ash 1 fa1559 and 1095 of 1996.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1599 of 1996 AND First APPEAL NO.1095 of 1996 FA No.1599 of 1996 Maharashtra State Road Transport Corporation. .. Appellant Vs Laxman Narayan Mhaskar. .. Respondent -- Shri G.S. Hegde along with Shri C.M. Lokesh for the Appellant. Shri A.M. Gokhale i/by Shri M.B. Kotak for the Respondent. -- AND FA NO. 1095 OF 1996 Laxman Narayan Mhaskar. .. Appellant Vs Maharashtra State Road Transport Corporation. .. Respondent -- Shri A.M. Gokhale i/by Shri M.B. Kotak for the Appellant. Shri G.S. Hegde along with Shri C.M. Lokesh for the Respondent. -- CORAM :A.S.OKA,J. DATE : 27 th August, 2010 ORAL JUDGMENT : 1 These two appeals can be disposed of by a common judgment. These two appeals arise out of the claim filed under section 166 of the Motor Vehicles Act, 1988 ash 2 fa1559 and 1095 of 1996.sxw (hereinafter referred to as "the said Act"). 2 The Claimant was travelling by a bus owned by the Maharashtra State Road Transport Corporation on 15 th May 1992. The bus was proceeding from Bombay to Pangrad. The Claimant was occupying seat no. 35 on the right side near a window. After taking a brief halt at Chiplun, the bus resumed journey at about 2.30am. According to the case of the Claimant, the driver of the bus was driving the bus at an excessive speed. While overtaking a vehicle, the Bus went on its right side disregarding the signal given by a truck coming from the opposite direction. The bus brushed against the truck coming from the opposite direction on the curve of the road. As a result, the right-hand elbow of the Claimant which was resting on the window sustained serious crush injury. The injury led to amputation of his right hand below the elbow. The claimant claimed compensation of Rs. 4,00,000/-. His contention was that as a result of the amputation, he suffered hundred percent loss of earning capacity. The claim petition was contested by the State Road Transport Corporation by filing written statement. It was contended that the Claimant was himself negligent as while sitting, the Claimant had taken out his elbow out side the window. It Was Contended That the bus was on its correct side but due to negligence on the part of the driver of the truck, it brushed against the bus. It was contended that the owner and driver of the truck were necessary parties to the claim petition. It was contended that the State Road Transport Corporation was not liable to pay any compensation. By the impugned Judgment and Award, the Tribunal Held That the driver of the bus and the driver of the truck were both responsible for the accident and that there was no negligence on the part of the Claimant. The Tribunal proceeded to award ash 3 fa1559 and 1095 of 1996.sxw compensation of Rs. 25,000/-. The Tribunal awarded interest at the rate of 9% per annum from the date of filing of the claim petition till realisation of the amount. It was directed that if the compensation amount was not deposited within a period of 2 months, the State Transport Corporation will be liable to pay interest at the rate of 12% per annum. The First Appeal No. 1599 of 1996 has been filed by the State Transport Corporation and the First Appeal no. 1095 of 1996 has been filed by the Claimant seeking enhancement in the compensation. 3 The learned counsel appearing for the State Road Transport Corporation contended that the very fact that Claimant had kept his elbow outside the window shows that there is gross negligence on the part of the Claimant himself. He submitted that the Claimant had no business to keep his elbow protruding outside the bus. Inviting the attention of this Court to the deposition of the Claimant, He submitted that the negligence on his part has been proved by his own evidence. He submitted that the evidence of the driver of the bus clearly establishes that there was negligence on the part of the Claimant and that there was no default on the part of the driver of the bus. He submitted that even assuming that the finding of the Tribunal was correct, the share of the State Road Transport Corporation was only 50% as the other tort-feasor was not a party. The learned counsel appearing for the claimant submitted that there was no negligence on the part of the claimant. He submitted that the evidence of the driver of the bus establishes that the entire negligence was on his part as even according to the case made out by the driver, the truck coming from the opposite direction was at the centre of the road. He submitted that the driver made no attempt to prevent the accident. The submitted that as the bus was full of ash 4 fa1559 and 1095 of 1996.sxw passengers, it was the duty of the driver of the bus to take care especially when the accident occurred early in the morning when it was pitch dark. Relying upon several decisions, he submitted that the claimant was working on a punching machine before the accident and as a result of the amputation, he has incurred hundred percent loss of earning capacity. He submitted that compensation of at least Rs 4,00,000/- ought to have been granted. 4 I have given careful consideration to the submissions. The first issue will be of negligence. The question is whether the Claimant was himself negligent or whether the driver of the bus was negligent. The Claimant stated that the seat allotted to him was near the window on the right-hand side of the bus. He stated that there were two horizontal iron bars fixed on the window. He stated that the gap between 2 bars was about 2.5 to 3 inches. While describing the manner in which accident took place, he stated that "The bus was proceeding in a high speed. When our bus reached Tural village, the driver over took a truck that was proceeding ahead of the bus, at a turning. The vehicle coming from opposite direction gave a signal giving dipper light not to over take the bus. However our driver overtook the truck in fast speed. The truck coming from opposite direction was coming by its correct side. The Bus went into the wrong side. The S.T. Bus dashed against the body of the truck. The s.T. Driver then again took his bus to his left side. In that process of overtaking, the rear portion of the bus and the truck brushed against each other and the window portion of the bus was pressed and then I received injury to my right elbow which was resting on the window side. My hand was not out side the bus. S.T. Bus also was damaged to some extent below the window side