Partly allowed

The Divisional Controller, Msrtc, Latur. v. Anteshwar Sangramappa Lohare and Ors.

Bombay HC18 Oct 2013FA/1133/2008

Case brief

AI extract

What is this about?

High Court heard an appeal and cross-objection against Motor Accident Claims Tribunal award. Bench affirmed 30% contributory negligence of the victim on facts but enhanced compensation by rediffing loss of future income and adding future medical expenses.

What did the court decide?

First Appeal dismissed. Cross-objection partly allowed; respondents directed to pay Rs. 15,00,000 compensation with 8% interest.

The Divisional Controller, Msrtc, Latur. Vs Anteshwar… — Motor Accident Claims | Bombay HC (2013)

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( 1 )

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fa1133.08

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 1133 OF 2008

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WITH

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CROSS OBJECTION ST. NO. 7901 OF 2008

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* * * * *

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FIRST APPEAL NO. 1133 OF 2008

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The Divisional Controller,..Appellant
M.S.R.T.C., Division Office,
Latur.

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Versus

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1.Anteshwar s/o. Sangramappa Lohare,..Respondents
Age. 24 years, Occ. Commission Agent,
R/o. Motinagar, Latur,
Tq. & Dist. Latur.

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2. Shivaji s/o.Pandharinath Maddhe, Age. Major, Occ. S.T. Driver, R/o. C/o. Appellant.

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3. Anil s/o. Dattatraya Bandgar, Age. 26 years, Occ. Pvt. Service, R/o. Motinagar, Latur, Tq. & Dist. Latur.

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WITH

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CROSS OBJECTION ST. NO. 7901 OF 2008

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Anteshwar s/o. Sangramappa Lohare..Appellant
Age. 23 years, Occ. Nil,
R/o. Moti Nagar, Latur,
District Latur.

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Versus

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( 2 ) fa1133.08

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1. The Divisional Manager, .. Respondents M.S.R.T.C. Latur Division, Latur.

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2. Shivaji s/o. Pandharinath Maddhe, Age. Major, Occ. S.T. Driver, R/o. C/o. Divisional Manager, M.S.R.T.C., Latur Division, Latur.

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3. Anil s/o. Dattatraya Bandgar, Age. 27 years, Occ. Pvt. Service, R/o. Moti Nagar, Latur, Dist. Latur.

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Mrs.R.D. Reddy, Advocate for the M.S.R.T.C.
Mr.N.P. Patil-Jamalpurkar, Advocate for the claimant.

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`CORAM`	`:` `M.T. JOSHI,J.`
`RESERVED ON`	`:` `03.10.2013`
`PRONOUNCED ON`	`:` `18.10.2013`

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J U D G M E N T :-

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1. Aggrieved by the directions of learned Member of

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Motor Accident Claims Tribunal, Latur, (for short “MACT”)
to pay compensation of Rs.10,53,557/-, holding the driver
of the appellant i.e. proforma respondent No.2 as 70%

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rash and negligent in driving the bus of the appellant-
M.S.R.T.C., present appeal is preferred.

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2.Similarly, aggrieved by the finding of the

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learned Member of MACT holding the original claimant i.e.
respondent No.1 in the First Appeal, as 30% rash and
negligent in causing accident and resultantly deducting
the amount of compensation on this ground, the original
claimant has filed cross-objection in the present appeal.

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3.For the sake of convenience, the appellant would

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be termed as “MSRTC”, respondent No.1 would be termed as
“claimant” and respondent No.2 would be termed as “driver
of the bus”.

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4.The accident has occurred on 27th June, 2004 at

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about 12 noon on Latur to Ausa road. At that time while

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the bus of the MSRTC was proceeding from Latur to Ausa,

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the claimant came from opposite side on motor cycle.

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P.W.9-Anil is claimed to be pillion rider of the motor
cycle. The accident has occurred in a square from where

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the road also passes between Chandeshwar and Peth. While

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Latur to Ausa road is north-south, Peth to Chandeshwar
road is east-west.

