Bombay High Court
Sitabai Ramchandra Gurav vs Thane Municipal Transport Corporation ... on 13 March, 2025
2025:BHC-AS:15559
WAKLE
MANOJ
JANARDHAN Manoj 902-FA-578-2004.doc
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WAKLE MANOJ
JANARDHAN
Date: 2025.04.04
13:28:57 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.578 OF 2004
Smt. Sitabai Ramchandra Gurav
Age - 45 years, Occ. - Household/cook,
Residing at Shridhar Patil Chawl, Dhokali,
Thane- 400 607 ..... Appellant
Vs.
1) Thane Municipal Transport Corporation,
Mahapalika Bhavan, Panchpakhadi, Thane,
2) Director of Insurance, Govt. Insurance Fund,
Maharashtra State, Gruhanirman Bhavan,
MHADA, 264, First floor, Opp. Kalanagar,
Bandra (E), Mumbai- 400 052. ..... Respondents
Mr. Vinod N. Tayade a/w Mr. Aditya V. Tayade, for the Appellant.
Mr. A. R. Pitale a/w Mr. Siddharth Pitale, for the Respondent No.1.
Mrs. Shilpa G. Talhar, AGP for the Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
DATED : 13th MARCH, 2025.
JUDGMENT :
-
. Present Appeal is directed against the Judgment and
Order dated 20.11.2003, in Motor Accident Claim No.929 of 1999
("the claim"), passed by the Motor Accident Claims Tribunal, Thane
thereby the said Claim Petition filed by the Appellant/Claimant under
Manoj 902-FA-578-2004.doc
Section 166 of the Motor Vehicles Act, 1988 ("the Act") has been
partly allowed with costs and the Respondents have been directed to
pay the Appellant a compensation of Rs.78,000/- inclusive of no fault
liability amount with interest @ 6% p.a., from the date of the Claim
Petition till realization of the said amount.
2) Heard Mr.Tayade, the learned Advocate for the Appellant,
Mr.Pitale, learned Advocate for the Respondent No.1 and
Mrs.Talhar, learned AGP for the Respondent No.2. Perused the
record.
3) Facts in brief are that, on dated 16.05.1999, at about 7:30
p.m., opposite vegetable market, Jambhali Naka, when the Appellant
along with her daughter Mamta were waiting for bus to go to Dhokali,
a passenger bus of Opponent No.1 bearing registration No.
MH-04-G-30 came there driven in a high speed, rash and negligent
manner and gave dash to the Appellant and others standing there. As
a result, the Appellant fell down and sustained grievous injury to her
left hand palm etc. Immediately, the Appellant was shifted to the Civil
Hospital at Thane and thereafter to Tushar Nursing Home, Thane. On
the next day, she was shifted to Lokmanya Tilak General Hospital,
Mumbai. There she was inpatient from dated 17.05.1999 to
22.06.1999 and undergone medical treatment. After, discharge from
the hospital, she was taking a follow-up treatment as an out-door
Manoj 902-FA-578-2004.doc
patient. However, the injuries caused a permanent disability to the
left hand. The Appellant averred that, at the time of accident, she was
aged 45 years. She was working as maid with different persons
residing in Oswal Park, Thane. In addition, she was taking orders for
cooking on special occasions and parties. Thus, she was earning
Rs.4,500/- per month. However, she cannot work and earn as before
due to the said disability. Hence, the Appellant prayed for
compensation of Rs.3,00,000/- alongwith interest.
4) Respondent Nos.1 and 2 resisted the claim filing their
written statements (at Exhs. 21 and 17 respectively). Respondent No.1
denied that, the accident occurred due to rash and negligent driving
of the bus; that, the accidental injuries caused the disability to the
Appellant; that, the Appellant was working and earning as above; and
that, the Appellant has suffered the loss of income due to the
disability. The Respondent No.1 contended that at the time of the
accident the Appellant was trying to get down from the foot path,
when the bus was arriving there. However, the Appellant fell down on
the foot path in her haste to catch the bus. The Respondent No.1
boldly contended that, the Appellant has suppressed material facts
and thus, has not come before the Court with clean hands. For these
and other reasons, the Respondent No.1 prayed to dismiss the claim.
The written statement of the Respondent No.2 was on the same line.
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Additionally, the Respondent No.2 contended that the road where the
accident occurred, is always very crowded. Therefore, there was no
question of driving the bus in a rash and negligent manner. Hence,
the Respondent No.2 also submitted to reject the claim.
