1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 437 OF 1996 WITH CIVIL APPLICATION NO.2712 OF 1996 (By appellant for stay) WITH CIVIL APPLICATION NO.5277 OF 2004 (By Respondent No. 1- claimant for direction to deposit entire amount) Maharashtra State Road Transport Corporation, through its Divisional Appellant/orig. Controller at Osmanabad. Respondent No.1 versus 1. Purshottam s/o Rangrao Patil Age 50 years, occup. service r/of 160 Samarthnagar, Aurangabad, since deceased, through legal heirs :- 1-A. Atul s/o Purushottam Patil age 42 years, occupation : business, r/o 160 Samarth Nagar, Aurangabad. 1-B. Vipul s/o Purushottam Patil age 39 years, occupation : business, r/of as above. 2 2. Shri Muzaferali Khan, age major, occup.S.T.driver Latur Depot, c/o Depot Manager, S.T.Dept., Latur. 3. Shri Prakash s/o Kundanal Ladha, age major, occupation business, r/of Hingangaon, Taluka and Dist. Ahmednagar. 4. United India Insurance Co. Ahmednagar throgh Divisional Manager, Ahmednagar. 5. Shri Bhaguji s/o Eknath Agle, age major, occup. service r/o Limbewadi, Post-Jamkhed, Respondents/ Taluka Ambad, District Jalna, Resp.No.1 orig. at present residing at applicant. R. Banjara Colony, Aurangabad. 2 to 5 ori.resp Nos. 2 to 5. WITH CROSS OBJECTION (STAMP) NO.12980 OF 1996 IN FIRST APPEAL NO.437 OF 1996 1. Purshottam s/o Rangrao Patil Age 50 years, occup. service Cross- r/of 160 Samarthnagar,Dist. Objectionist Aurangabad, since deceased, through legal heirs :- 3 1-A. Atul s/o Purushottam Patil age 42 years, occupation : business, r/o 160 Samarth Nagar, Aurangabad. 1-B. Vipul s/o Purushottam Patil age 39 years, occupation : business, r/of 160, Samarth Nagar, Aurangabad. versus 1. Maharashtra State Road Transport Corporation, through its Divisional Controller, Osmanabad. 2. Shri Mazafarali Khan, age major, occup.S.T.driver Latur Depot, r/o c/o S.T. Dept. Manager, Latur, Dist. Latur. 3. Shri Prakash s/o Kundanal Ladha, age major, occupation business, r/of Hingangaon, Taluka and Dist. Ahmednagar. 4. United India Insurance Co. Ahmednagar throgh Divisional Manager, Ahmednagar. 4 5. Shri Bhaguji s/o Eknath Agle, age major, occup. service r/o Limbewadi, Post-Jamkhed, Taluka Ambad, District Jalna, at present residing at Banjara Colony, Aurangabad. Respondents. ------------------------------------------------------ Shri A.B.Dhongde, Advocate for appellant and for Respondent No.1 in Cross Objection. Shri P.C. Mayure Advocate for respondent Nos. 1(A) and 1(B) in first appeal and for cross objectionists in Cross Objection. Shri S.V.Varad, Advocate for Respondent No.3 in first appeal and in cross objection. Shri D.V.Soman Advocate for Resp. No.4 in first appeal and in cross objection. ------------------------------------------------------ Coram : P.R.Borkar, J. Date : May 03, 2010 ORAL JUDGMENT 01. This first appeal is preferred by original Respondent No.1 Maharashtra State Road Transport Corporation being aggrieved by the judgment and award passed by the learned Member, Motor Accident Claims Tribunal, Jalna, in Motor Accident Claims Petition No. 20 of 1986 decided on 5.1.1994, whereby original Respondent Nos.1 and 2 (present appellant and respondent No.2-driver respectively) are directed to pay to present respondent No.1-original claimant an amount of Rs.71800/= together with interest at the rate of 12 per cent per annum on Rs.68.050/= from 26.12.1989 till realization/actual payment. 5 02. Original claimant-respondent No.1 herein has filed Cross Objection in present first appeal, being aggrieved by grant of inadequate compensation and prayed for grant of full compensation of Rs. 1,30,000/=. 03. Briefly stated, present Respondent No.1 Purushsottam-original claimant filed M.A.C.P. No. 20 of 1986 before M.A.C.T., Jalna, alleging that on 1.4.1984 at about 12.15 p.m. he was travelling in S.T. Bus No.8953 from Aurangabad to Latur. The bus was being driven by present Respondent No.2 Muzafarali Khan. When bus came near Jamkhed, Taluka Ambad, Respondent No.2 Muzafarali took the bus on wrong side in rash and negligent manner as a result of which it dashed truck bearing No.MHB-7438 owned by Respondent No.3, driven by Respondent No.5 and insured with Respondent No.4. As a consequence of dash, bus fell on its left side and resulted in left hand of Respondent No.1-claimant being crushed. He was first taken to Primary Health Center Pachod and then he was shifted to Government Hospital, Aurangabad where he was treated. Ultimately, on 29.4.1985 his hand was required to be amputated. The claimant was working as 6 Head Master in Sharda Mandir Girls High School, Aurangabad and was earning salary of Rs.2,310/= per month. He prayed for grant of total compensation of Rs.1,30,000/=. He claimed that there was permanent disability which is of 57 per cent. Towards permanent disability, he claimed Rs.20,000/=. He also claimed that there was loss of earning as he was paper setter and also paper examiner/moderator. He further stated that he had also to incur expenses for travelling between Aurangabad to Pune for medical treatment. He claimed Rs.20,000/= towards pains and sufferings, Rs. 18,000/= towards deprivation of left arm. He also claimed Rs.11500/= towards loss of earning, so also Rs.20,000/= towards agricultural loss as he was also agriculturist. In all, he claimed compensation of Rs. 1,30,000/=. 