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5.The case of the claimant in short is as under:-

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.That the bus not only came in high speed, but

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also came from wrong side giving dash to the motorcycle,
resultantly the motor cycle dragged for 20 ft. and the
claimant suffered serious injuries resulting into severe
bleeding of the claimant. He sustained fracture to waist,

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serious injuries to anus etc. He was initially taken to
the Civil Hospital, Latur. Thereafter, he was immediately
shifted to Rubi Hospital at Pune. There the claimant was
admitted for 70 days. Even after return from Pune, he
was required to take medical treatment at Apex Hospital,
Latur and thereafter he was being treated by Dr. Agroya,

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which was continued even till filing of the claim
petition. In the circumstances, giving details of the

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injuries and permanent disablement which according to him
ultimately compelled him to lead vegetative life for rest
of the life, this 22 years claimant, claimed compensation
of Rs.15 lakhs. According to him during the period of
accident, he was assisting his father in the business of
being a Commission Agent. He used to earn Rs.10,000/- per
month. In the circumstances, the claim was justified.

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6.The MSRTC and bus driver filed joint written

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statement. Their submissions in short were as under :-

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.That the accident has occurred solely due to

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rash and negligent driving of the motor-cycle. The bus
driver stopped the bus at the bus-stop at the square,

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named and styled as Chandeshwar bus-stop, which is in
front of the square. There is a speed-breaker at about
15-20 ft. away. When the bus started again, due to the

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fact that the speed-breaker was there in the vicinity,

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the speed of the bus was very low. The claimant,

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however, on his motor-cycle came in great speed from the
side of Ausa and suddenly took right turn at the square
in order to proceed towards Chandeshwar. In the
circumstances, the motor-cycle suddenly came in front of
the bus and thus the accident has occurred solely due to
the rash and negligent driving of the motor-cycle itself.
Therefore, the MSRTC and bus-driver claimed that the
petition be dismissed. In the alternative, all the
pleadings regarding age, injury, permanent disablement,
income and compensation as pleaded by the claimant were
denied.

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7.Before the Tribunal, the claimant examined in
all nine witnesses out of which four were Doctors who had
examined him after the accident. Besides that, the
claimant examined himself, his wife Bhagyashri, one of
his alleged client Mohan, billing officer of Rubi Hall
Clinic-P.W.7-Vaishali Rane and the pillion rider of the
motor cycle P.W.9-Anil. The voluminous evidence in the

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nature of injury certificates, discharge cards, x-ray

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reports, medical bills, SSC certificate was placed on
record. The bus driver Shivaji Madde was examined by the
MSRTC on behalf of the respondents i.e. the MSRTC and the
bus driver himself.

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8.The learned Member of the MACT principally on

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the basis of certified copy of panchanama of spot of occurrence, applied principle of res ipsa loquitur and

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came to the conclusion that the claimant was also
negligent to the extent of 30% in causing the accident.
Resultantly after assessing the compensation, 30% from
the same was deducted and rest of the compensation as
detailed supra was directed to be paid by MSRTC and its
bus driver.

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9.Learned Counsels from both the sides argued on

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the line of pleadings and the evidence placed before
learned Member. On the basis of this material, following

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( 8 ) fa1133.08

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points arise for my determination :-

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(i)Whether the claimant has contributed to the
accident due to his negligence? If yes, to what
extent?

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(ii)What is just compensation in the present
case?

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CONTRIBUTORY NEGLIGENCE

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10.The claimant examined himself and the pillion
rider P.W.9-Anil Bandgar. According to both of them, the

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bus was in a great speed and came towards the wrong
direction solely causing the accident. Both of them
deposed about the width of road that passes through the
square. However, in view of the certified copy of the
panchanama of spot of occurrence, we need not dilate over
this oral evidence.