5) To prove the claim, the Appellant adduced her evidence
on oath (Aw1/Exh.26). In addition, she has examined her daughter
Ms.Mamta Gurav (Aw2/Exh.37), Mr. Ghanshyam Namdevrao
Gaikwad (AW3/Exh.41), who issued the Disability Certificate and
Beena Sudhir Mhatre (AW4/Exh.42), with whom she was working as
a housemaid. Besides, the Appellant relied upon various documents.
6) In the rebuttal, Respondent No.1 has examined Madhukar
Kaluram Bhoir (RW1/Exh.45), the driver of the bus.
7) Mr. Tayade, the learned Advocate for the Appellant
submitted that the Respondents have not disputed the accident.
There is overwhelming evidence by the Appellant which proved that
said accident occurred due to rash and negligent driving of the bus.
The accident caused grievous injury to the left hand of the Appellant
and it resulted in 40 % permanent disability. Therefore, the Appellant
is not able to work and earn as before. Thus, there has been 100% loss
of income on account of the disability. However, the Tribunal
awarded very meager compensation. Therefore, the compensation be
enhanced.
Manoj 902-FA-578-2004.doc
8) Mr. Pitale, the learned Advocate for the Respondent No.1
strongly submitted that, at the time of the accident the bus skidded
and at the same time the Appellant made undue haste to catch the
bus. As a result, the Appellant fell down and sustained the injuries
due to her own fault. Therefore, the Appellant in not entitled for the
compensation. In the alternative, Mr. Pitale submitted that
considering the evidence on record, the compensation awarded by the
Tribunal is adequate and it need not be enhanced.
8.1) Mrs. Talhar, the learned AGP submitted that, the
impugned Judgment is based on proper evaluation of the evidence
and it is well reasoned, therefore, it does not call for an interference.
9) The evidence of the Appellant is that, at the relevant time
she was standing at the bus stop and she had kept her hand at the
iron bar of the bus stop. At that time, the offending bus came there
and dashed to her left hand, palm and fingers. As a result, she
suffered crush injury to the left hand palm. Immediately, she was
taken to the Civil Hospital, Thane. After receiving a first aid there, she
was shifted to Tushar Hospital at Kapurbawdi for further treatment.
Thereafter, she was shifted to Sion Hospital for better treatment,
where she was inpatient for about one and half month. This evidence
of the Appellant is corroborated with the FIR (Exh.27), spot
panchnama (Exh.31), her statement recorded by the Police (Exh.32)
Manoj 902-FA-578-2004.doc
and evidence of AW2-Mamta. In the cross-examination the Appellant
admitted that the bus had not stopped on the road at the bus stop.
She admitted that the bus had stopped after the accident. Except this
nothing material has emerged in the cross-examination of the
Appellant and AW2-Mamta to disbelieve the fact that, the accident
occurred due to rash and negligent driving of the bus as claimed by
the Appellant.
10) In contrast, RW1-Madhukar Bhoir, driver of the bus
deposed that at the time of accident the bus was moving slowly to halt
at the bus stop. Meanwhile, there was rush of passengers and they
tried to step in the bus forcibly and while doing so, the Appellant fell
on the foot path. RW1 denied that the accident occurred as deposed
by the Appellant and AW2-Mamta.
11) However, the version of RW1 is not worthy of reliance. In
this regard it is important to note that as per the statement of Anil
Ramchandra Patil, who was the conductor on duty in the bus, at the
time of accident RW1 applied sudden breaks before stopping the bus
as it was raining. However, the bus skidded of the road and dashed to
the passengers, who were standing at the bus stop. Considering this
statement of Anil Patil, the conductor, it appears that the bus was in
speed even though it had approached the bus stop. Therefore, the bus
skidded. Thus, it is clear that RW1 was not at all careful while driving
Manoj 902-FA-578-2004.doc
the bus. Anjana Talwar was also injured in the same accident who
filed the Report (Exh.30) of this accident. In the Report it has clearly
recorded that the bus driver drove the bus in a high speed and applied
sudden breaks. As a result, the bus skidded due to raining and dashed
the passengers waiting at the bus stop. This fact fortifies my
conclusion above that RW1 did not drive the bus with due care and
caution and therefore his said act resulted into the accident. In view
thereof, the finding of the Tribunal is correct that the accident
occurred due to rash and negligent driving of the bus.
12) The evidence of the Appellant coupled with the medical
treatment papers (at Exh.28) clearly established that, due to dash by
the bus the Appellant had sustained following injuries : (a) wound on
dorsum of left hand with skin loss, size : 8 cm x 6 cm, (b) extensor
tendons crushed, and (c) fracture of metacarpal 1 st - 4th and proximal
phalanx of little finger. Thus, it was evident that said injuries were
grievous in nature. The medical papers clearly show that the
Appellant was under treatment till March 2001, i.e., almost for about
2 years after the accident. In March 2001, the Appellant was advised
for some surgery. These facts indicate that the injuries required a
longer time to heal and recover.
