1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NO. 127 & 128 OF 2002 FIRST APPEAL NO. 127 OF 2002 Miss Chitra Rameshwar Shet, r/o. House No.115, Khorjuvem, Aldona, Bardez, Goa. ......... Applicant. V/s. 1. Manuel F.X. D'Souza, r/o. Guirim, Bardez, Goa. 2. Kadamba Transport Corporation through its Chairman, KTC, Bus Terminus, Panaji. ......... Respondents. FIRST APPEAL NO. 128 OF 2002 Miss Ratan Ramchandra Naik r/o. House No.460, Salvador do Mundo`, Bardez, Goa. ......... Applicant. V/s. 1. Manuel F.X. D'Souza, r/o. Guirim, Bardez, Goa. 2. Kadamba Transport Corporation through its Chairman, KTC, Bus Terminus, Panaji. ......... Respondents. Mr. R. G. Ramani, Advocate for the appellants. 2 Mr. A. R. Kantak, Advocate for respondent No.2. CORAM :- A.S. OKA, J. Date :- 6th August, 2010. ORAL J U D G M E N T : Both these appeals can be disposed of by a common judgment as the appeals arise out of the same accident. 2. First Appeal No.127/2002 arises out of Claim Petition No. 37/1997 filed by one Miss Chitra Shet. First Appeal No.128/2002 arises out of Claim Petition No.38/1997 filed by Miss Ratan Naik. Both the claim petitions were filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter, referred to as “the said Act”). The claim petitions have been dismissed by the learned Presiding Officer of the Motor Accident Claims Tribunal, on the ground that the negligence on the part of the driver of the bus is not established by the appellants. 3. It is not in dispute that both the appellants were travelling by the bus which was owned by the second respondent (Kadamba Transport Corporation Ltd.). The appellant in both the 3 appeals were travelling from Ekoshi to Old Goa, on 17th January, 1997. While coming back after attending duties by a bus coming from Panaji to Aldona, the said bus of the second respondent suffered an accident and as a result, both the appellants sustained injuries. 4. The case made out in the claim petitions by the appellants is that after crossing Charmanas Brittona, the bus got tilted towards the left side as it was heavily loaded with 90 to 100 passengers. The bus rested on its left side in the paddy field, lying on the left hand side of the road. Both the appellants were sitting on the last left side seat of the bus. The case made out is that as a result of the accident, the passengers sitting on the right side of the bus, as well as standing in the said bus fell on the appellants and walked over the appellants. The learned Presiding Officer of the Tribunal held that the appellants have failed to prove the negligence on the part of the first respondent who was the driver of the bus at the relevant time. 5. The learned Counsel appearing for the appellants in these appeals has taken me through the pleadings, notes of evidence, and the documents on record, as well as the impugned Judgments and Awards. 4 He pointed out that in the written statement filed by the first respondent, there are only denials and no specific case has been made out as to how the accident occurred. He pointed out that similarly in the written statement of the second respondent there are mere denials. He stated that the first respondent came out with an altogether a new case at the time of recording of his evidence that after crossing sluice gate, the first respondent heard sound of siren and assumed that somebody wanted to go ahead on priority basis and, therefore, he stopped the bus. He submitted that altogether a different case was made out at the time of recording of evidence which has no foundation in the pleadings of the respondents. He submitted that such a new case, having no foundation in the pleadings, ought to have been discarded by the learned Presiding Officer of the Tribunal. He submitted that there was a gross negligence on the part of the first respondent. He submitted that there was a failure on his part to take care which he ought to have taken. He pointed out that large number of passengers were travelling in the bus in question. He invited attention of the Court to various documents filed in support of the claim of compensation. He submitted that the appellant in First Appeal No.127/2002 has proved that her income was Rs.850/- per month and 5 that she had to give up the employment on account of the injuries sustained by her. He pointed out that even the appellant in the other appeal was removed from the employment. He submitted that evidence has been adduced to prove the expenditure incurred on the treatment and to prove the charges of the attendant and the conveyance charges. 6. The learned Counsel appearing for the second respondent supported the impugned Judgment and Award. He invited the attention of the Court to the evidence of the appellant in First Appeal No.128/2002 and submitted that the said appellant admitted in cross examination that before the accident she heard sound of siren from the rear side of the bus. He submitted that thus the case made out by the first respondent in his deposition has been substantiated by the said appellant by stating that before the accident she also heard sound of siren. He submitted that after hearing the sound of siren, the first respondent decided to give a way to the vehicle following the bus and he had to take the bus on the katcha road on the left hand side. He pointed out that the katcha road gave way, and as a result, the bus fell in the paddy field on the left hand side. He submitted that absolutely no negligence on the part of the first respondent was established by the 6 appellants. He has placed reliance on a decision of the Kerala High Court in the case of New India Assurance Co. Ltd. vs. Sheeja and ors., (2007 