1 FA 741.00 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 741 OF 2000 1. Mishreelal Chandanmal Chopada. 2. M/s. Poona Bright Steel & Engineering Company Pvt. Ltd.. ... Appellants Versus Shakil Mohammed Khan Deshmukh. ... Respondent ----- Mr. M.A.Utgikar for the Appellants. Mr. A.J.Rizvi for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 21 st July, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellants. 2 The Appellants are the opponents in a claim petition filed by the Respondent. By the impugned judgment and award, the Appellants have been directed to pay compensation of Rs.2,94,155/- exclusive of no fault liability amount of Rs.12,000/- with interest at the 2 FA 741.00 rate of 12% per annum. 3 The Respondent – claimant came out with a case that on 2 nd September, 1992, he had visited the city of Pune. He stated that from Swargate at Pune, he boarded a Pune Municipal Transport bus for proceeding towards Bhairoba Nala. The bus proceeded via Pune – Solapur road. It is his case that he got down from the bus. After he got down, he tried to cross the road and at that time, a Contessa car came from the left side. The Appellant No.2 is the owner of the said Contessa car and the Appellant No.1 was at the relevant time driving the said Contessa car. His case is that the said car came in a high speed and gave a dash to him. He has described various injuries sustained by him and the expenditure incurred by him. A claim was made by the Respondent in the sum of Rs.2,00,000/-. 4 The learned counsel appearing for the Appellants submitted that this is a case where there was a complete negligence on the part of the Respondent himself. 3 FA 741.00 5 The learned counsel appearing for the Appellants has taken the Court through the notes of evidence and other documents on record. He pointed out that even according to the case of the Respondent, he had seen the offending car at a distance of 300 to 400 meters when he had crossed half portion of the road. He pointed out that even after noticing the said car, he attempted to cross the road and therefore, this is a case where there was a complete negligence on the part of the Respondent himself. 6 I have given careful consideration to the submissions. I have perused the record. The first issue is regarding the negligence. It will be necessary to make a reference to the oral evidence adduced by the parties. The Respondent stepped into witness box. In the first paragraph of his deposition, he has set out the manner in which the accident occurred. He has stated thus: “On 2.9.92 I had come to Pune for my private work. I was to go to Bhairoba Nala Hadapsar., Pune. I got down at Swargate. Then by bus I went to Bhairoba Nala. I was on the north side of the road. That road is east-west. It is 4 FA 741.00 Solapur road. I got down from the bus on north side. I was to go to southern side by crossing the road. The bus from which I got down, went away and I moved to cross the road. When I was crossing the road, one Contessa car came from left side. Its number is MZE 6660. It came in speed and it dashed me on my leg. I fell down on the road. I tried to get up. My both legs were fractured.” On this aspect, he was cross-examined by the Advocate for the Appellants. In paragraph No.9 of his deposition, he has stated thus: “9. It got down from the bus towards the left side of road, that is northern side of the road. Pancharatna Apartment was towards southern side of the road. I therefore wanted to go by crossing the road. I cannot tell what was the width of the road, at the place of accident. Before crossing the road I had seen West and East sides; that time the bus had gone ahead up to 200 metres. At that time no other vehicle was coming from any side. For the first time I see the car, it was at a distance of 3 to 4 hundred metres away. When I was that care, I had crossed half of the road. I thought that I will cross the road, therefore, I continued to cross the road. When car gave me dash, only 10 ft road was to be crossed. At that time, no other vehicle was coming from right or left side. Whatever written is correct.” (underline supplied) 7 In the examination-in-chief, the Respondent stated that he got down from the bus, the bus went away and thereafter, the accident occurred when he was attempting to cross the road. In the cross- 5 FA 741.00 examination, there is no suggestion given that when he attempted to cross the road, the bus was very much there and he tried to cross the road from the front side of the bus. In fact, the Respondent stated that before crossing the road, the bus had gone ahead upto 200 metres. 8 As far as the version of the accident of the Appellant No.1 is concerned, in the examination-in-chief, he stated thus: “..... One P.M.T. Bus was proceeding ahead of me at a distance of 15 feet. I was driving my Contesa Car at the speed 10 to 15 kms per hour. Bus stopped at Fatimanagar Bus Stop, therefore, I rdduced the speed of my vehicle. There was no traffic from the opposite direction. I blew horn of my vehicle. The driver of the bus gave me signal to proceed ahead. When I was proceeding one padastrain came in front of my vehicle from the left side from a distance of 2 feet from the front side of the bus.” 9 Thus, the case made out by the Appellant No.1 is that the Respondent came in front from the left side from a distance of two feet from the front side of the bus. As stated earlier, there is no specific suggestion given to the Respondent in his cross-examination that the bus was very much stationary and it had not proceeded further. It is 6 FA 741.00 true that it was the Appellant No.1 who took the Respondent to the hospital by of his own car and paid certain amount towards bill. As far as cross-examination of the Appellant No.1 is concerned, he has denied all the suggestions given on the aspect of negligence. 