nevertheless, the Claimant and DW1
failed to avoid the accident. Therefore, the conclusion is inevitable
that DW1 as well as the Claimant, both were not careful while driving
their respective vehicles. In other words, they both failed to keep
proper look out at the road which omission on their part ultimately
resulted in the accident. As such, the finding recorded by the Tribunal
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that the accident occurred due to negligence on the part of DW1 and
the Claimant and their negligence was in the ratio 75:25, is justifiable,
and therefore, cannot be termed as erroneous.
12) The evidence of the Claimant coupled with the evidence of
AW8- Dr. Nicholas Antao show that due to impact of accident, the
claimant had sustained : (a) Compound fracture of proximal humerus
with distal end; (b) Compound fracture dislocation of Patella right
knee; (c) Fracture ulna right side; and (d) Fracture of Lower end
Femur. This evidence is supported with the Discharge Card (Exh.74).
The said oral and documentary evidence did not meet any challenge
in the cross-examination. Therefore, I hold the injuries.
13) The evidence of the Claimant coupled with the evidence of
AW2 indicate that the Claimant has following difficulties due to the
aforesaid injuries. Hence, AW2 assessed the Claimant's permanent
partial disability at 74% and issued the Disability Certificate (Exh.32).
(i) tenderness over the fracture site
(ii) flexion in right knee up-to 90 degree, further flexion not
possible
(iii) wasting of muscle of right leg with grade IV power in right
knee
(iv) inability in sitting cross leg
(v) walk with wadding gait
(vi) inability to climbing the steps
(vii) difficulty in squatting
Manoj 10-FA-232-2022.doc
(viii) difficulty in lifting heavy weight
(ix) flexion upto 90 degrees in right elbow, further flexion not
possible
(x) wasting of muscle of right arm grade IV power of right elbow
(xi) flexion of right wrist upto 90 degree, further flexion is not
possible
(xii) wasting of muscle of right forearm with grade IV power in
right writ joint
(xiii) pronation and supination of right hand in restricted and
painful
(xiv) Dorsi flexion of the right hand is not possible
(xv) Diminished grasp of right hand
14) AW3-Dr. Vinayak Joshi deposed that he examined the
Claimant clinically and neurologically and found that the Claimant
has both neurological and orthopedic serious disabilities. The
neurological disability pertains to the right upper limb monoparesis.
The Claimant has flaccid monoparesis of left upper limb. There is zero
power in the left upper limb. This amounts to 40% of permanent
partial neurological disability, right limb being dominant limb in this
case. In this regard AW3 referred the Disability Certificate (Exh.38).
Evidence of AW11-Dr. Bhavana Doshi is that she has been practicing
as Neuro Electro Physiologist. She examined the Claimant on
12/11/2013 and found that the Claimant has nerve injury. He has
active motor axon degeneration and conduction block, affecting the
Manoj 10-FA-232-2022.doc
right C5 to T1 fibres. Accordingly, she issued the Report (Exh.89
collectively). The aforesaid entire oral and documentary evidence did
not receive any challenge in the cross-examination. Therefore, I hold
the permanent partial disability as above.
15) The evidence of the Claimant is that he was working with
Air India as a casual driver on temporary basis thereby he was
earning Rs.10,000/- per month. This evidence is corroborated with
the evidence of AW4 Rakesh Deokar, Assistant Manager in a
Personnel Department of Air India that the Claimant was working as
the casual driver on contract basis. Their Evidence is supported with
Appointment details (Exh.53), Attendance Statement (Exh.54), and
payment Statement (Exh.56) produced by PW5-Anil Kadam, an
employee of Air India working in Pay Roll Section, Finance
department. Therefore, I hold that the claimant was working as the
driver and getting monthly income of Rs.10,000/- which annually
comes to Rs.1,20,000/-.
16) AW2 has specifically deposed that due to said disability,
the Claimant has suffered the 100% loss of the income capacity. There
is nothing in the evidence to take an exception to the said evidence of
AW2. Therefore, the Tribunal held that the Claimant has suffered the
100% loss of the income capacity and hence, awarded Rs.21,60,000/-
for the said loss (Rs.1,20,000/- x 18). However, the Tribunal did not
Manoj 10-FA-232-2022.doc
award any compensation towards the loss of the future prospects.
17) The Claimant was aged 22 years but he was not in the
permanent employment. Therefore, in accordance with the decision
in National Insurance Co. Ltd. Vs. Pranay Sethi and Others1 and Sarla
Verma and others Vs. Delhi Transport Corporation and another2, 40%
of the proved net annual income should be added towards the future
prospects. On such addition, the actual yearly income would be
Rs.1,68,000/-. The Applicable multiplier is '18'. Thus, the Claimant is
entitled to get Rs.30,24,000/- (Rs.1,68,000/- x 18) towards the 100%
loss of the future income/ income capacity.
