1 208 fa.469.98 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 469 OF 1998 The Manager, Indi S.T. Depot. ... Appellant Versus Mahamadrouf Gulamrasul Shaikh (KHADEGAR) and others. ... Respondents ­­­­­ Mrs. Sunanda R. Kumbhat with Ms Suvarna G. Pratap for the Appellant. Mr. M.R.Katikar for the Respondents. ­­­­­ CORAM : A.S.OKA, J. DATE : 26 th September, 2011. ORAL JUDGMENT: 1 The Appellant (The Manager of the Indi Depot for Karnataka State Road Transport Corporation) has taken an exception to the judgment and award made by the learned Member of the Motor Accident Claims Tribunal on a claim filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). The case made out by the Respondent No.1 – claimant is that he was working as co­driver of a truck, which was proceeding to Kolhapur from 2 208 fa.469.98 village Adoni in Andhra Pradesh. The truck was loaded. The Respondent No.1 occupied a seat behind the driver in the second row in the cabin of the truck. It is alleged that a bus of the Appellant came from the opposite direction in a high speed from the side of the Miraj and gave a dash to the truck. As a result of the impact, the Respondent No.1 suffered crush injuries to the right leg and a knee. It is pointed out that amputation was required to be carried out above the right knee. The case made out by the Respondent No.1 is that the accident occurred due to rash and negligence driving by the driver of the bus. 2 The claim was contested by the Appellant by filing a written statement. In the written statement, it was contended that the entire negligence was on the part of the driver of the truck. It was contended that the driver was in hurry to reach Kolhapur. The Tribunal recorded a finding that the accident occurred due to rash and negligent driving by the driver of the bus. The Tribunal proceeded to grant compensation of Rs.2,37,400/­ with interest at the rate of 12% per annum from the 3 208 fa.469.98 date of filing of the claim petition till deposit of the amount. 3 The first submission of the learned counsel appearing for the Appellant is that the finding regarding negligence has been recorded by the Tribunal only on the ground that the driver who was driving the bus was new. The learned counsel submitted that the bus was climbing and the truck came from the opposite direction. She submitted that there is no possibility of the bus, which was climbing the ascending road will come on its wrong side and will give a dash to the truck. She submitted that there is nothing on record to show that the bus came on its wrong side and gave a dash. The learned counsel submitted that in fact, the negligence was on the part of the driver of the truck inasmuch as at the time of accident, the driver was chit­ chatting with other persons sitting in the driver's cabin. The learned counsel submitted that there was absolutely no evidence of the negligence on the part of the driver of the bus. The learned counsel submitted that the quantum of compensation is excessive and at any rate, the rate of interest awarded at the rate of 12% per annum is 4 208 fa.469.98 excessive. 4 I have given careful consideration to the submissions. The first question will be regarding the negligence. The Respondent – claimant stepped into witness box. He stated that he was working as co­driver of the truck. In the examination­in­chief, the Respondent No. 1 states thus: “1. ..... I again say I drove the truck from Adni to Kagwad. From Kagwd onwards, respondent No.3 P.Nazir Ahmad took the steering When Nazr was driving the truck I was sitting on a seat behind the driver in the cabin of the truck. We passed the bridge and came near the Mahaishal Naka. The truck was being driven by the left side of the road and it was in a very low speed and might bed about 5­10 Kms. Per hour. As the truck was loaded and as there was downward slop on the road, it was being driven in so much slow speed. One S.T. Bus came from opposite direction and by the wrong side of road. The S.T. bus was being driven at a speed of 40 to 50 Kms per hour. The S.T. Bus came and dashed our truck from the front side i.e. the S.T. Bus dashed at the front glass of the driver side of the truck and then slid­past the truck along the driver side. I was thrown on the road and I became nanously.” 