1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 218 OF 1994 1. The State of Maharashtra 2. the Medical Superintendent ... Appellants v/s 1. Shrikant Rajaram Dambe 2. Neetin Manohar Talekar 3. The Oriental Fire & General Insurance Co. Ltd. 4. Jaywant Mahadeo Chipkar ... Respondents Mrs.S.V.Sonawane, A.G.P. for the appellants – State. Mr.Ranjan B. Tripathi i/by Shri S.M.Vidyarthi for the respondent No.3. CORAM: SMT.NISHITA MHATRE, J. DATED: 17TH SEPTEMBER, 2009 ORAL JUDGMENT: 1. The appeal has been filed against the award of the Motor Accident Claims Tribunal, Ratnagiri, dated 10.10.1991. 2. The claimant i.e. the respondent No.1 herein was traveling in an auto-rickshaw bearing No. MWT 5203 from 2 Talera to Kankavli. The auto-rickshaw collided with an ambulance which was being driven in the opposite direction. Respondent No.4 herein is the driver of the ambulance. It appears that the ambulance was owned by the appellants, whereas the auto-rickshaw was driven by respondent No.2 herein. It was insured with respondent No.3. The applicant sustained several injuries and therefore admitted as an indoor patient in the hospital at Kankavli and thereafter in the Datta Smriti Nursing Home at Kolhapur. The applicant claimed that he had incurred an expenditure of about Rs. 21,300/- for his medical treatment besides incurring a loss of income on account of the accident. The applicant, therefore, filed Motor Accident Claims Petition No.20 of 1988, claiming an amount of Rs.2,00,000/- as compensation. 3. The claim petition was contested by the driver as well as the Insurance Company. Respondent No.4 i.e. the driver of the ambulance filed his written statement contending that he was not liable to pay the compensation as the rickshaw was being driven in a rash and negligent manner and had collided with the ambulance. Respondent No.4 claimed that he was not in any way responsible for the accident as it occurred because of the negligence of the auto-rickshaw driver. 3 4. The applicant and the driver of the ambulance were examined before the Tribunal. The applicant has described the manner in which the accident occurred. He has also stated that he had to undergo several surgeries due to the injuries suffered on both his legs and his right hand. He has stated that he spent over Rs.35,000/- towards his medical treatment. All the documents indicating the expenses for his medical treatment were placed on record. He has further stated that he has suffered a loss of income to the tune of Rs. 40,000/-. According to him, he had purchased a truck for a transport business in the year 1981 under the Government scheme for educated unemployed persons. He used to drive the truck personally but after the accident he had to engage a driver for the truck and pay him Rs.1200/- per month along with a daily allowance of Rs.20/-. Although the accident occurred on 22.8.1987, when the applicant was examined in 1991, he has stated that he continued to experience pain on account of the accident and therefore was unable to drive the truck. In the cross-examination, there has been a question about his income from the transport business and whether he was a tax payer when the accident occurred. He has candidly stated that he had not placed on record any document indicating his income. 4 5. The driver was examined by the appellants who contended that the accident occurred because of the negligence of the auto-rickshaw driver. He was cross- examined by both the applicant as well as the auto-rickshaw driver on behalf of the applicant. 6. The Court has concluded that the accident occurred on account of the negligence of both the drivers i.e. the ambulance driver as well as the auto-rickshaw driver. The Tribunal was of the view that the statement made by the driver was not supported by the panchnama. The driver agreed that he saw that the auto-rickshaw was being driven in the middle of the road when it was at a distance of about one km. away. The Tribunal therefore held that the driver of the ambulance ought to have been more cautious and driven on the extreme left of the road, especially in view of the fact that a patient was being driven in the ambulance. The Tribunal has also held that, merely because the driver of the auto-rickshaw was not examined, it would not mean that the negligence was not on the part of the ambulance driver but that of the auto-rickshaw driver. 7. As regards the amount of compensation, the Tribunal held that this was a case of contributory negligence as both 5 the drivers were negligent and directed the appellants to pay an amount of Rs.85,000/- as compensation. The liability of the rickshaw driver was limited to Rs.15,000/-. 8. As regards the claim for Rs.2,00,000/- as compensation, the Tribunal has held that the claim was exorbitant. The Tribunal has accepted the medical expenditure of the applicant as also the monetary loss that he suffered in his transport business. The Tribunal has accepted his statement and has held that he would be entitled to an amount of Rs. 60,000/- for the loss of income. It has also awarded Rs. 18,700/- towards the mental suffering of the applicant on account of the accident due to which he was bedridden and was physically unable to drive any vehicle. Similarly, an amount to compensate the mental agony suffered by the applicant was also included and the Tribunal awarded a total amount of Rs.1,00,000/-. 9. The learned A.G.P. appearing for the appellants submits that the Tribunal has erred, firstly, because it has held that there is contributory negligence on the part of the ambulance driver; and secondly, because the award has been made without any documentary evidence on record indicating that the claimant had suffered a loss of income. 6 10. As regards the first contention, in my view, it is unsustainable. The panchnama on record, which has been considered by the learned Judge along with the evidence of the applicant indicates that both the ambulance driver as well as the rickshaw driver were responsible for the accident. The driver of the ambulance has stated that he saw the rickshaw about one km. away and, therefore, it was always possible for him to avoid the accident. The Tribunal, in my opinion, has rightly concluded that the ambulance driver had every opportunity to avoid the accident as he had noticed the rickshaw at a distance of one km. There is no evidence on record to indicate that the ambulance driver had swerved to the left in order to avoid the accident and, therefore, the Tribunal had accepted that both the drivers were liable in view of their contributory negligence being the cause for the accident. 11. The second contention of the learned A.G.P. was that there was no material on record to indicate that the applicant had sustained a loss of Rs.40,000/- as claimed by him. The only question put to the applicant during his cross- examination on this aspect by the appellants herein, was whether the applicant was an income tax payer and whether 7 he had produced the documents to indicate his income from the transport business. The Tribunal has considered that Rs.1200/- was being paid per month by the applicant to the driver whom he had engaged due to his inability to drive the truck after the accident. The Tribunal therefore granted this amount of Rs.1200/-. As regards the loss of earning, the Tribunal has fixed this amount at Rs.60,000/-, whereas the applicant had claimed an amount of Rs.40,000/- as his loss of earning. This is the amount he has stated in his deposition. 12. No reasons have been given by the Tribunal as to why instead of the amount claimed by the applicant he has enhanced it to Rs.60,000/-. There is no indication as to whether the claimant had in fact produced any document to indicate that he had sustained a loss of Rs.60,000/- during the period when he was medically unfit. Even assuming the Tribunal was right in awarding Rs.40,000/-, it could not have awarded the sum of Rs.60,000/- as loss of earning when the claimant had not produced any document in support of his case. Therefore, this amount must be reduced to Rs.40,000/-. 13. Accordingly, the appeal is partly allowed. The amount awarded shall be reduced to Rs.80,000/-. It appears that Rs.1,53,079/- was deposited by the appellants by 4th 8 November, 1992. An amount of Rs.1,38,079/- has been withdrawn and the balance of Rs.15,000/- remains in the Court. 14. The award is therefore modified to the following extent :- Respondent Nos.3 and 5 i.e. the appellants herein and respondent Nos.2 to 4 shall jointly and severally pay an amount of Rs.80,000/- to the applicant i.e. respondent No.1 herein with future interest on the amount at the rate of 12% per annum from the date of the application i.e. from 19.2.1988, till realization. ..... 9