The M.S.R.T.C., Thr Div. Controller, Beed v. Subhash Pundlikrao Bhalerao

FA.1658-2018.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD FIRST APPEAL NO.1658 OF 2018 The Maharashtra State Road Transport Corporation, through Divisional Controller, The Maharashtra State Road Transport Corporation, Beed ..Appellant Vs.

Subhash s/o. Pundlikrao Bhalerao, Age:32 years, Occ. Nil, r/o. Parli Vaijnath, Tq. Parli Vaijnath, Dist. Beed.

..Respondent ---- Mr.S.R.Bagal, Advocate for appellant Mr.S.B.Solanke, Advocate for respondent ---- AND CIVIL APPLICATION NO.9558 OF 2021 IN FIRST APPEAL NO.1658 OF 2018 Subhash s/o. Pundlikrao Bhalerao, Age:32 years, Occ. Nil, r/o. Parli Vaijnath, Tq. Parli Vaijnath, Dist. Beed.

..Applicant Vs.

The Maharashtra State Road Transport Corporation, through Divisional Controller, The Maharashtra State Road Transport Corporation, Beed ..Respondent ---- Mr.S.B.Solanke, Advocate for applicant Mr.S.R.Bagal, Advocate for respondent ----

CORAM : R.G. AVACHAT, J.

RESERVED : OCTOBER 06, 2021 PRONOUNCED ON : JANUARY 21, 2022 ORDER :- This appeal is filed by Maharashtra Road Transport Corporation, challenging the judgment and award dated 17.05.2017 passed by Motor Accident Claims Tribunal, Jalgaon, in Motor Accident Claim Petition No.125 of 2011. Vide the impugned judgment and award, a sum of Rs.12,64,000/- has been awarded as compensation on account of injuries and permanent disability suffered in the accident involving motor vehicles. The Tribunal considered it to be a case of contributory negligence in proportion of 10:90 between the claimant and the offending S.T. Bus. The challenge is mainly on the ground of quantum and percentage of contributory negligence. 2.

Heard learned counsel appearing for the parties. 3.

Mr.S.R.Bagal, learned counsel for the appellant - M.S.R.T.C., would submit that the Tribunal ought to have, at least, considered it to be a case of contributory negligence in equal proportion. Both the claimant and the bus driver are bound to give self-serving evidence. The scene of accident panchnama would,

undoubtedly indicate that the S.T. bus was proceeding closely along the road median. The claimant tried to overtake S.T. Bus from its left side. In the process, his motorbike dashed with the bus, as a result of which, the claimant and his companion fell of the motor bike. On the question of quantum of compensation, learned counsel would submit that the claimant was 26 years of age. Multiplier of 17 would be applied and not 18. There was no concrete evidence of his salary. There was no reason for the Tribunal to grant compensation towards future prospects. After having recovered from the accidental injuries, the claimant resumed his job. As such, there is no loss of earning capacity. The compensation on that count ought not to have been awarded. Learned counsel, therefore, urged for modification of the impugned award.

4.

Mr.S.B.Solanke, learned counsel for the claimant, would, on the other hand, submit that the offending bus knocked the claimant down. His monthly salary was Rs.18,000/-. A representative of the employer was examined in proof thereof. The claimant was working as a Sales Executive. As a result of the permanent disability he suffered, there is necessarily functional disability. The quantum of medical expenditure incurred by the

claimant would itself suggest the severity and nature of disability suffered by the claimant. Learned counsel reiterated the reasons given by the the Tribunal in support of the impugned award. 5.

It was an accident between the motorbike and the S.T. bus. The Tribunal held the respondent/claimant (motorbike rider) to be contributory negligent to the extent of 10%. The respondent is not in appeal either for enhancement of compensation or for setting aside the finding of the Tribunal, holding him to be contributory negligent.

6.

