1 fa1448 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1448 OF 2011 Maharashtra State Road Transport Corporation ...Appellant vs. Manohar Dattatraya Sawant ...Respondent Mr.C.M.Lokesh i/b Mr.G.S.Hegde & Associates for the appellant Mr.Abhijit Kulkarni for the respondent CORAM : A.S.OKA,J. DATE : OCTOBER 7, 2011 P.C.: 1 Submissions were heard yesterday. This is an appeal by the Maharashtra State Transport Corporation for challenging the Judgment and Award dated 22 nd December 2010 passed by the learned Member of the Motor Accident Claims Tribunal. 2 A claim petition was filed by the respondent under section 166 of the Motor Vehicles Act,1988 (hereinafter referred to as the said Act) on 12 th November 2007. One Balasaheb Dnyandeo Sathe was plying a motor cycle by Solapur Pune Road and he was proceeding towards Pune. The respondent was the pillion rider. The case made out by the respondent is that when the motor cycle came near village Bhandgaon, a bus owned by the appellant which was coming from Pune and was proceeding towards Barshi came from opposite direction. It stated that the bus was driven in a rash and negligent manner. As a 2 fa1448 result of which, the bus gave dash to the motor cycle. The respondent sustained serious injuries and he became unconscious. A Claim of Rs.10,00,000/- was made by the respondent. 3 The claim petition was opposed by the appellant by contending that the bus was proceedings from its correct side and the motor cyclist was plying the motor cycle in a very high speed who gave a dash to the bus. It was contended that the negligence was on the part of the motor cyclist. 4 After considering the evidence, the Tribunal came to the conclusion that there was negligence on the part of the driver of the appellant. Compensation of Rs.9,00,558/- has been granted with interest thereon at the rate of 9% per annum. 5 True copies of pleadings and notes of evidence have been placed on record. Certified copies of the spot panchanama and F.I.R have also been placed on record. 6 First submission of the learned counsel for the appellant is that the sketch annexed to the panchanama is erroneous. His submission is that if the panchanama is read by ignoring the sketch, it is obvious that bus of the appellant was on its correct side as the spot of accident shown is on the correct side of the bus. His submission is that the spot panchanama will show that it was the motor cyclist who came on his wrong side. He submitted that only on the basis of the certain lacuna in the 3 fa1448 written statement, the case made out by the driverof the bus could not have been disbelieved. He submitted that there is no evidence on record to show that the bus was on its wrong side at the time of accident. He submitted that there was no evidence of income of the respondent and only on the basis of the surmises that the income has been taken at Rs.3500/- per month. He submitted that in absence of any evidence regarding income, an amount of Rs.6,30,000/- on account of loss of income ought not to have been granted. He submitted that this is not a case of 100% loss of earning capacity. His submission is that compensation granted is excessive. 7 I have given careful consideration to the submissions. As stated earlier, in the claim petition, the allegation is that the bus was being driven from Pune towards Barshi and accident occurred due to negligence on the part of the driver of the bus. The contention raised in the written statement on the aspect of negligence reads thus : 3 On negligence : dated 12.11.07 said S.T.Bus Bearing No.MH-12-AU9041 was proceeding from Pune towards Solapur the ST Bus Driver driving his bus in normal speed with taking proper care and caution and observing the traffic rules and regulations while the said S.T.Bus came near the accident spot at that time one motorcycle was proceeding towards Pune side, the motorcycle rider riding his motorcycle in high speed without taking proper care and caution and not 4 fa1448 observing the traffic rules and regulation and he himself given to the ST.Bus. The said accident occurred due to negligence of motorcycle rider. The S.T.Bus driver is not responsible to the said accident and opponent no.1 is not liable to pay compensation to the injured applicant... 