agk FA1664-96 (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1664 OF 1996 Maharashtra State Road Transport Corporation .. Appellant versus Seetharam P. Pujari .. Respondent Mr.G.S.Hegde for the appellant. Ms.Jyoti S. Pandey for the respondent. CORAM : A.S.OKA, J. DATE : 7th September 2010. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on 26th and 27th August 2010. 2 The challenge in this First Appeal is to the judgment and award dated 31st August 1996 passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition filed by the respondent under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act). agk FA1664-96 (2) 3 According to the case of the respondent-claimant, on 13th March 1992 he along with his family members were proceeding from Bombay to Manglore by a Maruti van. A driver employed by the respondent was driving Maruti van. When the Maruti van reached near village Ramkrishna Nagar, between 3.00 p.m to 3.15 p.m, a bus owned by the appellant came from the opposite direction. The allegation of the respondent is that the bus came on its wrong side. It is allegation of the respondent that the driver of the bus was driving the bus in rash and negligent manner without observing the rules and regulations of the traffic. According to the case of the respondent the accident occurred due to rash and negligent driving by a driver of the bus owned by the appellant. The respondent sustained various injuries in the accident and therefore he filed a claim petition. The claim petition was contested by the appellant by filing a written statement in which it was contented that owner and insurer of Maruti van No.GCK 9591 were necessary parties. The appellant denied that the accident occurred due to rash and negligent driving on the part of the driver of the bus. 4 By the impugned judgment and award, the learned Member of the Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the bus. The Tribunal, by the impugned award, agk FA1664-96 (3) proceeded to award total compensation of Rs.2,15,972/-. The compensation was granted under the various heads which read thus: i. Rs.02,500.00 Ambulance charges ii. Rs.50,972,00 Hospital charges, Medicines etc iii. Rs.15,000.00 Expenses towards Physiotherapy treatment iv. Rs.12,000.00 Expenses towards attendants v. Rs.25,200.00 Loss of business of canteens vi. Rs.01,08,000.00 Towards permanent disability (Rs.60 X 12 X 15 = Rs.1,08,000/-) vii. Rs.0,02,000.00 Future medical expenses 5 The learned counsel appearing for the appellant submitted that there was no evidence of the negligence on the part of the driver of the bus. He submitted that in the oral evidence the respondent has come out with a new case as regards the manner in which accident occurred. He submitted that there is no independent evidence adduced by the respondent to prove negligence on the part of the driver of the bus. He submitted that a false case was made out by the respondent that he was running a canteen at agk FA1664-96 (4) Vapi. He invited attention of the Court to the documents produced on record and submitted that there is no documentary evidence to prove that the respondent was running a canteen at Vapi. He submitted that the evidence of Ashok Pujari cannot be relied upon in absence of any documentary evidence. He pointed out that the alleged muster roll is also a got-up document. He pointed out that the income tax returns filed by the respondent on record show that there is no loss of income, but on the contrary the income of the respondent has increased after the accident. He submitted that the compensation granted is exorbitant especially under the head of loss of business of canteen and towards permanent disability in the sum of Rs.1,08,000/-. 6 The learned counsel appearing for the respondent supported the impugned judgment and award. The learned counsel submitted that the appellant failed to examine the driver of the bus for rebutting the evidence adduced by the respondent. The learned counsel submitted that there is hardly any challenge to the version of the respondent as regards the manner in which accident occurred. The learned counsel appearing for the respondent invited attention of the Court to the nature of injuries sustained by the respondent-claimant and submitted that there has been a loss of agk FA1664-96 (5) earning capacity as rightly concluded by the Tribunal. The learned counsel relied upon the disability certificate at Exhibit 46 which records that there was a permanent partial disability of 12%. The learned counsel submitted that evidence of Ashok Pujari has been rightly accepted by the learned Member of the Tribunal. The learned counsel submitted that the compensation granted by the Tribunal is just and proper and no interference is called for. 7 I have given careful consideration to the submissions. I have perused the record and proceedings of the case. The first question which arises for determination is whether negligence on the part of the driver of the bus was established. The respondent himself is an eye-witness to the accident. He stated that he along with his family members were proceeding by Maruti van bearing No.GCK 9591 from Bombay towards Manglore. His driver was driving the van. In paragraph 2 of the deposition he stated thus: “2. We left Satara, at 2.30 p.m. On that day, from Satara, we were proceeding towards Karad. The driver was driving the van in a moderate speed, by left side of the road. When our vehicle reached near Ramkrishna Village, one truck came from agk FA1664-96 (6) opposite direction and there was a S.T.bus behind that truck, and the S.T.bus overtook the truck and came ahead and even, if our Van’s driver, slowed down the speed, still the S.T.bus dashed against our Maruti van. Accident occurred due to the dash given to our van by the S.T.bus. ...” 