18) Under the other heads the Tribunal awarded the
compensation as under :-
Medical Expenses : Rs.12,54,016/-
Attendant charges : Rs.10,80,000/-
Loss of marriage prospects : Rs. 3,00,000/-
Conveyance : Rs. 50,000/-
Special diet : Rs. 50,000/-
Future Medical : Rs. 5,00,000/-
Loss of amenities of the life : Rs. 5,00,000/-
Pain and suffering : Rs. 5,00,000/-
19) Mr. Gatne, the learned Advocate submitted that looking at
the injuries sustained by the Claimant and the resultant disability, the
Claimant should tolerate the injuries related unbearable pain and
1. 2017 ACJ 2700 (SC)
2. 2009 ACJ 1298 (SC)
Manoj 10-FA-232-2022.doc
suffering throughout his entire life. Since the accident, the Claimant is
bed ridden and he should remain in bed permanently, almost in a
vegetative state. He, therefore, submitted that the compensation
awarded for the pain and suffering is less and considering the said
condition, the claimant should get Rs.15,00,000/- under the said
head. To accept this contention, Mr. Gatne relied upon the decision in
in K. S. Muralidhar Vs. R. Subbulakshmi & Anr. 3 therein the injuries
sustained by the Appellant-Claimant resulted in 90% permanent
disability. The Appellant-Claimant was aged 37 years. Therefore, the
Hon'ble Supreme Court noted that since the injury were serious, their
effects on his life were long lasting; even say life long. The disability
suffered by the Appellant-Claimant was taken at 100%. In view
thereof, the Hon'ble Supreme Court awarded Rs.15,00,000/- under
the head pain and suffering. To arrive at this conclusion, the Hon'ble
Supreme Court in paragraph 13, 13.1, 13.2, 13.3, 13.3.1, 13.3.2, 13.3.3
and 13.3.4 observed as under :-
"13. While acknowledging that 'pain and suffering', as a
concept escapes definition, we may only refer to certain authorities,
scholarly as also judicial wherein attempts have been made to set
down the contours thereof.
13.1 The entry recording the term 'pain and suffering' in P.
Ramanatha Iyer's Advanced Law lexicon reads as under:-
3. 2024 SCC Online SC 3385
Manoj 10-FA-232-2022.doc
"Pain and suffering. The term "Pain and suffering' mean
physical discomfort and distress and include mental and
emotional trauma for which damages can be recovered in
an accident claim.
This expression has become almost a term of art, used
without making fine distinction between pain and
suffering. Pain and suffering which a person undergoes
cannot be measured in terms of money by any
mathematical calculation. Hence the Court awards a sum
which is in the nature of a conventional award [Mediana,
The (1900) AC 113,115]"
13.2 Eric Cassell, an American Physician and Bioethicist,
defines 'pain' not only as a sensation but also 'as experience
embedded in beliefs about causes and diseases and their
consequences', and ;suffering' as 'the state of severe distress
associated with events that threaten the intactness of person'.
13.3 In a recent article published in the journal of the
International Association for the Study of pain, it has been recorded
that here is no consensus on what exactly the concept of pain-
related suffering includes, and it is often not precisely
operationalised in empirical studies. The authors in their systematic
review analysed 111 articles across a variety of disciplines such as
bioethics, medical ethics, psycho-oncology, anaesthesiology,
philosophy, sociology etc., we may refer to few of them:
13.3.1 Eugene V. Boisaubin, who is currently a Professor at
the University of Texas, at Houston, in a 1989 article defined it as
"suffering is experienced by individual and arises from threats to
the integrity of the individual as a complex social and psychological
entity."
13.3.2 Andrew Edgar, who is currently a Reader Emeritus in
Philosophy at Cardiff University at UK defined, in a 2007 article
suffering as an "experience of life never getting better, revealing in
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the sufferer only vulnerability, futility, and impotence."
13.3.3 Arthur W. Frank, Professor Emeritus, Department of
Sociology, University of Calgary in his well-known article "Can We
Research Suffering?", published in 2001, observed that "at the core
of suffering is the sense that something is irreparably wrong with
our lives, and wrong is the negation of what could have been right.
Suffering resists definition because it is the reality of what is not."
13.3.4 Daryl Pullman who currently serves as University
research Professor, Bioethics at the memorial University of
Newfoundland, Canada in his 2002 article defined suffering as the
"product of [physical], psychological, economic, or other factors that
frustrate an individual in the pursuit of significant life projects."
20) In the case in hand the Claimant was hospitalised and
undergone the different treatment/operative procedures as under :-
Sr. Relevant Hospital name Discharge
No. witnesses and inpatient Medical treatment Card etc.
period (Exh.
Nos)
1 1, 2 V. N. Desai
Hospital First aid. --
25/10/2013
2 1, 2, 3, 8 K.E.M. Hospital
25/10/2013 to Medical treatment. --
06/11/2013
3 11 Nanavati
Medical tests and diagnosis
Hospital on --
for the nerve Injury.
