( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 108 OF 1996 Maharashtra State Road Transport .. Appellant Corporation, through its Divisional Controller, Jalna. Versus Bhagwan Pandurang Avhad .. Respondent Age. 25 years, Occ. Contractor, Opp. Pangarmal, Tal. & Dist. Ahmednagar. Shri D.S. Bagul, Advocate for the appellant. Shri V.C. Solshe, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 23.06.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the Maharashtra State Road Transport Corporation being aggrieved by the judgment and award passed in M.A.C. No. 34 of 1989 by Ex. Officio Member, Motor Accident Claims Tribunal, Jalna, on 27.12.1995, whereby compensation of Rs. ( 2 ) 40,000/- was awarded to the claimant by the Trial Court. 2. In short it is case of the claimant that on 17.07.1989 he was proceeding on his motor cycle on Jalna-Parali Road. When he was proceeding towards Ambad, a bus came from opposite side and gave him dash. According to the claimant the bus was driven rashly and negligently and it gave dash to him and as a result, the claimant sustained injury, which resulted into permanent disability. The claimant was serving as a Civil Contractor and was earning Rs.4000/- per month. He spent Rs.3000/- on his treatment. He was hospitalized from 17.01.1989 to 28.02.1989. Initially he was admitted in Civil Hospital, Jalna. On 18.01.1989 he was transferred to Medical College Hospital at Aurangabad. So, compensation of Rs.1,00,000/- was prayed. It is also said that the claimant was 25 years of age and was earning Rs.4000/- per month. 3. Present appellant/original respondent Nos. 2 & 3 filed written statement at Exh.25 and denied that its driver was rash and negligent. It is stated that truck ( 3 ) was proceeding ahead of the claimant who was on motorcycle and the claimant in attempting to overtake the truck negligently, gave dash to truck. The S.T. Bus was on its extreme left side of the road and so the claimant himself is liable for the accident. Injuries and disability are denied. As per the appellant it is false, frivolous and vexatious claim and same needs to be dismissed. Original respondent No.1 has filed separate written statement denying his liability and rashness and negligence. 4. The learned Tribunal considered the evidence of the parties and came to the conclusion that the bus driver was rash and negligent and he caused the accident. The learned Tribunal also observed in its judgment that the claimant was also negligent and he contributed to the accident to some extent. The reason given in para 10 is that considering that the claim is of Rs.1 lac and permanent disability is 40%, according to him Rs.40,000/- would be just and sufficient compensation. It is this judgment and decree which is challenged in this First Appeal. ( 4 ) 5. The points which arise for my consideration are as under:- (i) Whether the respondent/claimant proved that the driver of the bus was alone rash and negligent? (ii) Whether the respondent/claimant is entitled to compensation? If so, how much? 6. At Exh.35 there is statement of claimant Bhagwan Awad. He stated that on the day of accident he was proceeding on his motor cycle and had crossed distance of 7 kms. and was at Dhakalgaon Phata on Jalna- Parli road. A truck that was loaded was proceeding ahead of his vehicle. So, he wanted to overtake the truck and had moved the motor-cycle to see if any vehicle is coming from opposite direction, so that he could overtake the truck. Suddenly his motorcycle was dashed by S.T. Bus, which came from opposite direction. The claimant also examined one eye-witness. Witness Sathiram Dighe examined at Exh.50 stated that he saw claimant Bhagwan was proceeding on a motorcycle. He saw S.T. Bus giving dash to the motorcycle. The S.T. Bus was in high speed. After dash, the bus stopped at a ( 5 ) distance of 500 ft. Claimant Bhagwan fell down. 7. On the other hand there is evidence of S.T. Bus driver who stated that he was proceeding in moderate speed on the road. One goods truck came from opposite direction and the motorcyclist was following the said truck in speed. When the truck came near the bus, the motorcyclist attempted to overtake and dashed the bumper of the bus on right side. He tried to avoid the accident but the motorcyclist was confused and gave dash to the bus. In cross-examination the bus driver admitted that from long distance he saw the motorcyclist following the