8 In the cross-examination, a suggestion was given to the respondent that his driver was driving the Maruti van in a rash and reckless manner. The correctness of the said suggestion was denied. In the cross-examination he stated that the accident occurred after the bus had overtaken the truck. He denied the correctness of the suggestion that the bus was coming by its left side. He admitted that there was head on collision between the Maruti van and the bus. However, he denied the correctness of the suggestion that the accident occurred in the middle of the road. As against this, the appellant did not examine driver of the bus and there is no explanation as to why the driver was not examined. It was tried to be contended that in the statement of the respondent recorded by the police he has not stated that the bus was overtaking a truck. The learned Member of the Tribunal has adverted to the spot panchanama at Exhibit 58. The learned Judge noted that the spot panchanam shows that the Maruti van was at a distance of 23 ft towards the agk FA1664-96 (7) East of the road and its front wheel was 6” towards East from the tar road. The van was found to be completely damaged on the front side. Considering what is depicted in the panchnama, the learned Member of the Tribunal did not attach much importance to the omission on the part of the respondent to state before the police that the bus was overtaking the truck. It appears that there were companion claim petitions claiming compensation on account of injuries sustained in the same accident in which finding of negligence against the driver of the appellant was recorded. It is not the case of the appellant that the said awards were challenged. 9 Apart from all this, this was a fit case to draw adverse inference against the appellant on failure to examine the driver who could have explained the manner in which accident occurred. A Tribunal established under the said Act is not bound by the strict rule of evidence. Taking over all view of the matter, it is not possible to disturb the finding of the Tribunal that the accident occurred due to rash and negligent driving on the part of the driver of the bus. 10 That takes me to the second point regarding quantum of compensation. The certificate at Exhibit 46 issued by the Dr.Singhvi records agk FA1664-96 (8) that the respondent was admitted to Nanavati hospital at Bombay on 14th March 1992 and was discharged on 27th March 1992. He suffered a compound fracture of right knee with rupture of quardricops expansion, fracture of upper end tibia (left) involving the articular surface. It records that the respondent underwent surgery of right knee and his left leg was kept in plaster cast for about twelve weeks. It records that as a result of the injuries sustained, his terminal 20 degree of knee flexion is restricted. It is stated that the respondent will find difficulty in performing activities such as squatting, siting cross-legged on the floor, climbing staircase, running to get into bus or train, prolonged standing and walking. The permanent partial disability of 12% was certified by Dr.Singhvi. Apart from the said certificate at Exhibit 44, there is a separate certificate issued by the authorities of Nanavati hospital recording the same injuries. It must be noted here that injury certificate at Exhibit 44 issued by the Nanavati hospital has been exhibited by consent of the parties. Even the disability certificate issued by Dr.Singhvi has been exhibited by consent of the parties. Therefore, there cannot be any dispute regarding the nature of the injuries sustained by the respondent and the disability suffered by the respondent. 11 One of the contentions raised by the learned counsel appearing for agk FA1664-96 (9) the applicant was that it is impossible to accept that the respondent was running two canteens, one at Andheri and the other at Vapi. The respondent came out with the evidence that he was running the said canteens at New India Assurance Company’s college hostel at Andheri and at New India Assurance Company’s Center at Vapi. There is a certificate dated 17th August 1995 issued by the New India Assurance Company Ltd which is at Exhibit 45 which records that the respondent was running canteen at Andheri from January 1980 and canteen at Vapi from October 1990. It is pertinent to note that the said certificate was produced by the respondent along with list at Exhibit 28. The said certificate at item No.13 was exhibited by consent of the advocate for the appellant. As the certificate was marked as exhibit by consent of the appellant, now it is not open for the appellant to dispute the correctness of the conents thereof. In the certificate it is recorded that the respondent was canteen contractor of the said Insurance Company, both at Andheri and Vapi. 12 As far as the quantum of compensation is concerned, a sum of Rs. 50,972/- has been granted on account of hospital charges, medicine bills etc. The said amount is supported by the bills at Exhibits 32 to 43 amounting to Rs.50,972.55/-. The certificate of Dr.Singhvi at Exhibit 46 discloses that agk FA1664-96 (10) for a of period of four weeks his leg was kept in plaster cast. The respondent was required to undergo physiotherapy. A sum of Rs.15,000/- has been awarded towards the physiotherapy treatment and a sum of Rs.12,000/- has been awarded towards the expenses of engaging the attendants. Looking to the nature of the injuries sustained by the respondent, the said amounst are certainly reasonable. The ambulance charges of Rs.2,500/- have been granted as the respondent was shifted to Nanavati hospital in Bombay. 