2011(3) ALL MR 300
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. BHANGALE, J.
The Divisional Controller, Maharashtra State Road Transport Corporation, Yavatmal Vs. Sugram S/O. Sakharam Chawere & Anr.
First Appeal No.64 of 1999
29th June, 2010
Petitioner Counsel: Mr. G. G. MISHRA
Respondent Counsel: Mr. V. S. DHOBE
Motor Vehicles Act (1988), Ss.166, 140 - Motor Accident - Claimant vegetable vendor colluded with bus with his hand cart - Evidence shows negligence and rashness of bus driver - Claimant sustained abdominal injury - Capacity of claimant to do manual work affected through out life - Conduct of driver taking claimant to hospital taken into consideration - Compensation awarded by Tribunal after considering all aspects inclusive of amount for no fault liability is liable to be upheld. (Paras 6, 7)
JUDGMENT:- This appeal is directed against judgment and award dated 4th August, 1998 passed by the Member, Motor Accident Claims Tribunal, Yavatmal in MAC No.44 of 1999 whereby claim of respondent no.1 (claimant) has been partly allowed against present appellant and respondent no.2. Parties shall hereinafter be addressed as per their original status in claim petition. The Tribunal has directed non-applicants no.1 and 2 in the claim petition to pay jointly and severally a sum of Rs.75,000/- (inclusive of the claim of no fault liability) to the petitioner towards compensation together with interest at the rate of 12% per annum from the date of petition till realisation.
2. Petitioner is a vegetable vendor. At the relevant time, he used to sell vegetables on cart. On 12.11.1992 while the petitioner was returning home at about 04.30 p.m., near Pusad Naka, ST bus driven by non-applicant no.2 Dalpat came from Umarkhed side in a high speed and gave dash to the hand-cart of petitioner. Petitioner fell down and became unconscious. He was operated for blunt abdomen injury. It was claimed that petitioner was earning Rs.1500/- per month, but due to abdomen injury he was not able to earn that much of amount to maintain himself and his family which was solely dependent on him.
3. Non-applicants filed joint Written Statement. It was claimed that the bus was following a truck and when the side was given by the truck, bus over-took the said truck. While the bus was being overtaken, petitioner came from opposite direction in a speed; driver tried to take the bus to extreme left side, applied the brakes also but out of confusion, hand-cart turtled and applicant received injury. Non-applicants denied the claim of petitioner that driver was negligent and drove the bus with high speed. They prayed for dismissal of claim.
4. Learned counsel for appellant contends that it was a case of contributory negligence and, therefore, the Tribunal has erroneously held the non-applicants jointly and severally liable to pay compensation. He further argued that the finding of the Tribunal that the driver was rash and negligent is not proper. He claimed that the accident occurred due to the fault of petitioner and petitioner alone, and that panchanama regarding accident was not proved. Learned counsel for original claimant supported the impugned award.
5. Claimant Sukharam described in his oral evidence as to how the accident occurred. He has denied in his cross-examination the suggestions given by the counsel for non-applicants to bring about the story of the ST bus overtaking truck; claimant was speedily taking the hand-cart and that out of confusion, his cart turned turtle. There is evidence of D.W.2 Sham who is running hotel on the road side in support of the claim of petitioner. This witness has denied all adverse suggestions. FIR and spot panchanama are proved on record vide exhibits 30 and 31. Dr. Nitin Bilolikar has stated about the abdominal injury and surgery done on the petitioner.
6. The Tribunal, in my opinion, has rightly held that the victim met with accident due to the act of negligence and rashness on the part of non-applicant no.2 driver. The Tribunal has taken judicial note of the conduct of driver who stopped the vehicle and removed the injured to the hospital which is pointer to the fact that bus had dashed against the hand-cart. Thus, the hand-cart turned turtle out of confusion and because of petitioner was speedily coming, is a made-up story.
7. Petitioner was undoubtedly a vegetable vendor. If a person receives abdominal injury and undergoes a surgery therefor, his capacity to do a manual work would naturally be affected for remaining life. The Tribunal has given proper thought to this aspect of the matter and has rightly awarded compensation of Rs.75,000/- to the petitioner inclusive of amount paid on account of no fault liability.