Bombay High Court
Maharashtra State Transport ... vs Kresha Anand Bangera on 5 March, 2025
2025:BHC-AS:11669
WAKLE
MANOJ
JANARDHAN P.H. Jayani 902 FA909.2023.doc
Digitally signed by
WAKLE MANOJ
JANARDHAN
Date: 2025.03.13
09:22:15 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 909 OF 2023
Maharashtra State Transport Corporation
Through its Divisional Controller,
N.D. Patel Road, Shingada Talav,
Nashik ..... Appellant
Vs.
Kresha Anand Bangera
Age - 26 years, Occ.-None,
R/o. Flat No.6, Mayaban Apartment,
Madhuban Colony, Makhamalabad Naka,
Panchavati, Nashik ..... Respondent
Mr. Prathamesh Mandlik i/b. Mr. Nitesh Bhutekar for the Appellant.
Mr. Pritesh K. Bohade for the Respondent.
CORAM : SHYAM C. CHANDAK, J.
DATED : 5th MARCH, 2025
JUDGMENT :
-
. This Appeal is filed by the Appellant/Original Opponent
challenging the Judgment and Order dated 20th October 2022, in
M.A.C.P. No.1405/2019 passed by the Motor Accident Claims
Tribunal, at Nashik thereby the Appellant has been directed to pay
the Respondent/Original Claimant a compensation of Rs.6,91,095/-
alongwith interest @ 6% p.a. from the date of filing said Claim, under
Section 166 of the Motor Vehicles Act of 1988 ('the Act', for short).
P.H. Jayani 902 FA909.2023.doc
2) Record indicates that, the Appeal was admitted on 15th
July 2024. Hence, heard finally with the consent of the parties.
3) The facts in brief are that, the Claimant filed said MACP
No.1405 of 2019 therein she averred that on 22nd November 2019, at
about 02:00 p.m., the Claimant was riding her motorcycle ('M/cycle',
for short) from Nashik towards Pimpalnare. When the Claimant
reached in front of Aditya Traders, near Pimpalnare phata, on Nashik
to Kalvan Road, in the vicinity of Pimpalnare Shivar, the S.T. Bus
bearing regn. No.MH-14-5052 ('the bus' for short) was going from
Nashik side towards Dindori. However, the bus gave a forceful dash
to the M/cycle. As a result, the Respondent sustained certain injuries.
The Respondent averred that said accident occurred due to rash and
negligent driving of the bus. On receiving an F.I.R. of the accident
Dindori Police Station registered the same at Cr.No. 206/2019 under
Sections 279, 338 and 427 of I.P.C. and Section 184 of the Act, against
the bus driver.
3.1) The Claimant averred that, at the time of accident she was
working as Lab In-charge thereby she was getting monthly income of
Rs.11,000/-. It is averred that, the Claimant was medically treated in
Sadguru Hospital and Kelkar Hospitals for the injuries. The Claimant
could not attend her job/services due to the injuries and during the
P.H. Jayani 902 FA909.2023.doc
recovery period, which caused her loss of the income. The Claimant
spent considerable amount on her medical treatment. However, the
injuries caused her certain disability. Therefore, the Claimant prayed
to award compensation of Rs.1,00,000/- under various heads, along
with the interest.
4) The Appellant resisted the claim by entering written
statement at Exhibit-45. The Appellant has not admitted and
specifically denied each and every material averment, submission and
allegation made against it in the claim including the manner of the
accident, injuries, disability, occupation and monthly income of the
Claimant. The Appellant contended that there was a speed breaker at
the spot of the incident. The Claimant could not control her M/cycle
due to the speed breaker. As a result, the Claimant fell down and thus,
she sustained the injuries. Therefore, the driver of the bus stopped
the bus and helped the Claimant. As such, the bus was not at all
involved in the accident. Nevertheless, the Claimant lodged a false
F.I.R. and involved the bus in the accident to get the compensation.
Hence, the claim be dismissed.
5) In order to prove the claim, the Claimant adduced her
evidence on affidavit (at Exh.10). She examined CW2-Dilip Vasant
Gokhale (Exh.20), CW3-Dr. Milind Vasantrao Pimprikar (Exh.30),
P.H. Jayani 902 FA909.2023.doc
CW4-Hemant Ashok Aher (Exh.38) and CW5-Dr. Kishor Shivajirao
Dange (Exh.42). Besides, the Claimant has relied upon an F.I.R. at
(Exh.13), spot panchanama (Exh.14), Discharge Cards (Exh.21), pay
slips (Exh.40) colly., Authority Letter at (Exh.41) and Disability
Certificate (Exh.43). In rebuttal, the Appellant examined RW1-
Gangaram Khandu Avhad (Exh.45), who was driving the bus
6) Heard Mr. Mandlik, the learned counsel for the Appellant
and Mr. Bohade, the learned counsel for the Respondent. I have
perused the records and considered the submissions advanced by the
learned counsel for the respective parties.
7) Following points arise for determination :-
(a) Has it been proved by the Claimant that the
aforesaid accident occurred due to rash and negligent
driving of the bus?