13 The real dispute is regarding a sum of Rs.25,200/- awarded on account of loss of business. Apart from this an amount of Rs.1,08,000/- has been awarded towards permanent disability and a sum of Rs.2,000/- on account of future medical expenses. 14 As stated earlier, in view of the certificate at Exhibit 45 it is admitted in evidence by the consent of the appellant, now the appellant cannot dispute that the respondent was running canteen at two places. In this context the evidence of the 2nd witness Ashok Pujari will have to be appreciated who deposed before the Court that he has been employed by the respondent as a manager from April 1992 in the canteen at Vapi. The Tribunal has come to the conclusion that on account of injuries sustained, the respondent was not agk FA1664-96 (11) in a position to visit Vapi for a period of six months. The said conclusion is consistent with the certificate of Dr.Singhvi. P.W.No.2 Ashok Pujari stated that at that time he was drawing salary of Rs.1,200/- per month. Therefore, a sum of Rs.7,200/- has been granted by the Tribunal. The said amount is reasonable and proper. Thereafter, the Tribunal has recorded that the respondent may have suffered loss in his business of canteen at Andheri at the rate of Rs.3000/- per month for a period of six months. Thus a total sum of Rs.25,200/- (Rs.7200 + Rs.18,000/-) has been awarded towards the loss of business. A sum of Rs.,1,08,000/- has been awarded on the basis of permanent disability of 12% by taking income of the respondent at Rs. 5,000/- per month and adopting multiplier of 15. On this aspect it will be necessary to make a reference to the income tax returns of the respondent placed on record. The document at Exhibit 55 shows that the total income of the respondent for the assessment year 1991-92 was Rs.27,652/-. As far as assessment year 1992-93 is concerned, the acknowledgment of the return and a chalan disclose the payment of income tax of Rs.9048/-. While writing the said amount in words and figures there appears to be overwriting. In the acknowledgment of income tax return for the year 1992-93 the total income is shown as Rs.53,615/- and tax paid is shown as 9048/-. The figure 53,615/- appears at two places and at both places it appears that there is agk FA1664-96 (12) overwriting and the figure earlier written has been erased. Same is the case with first two numbers of the figure which is 9048/-. Thus the said documents for the year 1992-93 are suspicious. For the assessment year 1993-94, the acknowledgment of the income tax shows that the total profit earned by the respondent was Rs.38,140/-. The said amount increased to Rs.45,075/- for the assessment year 1994-95. Thus, the documents placed on record by the respondent do not justify the claim of the respondent that he suffered any loss of income on account of the injuries sustained in the accident. In fact there is an increase of income after the accident. As stated earlier, the receipt of payment of income tax and the acknowledgment of income tax return for the assessment year 1992-93 creates suspicion. Moreover, books of accounts or any other document is not produced by the respondent to prove loss of income or reduction of profit. Therefore, there is no justification for granting sum of Rs.18,000/- on account of loss of business for six months in the canteen at Andheri and a sum of Rs.1,08,000/- towards permanent disability. As stated earlier, a sum of Rs.7,200/- will have to be allowed towards the salary of the manager for a period of six months. 15 For determining the reasonable compensation, power under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 will have to be invoked. agk FA1664-96 (13) Though the amount of Rs.18,000/- and Rs.1,08,000/- cannot be granted, considering the injuries sustained and the disability as reflected from the certificate at Exhibit 46, a sum of Rs.35,000/- will have to be granted by way of compensation. As stated earlier, except amounts of Rs.18,000/- and Rs. 1,08,000/- the compensation granted under the other items will have to be upheld. Thus, the compensation payable to the respondent after considering a sum of Rs.7,200/- towards the salary of the manager and a sum of Rs. 35,000/- as stated aforesaid will come to Rs.1,15,172/-. To that extent modification will have to be made. A submission was made as regards rate of interest of 12% granted by the Tribunal. It may be noted here that accident is of the year 1992 and the claim petition is of the year 1993 which was decided in the year 1996. Considering the then prevailing rates of interest, the Tribunal has rightly granted interest at the rate of 12% per annum. 16 Hence, the appeal must succeed and I pass the following order: : O R D E R : (a) The impugned judgment and award dated 31st August 1996 is modified. The compensation amount is brought down to Rs. agk FA1664-96 (14) 1,15,172/-. Rest of the award regarding payment of interest and costs stands confirmed. (b) There will be no orders as to costs in appeal. (c) Any amount pending in this Court with interest accrued thereon shall be transferred to the Tribunal. The Tribunal will pass appropriate order regarding disbursement/withdrawal of the amount in terms of modified award. (A.S.OKA, J)