1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.203 OF 1995 MSRTC, Mumbai .. Appellant versus Anandrao Sakharam Dudhgaonkar .. Respondent Mr.G.S.Hegde a/w Mr.C.M.Lokesh for the appellant. Mr.K.V.Saste for the respondent. CORAM : A.S.OKA, J. DATE : 20th January 2010. JUDGMENT: . Heard learned counsel appearing for the parties. The appellant Maharashtra State Road Transport Corporation has taken an exception to the judgment and award passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition filed by the respondent. According to the case of the respondent, he was working as a teacher. On 28th January 1987 at at about 7.00 p.m he was plying his scooter and was proceeding towards village Hadole. His son was accompanying him at that time. According to the respondent, he was driving the scooter by correct side of the road in a moderate speed. While he was on Pargaon-Vathar road he saw one tractor coming from the opposite direction. The case of the respondent is that he had taken the scooter on the extreme left side to give a way to the tractor. According to him a bus owned by the appellant suddenly came from behind. The bus tried to pass 2 through the gap between scooter and tractor. While passing through the gap it gave a dash to the scooter by its rear side. The case of the respondent is that due to impact he lost control over his scooter and scooter dashed against a tree. He sustained multiple fractures due to accident. The claim of Rs.1,75,000/- was made by the respondent. 2. The claim was contested by the appellant and the driver of the bus. In the written statement it was contended that the respondent suffered as he drove the vehicle in rash and negligent manner. It is stated that while the respondent was driving the vehicle in rash and negligent manner, he noticed one tractor coming from opposite direction in a fast speed. After noticing the tractor the respondent jumbled and tried to take his scooter to his extreme left side. Due to black soil, the two wheeler skidded and therefore the respondent could not control his vehicle and gave a dash to a tree. It was specifically contended in the written statement that the bus was well behind of the scooter. It is alleged that the respondent himself jumbled and got injured. It is contended that undue advantage is sought to be taken of the fact that the bus was passing by the said road at the same time. The respondent examined himself. He also examined an employee of one Marry Wanless hospital at Kolhapur for production of record and the appellant examined the driver. The Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving on the part of the driver of the bus. Compensation of Rs.57,500/- has been awarded under the impugned award inclusive of the no fault liability with the interest at the rate of 12% per 3 annum from the date of filing of the claim petition. 3. The learned counsel appearing for the appellant invited my attention to the evidence of the witnesses. He submitted that the case of the respondent was that the bus gave a dash to the spare tyre on rear side of the two wheeler. He submitted that the panchnama shows that there was no damage to the said spare tyre. He submitted that the panchnama does not show that there was any damage to the bus. He submitted that the case made out by the respondent is inconsistent and the damage caused to the scooter plied by the respondent does not support the case of the respondent. He submitted that clear case made out by the driver of the appellant is that no dash was given by the bus to the scooter. He submitted that there is no damage shown to the bus and there is no corresponding damage to the scooter. He submitted that the learned Member of the Tribunal has committed an error by holding that it was for the appellant to prove that the driver was not negligent. He submitted that the entire burden was on the respondent to prove the negligence. He submitted that finding of the Tribunal on the ground of negligence is perverse. He submitted that compensation awarded is excessive. The learned counsel appearing for the respondent supported the impugned judgment and award. 4. I have given careful consideration to the submissions. In the claim petition filed by the respondent, the specific case made out is that while he was proceeding on the road, he saw a tractor coming from the opposite direction. With a view to give a way to the tractor he took the scooter on his left hand side. 4 At that time the bus owned by the appellant came from behind and tried to overtake the respondent’s scooter. In that attempt the rear part of the bus dashed against the scooter. As a result, he fell down and sustained injuries. As far as written statement is concerned, the stand taken is that the respondent himself was proceeding in high speed and after noticing the tractor coming from the opposite direction, the respondent fumbled and his vehicle skidded due to black soil on the left side of the road. As a result, the respondent could not control the vehicle and gave dash to a tree and fell down. A specific stand taken in the written statement is that the bus was well behind the scooter. 