(b) Whether the impugned compensation awarded by
the Tribunal is just and reasonable or excessive or the
compensation needs to be enhanced?
8) Mr. Mandlik, the learned counsel for Appellant submitted
that the alleged accident occurred on 22nd November 2019, at about
02:00 p.m. However, the F.I.R. was lodged belatedly on 29th
November, 2019. The delay in the F.I.R. was not explained. The spot
panchanama does not mention the exact position of the vehicles at
the time of the accident. He submitted that, in fact the Claimant
P.H. Jayani 902 FA909.2023.doc
herself was responsible for the accident as she could not control her
M/cycle due to the speed breaker and consequently, she fell down and
sustained the injury. He submitted that looking at the injury, the
disability and the evidence as to the income, the compensation is
excessive. Therefore, the impugned Judgment and Order may be set
aside or in the alternative, the Award be modified.
9) Mr.Bohade, the learned Advocate for the Claimant, on the
other hand, submitted that the injury sustained by the Claimant was
very serious and therefore, it resulted in 25% of the disability. The
injury and the disability ultimately resulted in the loss of the income
and the loss of the future income. The injury caused great pain and
suffering and now, the Claimant is restricted from enjoying her life as
before. However, the Tribunal did not consider the aforesaid facts and
awarded a very meager compensation. Therefore, the learned counsel
urged to enhance the compensation, claiming that it is permissible
without filing an Appeal or cross-objection.
10) As to the manner of the accident, the evidence of the
Claimant is that, at the time of accident the bus came from wrong side
and dashed against her M/cycle. Thus, accident occurred due to rash
and negligent driving of the bus. This evidence is supported by the
F.I.R. and the spot panchanama.
P.H. Jayani 902 FA909.2023.doc
11) In contrast, the evidence of RW1-Gangaram is that at the
time of accident the bus was running from Sinnar to Saptshrungi
Gadh. When the bus reached at the spot of accident, the Claimant was
proceeding ahead of his bus and she gave an indicator to take a right
turn. At this juncture, the front wheel of the Claimant's M/cycle had
reached up-to the speed breaker on the road there. Consequently, the
Respondent lost her balance and fell down on her right side and, the
M/cycle fell on her right leg. The bus was 4-5 feet behind the M/cycle.
RW1-Gangaram stated that, immediately he stopped the bus to help
the Claimant. However, after five days, police called him to the police
station and falsely booked him in the aforesaid crime.
12) Considering the aforesaid rival evidence, it is significant to
note that the F.I.R. was registered against RW1-Gangaram, who was a
public servant. RW1-Gangaram has not informed as to why the police
entertained a false F.I.R. of the Claimant and, registered the crime. As
noted in the spot panchanama, the bus dashed the M/cycle from its
behind. This fact is confirmed by the red colour of the bus seen on the
rear side of the M/cycle. The spot panchnama recorded that the road
was 18 feet wide where accident occurred. However, RW1-Gangaram
has not explained as to why he could not avoid the accident and how
the red colour of the bus appeared on the rear side of the
P.H. Jayani 902 FA909.2023.doc
M/cycle. All these facts and circumstances clearly indicate that at the
time of the accident RW1-Gangaram did not keep proper lookout at
the road. As a result, the bus dashed the M/cycle from its behind. The
bus was undoubtedly a heavy vehicle. Driving a heavy vehicle in such
a manner is not safe for other road users. However, this danger was
ignored by RW1-Gangaram without any excuse, which ultimately
caused the accident. Therefore, I am in agreement with the finding of
the Tribunal that the accident occurred due to rash and negligent
driving of the bus. The question no.1 stands answered, accordingly.
13) CW4-Hemant Aher deposed that, he has been serving as
Accounts Assistant with M/s. Enpro Bio-Science Pvt. Ltd. CW4
deposed that the Claimant has been working as the Lab Assistant and,
thereby getting monthly income of Rs.11,000/-. This evidence is
corroborated with the Salary Certificates of August to November-2019
(Exh.40). The aforesaid oral and documentary evidence as to the
employment and income did not see sufficient challenge in the cross-
examination. No evidence is adduced in the rebuttal to challenge the
said evidence. There is nothing to doubt the genuineness of the Salary
Certificates. In the cross-examination of the Claimant is has come
that she goes to her job by riding M/cycle, thus, the Appellant has
conceded that the Claimant was and has been doing the said job.
P.H. Jayani 902 FA909.2023.doc
Hence, I hold that the Claimant has been working as the Lab
Assistant and getting Rs.11,000/- per month income.
14) The Claimant's evidence is that she had sustained fracture
to her right leg due to the accident. She was medically treated in
Sadguru hospital, then in Kelkar hospital and lastly in Pimprikar
hospital. CW2-Dilip Gokhale, Manager of Kelkar hospital deposed
that, the Claimant was medically treated in the said hospital as an
inpatient from 23rd November to 27th November 2019 and referred her
Discharge Card (Exh.21). The evidence of CW5-Doctor Kishor Dange
coupled with the Discharge Card show that the Claimant had
sustained undisplaced fracture of right posterior aspect of lateral
tibial condyle i.e., knee; complete tear of ACL at femoral attachment
site and complete tear of MCL at inferior attachment. There were
contusional changes in posterior horn of lateral meniscus with
posterior meniscal root tear complex radial tear at junction of
anterior horn and body of lateral meniscus. The aforesaid evidence
virtually went unchallenged in the cross-examination of the
witnesses. Hence, I hold the injury, accordingly.