04. Present Appellant (respondent No.1 before the Tribunal) has chosen to remain absent and, therefore, claim petition was decided without any written statement or evidence of appellant No.1. Even Respondent No.2, who was bus driver, did not file any say though he appeared through Advocate. It is mainly Respondent Nos.3,4 and 5 who were contesting parties. The Tribunal ultimately awarded Rs.71,800/= against 7 original Respondent Nos. 1 and 2 (present appellant and respondent No.2). It is this order which is challenged in this first appeal. 05. Advocate Shri Dhongde, appearing for appellant-Corporation submitted that there was composite negligence of the truck driver and the bus driver and yet only the bus driver and S.T.Corporation are held responsible. 06. Original claimant Purushottam-Respondent No. 1 herein examined himself at Exhibit 79. He stated that on the day of incident be boarded Aurangabad- Latur bus. He was occupying seat No.21 which is on left side of the bus. At about 12.15 p.m., bus was near Jamkhed; it was in high speed. Initially, it was on left side of the road. A truck was coming from opposite direction. All of a sudden the bus driver had driven the bus towards wrong side as a result of which it collided with the truck. Left side of the bus was damaged. Claimant deposed that he sustained bleeding injury to his left arm which arm was ultimately required to be amputated. 8 07. Evidence of the claimant is supported by Dr. Baburao Shankarrao Somwanshi examined as CW-2 at Exhibit 90 who was another injured from the same incident. He was occupying seat on the back side of the driver. The Tribunal, however, held that this witness could not have seen road on front side of the bus and only after collision between the bus and the truck, he could become aware of the accident. 08. As a defence evidence, Respondent No.5 truck driver was examined at Exhibit 94. He deposed that the bus was coming from Aurangabad side and his truck was on left side. Bus was in high speed; it came on extreme wrong side and gave violent dash to left hand side mudguard of the truck and left the road and went into a field. 09. It is observed by the learned Member of the Tribunal that the evidence of truck driver was as per the pleadings. There is also certified copy of the panchanama on record on the basis of which the Tribunal came to the conclusion that it was the bus driver who was rash and negligent in driving and thus responsible for the accident. Considering the fact that bus driver did not enter into witness box and 9 considering totality of the circumstances, the conclusion drawn by the learned Member of the Tribunal that the accident occurred due to rash and negligent driving by the bus driver cannot be said to be unreasonable, not based on evidence or improbable. 10. The second limb of argument of the appellant is that compensation awarded is excessive. The accident had taken place in 1984. Paragraph 14 of the judgment shows that the claimant was 51 years of age when the accident had taken place. He was Head Master and also working as moderator and paper setter. He deposed that he was on leave for about five months after the accident. However, that was disbelieved and compensation for loss of earning was awarded only for three months. In my opinion, compensation ought to have been awarded for two more months. Accordingly, I award Rs.4600 as additional loss of salary. It may be noted that injury was serious as it resulted in amputation. Even after discharge from hospital, time is required for healing of the injury. There were pains and sufferings to the claimant. 11. Another item on which additional compensation is claimed by way of Cross Objection by 10 present Respondent No.1-original claimant is future loss due to inconvenience and hardship. The amputation of left hand is a serious matter and it affects comfort of life. It is a serious disability affecting person for rest of his life. He is to depend entirely on one hand for all his work and particularly in old age this may become very serious handicap. The Tribunal has awarded Rs.45,000/= towards permanent disability which was stated to be 57 per cent. There is no dispute regarding medical expenses. For pains and sufferings Rs.10,000/= are awarded and only Rs. 5000/= were awarded for amenities of life and shortened expectations of life. In my opinion, claimant is required to be awarded more towards future loss of amenities in life,, inconvenience and hardship and other heads of compensation which are recognized by the Supreme Court in the case of R.D.Hatangadi vs. Pest Control (India) (P) Ltd. (1995) 1 SCC 551 and I award Rs.25,000/= on that count. There is no scope for reducing compensation which is already awarded and which is very meagre in the light of present set of circumstances. It may be noted that till now, only Rs. 28,750/= are paid to respondent No.1. 11 12. In the circumstances, appeal is dismissed. Cross Objection is partly allowed. It is directed that original Respondent Nos.1 and 2 (present appellant and Respondent No.2) shall pay compensation of Rs.1,01,400/= in all inclusive of whatever amount is paid by appellant and Respondent No.2 to respondent No.1-claimant, together with interest at 12 per cent per annum on Rs.71,800/= and at 9 per cent per annum on balance of Rs.29,600/= from the date of application till actual payment/realisation. 13. Consequently, both civil applications (No. 2712 of 1996 and 5277 of 2004) do not survive and hence, disposed of as such. pnd/fa437.96 (P.R.BORKAR, J.)