{1} fa204410.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2044 OF 2010 Maharashtra State Road Transport Corporation, Divisional Manager, MSRTC, Dhule Division, Dhule. Appellant Versus 1 Sunil Laxman Bagul, since deceased through L.R: Anusayabai Laxman Bagul, age: 65 years, Occ: Nil, R/o Nagai Colony, Nakane Road, Dhule. 2 Subhash Shankar Bhales, aged: major, Occ: Bus Driver, R/o C/o Divisional Controller, MSRTC, Dhule Division, Dhule. Respondents Mr. D.S.Bagul, advocate for the appellant. Mr.Amol Sawant, advocate for Respondent No.1. Mr. A.G.Magare, advocate for Respondent No.2. CORAM : R.M.BORDE, J. DATE : 22 nd June, 2011 ORAL JUDGMENT: 1 This is an appeal raising exception to the judgment and award dated 31.12.2005, passed by the Member, Motor Accident Claims Tribunal, Dhule, in M.A.C.P. No.956 of 2003. 2 Heard learned Counsel for respective parties. {2} fa204410.odt The appeal was placed for admission on 11 th October, 2010 and learned Counsel appearing for respective parties urged that as the dispute is only as regards quantum of compensation, the appeal may be heard finally at the stage of admission. In the light of the statement made by learned Counsel for respective parties, this Court was pleased to direct calling of Record & Proceedings and the matter was directed to be placed for hearing on the adjourned date. 3 Appeal is admitted and taken up forthwith for final hearing by consent of learned Counsel for respective parties. 4 Respondent No.1 – original claimant claimed compensation to the tune of Rs.4,00,000/- on account of permanent disablement suffered by him. It is the case of claimant that on 16.12.2003 at about 5.45 p.m., he was proceeding on a bicycle from Agrawal Bhavan, Dhule towards his house at Deopur, Dhule and when he reached near “T” point near Agrawal Bhavan, the offending S.T. bus bearing No.MH-20-D-4478 came from opposite side i.e. Deopur in high and excessive speed and gave dash to the bicycle. As a result of impact given by the bus, claimant suffered injuries to his left leg, which was required to be amputed afterwards. The claimant was required to take treatment in the Civil Hospital, Dhule and incurred expenses of about Rs.20,000/- to 25,000/- towards the medical bills. It is contended by the claimant that he was doing job of repairing bicycles and used to earn Rs.3000/- to Rs.3500/- per month, before the accident. As a result of amputation of the leg, he has suffered permanent total disablement resulting in loss of earning capacity. The claimant, as such, claimed compensation to the tune of Rs.4,00,000/- with interest and costs. {3} fa204410.odt 5 The claim was opposed by the M.S.R.T.C. by presenting written statement at Exhbit-18. It is the contention of M.S.R.T.C. that the accident is a result of rash and negligent driving of the bicycle by its rider. It is further contended that the S.T. bus was being driven by the driver in a moderate speed and driver of the S.T. bus was not at all rash and negligent. It is because of the fault on the part of rider of the bicycle, the accident had taken place. The claim raised by the claimant, amounting to Rs.4,00,000/-, is stated to be excessive by the Corporation. 6 The Member of the Motor Accident Claims Tribunal, after receiving evidence led by the parties, arrived at the conclusion that the claimant is entitled to receive Rs.3,75,000/-, excluding the amount of Rs. 25,000/- received earlier towards no fault liability, with interest @ 9% p.a. from the date of filing of the claim petition till realisation of the amount. 7 That so far as occurrence of the accident and negligence on the part of the S.T. bus is concerned, the finding recorded by the Tribunal, in that regard, need not be scrutinised. While considering the appeal on 11.10.2010, learned Counsel appearing for respective parties, have urged the Court to consider the appeal only to the extent of awarding quantum of compensation by the Tribunal, is concerned. Even otherwise, on perusal of the judgment, I do not find that the Tribunal has committed any error in recording the finding as regards negligence on the part of driver of the offending vehicle i.e. S.T. bus, sustaining injury resulting in total disablement of the claimant. {4} fa204410.odt 8 In order to substantiate his contention as regards quantum of compensation, the claimant has placed on record a certificate at Exhibit-29 issued by the Medical Officer showing permanent disablement to the extent of 50%. It is not disputed