15) Now, I deal with the question of adequacy or otherwise of
the compensation. The Claimant's evidence is that she has spent
Rs.4,00,000/- on her medical treatment. CW2-Dilip Gokhal deposed
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that the Claimant was charged Rs.49,200/- towards her medical
treatment in Kelkar hospital vide hospital and chemist bills at Exhs.-
22 and 23 colly. He deposed that the Claimant has paid the said bills
amount. CW3-Dr.Pimprikar deposed that twice the Claimant was
admitted and medically treated in his hospital i.e., from 24 th to 25th
February 2020 and from 30th May to 2nd June 2020. He deposed that
the Claimant was charged Rs.62,986/- and Rs.95,083/- respectively,
towards the said medical treatment and referred the bills (at Exhs.31
& 32). CW3 deposed that M/s.Sports Medicine Rehab is a
Physiotherapy Centre and, it is attached to his hospital. The Claimant
had received physiotherapy and regular follow-up treatment in his
hospital. In this regard CW3 has referred the bill for Rs.13,000/-
(Exh.33).
15.1) the aforesaid oral and documentary evidence as to the
medical expenses remained unshattered in the cross examination.
There is nothing on record to doubt the said evidence. Therefore, the
Tribunal awarded the entire bills amount totalling to Rs.2,55,575/-
under the head 'Medical Expenses'. Considering the nature of the
injury suffered by the Claimant, said expenses appear reasonable.
16) As to the loss of income, the evidence of the Claimant is
that she could not attend her work till September 2020 due to the
P.H. Jayani 902 FA909.2023.doc
accidental injury and, during the recovery period. This resulted in the
loss of the income. CW4-Hemant Aher deposed that the Claimant was
not paid her salary for the period of her absence on duty. In this
regard, CW4 referred the certificates at Exh.41 wherein it is stated
that, the Claimant was absent from her work from the date of accident
till September 2020.
16.1) Considering the aforesaid evidence, the Tribunal held that
there is no evidence that after the last inpatient treatment and
discharge in June 2020, the Claimant was advised a total bed-rest.
There is no evidence that, she was not able to perform her day-to-day
activities due to the injury or post-treatment medical condition.
Therefore, the Tribunal declined to accept the Claimant's absence at
work till September 2020. However, the Tribunal accepted the said
absence till June 2020 and awarded Rs.75,600/- as loss of income of
seven months minus P.T. Rs.1,400/-.
16.2) In this regard I noticed that the Claimant and CW3 have
not informed the medical complaint for which the Claimant was
admitted in the hospital of CW3 for the 2 nd and 3rd inpatient
treatment. Secondly, CW3 did not inform exactly what treatment he
gave to the Claimant on those occasions. Thirdly, no Discharge Cards
are produced in respect of the said treatments. For these reasons also
P.H. Jayani 902 FA909.2023.doc
it is difficult to accept that the Claimant was not able to attend her
work place till September 2020. As such the compensation awarded
for the loss of the income, is reasonable.
17) Now as to the loss of future income. The Claimant's
evidence is that she has suffered 25% permanent disability on account
of the accidental injury and therefore, she is unable to work and earn
as before. To accept this claim reliance is placed on the testimony of
CW5-Dr.Dange and the Disability Certificate (Exh.43) issued by him.
The evidence of CW5 is that he referred the earlier medical treatment
papers of the Claimant and, examined her on 29th May 2021. Based on
the said examination and, considering the injury, he issued the
Disability Certificate of 25%.
17.1) In view of the above evidence, the Tribunal held the
functional disability at 15% only. To arrive at this conclusion, the
Tribunal noted that after the accident the Claimant resumed her job.
She goes to her job riding the M/cycle. As such, the functional
disability is not equal to the permanent disability. The disability
caused is restricted to the injured leg. The injury sustained by the
Claimant is likely to heal. Besides, I have noted that in the cross-
examination CW5 admitted that he had not taken an X-ray of the
Claimant. CW5 is not the treating doctor. The evidence of CW5 and
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the Disability Certificate are conspicuously silent as to the method of
assessing the disability. In this background, I am unable to be in
agreement with the conclusion of the Tribunal that the functional
disability is 15% with reference to injured leg. However, considering
the evidence as a whole, I hold that the Claimant has suffered some
permanent functional disability. Therefore, the compensation of
Rs.3,49,920/- towards the loss of the future income on account of the
functional disability, is adequate.
18) Considering the facts, the compensation awarded under
the heads pain and suffering and special diet, is reasonable.
19) In view of the above discussion, there is no perversity in
the impugned Judgment and Order as the same is based on
appreciating the evidence in its correct perspective. As a result, the
Appeal is liable to be dismissed and Appeal is dismissed, accordingly.
19.1) Parties to bear their own costs.
19.2) The Appeal stands disposed of.
(SHYAM C. CHANDAK, J.)