The respondent-claimant had come with a case that the S.T. bus knocked his motorbike from behind. Said fact, however, appear to have not been proved. The Tribunal, on appreciating the evidence before it, found that the S.T. bus was proceeding closely along the road median. It was the motorbike ridden by the claimant that tried to overtake from the wrong side of the S.T. bus and in the process, brushed therewith. From the reasoning given by the Tribunal, it held the bus driver rash and negligent to the extent of 90%, only on the ground that in the rear-view mirror of the S.T. bus, he could notice the motorbike approaching from behind and it was he, who had a last opportunity to avoid the accident. As such, the

reasoning given by the Tribunal does indicate that it placed entire blame on the respondent-claimant. However, the S.T. bus, being a heavy vehicle, and its driver had an opportunity to avoid the accident, the Tribunal placed blame on him to the extent of 90%. In view of this Court, said proportion needs to be as `25%:75%'. It was, in fact, more.

7.

On the question of quantum of compensation, the Tribunal has considered the monthly income of the respondentclaimant at Rs.18,000/- per month, deducted 10% towards tax, made addition of 50% on account of future prospects and granted compensation. The details of compensation granted by the Tribunal are as under :- Sr.

No.

Particulars Amount (Rs.) Future loss of income 10,45,440 Loss of income during hospitalisation 29,040 Medical bill and treatment expenses 3,13,915.50 Traveling expenses 5,000 For pain and sufferings 20,000 Future medical expenses 25,000 Loss of amenities and enjoyment of life 10,000 Special diet/nourishment 10,000 Less NFL (-) 25,000 Sub-total 14,04,355.50

Less 10% contributory negligence (-) 1,40,435.55 Total Rs.12,63,919.95 rounded of to Rs.12,64,000/- 8.

It is the case of the respondent-claimant that he was working as Sales Executive and as a result of the permanent disability suffered, he has become unable to pursue his job. The respondent-claimant suffered disability (Exh.114) of the following nature:- Sr.

No.

Name of injury Dimensions of Nature of injury Injury Subtrochanteric fracture - Right femur Right femur Grievous Right tibia and fibula fracture Right tibia Grievous Abrasions over back Multiple abrasions Simple Form Comp-"B" (Exh.32) issued by Medical College and Hospital, Ambajogai, shows that the respondent-claimant was operated. It has been stated as under :- " c/o. RTA with fracture of right femur upper third with fracture T/F Right. Operated with implant in situ with partial ankylotis of right hip and right knee joint."

It has been stated that the permanent disability is 20%.

9.

The employer was examined as witness in proof of the income of the respondent-claimant. It has come in his evidence that the respondent-claimant was serving as an Accountant. The same suggest the respondent to have come with the false claim of having been serving as Sales Executive. Moreover, it is not his case that as a result of the permanent disability suffered in the accident, he has been rendered jobless. As such, it is not the case of loss of his earning capacity. The Tribunal, therefore, ought not to have granted 50% addition on account of future prospects.

10.

On the question, whether multiplier of 17 or 18 is to be applied, this Court is inclined to apply the higher multiplier. The monthly income of the respondent-claimant is considered at Rs.16,200/- (Rs.18,000 - 10% amount towards tax). As such, considering the functional disability of the respondent-claimant as 20%, the future loss of earning capacity would be Rs.6,99,840/- i.e. Rs.16,200 x 12 months x 18 (multiplier) x 20%. This Court is, therefore, inclined to re-work out the compensation as under:- Sr.

No Particulars Amount (Rs.) Future loss of earning capacity 6,99,840 Loss of income during hospitalisation (+) 29,040

Medical bill and treatment expenses (+) 3,13,915.50 Traveling expenses (+) 5,000 For pain and sufferings (+) 20,000 Future medical expenses (+) 25,000 Loss of amenities and enjoyment of life (+) 10,000 Special diet/nourishment (+) 10,000 Sub-total 11,12,795.50 10 Less 25% contributory (-) 2,78,198.87 negligence Total Rs.8,34,596.63 rounded of to Rs.8,34,597/- 11.

In view of the above, the appeal partly succeeds. Hence, the following order:- (i) The appellant-M.S.R.T.C.

shall pay the respondent/claimant a sum of Rs.8,34,597/- as compensation with interest at the rate of 6% per annum from the date of the claim petition to the date of deposit/ payment thereof.

(ii) The amount in deposit, either with this Court or the Tribunal, be paid to the respondent/claimant with interest accrued thereon.

(iii) Balance amount be paid back to the appellant - M.S.R.T.C with interest accrued thereon.

(iv) The appeal stands disposed of accordingly.

(v) Pending Civil Application stands disposed of. [R.G. AVACHAT, J.] KBP