truck. Admittedly, the bus driver had not given horn or signal. Then he changed his version and said that he had not seen the motorcyclist from long distance. According to him in ordinary speed if sudden breaks are applied, the bus stops at a distance of 20 to 40 feet. He denied that he was in high speed and could not control the vehicle even after dash. 8. In this case F.I.R. is registered against the bus driver. Thus after investigation police came to the ( 6 ) conclusion that the bus driver was rash and negligent. A copy of spot panchanama is produced on record and it shows that the bus was standing at a distance of 130 ft from the place of accident. The motorcycle was lying near Western end of tar road. So, it appears that both the driver of the bus and the claimant were rash and negligent in as much as bus was in high speed; even after noticing that the motorcyclist was coming from behind the truck. At the same time the motorcyclist/claimant had attempted to overtake without any precaution and in the circumstances I hold that the motorcyclist/claimant was contributed to the extent of 40% and the bus driver was negligent and contributed to the extent of 60%. 9. So far as quantum is concerned, some of the facts are duly proved. There is disablement certificate produced on record which is at Exh.49. Therein it is stated that disability is of 40%. It is argued that claim petition was filed in July 1989 and this certificate is obtained pending the proceedings in the Tribunal. It is showing excessive disability. Nowhere ( 7 ) it is stated that the claimant has stopped in occupation as a contractor. Dr. Tukaram Deshmukh is examined at Exh.48 to prove the disablement certificate. He stated that claimant Bhagwan had come for the certificate and he appeared before the Medical Board. He examined Bhagwan and issued certificate Exh.49. Bhagwan had 40% disability and there was old fracture femure right with mild limitation of movements of right hip joint and shortening of lower limb by one inch. There were post traumatic partial loss of energy of thumb middle and right finger of left hand. In the cross-examination it is brought on record that ordinarily the jurisdiction of the Medical Board is confirmed to Beed district. The accident had taken place within Beed district at Dhakalgaon Phata. The claimant is resident of Pangarmal, Tal. & Dist. Ahmednagar. Merely because the certificate is obtained from the board of another district is not enough to discard that it, particularly evidence that there was shortening of leg appears to be reliable and it is something which can be verified at any time. ( 8 ) 10. Moreover, at Exh.38 there is discharge card. It shows that there is fracture of left shaft fomur comminuted fracture. There was also fracture of right humerus. The discharge card shows that on 18.01.1989 the claimant was admitted in the Medical College Hospital, Aurangabad and discharged on 01.03.1989. The claimant was hospitalized for about 1 ½ months. Considering that there was fracture and shortening of leg, we have to consider the compensation. 11. I accept claim of Rs.2000/- which is stated to be medical expenses in the claim petition. The applicant was earning Rs.4000/- per month as petty contractor and he must have taken rest atleast for 3-4 months. So, I consider Rs.16000/- as loss of income. The claimant was indoor patient in the hospital from 18.01.1989 to 01.03.1989 i.e. for about 1 ½ months and that too at the place like Aurangabad, which is away from his place of residence. So, there must be expenses of attendance, transportation. So, I award Rs.7000/- towards said expenses. There is permanent disability. So I award Rs.15000/- towards permanent disablement. ( 9 ) There was pain, sufferings and other heads for which I award Rs. 5000/- more. Thus, total amount comes to Rs. 45000/-. Out of it I have held that the driver of bus has contributed to the extent of 60%. So, I direct that Rs. 30,000/- will be compensation that would be payable by the appellant to the respondent. 12. In the result, the appeal is partly allowed. The order of Motor Accidents Tribunal is set aside and it is directed that the appellant shall pay amount of Rs. 30,000/- inclusive of N.F.L. as compensation to the respondent/claimant with proportionate costs. Appeal accordingly disposed of. sd/- [P.R. BORKAR,J.] snk/2009/JUN09/fa108.96 “AUTHENTICATED COPY” (S.N. KULKARNI) P.A. TO HON’BLE JUDGE