10 There is a written statement filed by the Appellants. In the written statement, the case made out reads thus: “..... At the relevant place, there was Bus, stopped a little ahead of Car and the Opponent No.1 in order to overtake the said Bus gave horn and on getting clearance from the Bus driver as also ensuring that there was no vehicle coming from Opposite side, the Opponent No.1 started overtaking the Bus. By the time the Opponent No.1 could complete overtaking the Bus, the Applicant suddenly ran across the road coming from in front of the Bus. His running across was so sudden that the Opponent has absolutely no opportunity to stop the vehicle. The Applicant in the process hit into the Car and fell down.” 11 On this aspect, it will be necessary to make a reference to the findings recorded by the Tribunal. The Tribunal was impressed by the fact that the criminal prosecution was initiated against the Appellant No.1. The Tribunal observed that the case made out by the 7 FA 741.00 Appellant No.1 that the Respondent gave a dash to the car cannot be accepted. The Tribunal did not accept the case made out by the Appellants that the bus was stationary and the Respondent attempted to cross the road from the front side of the bus. The theory of the Respondent suddenly coming on the road from the front side of the bus, could have been accepted provided it was established by the Appellants that the bus was stationary while the Respondent was attempting to cross the road. There is another aspect of the matter, the Respondent was attempting to cross a major road like Pune – Solapur road. The Respondent admitted that he could see the car when it was at a distance of 300 to 400 meters away. By that time, the Respondent had cross half of the width of the road and only other half of the width of the road was to be crossed. He stated that he was under impression that he will be able to complete the crossing of the road and therefore, he proceeded to cross the road. He admitted that there was a time gap of two minutes between the time he saw the car and the time of the dash. Therefore, this is a case where even the 8 FA 741.00 Respondent has not taken care while crossing a busy road like Pune – Solapur road. From the admission in the cross-examination, it is apparent that the Respondent had an opportunity to avoid the accident, but he did not avail of the said opportunity even after he noticed the car at a distance of 300 to 400 meters. Thus, this is a case where even the Respondent has contributed to the accident and his contribution will have to be held to the extent of 25%. 12 Now turning to the quantum of the compensation, the Respondent examined Dr.Sharad Shankar Choudhari, who was an Orthopaedic Surgeon attached to the Jahangir Nursing Home at Pune. He stated that the Respondent was admitted in Jahangir Nursing Home from 3 rd September, 1992 to 2 nd October, 1992. He stated that the Respondent sustained biolateral fracture of both thigh bones. He stated that on 17 th September, 1992, a surgery was performed on the right femur and nailing was done in both thigh bones. He stated that he was again admitted on 27 th April, 1992 and was discharged on 1 st May, 1992. On 7 th June, 1993, he was admitted in the same hospital 9 FA 741.00 for removal of nails and he was discharged on 12 th June, 1993. At that time, plaster was applied on both lower limbs of the Respondent. Dr.Choudhari produced permanent disability certificate assessing the disability of the Respondent at 20%. In paragraph No.4 of his deposition, Dr.Choudhari stated thus: “4. Due to the permanent disability caused to the applicant, the movements of his both knee joints are restricted. Prolong standing and walking is in strain. He will be able to stand or walk for shorter period i.e. only half an hour.” 13 As far as nature of injuries and hospitalization is concerned, there is hardly any serious cross-examination of Dr.Choudhari. 14 The length of hospitalization and disability certificate have been considered by the Tribunal. On the basis of the bills actually filed on record, a sum of Rs.1,43,463/- has been awarded on account of medical expenses. As the Respondent was hospitalized on three occasions and underwent three surgeries, a sum of Rs.15,000/- has been awarded towards the conveyance charges. For special diet, a 10 FA 741.00 sum of Rs.5,000/- has been granted. Only a sum of Rs.10,000/- has been granted under the head of pain and suffering and loss of amenities. The Respondent examined witnesses to prove that he was employed as a teacher in a school. After considering the order of the School Tribunal by which Respondent was reinstated, a sum of Rs. 1,00,692/- has been granted on account of loss of salary for the period from 1992 to 1995 when the Respondent could not attend the school due to injuries. The Tribunal accepted the document at Exhibit – 29 showing the figures of unpaid salary. That is how the compensation of Rs.2,94,155/- has been arrived at inclusive of no fault liability. 15 Thus, the only modification which is required to be made is that the compensation amount will have to be reduced by 25% on account of contributory negligence. Thus, the compensation amount will be Rs.2,20,500/-. 16 Hence, I pass the following order: i. The impugned judgment and award is modified, 11 FA 741.00 the compensation amount shall be Rs.2,20,500/- instead of Rs.2,94,155/- (inclusive of no fault liability) ; ii. Rest of the award regarding interest stands confirmed ; iii. The Respondent has withdrawn a sum of Rs. 2,00,000/- on furnishing security to the satisfaction of the Tribunal ; iv. In view of this judgment, the security shall stand discharged ; v. After hearing the parties, the learned Member of the Tribunal will pass appropriate order regarding disbursement/ withdrawal of the amount invested in accordance with the modified award ; vi. There will be no order as to costs ; and vii. The appeal is partly allowed on above terms. [ A.S.OKA, J ]