that left leg of the claimant was required to be amputed. The certificate issued by the Medical Officer has not been controverted by the contesting respondent, as such, finding recorded by the Tribunal in respect of claimant’s suffering permanent total disablement to the extent of 50% does not require any consideration. It is the case of claimant that before occurrence of the accident, he was doing the work of repairing of bicycles and earning Rs. 100/- to Rs.125/- per day. As a result of accident and as a result of amputation of his left leg, he is no more in a position to perform the job of repairing bicycles. Thus, so far as earning capacity of the claimant is concerned, there is total loss of earning capacity as a result of occurrence of the accident. The age of the claimant, at the time of occurrence of accident was 30 years and the Tribunal has applied multiplier of 17, considering age of the claimant at the time of accident. The Tribunal has taken into account notional income of the claimant at Rs.3000/- per month and arrived at yearly loss, by deducting 1/3 rd amount towards his own expenses @ Rs.24,000/-. Thus, considering the annual dependency of Rs.24,000/- and by application of multiplier 17, the claimant shall be held entitled to receive Rs.4,08,000/-. The claimant has placed on record prescription of bills in respect of purchase of medicines amounting to Rs.1936/-. The claimant is also held entitled to recover the compensation apart from medical treatment, pains and sufferings, suffered by him. However, as the claimant has restricted his claim to the extent of Rs.4,00,000/-, the Tribunal has proceeded to award him compensation of Rs.4,00,000/- only. On consideration of the {5} fa204410.odt reasons recorded by the Tribunal, I do not find any error in arriving at the quantum of compensation payable to the claimant. 9 It is urged by learned Counsel appearing for the appellant that the disablement suffered by the claimant is to the extent of 50% and as such, the Tribunal has erred in awarding compensation to the tune of Rs.4,00,000/- treating loss of earning capacity to the extent of 100%. Reliance is placed on the judgment of the Apex Court in the matter of Ramprasad Balmiki Vs. Anil Kumar Jain & others, reported in 2008 (9) SCC 492. The matter before the Apex Court was in respect of an employee, who had suffered disablement in a vehicular accident. The claimant in the reported matter was declared unfit long after the accident and resultantly was required to opt for premature retirement. Considering the disablement suffered by the claimant, in the reported matter, to the tune of 40%, the amount of compensation was scaled down accordingly. The case before the Apex Court was in respect of an employee employed in Government Undertaking. The fact that the claimant in the reported matter was receiving pensionary benefits and loss suffered by him, as a result of the accident is only to the extent that he was compelled to opt for premature retirement, it has resulted in reduction in his earning capacity, which is computed to the extent of 40%. It was also observed in the judgment delivered by the Apex Court that the claimant in the reported matter was guilty of suppression of facts. With a view to obtain compensation, the claimant intentionally did not place on record relevant documentary evidence. The claimant, in the reported matter, withheld from the Court the monetary benefits received by him. The Apex Court, therefore, considering the facts and circumstances of the reported matter, arrived at the conclusion that the {6} fa204410.odt loss suffered by the claimant, on account of permanent disablement was only to the extent of 40%. In the instant matter, however, the claimant was doing job of repairing bicycles and as a result of amputation of one of his leg, he has lost his total earning capacity. The facts narrated in the reported judgment, are totally different than the facts arising in the instant matter. As such, ratio laid down by the Apex Court, in the reported matter, is not applicable to the facts of the instant case. 10 In my opinion, the Tribunal was justified in arriving at the conclusion that there is total loss of earning capacity and as such, the claimant is entitled to receive compensation, as claimed by him. 11 The appeal presented by the appellant is devoid of any merit and, therefore, stands dismissed. Pending Civil Applications do not survive and stand disposed of. R.M.BORDE JUDGE adb/fa204410