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.Certified copy of panchanama at Exh.47 shows

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that Latur to Ausa road is the main road while Peth to
Chandeshwar, which crosses this main road, is relatively

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small road. The accident has occurred at the very center

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of the square. P.W.9-Anil Bandgar in his cross-

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examination has admitted that this main road i.e. from
Ausa to Latur road is double road and besides that there
are offsets on both sides of said road. He also admitted
that about 7-8 feet area of road, on right side of the
bus was there at the time of accident.

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11.It is to be noted that while the bus was

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proceeding from Latur to Ausa, the motor-cycle proceeded
from opposite direction. In the circumstances, neither
the bus was required to proceed from the right side of
the road nor the petitioner was required to be on his
right side, considering the fact that the road was a
double road from where two four-wheelers could have

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easily passed. The accident, however, has occurred
exactly at the center of the square i.e. center of the
main road. The panchanama further records that tyre-

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marks were seen for 20 ft. on the road. In all these
circumstances, when 7-8 feet tar road was vacant from the

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side of the claimant/motor-cyclist, the case of the bus

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driver that the claimant was not going straight to Latur
but has taken a right turn to proceed to Chandeshwar on
the sub-road is more probable. At the same time, the
fact that the tyre-marks of the bus were seen for 20 ft.
on the tar road would show that the bus was in high
speed, as the same could not be stopped at the moment the
brakes were applied by the bus driver, but went ahead for
20 ft. The case of the bus-driver that because of the
speed-breaker, the speed of his bus was slow is belied by
the fact situation. In that view of the matter, learned
Member has rightly come to the conclusion that it was
case of contributory negligence. Taking into

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consideration the fact, in my view, the contribution of
present claimant in causing accident was 30%, as has been
found by the learned Member.

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12.Mr. N.P. Patil-Jamalpurkar, learned Counsel for

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the claimant, however, submits that the bus driver was

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solely rash and negligent in causing the accident,
considering the speed of the bus.

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13.Mrs. Reddy, learned Counsel for the MSRTC relies

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on the ratio ofA.P.S.R.T.C. & Anr. Vs. K. Hemalatha &

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Ors., 2008 AIR (SC) 2851. In the said case, an
established principle that for the purpose of
determination of question about contributory negligence,
it has to be ascertained that if both the drivers were at

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fault, then it is to be found, who was more responsible

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for the accident and who had last opportunity to avoid
the accident, is reiterated. In the present case, what
we find is that the bus was in relatively great speed

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though proceeding through the square. The claimant has
suddenly took right turn in the square. Had the bus in

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moderate speed, as it was in a square, though the
claimant has suddenly taken right turn, the mishap could

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have been avoided. Therefore, the principle underlined

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in case ofA.P.S.R.T.C.(cited Supra)would be applicable

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in the present case on facts and it will have to be held

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that the bus-driver was more responsible. In the
circumstances, no fault is found with the reasoning of
the learned Member of MACT.

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QUANTUM OF COMPENSATION

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14.The Secondary School Certificate examination at

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Exh.51 shows that the claimant was born on 3rd May, 1984.
On the day of the accident i.e. on 27th June, 2004, he
was about 20 years old. The claimant was initially
admitted to the Civil Hospital, Latur. P.W.6-Dr. Jaishri

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Todkar, Surgeon, annexed to Rubi Hall Clinic, Pune, has

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deposed that the claimant was admitted to said hospital
from 28th June, 2004. She has started treatment on the

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claimant since 9th July, 2004. The claimant was in ICU

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and more particularly in Neuro Thermo Unit (NTU) from the

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day of admission. At Exh.49 and 50, there is discharge

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summary. It would show that the claimant was on

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ventilatory support for 6-7 days. He has suffered a
perineal tear coupled with fracture of pelvis. Colostomy
operation was performed upon him. There was severe
abdominal tenderness and rigidity coupled with garding in
iliac region. P.W.6-Dr. Jaishri deposed that besides
herself one Dr. Sanjay Deshmukh treated the claimant.
She further deposed about various operations carried on
the claimant by Dr.Bapat, Dr.Barve, Dr.Deshmukh,
Dr.Todkar on the basis of discharge summary issued at
Exh.49 & 50.