5. The spot panchnama at Exhibit 169 shows that the width of the tar road was 17 ½ ft. The panchnama notes damage to the handle of the scooter and the fact that the headlight of the scooter was broken. The panchnama notes that the right side mirror has been broken and right hand side portion of the scooter has been pressed and damaged. Thus, panchnama records that there is a damage to the right hand side of the scooter and mirror on the right hand side has been broken. 6. The respondent in his evidence stated that after noticing the tractor coming from the opposite direction with a view to giving a side to the tractor he took his scooter on the kaccha road on the left hand side. He stated that at that time he saw a bus of the appellant in the side mirror. After seeing the bus he took his scooter further on its left side and thereafter the bus gave dash to the scooter. He stated that he fell down on the road and became unconscious. In the cross- 5 examination, he denied the correctness of the suggestion that the scooter slipped and he fell down. He denied the correctness of the suggestion that the scooter dashed against a tree. As against this, the version of the driver of the bus is that he saw a tractor coming from the opposite direction. He also saw two persons riding on a scooter ahead of the bus. He stated that in order to give side to the bus the scooter driver took his scooter to the left side of the road and scooter slipped into extreme left side of the road. He stated that the speed of the bus was about 40-50 km per hour. He stated that the bus had already passed the scooter and when the condutor rang the bell he stopped the bus. He denied that the bus gave a dash to the scooter. In the cross-examination he stated that he had overtaken scooter when the tractor had already passed the S.T bus. He stated that he was not aware whether the scooter was having a side mirror. 7. Thus, a case is made out by the appellant that the bus did not give any dash to the scooter. As stated earlier, in the written statement it is stated that the bus was well behind scooter and in the written statement which is filed by the driver it is described how the scooter skidded and as to how the respondent fell down after giving a dash to a tree. The stand taken in the written statement seems to be that all this happened in front of the bus. While deposing before the Court, the driver of the bus came out with a case that the bus had already crossed the spot and when conductor rang the bell he stopped the bus. In the written statement, it is described as to how the scooter of the respondent slipped. However, in the evidence the stand of the driver is that he had not even seen as to what happened to the scooter. In the examination-in-chief the driver came out 6 with altogether a new story that in order to give way to the bus the driver of the scooter had taken his scooter on the left side. As pointed out earlier, in the written statement the stand taken is after noticing a tractor coming from the opposite direction in fast speed, the respondent jumbled and took his scooter to the left side as a result the scooter slipped. In the examination-in-chief altogether a new case is made out by a driver that with a view to give way to the bus, the respondent took the scooter on the left hand side and only after bus crossed the spot, it was stopped as a result of the bell rang by the conductor. Thus, altogether a new case is made out by the appellant’s driver in the evidence which is totally inconsistent with the version in the written statement. 8. The panchnama is silent as to whether there was any damage to the bus. However, the panchnama records that the right hand side mirror of the scooter was broken and the right hand side of the scooter was pressed. If the case made out by the appellant in the written statement is to be accepted, the damage to the scooter on its right hand side is completely inconsistent with the said case. That is the reason why the learned Member of the Tribunal believed the case made out by the respondent and discarded the case made out by the driver of the appellant. It is not possible to find fault with finding on the issue of negligence recorded by the Tribunal. 9. As far as quantum of compensation is concerned, the certificate at Exhibit 180 issued by Dr.Satavekar records that there was a fracture to the right hip bone as well as fracture to the right thigh bone. Permanent disability has been 7 assessed at 30%. A steel rod was inserted in his right leg and later on it was removed. He had to undergo number of surgeries. A sum of Rs.10,000/- has been awarded on account of expenses on medical treatment. Bills showing expenditure of Rs.6,000/- were produced. After noting that the respondent had undergone repeated surgeries, a sum of Rs.10,000/- had been awarded on account of medical expenses. On account of special diet and pain and suffering a sum of Rs.5,000/- has been awarded. The respondent has been denied compensation on account of loss of income. Considering the multiple fractures and disability, a sum of Rs.35,000/- have been awarded as compensation for permanent disability. Thus, compensation of Rs.52,500/- awarded by the Tribunal is reasonable. Some grievance was made about the rate of interest. The Tribunal has awarded interest at the rate of 12% per annum. The claim petition has been decided in the year 1994. Considering the then prevailing rates of interest, it is not possible to find fault with the rate of interest. No case out for interference is made out. Appeal is dismissed with no orders as to costs. (A.S.OKA,J)