ACJ 338). He submitted that by no stretch of imagination it can be said that the first respondent was rash and negligent in driving the bus. He submitted that there is no evidence on record to show that at the relevant time 90 to 100 passengers were travelling by the said bus. He submitted that the accident should be treated as nothing but an act of god and no negligence can be attributed to the first respondent. On merits, he pointed out that in both the cases, income certificates have not been proved, as also the loss of employment on account of the injuries sustained has not been proved. He submitted that the so called attendant is a got -up witness. Hence, the claim on the basis of the said evidence will have to be discarded. He invited the attention of the Court to the evidence of the Medical Officer and pointed out that there is no permanent disability and there is no loss of earning capacity. He submitted that there is nothing on record to show that the employment of the appellants was terminated because of the accident. He submitted that no fault can be found with the dismissal of the claim petitions. 7 7. I have given careful consideration to the submissions. I have perused the record of the Tribunal, as well as the oral and documentary evidence adduced by the parties. 8. In Claim Petition No.37/1997, the appellant has described the manner in which the accident took place. The appellant has pleaded thus : “The applicant states that after crossing the Charmanas Britona the bus got tilted towards the left side of as it was heavily loaded with 90 to 100 passengers. The bus rested for its left side in the paddy field lying on the left side of the road after the Charmanas. The applicant was sitting on the last seat left side of the bus along with one Ratan Ramchandra Naik. The applicant states that after the accident when bus rested on its left side the applicant rolled and all the passengers sitting towards the right side of the bus as well as standing in the bus fell on the applicant and there was all commotion and passengers in the bus walked on the body of the applicant, the applicant fell unconscious and was admitted in GMC in General ward for 5 days and later shifted from 22.1.97 to 3/2/97 in private ward and took the treatment total for 18 8 days.” Perusal of the written statement of the first respondent, the driver of the bus shows that there are mere denials. It is denied that the appellants sustained any injury as alleged in the claim petitions. The first respondent has not stated as to how the accident occurred. Except for the denials of the averments made in the claim Petitions, there is no specific case made out in the written statement of the first and second respondents. 9. The appellant (Claimant in Claim Petition No.37/1997) stepped into witness box. As regards the accident, she stated thus : “ On 17-1-1997, I was travelling in KTC bus and was coming from Panaji to Aldona. When the bus reached at Char Manus, Britona, the bus tilted. I received pelvis fracture. I was admitted in G.M.C. For 5 days in general ward and 13 days in private ward. The bus was driven in a fast speed by Manual D'Souza. About 15 to 20 passengers of the bus were also injured.”. She produced in evidence receipts and bills issued by the Goa Medical College Hospital. She relied upon various documents, including the 9 documents which are listed in the application dated 3rd May, 2000. She stated that he had incurred expenditure on the vehicle engaged for trvelling from the place of residence to the hospital where she was under treatment. She stated that she was required to employ a maid servant and she was paying Rs.100/- per day to the maid servant. 10. On the issue of negligence, the appellant was cross examined. A suggestion was given to her in the cross examination that the driver of the bus in order to give way to the vehicle coming from the back side which sounded siren, took his bus to the extreme left side of the road, and the road gave way which contributed to the accident. The appellant responded by stating that the driver of the bus should not have gone to the extreme left side of the road as there was a sufficient space for the other vehicles to pass. In the cross examination, the witness stated that two buses could conveniently pass through the road at a time. In the cross examination, she admitted that after crossing Charmanas, the bus went off the road and fell into the paddy field. She denied the correctness of the suggestion that the two vehicles could not have passed easily by that road. She stated that she did not hear siren from the rear side of the bus. She denied the 10 suggestion that the driver of the bus was not driving the bus in a rash and negligent manner. 11. The appellant in First Appeal No.127/2002 examined Dr. Ulhas Nachinolkar who was Professor and Head of Department of Orthopaedics at Goa Medical College, Bambolim. On the injuries sustained by the appellant, he stated thus : “Stable fracture of pelvis involving both inferior cubic remind and soft tissue injury of the back. After treatment, she was discharged on 3.2.19978 and was advised further follow up treatment. This type of injury generally take six to 8 weeks for recovery.” He, however, declined to give obstetric opinion and, therefore, the appellant examined Dr. Prasad Neurekar from the Department of Obstetrics and Gyneacology, Goa Medical College Hospital, Bambolim. The Doctor opined as under : “The fracture being stable it is unlikely that the patient would go for scissorian and since normal delivery is possible” 12. The appellant in the said appeal also examined one Janu 11 Kerkar, a Panch witness to the panchanama recorded on 17th January, 1997 at 7.00 p.m. He proved the panchanama and the sketch annexed thereto. 