8 The respondent deposed in terms of the allegations made in the claim application. As far as the manner in which the accident took place is concerned, there is absolutely no cross examination of the respondent. A suggestion was given that there is no fault on the part of the driver of the bus. There is no suggestion given that it was the motor cyclist who came on his wrong side. 9 The appellant examined Mr.Rane, the driver of the bus as a witness. In examination-in-chief the witness stated thus : 1 I am now working in S.T.Depot Barshi, District Solapur. On 12.11.2007, I was on duty on Barshi-Pune S.T.Bus. I left Pune ST stand at about 5.30 p.m. I was just ahead of Yavat and was proceeding by the left side of the road in a moderate speed. One container came from opposite side. One motorcyclist overtook the said container and took the motorcycle to the extreme right side and gave dash to the ST Bus. Said accident occurred due to negligence on the part of the motorcyclist. 5 fa1448 10 Thus, the driver of the bus came out with an altogether new case in the deposition which was not pleaded in the written statement that a container came from opposite side and while overtaking the container, the motor cyclist came on its wrong side and gave a dash. No such case was made out in the written statement. No such case was put to the Respondent in his cross-examination. Therefore, the case made out by the driver of the Appellant is an afterthought. 11 I have perused the certified copy of the panchanama at Exh.25 and sketch annnexed thereto. The sketch shows that road runs from West to East. Pune is on western side and Solapur is on the eastern side. The motorcycle was proceeding towards Pune and bus was coming from Pune and was going towards Barshi/Solapur. The spot of accident is shown in the southern half side of the road. The spot of accident is shown practically at the center of the southern half of the road which is the proper side as far as the motorcycle is concerned. Pieces of glass were found at the spot of accident. This itself is sufficient to show that at the time of impact, the motorcycle was on its correct side. It is not possible to accept that the sketch is inconsistent with the contents of spot panchanama. Therefore, the Tribunal has rightly discarded the evidence of the Driver of the bus on the ground that he has come out an altogether a new case which was not made out in the written statement. 6 fa1448 12 Dr.N.S.Sase was examined by the respondent as a witness. It must be stated that in his deposition before the Tribunal, the respondent stated that he became unconscious on the spot. He stated that he was hospitalized in Noble Hospital at Hadapsar, Pune from 12 th November 2007 to 22 nd November 2007 where his brain was operated upon. He stated that thereafter he was shifted to Wanless Hospital, Miraj and he remained hospitalized in the said hospital as an indoor patient from 24 th November 2007 to 26 th December 2007. Dr.N.S.Sase of Wanless Hospital, Miraj was examined by the respondent. He gave disability certificate regarding disability of the brain to the extent of 60%. He stated that the disability was permanent disability and as the disability was regarding functioning of the brain, the respondent was not capable of earning anything. Except bare denial, there was nothing in the cross examination of the Dr.Sase. 13 It will be necessary to make a reference to the break up of compensation awarded by the Tribunal under the various heads. The said break up is as under: 1 Medical Bills Rs.1,90,558/- 2 Loss of dependency Rs.6,30,000/- 3 Special damages Rs. 25,000/- 4 Attendance charges Rs 10,000/- 5 Special Diet Rs. 5,000/- 6 Pain and sufferings Rs. 15,000/- Total Rs.9,00,558/- 7 fa1448 As far as medical bills are concerned, the amount has been granted as per the bills on record. Considering the nature of injuries sustained by the respondent, a sum of Rs.15,000/- granted on account of pain and suffering and a sum of Rs.25,000/- granted on account of special diet can be said to be on the conservative side. The case of the respondent that his income was of Rs.5,500/- per month was not accepted. The accident was of 2007. Therefore, income has been taken at a reasonable amount of Rs.3,500/- per month and multiplier of 15 has been applied by taking 100% loss of earning capacity. In view of the evidence of the medical practitioner, the Tribunal was right in taking 100% loss of earning capacity on the part of the respondent. On account of loss of earning capacity, a sum of Rs.6,30,000/- has been awarded. There is no reason to interfere with the quantum of compensation granted. 14 There is no merit in the appeal and the same is accordingly dismissed. 15 Civil Application no.3041 of 2011 does not survive and the same is disposed of. JUDGE