12/11/2013
4 1, 2, 3 Gurunanak
Hospital Surgical procedure, removal
06/11/2013 to of external fixators, dressing
05/12/2013 under G.A. open reduction --
05/12/2013 to and internal fixation and
02/01/2014 plating of right ulna.
Manoj 10-FA-232-2022.doc
5 1, 2, 3, 12, MMF Joshi Exploration of the right
14 Hospital brachial plexus and nerve Exh.92
09/01/2014 to transfer. and 93
11/01/2014 Repair of nerves of Rt. Arm.
6 1, 2, 3, Holy Spirit
Removal of Illizarov's ring/
7, 8 Hospital
external fixator from right
23/06/2014 to
lower leg.
26/06/2014
7 1, 2, 3, Holy Spirit
Debridement with drainage
7, 8 Hospital
of abscess and arthrodesis of Exh.74
08/07/2014 to
Rt. knee joint. (colly.)
25/07/2014
8 1, 2, 3, Holy Spirit
7, 8 Hospital Oral and IV Medications,
09/09/2014 to Dressing.
11/09/2014
9 1, Mangal Anand
Hospital Medical treatment for the --
08/11/2014 to right leg.
10/11/2014
10 6, 9 Gurunanak Chronic Osteomyelitis
Hospital (infection of bone) Rt. Femur
02/12/2015 to with draining sinus, with
12/12/2015 destruction of Adjacent knee. Exh.76
Treatment- Debridement
with Sequestrectomy with
external fixation done and
Rt. Distal Humerus implant
removal.
11 6, 9 Gurunanak Osteomyelitis of Tibia Rt.
Hospital Side.
26/02/2016 to Treatment- Operation of Exh.77
29/02/2016 debridement and curettage of
Rt. Tibia OM done.
12 6, 9 Gurunanak Osteomyelitis of tibia femur
Hospital Rt. Side. Treatment- Exh.78
06/04/2016 to Debridement
11/04/2016 sequestrectomy.
13 6, 9 Gurunanak
Hospital Sequestrectomy with Exh.79
29/06/2016 to debridement/ Lavage Distal
04/07/2016 of Rt. Femur.
Manoj 10-FA-232-2022.doc
14 1 Gurunanak
Hospital Rt. leg femur with tibia --
17/05/2017 to fracture
22/05/2017
15 1, 12, 13 Dinanath Diagnosis-Right radial nerve
Mangeshkar deficit.
Hospital Tendon Transfers for Exh.94
05/07/2017 to restoration dorsiflexion of
07/07/2017 wrist, fingers and thumb.
20.1) The Claimant was aged 22 years. As such, he will have to
suffer the accidental injuries related disability, pain and its effects
throughout his entire life. There is hardly any improvement in his
present condition. Therefore, and considering the evidence as a
whole, the Claimant deserves to get Rs.12,00,000/- under the head
'pain and suffering'. The compensation awarded under the other
heads is just and reasonable. Thus the Claimant is entitled to receive
the compensation as under :-
Total compensation amount : Rs.79,58,016/-
Minus the compensation amount : - Rs.19,89,504/-
towards contributory negligence ---------------
Compensation amount payable : = Rs.59,68,512/-
----------------
21) The conspectus of the above discussion is that, the
Tribunal rightly held that the accident occurred due to contributory
negligence of DW1 and the Claimant as held above. The compensation
amount awarded by the tribunal is 'just' except under the head 'Pain
and Suffering', which is less. Therefore, said amount should be
Manoj 10-FA-232-2022.doc
enhanced as held above. The rate of the interest granted by the
Tribunal is reasonable. The aforesaid limited infirmity, therefore,
warranted an interference with the impugned Judgment and Award
to modify the same, accordingly. As a result, the Appeal is liable to be
dismissed and the Cross-objection deserves to be partly allowed.
21.1) Hence, following order is Passed :-
(a) First Appeal is dismissed with proportionate costs.
(b) Cross-objection is partly allowed with proportionate
costs.
(c) The impugned Judgment and Award dated 14/08/2021,
in M.A.C.P. No.2525 of 2013, passed by the Motor
Accident Claims Tribunal, Mumbai is modified.
(d) The Appellant is directed to pay the compensation of
Rs.59,68,512/- (inclusive of no fault liability) together
with interest thereon at the rate of 7.5% per annum
from the date of the Claim Petition till realisation of the
amount.
(e) The Appellant is directed to comply with this Judgment
within a period of four months from today, by
depositing the amount in the Tribunal.
(f) On deposit of the amount the Tribunal shall
immediately inform about the deposit to the Claimant.
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(g) The amount deposited shall be paid to the Claimant as
directed by the Tribunal, subject to payment of deficit
Court fee, if any.
(h) The Appellant-insurance company will be entitled to
adjustment of the amount against the already paid
under the impugned Award.
(i) The Appeal and the Cross-objection are disposed of in
aforesaid terms.
21.2) In view of disposal of the First Appeal and the Cross-
objection, the Interim Application No.985 of 2024 stands disposed of.
(SHYAM C. CHANDAK, J.)