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15.P.W.7-Vaishali Rane, Billing Officer of said

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Hospital has proved the bills of the hospital in this
regard, which are from Exh.529 onwards.

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16.The evidence of P.W.2-Dr. Jagdish Agroya shows
that from 27th August, 2004 till 12th October, 2004, the
claimant was admitted in hospital, named and styled as
Apex Hospital, Latur. He deposed that due to fracture in

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the pelvis and hip joint, the claimant was complaining of
pains. He has issued permanent disability certificate at
Exh.44, certifying that due to fracture of pubic ramus
and pelvis as well as hip joint have become stiff.
Therefore, the claimant suffered from 50% disability.
During cross-examination, Dr. Jagdish deposed that the
fracture has been healed but in mal-position.

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17.P.W.5-Dr. Ajit Jagtap also treated the claimant
while he was in Apex Hospital. According to him the
claimant was admitted for four times to the hospital i.e.
from 27.08.2004 to 12.10.2004, 05.12.2004 to 09.12.2004,
09.04.2005 to 24.04.2005 and on 02.07.2006. He deposed
about various medical bills and the prescription issued
by him. During cross-examination, he deposed that that
the patient may or may not have full recovery in future.
However, the injuries sustained to him is deep lacerated
wound, which is healed.

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18.P.W.2-Dr. Jagdish Agroya was again examined as

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P.W.8. During his fresh examination, he pointed towards
bills passed by him from Exh.371 onwards.

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19.The claimant was examined on commission. He

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deposed that he is leading a vegetative life. Due to the
disability suffered by him, he is unable to enjoy sexual
life. His parents have expended about 11-12 lakhs till
the date of recording his evidence. His family members
accompanied him in the hospital. Pains and sufferings,
however, still continued.

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20.The wife of claimant Bhagyashri is examined as
P.W.3. She deposed that sexual relationship between her
and the claimant is not possible. No issue from the wed-

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lock is born while she was examined in the Court on 21st
June, 2007.

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21.Learned Member on the basis of documentary

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evidence found that the actual expenses towards Doctors’

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fees and medicines would come to Rs.10,09,366/-.

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22.Mrs. Reddy, learned Counsel for the MSRTC

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submits that though the claimant in his evidence deposed
that he was admitted to the Civil Hospital, Latur for 15

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days, no injury certificate issued by the Civil Hospital
is filed on record. It should be, however, noted that the
evidence on record shows that the accident has occurred
on 27th June, 2004 and the claimant was admitted to the

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Ruby Hall Clinic on 28th June, 2004. The injury
certificate from Civil Hospital is, in-fact, at Exh.48,
which shows that on the very same date of admission, the
claimant was discharged.

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23.Learned Member of the MACT besides acceptance of

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Rs.10,09,366/- towards expenses, also awarded an amount
of Rs.50,000/- towards pain and agony suffered by the
claimant.

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.As regards future loss of income, learned Member
found that no concrete evidence is placed on record to
show that the claimant used to assist his father in his
food-grains commission agency business. Therefore,
assuming the income of unskilled labour at Rs.100/- and
finding that the claimant is from a superior class, his
income was assessed at Rs.50,000/- per year. As the
claimant was only 20 years old at the time of the
accident, his balance period of earning was assumed as 40
years and thus the total probable loss of income was
computed at Rs.2 lakhs. (This apparently seems to be a
mistake as Rs.50,000/- x 40 would come to Rs.20,00,000/-
and not Rs. 2,00,000/-).

