: 1 : Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.137 OF 1996 FIRST APPEAL NO.137 OF 1996 FIRST APPEAL NO.137 OF 1996 Maharashtra State Road Transport . Corporation, having its office at . Maharashtra Vahatuk Bhavan, . Dr.A.N. Marg, Bombay - 8 ...Appellant V/s. Jeevan Mahadeo Nilkar ...Respondent Mr.C.M. Lokesh, Advocate, i/b. G.S. Hegde, for the Appellant. Mr.M.D. Modgi, Advocate, i/b. S.M. Oak, for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 22ND JANUARY, 2008. DATE : 22ND JANUARY, 2008. DATE : 22ND JANUARY, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard learned Advocates appearing for the parties. The appellant, Maharashtra State Road Transport Corporation, has taken an exception to the Judgment and Award dated 7th September, 1995 passed by the learned Member of the Motor Accident Claims Tribunal, Raigad, Alibag. The respondent is the original claimant who filed a claim for compensation under Section 166 of the Motor Vehicles Act, 1988. 2. On 11th September, 1991, the respondent was travelling by a Jeep on Bombay-Goa National Highway. According to his case, when the Jeep reached Village Chinchwan, a bus owned by the appellant came from opposite side in a high speed and dashed against the : 2 : driver side of the Jeep. The respondent suffered serious injuries. As a result of the injuries, he had to undergo an amputation of his right hand. Initially he claimed compensation of Rs.1,50,000/-. Thereafter, he made an application seeking an enhancement in compensation and he claimed compensation of Rs.2,50,000/-. The appellant contested the Claim Petition by contending therein that the respondent shared the negligence with the driver of the appellant and, in fact, the respondent himself is responsible for the occurrence of the accident. The learned Member of the Tribunal held that the accident occurred due to negligence on the part of the driver of the bus owned by the appellant. Compensation of Rs.2,04,800/- was granted by the Tribunal with interest thereon at the rate of 12% p.a. 3. The learned Advocate for the appellant submitted that perusal of the evidence of the driver of the bus and the respondent shows that the respondent brought the Jeep at the centre of the road though there was enough space available on its left side. He invited my attention to the certified copy of panchanama of spot of incident and submitted that this was a clear case of contributory negligence by the respondent himself. He submitted that multiplier of 24 applied by the Tribunal is on the higher side and the same could not have been applied. The learned : 3 : Advocate for the respondent supported the impugned judgment and award. 4. I have given careful consideration to the submissions. The first issue will be regarding the negligence alleged against the driver of the bus. The driver of the bus has been examined by the appellant at Exhibit-44. The driver of the bus deposed thus:- "On 11.9.1991 I was attached to Parel Depot. I was on duty as a driving on bus No.MH-20/B 184 Chiplun-Parel. At about 5 a.m. I descended Karnala Khind. Read was clear. One jeep came through the centre of the road giving full lights. I applied breaks and controlled my vehicle. Jeep driver suddenly turned to his left side. My driver side bumper dashed to driver side back portion of the jeep. To my right side 11’ road was open. To my left side there was no open road. There was culvert ahead to the place of the accident. Accident took place due to fault of jeep driver." . Thus, the driver has not stated that the jeep had come on its wrong side. On the contrary, he stated that jeep was coming by the centre of the road and the driver of the jeep suddenly turned to his left side. He stated that the driver side bumper of the bus gave a dash to rear portion of the jeep upon its driver side. Thus, the driver of the bus has not stated that the jeep had come to its wrong side or that the point of impact was at the centre of the road. In the cross-examination of the respondent, he : 4 : has stated that the width of the road was such that three vehicles could have passed conveniently at a time. He stated that there were no other vehicles on the road at the time of accident. He stated that the bus dashed to the rear side of the jeep on its driver side. No suggestion was given to the respondent to the effect that at the time of the impact, either the jeep was on its wrong side or was at the centre of the road. In fact, the respondent stated that the jeep was ascending and the bus was descending at the time of accident. Only suggestion given is that the driver on the jeep was driving the vehicle in a high speed. 5. Thus, there is no evidence on record to show that the point of impact was at the centre of the road or that the jeep had travelled to its wrong side. After perusal of the certified copy of the Panchanama at Exhibit "23", the learned Member of the Tribunal recorded a finding that the driver of the bus was not driving the bus in its proper lane and the driver of the jeep was in his proper lane. The Tribunal has considered the width of the road at the spot of the accident. In the aforesaid circumstances, there is no reason to find fault with the finding recorded by the Tribunal that the driver of the bus was responsible for causing the accident as he was rash and negligent. 6. Now turning to the quantum of compensation, : 5 : the disability certificate has been produced at Exhibit-26. The respondent has undergone amputation below elbow of his right arm. The disability certificate issued by the Civil Surgeon of District Raigad at Alibag records permanent disability to the extent of 60%. On the basis of the case papers produced at Exhibit-25 by the respondent, a finding has been recorded that the respondent was hospitalized for five days and was undergoing treatment for two months thereafter. Considering the amputation of right arm and considering the fact that the respondent was a kabaddi player, compensation of Rs.20,000/- has been awarded on account of injury and pain and suffering. Considering the nature of injury and disability suffered by the respondent, the compensation granted under the said heading is reasonable. 7. Though the respondent claimed a sum of Rs.12,000/- on account of expenses incurred on medical treatment, conveyance and special diet, only a sum of Rs.5,000/- has been granted by the learned Member of the Tribunal. Considering the nature of the injuries and case papers at Exhibit-25, the said amount is reasonable. 8. The respondent placed reliance on salary certificate at Exhibit-42 showing that his monthly : 6 : salary was Rs.1,560/-. During the course of recording deposition of the respondent, the said certificate was not proved. The learned Trial Judge held that the contents of the said certificate were not proved. Considering the amendment to the Motor Vehicles Act, 1988, the learned Member of the Tribunal has taken the income of the respondent @ Rs.1,000/- per month. On account of his absence from duty for two months, a sum of Rs.2,000/- has been granted on account of loss of salary. I have perused the deposition of the respondent. He has stated that he was working in Famous Carpets Company at Masjid, Bombay. According to him, he was getting salary of Rs.1,560/- per month for doing the work of cleaning the carpets and delivery of carpets. He stated that after the amputation of his hand, his employer did not allow him to join the duty. 9. The respondent also examined one Anil Balkrishna Sawant, a Supervisor, working in Famous Carpets Company. He was examined to prove the salary certificate signed by Mr.Rajkumar Sobti, the Proprietor of Famous Carpets Company. In view of the fact that the Supervisor stated that he had no personal knowledge about the accounts of Famous Carpets Company, the said salary certificate has been discarded. In my view the signature on the certificate of the employer of the respondent was duly : 7 : proved. The said document was marked as an exhibit without any objection by the appellant. The said certificate ought to have been read in evidence. By taking the income at Rs.1,000/- per month and after considering permanent disability of 60%, the learned Member of the Tribunal applied multiplier of 24. The date of birth of the respondent is 22nd October, 1966. Therefore, he was merely 25 years old at the time of accident. It is true that multiplier of 24 applied by the Tribunal was on the higher side, but the Tribunal could not have taken the income of the respondent only at Rs.1,000/- per month as against the certificate at Exhibit-42 which shows that his salary was Rs.1,560/- per month. Therefore, even if compensation is calculated by taking the correct income and by reducing the multiplier, the compensation amount will be nearly the same as the amount fixed by the Tribunal. 10. In the aforesaid circumstances, I find that there is no merit in the Appeal. Hence, the same is accordingly dismissed with no order as to costs. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]