13) The Appellant deposed that she has incurred total
Rs.30,368/- on her medical treatment. This evidence is in conformity
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with the medical bills (Exh.29). Therefore, the Tribunal has rightly
awarded Rs.30,000/- under the head 'medical expenditure'.
14) The Tribunal has awarded Rs.3,000/- for 'conveyance'
and Rs.5,000/- for 'special diet'. However, this award of total
Rs.8,000/- appears on the lower side. Because, as noted above, the
injuries being grievous in nature required a longer medical treatment
to heal and recover. It is, therefore, probable that the Appellant
visited the doctor/s frequently and took special diet until the
recovery. For the treatment and follow-up the Appellant must have
travelled by bus or hired vehicle. She must have been
assisted/attended by some family member, sacrificing her/his work
and income. However, no compensation has been awarded towards
'attendant charges'. In view thereof, the Appellant deserves to get
total Rs.20,000/- under the heads 'special diet' and 'convenience'
including 'attendant charges'.
15) The Appellant deposed that the accidental injuries caused
deformity to the injured hand. In this regard the evidence of AW3-Dr.
Gaikwad is that, on dated 01.03.2001 he had medically examined the
Appellant for the purpose of assessing her disability. On examination,
the Appellant had multiple scars of operation on interior and
posterior aspects of the hand and forearm. The Appellant has suffered
stiffness of all the fingers, stiffness of the wrist joint, grip of the hand
Manoj 902-FA-578-2004.doc
is not possible, she is unable to hold any object by that hand and there
is restriction of movement of the left wrist due to stiffness. The
Appellant has painful movement at the elbow and shoulder. The X-
ray of her left hand showed fracture of metacarpal bone of 2 nd to and
5th fingers. Therefore, AW3 opined that the Appellant has suffered
40% permanent partial disability. This evidence is consistent with the
Disability Certificate (Exh.35) issued by AW3.
15.1) Nothing significant has emerged in the cross-examination
of AW3 to disbelieve his said evidence and the Disability Certificate.
There is no other material on record to disagree with the said
evidence. Therefore, I hold that the Appellant has suffered the 40 %
disability, as certified by AW3. As a result, the Appellant is entitled
for compensation towards loss of the future income and the disability
etc.
16) The Appellant deposed that at the time of accident she
was working as a housemaid and also cooking. This evidence did not
meet any challenge in the cross-examination. In her statements
before the police the Appellant disclosed that she was doing
household work. Said statements supported her evidence. Therefore,
it is acceptable that the Appellant was working as the house-maid to
fulfill the basic needs of her family.
17) The evidence of AW4-Beena Mhatre is that she has done
Manoj 902-FA-578-2004.doc
pathology and D.M.L.T. She has been running a Diagnostic lab. She
was not able to look after her household work and her daughter, who
was of tender age. She, therefore, had appointed the Appellant to do
her household work and look after the daughter. She deposed that the
Appellant worked with her for about one year.
18) The Appellant deposed that she was getting Rs.3,000/- to
Rs.3,500/- per month by doing household. Sometimes she used to
cook for orders on special occasions thereby she was earning Rs.5oo/-
to Rs.1000/-. Thus, she was earning about Rs.4,500/- per month.
AW4 deposed that she used to pay the Appellant Rs.1,800/- per
month. AW4 deposed that the Appellant was also working at others.
18.1) In the cross-examination of AW4, it has come that she has
no documentary evidence to show that the Appellant was working at
her as housemaid and she paid monthly salary of Rs.1,800/- to the
Appellant. There was no other documentary evidence as to the
monthly income of the Appellant. Therefore, the Tribunal considered
the notional monthly income of the Appellant as Rs.2,000/- to
Rs.2,500/- per month. In view thereof and considering the 40%
disability, the Tribunal awarded Rs.15,000/- as loss of the income
and Rs.25,000/- towards the disability.
19) However, the Tribunal ignored that in the cross-
examination of AW4 it has come that the Appellant was working with
Manoj 902-FA-578-2004.doc
her from 10:00 a.m. to 04:00 p.m. Thus, the fact that the Appellant
was working with AW4 was conceded. It is also come that, since 1991
AW4 has been running a Diagnostic lab. That, since beginning the
elder daughter of the Appellant was working at her lab centre as a
receptionist. These facts indicate that AW4 was earning reasonably
from her lab centre, therefore, she was able to afford the housemaid
and the receptionist. Therefore, the evidence of the AW4 is
trustworthy and thus, it corroborated with the evidence of the
Appellant.