5 In the cross­examination, he admitted that the bus was climbing the hill. He denied the correctness of the suggestion that the 5 208 fa.469.98 bus was being driven by its left side of the road and that the driver of the truck could not control the the truck and gave a dash on the right side of the bus. 6 The driver of the bus stepped into witness box. His version reads thus: “I was driving the bus on upward slope for climbing the bridge. I was driving the bus in slow speed. A bicyclist was going ahead of the bus. I blew horn and the bicyclist went to the left side of the road. A truck came from the opposite direction. The truck passed the bridge and came on to my side. The truck was being driven at a speed of 40 Kms. Per hour. I applied brakes, but the truck gave dash to the bus. The truck dashed the bus on the front right side. The truck slightly went past the bus and both the vehicles were brought to halt.” 7 In the cross­examination, he stated that there were 50 passengers in the bus and there were standing passengers in the bus. He denied the correctness of the suggestion that as he could not control the bus while negotiating the curve, the same went on its wrong side. He admitted that the truck was loaded with ten to twelve tonnes of grain. He admitted that he was not confirmed as a driver in 6 208 fa.469.98 the employment of the Appellant. 8 In this context, it will be necessary to make a reference to the spot Panchanama. On the contents of the spot Panchanama, the learned Member of the Tribunal in paragraph No.10 has observed thus: “10. As per the panchanama (Exh. 41), the road at the place of the accident was 18 feet wide strips of five feet on each side of the road. So, the total width comes to 28 feet. It is more than sufficient for two heavy vehicles to cross­each other, safely. The panchanama shows that the road at the placed of accident is east­west. The truck was facing towards the west with its driver side wheel leaving about 11 to 12 feet tar road vacant on the northern side. Obviously, the truck was stationed on its left side of the road. The S.T. bus did not halt at that place. It went ahead upto 8 feet distance. It was stopped on the left side of the road n a diagonal position. The very fact that the bus was standing in a diagonal position with front side in the north­east cornewre and back­side in the sought­west direction shows that fter the accident, the bus was taken towards left side. It means, at the time of the accident, the bus was not being driven on the let side of the road. Considering the fact of an inexpderienced driver on the bus and in the absence of any explanation from him for not stopping the bus in time. ” 9 As noted in the earlier part of the judgment, the version of the Respondent No.1 is that the bus gave a dash on the front glass on the driver's side of the truck and then slid past the truck along the 7 208 fa.469.98 driver's side. The version of the driver of the Appellant is that he applied brakes and stopped the bus and only thereafter, the truck gave a dash to the bus. If the said case was true, the truck could not have been found on its correct side. Moreover, in the examination­in­chief, the driver of the bus has not even explained as to how the truck was found on its correct side after the accident. The Appellant has not examined any passenger travelling by the bus who could have been an independent witness. 10 The Tribunal constituted under the said act is not bound by the strict rules of evidence. Considering the situation depicted from the Panchanama and oral testimonies of the Respondent No.1 and the driver of the Appellant, a finding of the negligence has been recorded against the driver of the bus. The observation of the Tribunal that the driver was new was in the context of answer in the cross­examination given by the driver that he was not confirmed in the employment of the Appellant. Therefore, it is not possible to disturb the finding of the Tribunal on the issue of negligence. 8 208 fa.469.98 11 As far as the quantum of compensation is concerned, this is a case where apart from crush injuries, there is an amputation of right leg above the knee. The compensation of Rs.2,37,400/­ has been granted by the Tribunal, the break­up of which reads thus: “Rs.20,000/­ for pains and sufferings. Rs.20,000/­ for loss of leg, permanent physical Disability & loss of amenities in life. Rs.15,000/­ for medical charges & attendance charges. Rs.1,82,400/­ towards loss of future income. ­­­­­­­­­­­­­­­­­ Rs.2,37,400/­ Total” 12 Notwithstanding the amputation of the leg and 50% permanent disability, the loss of future income per month has been taken only at Rs.950/­. Though the age of the Respondent was 25 years, a lower multiplier of 16 has been taken for arriving at for loss of future income. The compensation on the said count and the compensation under the head of pain and suffering is on the lower side. Hence, It is not possible to find fault with the quantum of compensation. 9 208 fa.469.98 13 As far as interest is concerned, the claim petition was filed in the year 1993 and considering the then prevailing rates on interest, no fault can be found with the interest awarded at the rate of 12% per annum. 14 There is no merit in the appeal and the same is accordingly dismissed with no order as to costs. [ A.S.OKA, J ]