13. The first respondent driver of the bus, stepped into witness box. He disclosed his experience as a driver was of 16 years. He gave his version of the accident as under : “ I started from Panaji to go towards Aldona around 6.30 p.m. After crossing the Mandovi bridge I took a left diversion via Torda to proceed towards Aldona. To proceed towards Aldona from Torda, I had to take a turn to go towards Aldona upon crossing the sluice gate. I was slow while taking the turn at the sluice gate. I had to go at a slow speed since the road was narrow and besides it was narrow at the sluice gate. Soon after crossing the sluice gate I heard the sound of siren and assumed that somebody wanted to go ahead on priority basis and after going to a short distance, halted the bus where it was possible on the road for a bus and a small vehicle to cross each other. The left side wheels of the bus were partly on the katcha road when I halted the bus when I realised that the katcha road started to give way and further the bus 12 gradually overturned on its side. The position of the bus was such that the left side wheels remained in the field where it had fallen while the right side wheels remained suspended.” He was cross examined by the Advocate for the claimant. He denied the correctness of the suggestion that there were 90 to 100 passengers in his bus at the relevant time. In cross examination, he admitted that he found that the ground was giving way and that the bus was sinking after it was stopped. 14. In First Appeal No.128/2002, the appellant (claimant) was examined as a witness. Her version in the examination-in-chief is nearly the same as that of the appellant (claimant) in First Appeal No. 127/2002. The learned Counsel for the respondent has relied upon the following portion in the cross examination of the appellant : “ It had fallen in the field. Before the accident I had heard the sound of the siren at the back of the bus. The bus had not slowed down even after hearing the siren. I deny the sugg. that the driver had slowed down the bus and had taken towards the left side when the road gave way and the bus fell in the field.” 13 The witness was subjected to cross examination. She stated that she could not even sit properly and, therefore, she got admitted for 13 days in a private room in the hosptial. 15. The appellant in First Appeal no.128 of 2002, examined one Shamsudar Bhonsle as a witness, whose taxi was employed by the appellant's father on four occassions to take his daughter to Goa Medical College Hospital. He produced a bill/receipt in the sum of Rs.1,000/-. In the cross examination he admitted that the visits were within six months. 16. Even in this case, Dr. Ulhas Nachinolkar was examined as a witness along with Dr. Prasad Neurekar. Dr. Ulahs Nachinolkar stated thus : “Miss Ratan Ramchandra Naik was admitted in Orthopaedic Surgery of GMC on 17th January, 1997 following history of an alleged vehicular accident resulting in stable fracture of pelvis and soft tissue injury. She was transferred to private room on her request on 22/1/1997 and was thereafter discharged in the ward on 5.2.1997 with an advice to continue 14 further treatment as out patient. This type of injury generally takes 6 to 8 weeks for complete recovery. The claimant was admitted under hospital no.26624. Such an injury are unlikely to interfere in normal sexual life and subsequent labour. However an opinion from obstetrician is of valid.” The appellant examined one Devki who was employed by her as an attendant. Even in this case the panch witness was examined and lastly, the first respondent examined himself on the same lines as in the other claim petition. 17. Perusal of the written statement of the first respondent shows that the same is completely silent as to how the accident occurred. There is no specific pleading on this aspect. His case in the evidence is that he heard the sound of siren and therefore, to enable a vehicle coming from rear side he took the bus on its left hand side. It will be necessary to minutely examine the case made out in the examination-in-chief. The first respondent has not disclosed as to which was the vehicle which, ultimately, passed his bus. It is not his case that he could see or that he had seen a vehicle coming from the rear side in the side/rear view mirror of the bus. He has not stated that 15 any vehicle was noticed by him on the rear side of the bus. It is true that the claimant in First Appeal No.128/2002 stated that she heard the sound of siren. The first Respondent could not establish that in fact there was a vehicle which was following the bus.The very basis of the defence is not established. The first Respondent had no real reason to stop the bus only after allegedly hearing siren. 18. Apart from that, even going by the case of the 1st respondent, he halted the bus in such a way that the left side wheels of the bus were partly on the katcha road. The first respondent stated that when he halted the bus he realised that the katcha road started giving way and the bus gradually overturned on its side. It is not his case that after he noticed that katcha road started giving way, that he made any attempt to warn the passengers in the bus and called upon them to alight from the bus. It is not his case that he made any effort to save the passengers. It is not his case that after the bus halted, suddenly the katcha road gave way. Thus, this is a case where there is a clear failure on the part of the first respondent to take proper care which any reasonable and prudent man would have taken especially when there were large number of passengers travelling by the bus. 16 19. The Tribunal is not bound by the strict rules of evidence. The Tribunal is required to decide the matter on preponderance of probabilities. Considering the aforesaid factors, the explanation given by the first respondent cannot be accepted. Both the appellants were admittedly travelling by the bus and, therefore, the only inference which can be drawn is that the accident occurred due to rash and negligent driving on the part of the first respondent. 