of my seat. If the Bus did not try to over take the truck no ash 5 fa1559 and 1095 of 1996.sxw accident would have occurred. Due to impact I sustained bleeding injury to my elbow and it became senseless. in the cross-examination, he stated that "it is true that accident took place due to frictions between bus and the truck. It is not true to say that at the time of accident I had taken my elbow out of the window of the Bus. It is not true to say that I was in sleep at the time of accident and that I do not know anything about the accident. It is not true to say that the truck dashed against my elbow and the accident took place. The blood may not go out side the bus if the hand was in side the bus. 5 Thus the case made out by the Claimant is that his elbow was not outside the window at the time of accident. It must be noted here that the Panchanama recorded by the police shows that outside the bus on the right side of the seat no. 35 there were bloodstains. It is recorded that a portion of the bus on the right side was damaged to some extent. The driver of the bus stated in his evidence that the Claimant had taken out his elbow outside the window and the Truck coming from the opposite side gave a dash to the elbow. In the cross-examination, the driver stated that "the road is zigzag at many place. As per our duty we should carry the passengers safely. I saw the truck from a distance of half kilometres. The truck driver was coming by the central portion of the road. I was also proceeding by my left hand side. My bus was in running condition. I did not use any breaks. As truck driver did not come close to me there was no question of taking the bus below the road side. It is not true to say that I was overtaking a truck and went into a wrong side and then tried to come to left side and thus the accident has taken place. It is not true to say that I am deposing falsely on the say of S.T. Authority. ash 6 fa1559 and 1095 of 1996.sxw It is not true to say that the elbow of the petitioner was not out side the bus. It is not true to say that accident took place due to my rash and negligent driving. The Corporation is owner of the Bus. It is not true that truck and bus brushed against each other. 6 Taking the deposition of the driver as it is, the truck coming from the opposite direction was coming by the centre of the road. However he stated that the truck did not come close to the bus. Thus, a case is sought to be made out that the truck did not brush the right-hand side of the bus. This case sought to be made out is totally inconsistent with the damage to the body of the bus recorded in the Panchnama. The Panchnama records that there was a damage to the bus on its right- hand side. Therefore it becomes apparent that the truck brushed the bus on its right-hand side. Even according to the case of the driver, the truck was coming along the centre of the road. It is not the case of the driver of the bus that he made any attempt to take his bus on the left-hand side. The truck did not come on its wrong side even according to the version of the driver. He could have certainly taken the bus on its left side side and avoided any contact with the truck. Thus, there is a failure on the part of the driver to take care. He owed a duty to take care when he was carrying passengers in his bus. Therefore, the finding of the Tribunal that there was negligence on the Part of the driver of the Bus cannot be faulted with. In absence of any cogent evidence to show that the truck came on its wrong side, the Tribunal committed an error in holding that there was negligence on the part of the driver of the truck. As far as the Claimant is concerned, from the fact that there were bloodstains found outside the Bus on the right side of the seat no. 35 occupied by the Claimant, it is ash 7 fa1559 and 1095 of 1996.sxw apparent that at the time of impact between the bus and truck, the elbow of the claimant must be protruding outside the window. In any event, it is apparent that there could not have been a crush injury to the right- hand elbow of the Claimant unless the same was protruding outside the window. Thus, there was some negligence on the part of the Claimant which contributed to the accident. To aforesaid extent, the findings recorded by the learned Member of the Tribunal on the issue of negligence will have to be modified. 7 Now turning to the issue of quantum of compensation, the learned Member of the Tribunal found on the basis of the admission of the claimant that after the accident, he continued to be in the employment of the same employer, but instead of the work on the punching machine, he was given the work as an office boy. On the basis of the salary certificate on record, it was held that the monthly income of the Claimant was Rs2500/- per month. The learned Member granted a sum of Rs.1,00,000/- on account of amputation and a sum of Rs.25,000/- on account of expenses on treatment, special diet etc. It must be stated here that though the claimant continued to be in the employment of the same employer, as a result of amputation, he was unable to work on the machine and therefore, he was given job of office boy. There is bound to be a loss of income on account of the fact that the claimant will be forced to work as an office boy. At the time of accident, the age of the claimant was around 34 years. Even if loss of income is taken at the rate of Rs. 500 per month, by applying multiplier of 16, the total loss will be Rs.96,000/-. The compensation of Rs. 1,00,000/- granted on account of amputation is reasonable. Looking the evidence of the claimant as regards expenditure incurred on treatment and on ash 8 fa1559 and 1095 of 1996.sxw obtaining artificial hand, the total expenditure was Rs. 17,300/ . Therefore a sum of Rs.25,000/ granted on account of expenses and loss of earnings is reasonable considering the fact that he was on leave for a period of one month. On account of loss of earnings in future due to inability of the claimant to do any work on the machine, at the most is sum of Rs.1 lakh will to be added. However the claimant himself has equally contributed to the accident. Therefore, a substantial deduction will to be made on the said count. Hence, taking a broad view of the matter, the compensation amount of Rs.1,25,000/- fixed by the Tribunal is reasonable and no interference is called for. 8 Hence, I pass the following order: Both the Appeals are dismissed. No orders as to costs. JUDGE