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.Towards travelling expenses, an amount of Rs.
10,000/- was added. Though the deposition of Dr. Jagdish
Agroya shows that the claimant could not have physical
sexual contact with his wife due to his permanent

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disability, learned Member observed that due to
advancement in the technique, there could be in-vitro
fertilization or by certain other technique there could
be child to the couple. However, towards loss of natural
marital life, compensation of Rs.1,50,000/- was assumed.
Thus, the total damages of Rs.15,19,366/- was held. Upon
deduction of 30% towards contributory negligence,
compensation of Rs.10,63,557/- was granted.

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24.Mrs. Reddy, learned Counsel for MSRTC submits
that the compensation granted is excessive. Certain
overlapping period of treatment between Ruby Hall Clinic
and Apex Hospital, Latur is there. The evidence of
private Doctors is confusing and therefore the
compensation granted is excessive.

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25.On the other hand, Mr. N.P. Patil-Jamalpurkar,
learned Counsel for the claimant submits that no amount
is granted towards future medical expenses, though

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deposed too by the medical witnesses. Further, the
clerical mistake in arriving at loss of income of Rs.2
lakhs as against Rs.20 lakhs is evident. He relies on

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the ratio in the case of Ibrahim Vs. Raju & Ors., 2011
(7) Supreme 500. In the circumstances, he submits that
necessary enhancement may be granted.

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26.The evidence on record would show that the

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claimant was helping his father, who works as a
Commission Agent in food-grains. At the time of the

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accident, he was driving the motor-cycle owned by his
family. The accident had occurred in the year 2004.
Therefore, the assumption of income of the claimant of

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Rs.50,000/- per year appears to be reasonable. The
petitioner was 20 years old at the time of accident. He

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has to maintain his wife. The fact that the claimant is

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leading vegetative life is clear from the voluminous

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evidence on record. In the circumstances, considering the
permanent physical disability of 50%, as certified by

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( 20 ) fa1133.08

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P.W.2-Dr.Jagdish and some chances of recovery as deposed

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too by other Medical Officers, in my view the disability
to earn can be computed at 75%. In view of the ratio

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laid down in the case of Smt. Sarla Verma & Ors. Vs.

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Delhi Transport Corporation & Anr., AIR 2009 SC 3104, the
multiplier of 18 would be applicable. In the

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circumstances, the compensation towards loss of future
income would come to Rs.50,000/- - ¼ = 37,500/- x 18 =
6,75,000/-. Further, an amount of Rs.2,00,000/- towards
future medical expenses would be reasonable. In the

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facts and circumstances, I do not propose to interfere in
the sum arrived at by learned Member on other heads of
compensation. Thus, the compensation would be as

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under :-

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`Actual expenses`	`=`	`Rs. 10,09,366/-`
`Travelling expenses`	`=`	`Rs. 10,000/-`
`Loss of marital sexual life`	`=`	`Rs. 1,50,000/-`
`Loss of amenities`	`=`	`Rs. 1,00,000/-`
`Future loss of income`	`=`	`Rs. 6,75,000/-`
`Future medical expenses`	`=`	`Rs. 2,00,000/-`
	`===`	`=================`
`Total`	`=`	`Rs. 21,44,366/-`

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( 21 ) fa1133.08

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30% deduction towards
contributory negligence =(-)Rs. 6,43,310/-
====================
=
Total compensation payableRs. 15,01,056/-
====================
Rounded to =Rs. 15,00,000/-
====================

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27.In the result, the following order is passed :-

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(i)The First Appeal is dismissed without
any order as to costs.

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(ii)The cross-objection is partly allowed
with proportionate costs. Respondent Nos. 1 & 2
in the cross-objection are directed jointly and
severally to pay compensation of Rs.
15,00,000/-, including the compensation already
deposited, with interest at the rate of 8% p.a.
w.e.f. 20th January, 2005 till its realization.

¶152

snk /2013/OCT13/fa1133.08

The Divisional Controller, Msrtc, Latur. v. Anteshwar Sangramappa Lohare and Ors.

Case brief

What is this about?

What did the court decide?

The Divisional Controller, Msrtc, Latur. v. Anteshwar Sangramappa Lohare and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

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