20. As far as quantum of compensation is concerned, the nature of the injury sustained by both the appellants is the same as is evident from the testimony of Dr. Ulhas Nachinolkar. Both of them suffered stable fracture of pelvis. Both of them underwent treatment in the Goa Medical College Hospital. Both of them were hospitalized for 18 days. The bills issued by the Goa Medical College Hospital are produced on record by the appellants in the sum of Rs.2,273/- and Rs.2,237/- respectively. The Appellants will be entitled to the amounts mentioned in the bills. 21. The second claim made by the both the appellants is as 17 regards reimbursement of the remuneration paid to the attendant employed by them. In the claim petition subject-matter of First Appeal No.128/2002, the appellant has examined one Devki as a witness, who was employed by the father of the appellant to look after the appellant when she was admitted in the hospital as indoor patient. She stated that she was paid a sum of Rs.2,800/- by the father of the appellant and she issued a receipt of having received the same. She stated that out of 17 days in the hospital, for a period of 3 days the appellant was in General Ward and 14 days in a Private Ward. The case of the appellant in First Appeal No.127 of 2002 is that she had engaged one Laxmi as an attendant and had paid a sum of Rs.3,000/- to her. The said Laxmi is not examined, but receipt issued by her has been exhibited. Looking to the nature of the injury sustained by both the appellants who are women, the case that the attendant was required to be engaged by them will have to be accepted. Even, according to the Doctor examined by the appellants, time of 6 to 8 weeks was required for recovery. Claim of only Rs.2,800/- and Rs.3,000/- has been made on account of charges of the attendants. The claim of Rs.2,800/- on the said count is reasonable and the same deserves to be allowed. Further a claim has been made on account conveyance charges. The 18 appellants were hospitalised for 17 to 18 days and, therefore, the expenditure must have been incurred by the appellants themselves and the members of their families on travelling. Hence, the claim of Rs.1,000/- on account of conveyance charges will have to be allowed. 22. The learned Counsel appearing for the appellants has submitted that loss of earning capacity has to be considered as both the appellants were required to give up their jobs on account of the injuries sustained in the accident. In First Appeal No.127/2002, reliance is placed on a Certificate dated 11th March, 1997 (Exh. AW.1/D) which records that the appellant therein was working in the Telecommunications Department on the roll of Savida Security and Allied Services from 8th December, 1995 to 17th January, 1997. The certificate discloses the gross monthly emoluments of the appellant at the rate of Rs.850/- per month. Similarly, a certificate of the employer of the appellant in First Appeal No.128/2002 has been produced which has been marked “X” for identification. The said certificate does not appear to have been exhibited. The learned Counsel appearing for the respondent submitted that the income certificate produced by the appellant in Claim Petition subject-matter of First 19 Appeal No.127/2002 cannot be read in evidence as the author of the certificate has not been examined. I find from the examination-in-chief of the appellant that the income certificate was marked as exhibit without any objection from the side of the respondent. Therefore, the said certificate will have to be accepted. As far as First Appeal No.128/2002 is concerned, the income disclosed from the purported income certificate produced in the Court is Rs. 910/- per month. It is true that the said document is not proved and the same has been marked “X” for identification. However, the monthly income of the appellant can be notionally taken at the reasonable rate of Rs.850/- per month. 23. In both the cases, there is no disability recorded. According to the case made out by the Orthopaedic Surgeon examined by the appellants, the injury suffered by both of them takes maximum period of 8 weeks to recover. There is no evidence to show that the Appellants lost jobs due to injury. Therefore, loss of income for three months can be considered which amount comes to Rs.2550/-. Thus, the total payable to the appellant in First Appeal No.127 of 2002 is Rs.8,623/- (Rs.2273+2800+1000+2550). To the other appellant, the 20 amount payable will be Rs.8,587/- (Rs.2237+2800+1000+2550). As narrated earlier, both the appellants suffered stable fracture of pelvis and soft tissue injury. Considering the nature of the injury, compensation of Rs.20,000/- will have to be granted on account of the said injury. Thus, the total compensation payable will be Rs.28,623/- and Rs.28,587/-respectively. The amounts can be rounded off to Rs.29,000/-. 24. The accident is of the year 1997. Therefore, the aforesaid amount will carry an interest at the rate of 7.5 % per annum from the date of filing of the claim petitions. The appellants will also be entitled to