20) The Tribunal did not consider that, the family of the
Appellant was comprised of total 4 members, i.e., the Appellant, 2
daughters and a son. The family was residing at Thane, therefore,
their personal and living expenses must be on the higher side. The
Appellant was working with AW4 daily, for 6 hours. Therefore, I hold
that the monthly income of the Appellant was Rs.4,500/- from the
household work. Besides doing the household work at others, the
Appellant was also gratuitously serving her 3 children by way of
cooking, washing clothes, cleaning etc. for them. However, the
children have been permanently deprived of the said gratuitous
services to some extent due to the disability. In terms of money, said
gratuitous services were not less than Rs.1,000/- per month at the
time of the accident. Therefore, said amount of Rs.1,000/- should be
Manoj 902-FA-578-2004.doc
added to the monthly income of the Appellant. Thus, the monthly
income of the Appellant was Rs.5,500/-.
20.1) In view of the decision in the case of National Insurance
Co. Ltd. Vs. Pranay Sethi and others.1, some amount shall be added to
the annual income of the Appellant towards her future prospects. The
Appellant was aged 45 years at the time of accident but her income
was not regular. Hence, 25% of the monthly income should be added
towards the future prospect of the Appellant. On such addition, the
actual monthly income of the Appellant comes to Rs.6,875/- and
yearly Rs.82,500/-.
21) The Appellant deposed that she is unable to work and
earn as before due to the disability. AW3 deposed that the Appellant
is unable to cook with the left hand due to the disability. AW4
deposed that, the Appellant is unable to do the household work and
she has stopped working with her. However, it cannot be ignored that
despite the disability as noted above, the Appellant is able to do
simple cleaning and some other simple work and earn, because
according to AW3 the Appellant is unable to cook with only left hand.
Therefore, and considering the evidence as a whole, I hold that the
Appellant has suffered 75% loss of her income capacity/future income
on account of the disability.
1. (2017) 4 ACJ 2700 (SC).
Manoj 902-FA-578-2004.doc
22) In view of the above discussion and the decision in the
case of Pranay Sethi (supra), the Appellant deserves to get total
Rs.8,66,250/-, towards the actual loss of the future income/income
capacity (Rs.5,500 + 25 % = 6,875 x 12 x 14 x 75%).
23) No appropriate compensation is awarded by the Tribunal
towards 'pain and suffering' and 'loss of amenities of life'. Therefore,
and considering the evidence as a whole, the Appellant deserves to
receive Rs.75,000/- for the same.
24) Thus, the Appellant is entitled to get the compensation as
under.
Total compensation amount : Rs.9,91,250/-
Minus the compensation amount : - Rs. 78,000/-
awarded by the Tribunal and paid.
-------------------
Enhanced compensation amount : Rs. 9,13,250/-
===========
24.1) Considering the facts and circumstances of the case the
Appellant deserves to get interest at the rate of 7.5 % p.a. on the said
compensation amount.
25) The offending bus was owned by Respondent No.1, it was
driven by the driver of Respondent No.1 and the bus was insured with
Respondent No.2. Therefore, both the Respondent are liable to pay
the compensation as quantified above.
Manoj 902-FA-578-2004.doc
26) Conspectus of the above discussion is that the Tribunal
failed to appreciate the evidence on record in its correct perspective,
which resulted in awarding the compensation on lower side.
Therefore, there is infirmity in the impugned Judgement and Order
and it is liable to be modified. The Appeal deserves to be allowed,
accordingly.
27) Hence, following Order.
(a) Appeal is allowed with proportionate costs.
(b) The impugned Judgment and Order dated 20th
November 2003, in Motor Accident Claim No.929 of 1999,
passed by the Motor Accident Claims Tribunal, Thane, is
modified.
(c) Respondent Nos.1 and 2 shall jointly and severally
pay the compensation of Rs.9,91,250/- (inclusive of NFL
amount) together with interest thereon at the rate of 7.5%
per annum from the date of the Claim Petition till
realization of the amount.
(d) Respondent Nos.1 and 2 are directed to comply with
this Judgment and Order within a period of four months
from today, by depositing the amount in the Tribunal.
(d-1) On deposit of the amount the Tribunal shall
immediately inform about the deposit to the Appellant.
(e) The amount deposited in the Tribunal shall not be
invested for a period of eight weeks from the date of
Manoj 902-FA-578-2004.doc
deposit. In the event the amount is not withdrawn within
a period of eight weeks from the date of deposit, the same
shall be invested by passing appropriate directions by the
Tribunal.
(f) The Respondents will be entitled to adjustment of
the amount against the already paid under the impugned
Award.
(SHYAM C. CHANDAK, J.)
