1 F.A..No.3200 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. FIRST APPEAL NO. 3200 OF 2009 Maharashtra State Road Transport Corporation, Nandurbar Through its Depot Manager, MSRTC, Nandurbar ..APPELLANT (Orig. Opponent) VERSUS Surendrasing Bhupendrasingh Rajput, Age : 35 years, Occu. Driver, R/o Devla, Tq. Nizar, District Surat ..RESPONDENT Mr D.S. Bagul, Advocate for the appellant; Mr Mukul Kulkarni, Advocate for the respondent CORAM : MRS MRIDULA BHATKAR, J. DATE : 25th August, 2011 ORAL JUDGMENT Admit. By consent the appeal is heard at the stage of admission. 2. Since this appeal involves a short question, it is being decided finally. 3. This appeal is filed by the appellant challenging the judgment and award, dated 24.3.2009, passed by the Motor Accident Claims 2 F.A..No.3200 of 2009 Tribunal,Nandurbar (hereinafter referred to as "the Tribunal"), in M.A.C.P. No.53 of 2007. The Tribunal has awarded compensation of Rs. 12,43,500/- to the claimant, who is sole respondent in the present appeal. On 5.11.2006 the respondent was travelling in a jeep bearing No.MH-18/A 960 from Sakri towards Nandurbar. The said jeep collided an accident near Sindban Ghat with S.T. Bus No.MH-12/UA-8883. The Bus was coming from the opposite side from Nandurbar and going towards Nashik. The Bus dashed against the jeep and the Driver of the said jeep died on the spot and the respondent, who was a co-traveller, got severely injured. He filed claim application seeking compensation of Rs.14,00,000/-. The Tribunal while allowing the claim granted the amount of compensation of Rs.12,43,500/- together with interest at the rate of 8% p.a. from the date of application till realization of the entire amount. Being aggrieved with this order, the appellant/original respondent has preferred the present appeal. 4. Learned Counsel appearing for the appellant has submitted that the compensation awarded by the Tribunal is exorbitant and without any basis. He submitted that at the time of filing the claim, the respondent/claimant did not make the insurance company of the jeep party respondent. So also the owner of the jeep is not made party respondent. He submitted that, therefore, the application suffers from the non-joinder of the necessary parties. He further submitted that it is a case of a contributory negligence, which the appellant has contended 3 F.A..No.3200 of 2009 before the Tribunal. However, the said contention of the appellant was not considered by the Tribunal. He submitted that it was an impact between the jeep and the S.T. Bus and so the Tribunal ought to have considered the point of contributory negligence put up by the appellant. He argued that the assessment of the compensation amount is not reasonable. He pointed out that the estimated future medical care and expenses and attendant expenses are calculated arbitrarily. Hence, he submitted that the appeal be allowed. He further submits that the Tribunal should have discarded the documentary evidence, i.e. medical bills produced by the respondent as the author of those bills, i.e. neither the Doctor nor the Chemist are examined by the respondent. 5. Per contra, learned Counsel appearing for the respondent has submitted that the amount of compensation awarded by the Tribunal is just and considering the nature of the injuries and the accident, the Tribunal has rightly enhanced the amount of the claim than the amount claimed. 6. Point of determination involved in the present appeal is :- Whether the appellant proves that the amount of compensation granted by the Tribunal is exorbitant and arbitrary ? No. 4 F.A..No.3200 of 2009 7. In the accident, the respondent was seriously injured. He sustained grievous injuries to the spine, which made the respondent completely paralyzed and bed ridden. The main submission of the learned Counsel appearing on behalf of the appellant is that there was contributory negligence and, therefore, the appellant can only be saddled with 50% amount of the compensation. The record discloses that the appellant has averred about the contributory negligence and also examined Bus Driver of the impugned S.T. Bus. In his evidence he has stated that the accident has occurred due to the mistake of the Driver of the jeep and the jeep which was coming from the opposite direction brushed on the Driver's side. He has denied that the accident has taken place due to any mistake of rash and negligent driving. The respondent has tendered the evidence and it was specifically mentioned that the Driver of the jeep was driving vehicle carefully, however, the impugned S.T. Bus came from the opposite direction in excessive speed and it dashed the jeep. The respondent has relied on the spot panchnama, which includes a map. The panchnama shows that the front Driver side portion of the jeep was completely damaged and body of the jeep was torn. Thus, the theory of brushing these vehicles to each other cannot be accepted. The damage caused to the jeep discloses that the impact was very forceful in which the Driver of the jeep lost his life. In a case of contributory negligence, it is necessary to establish that the other party ought to have taken such a care that the impact could have been avoided. A casual stand cannot be considered as a good defence and, 5 F.A..No.3200 of 2009 therefore, the appreciation of the Tribunal on the point of negligence cannot be faulted. Thus, the defence of contributory negligence is not open to the insurance company and the Tribunal has rightly rejected the said defence. Once this defence is rejected and the insurance company is not successful in establishing the fact of contributory negligence, then the submission of the appellant in respect of non joinder of the owner and the insurance company of the jeep as party respondents to the claim petition, does not sustain. 8. The respondent has become totally paralyzed due to the injury caused to him in the accident. He is completely bed ridden and the judgment shows that his evidence was recorded on commission after obtaining medical certificate and verifying the facts. As the respondent below the waist has been totally paralyzed, he is not in a position to live a normal life and, therefore, compensation of pain and suffering is required to be computed. Similarly, in future some physical problems are likely to arise and the expenses for the same are required to be taken into account. To do the day to day activities the appellant needs some help and, therefore, the calculation made by the Tribunal at Rs.500/- per month towards the expenses of the attendant multiplied by 16 years, is reasonable. In the cases of such nature there may be a possibility of Tribunal deciding it emotionally, however, in this case, the Tribunal has shown a required constraint. The Tribunal did not accept the monthly salary stated by the respondent as Rs.6,000/- in the absence of any 6 F.A..No.3200 of 2009 documentary evidence but fixed notional salary of Rs.3,000/- per month. 9. Number of medical bills were produced before the Tribunal. It is true, as contended by the learned Counsel for the appellant that no Chemist or Doctor was examined to prove the bills. However, in the petition where the compensation is claimed, the provisions of the Evidence Act or the procedural law are strictly applicable. The list of the documents shows that the first bill claimed was dated 10.11.2006 and the last bill was dated 17.2.2007. The accident took place on 5.11.2006. Thus, the bills are of the relevant period and the truthfulness of the bills cannot be doubted. Therefore, the amount of compensation awarded by the Tribunal is just and appropriate. In this view of the matter, no fault can be found with the reasoning adopted by the Tribunal. Hence, the appeal being without merit is dismissed with no orders as to costs. ( MRS MRIDULA BHATKAR, J.) amj/fa3200.09