Gujarat High Court
Gujarat State Road Transport ... vs Maheshbhai Bhagvatlal Joshi on 20 February, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/2031/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2031 of 2008
With
FIRST APPEAL NO. 2490 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
GUJARAT STATE ROAD TRANSPORT CORPORATION
THR'DIV.CONTROLLER....Appellant(s)
Versus
MAHESHBHAI BHAGVATLAL JOSHI....Defendant(s)
================================================================
Appearance:
MRS FALGUNI D PATEL, ADVOCATE for the Appellant(s) No. 1
MR MTM HAKIM, ADVOCATE for the Defendant(s) No. 1
================================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Page 1 of 29
C/FA/2031/2008 JUDGMENT
Date : 20/02/2014
ORAL JUDGMENT
1. Both these appeals at the instance of the Gujarat State Road Transport Corporation (hereinafter referred to as"the Corporation") as well as at the instance of the claimant respectively, are directed against the judgement and award dated 31st March, 2006 passed by the Motor Accident Claims Tribunal (Auxiliary), Vadodara in M.A.C. Petition No.1687 of 1992, whereby the Tribunal has awarded a sum of Rs.2,51,763/- by way of compensation under various heads, with interest at the rate of 7.5% per annum together with costs, to the claimant from the date of filing of the claim petition till realization.
2. In the appeal preferred by the Corporation, the impugned judgement and award has been challenged on the ground that the Tribunal was not justified in holding the driver of the offending bus to be solely negligent in causing the accident as well as on the question of the quantum of compensation awarded by the Tribunal, whereas the appeal at the instance of the claimant challenges the impugned award on the ground that the compensation awarded is not sufficient. For the sake of convenience, the appellants are referred to as "the Corporation" and "the claimant" respectively.
3. The claimant filed a claim petition to the effect that on 22nd January, 1992, he was travelling as a passenger in S. T. Bus bearing registration No.GJ-1-Z-1049. He was driving from Race Course Circle to the Railway Station. The said bus Page 2 of 29 C/FA/2031/2008 JUDGMENT stopped near the Railway Station. The claimant alighted from the bus and as he had to cross the road, he was standing in front of the bus on the left side of the road. At that time, the driver of the S. T. bus suddenly started the bus without blowing the horn and took a turn as a result of which, the bus dashed with the claimant and he fell down on the road and the left wheel of the bus ran over his right leg. It was, accordingly, the case of the claimant that the accident had occurred on account of the rash and negligent driving on the part of the original opponent No.1 - driver. It was further the case of the claimant that he had sustained severe injuries on his right leg, degloving injury on the right foot up to the knee and compound fracture on the right foot. The claimant was admitted in the SSG Hospital, at Vadodara, where he was operated upon. As there was tremendous pain in the leg, he was shifted and admitted in Anjali Hospital, a private hospital, where his right leg was amputated below the knee. He took the treatment at the Anjali Hospital from 08.02.1992 to 14.03.1992. It was further the case of the claimant that on account of the injuries sustained by him during the course of the accident, he had suffered 100% disability on the right lower limb and due to the injuries on his right left knee, he was not able to walk without an artificial leg and had to spend Rs.3,000/- to Rs.4,000/- every three years to change the artificial leg. It was further the case of the claimant that at the time of accident, he was working with one Tushar Enterprises as a Fitter and was earning Rs.5,000/- per month and was getting overtime and other benefits. On account of the injuries, he had to undergo severe pain, shock and suffering and had to spend huge a amount towards medicines, treatment, special diet etc. Accordingly, the claimant claimed Rs.6,00,000/- by way of compensation Page 3 of 29 C/FA/2031/2008 JUDGMENT from the opponent (the appellant herein) on all counts.
4. The Tribunal, after considering the evidence led by the respective parties, came to the conclusion that the accident had occurred on account of negligence on the part of the driver and conductor of the bus. On the question of quantum, the Tribunal found that at the time of the accident, the claimant was earning Rs.1,500/- per month, whereas subsequently he was earning Rs.24,770/- per month. The Tribunal considered the gross income of the claimant at Rs.11,635/-, to which the income as on the date of the accident was added and after dividing the two, computed the future prospective income of the claimant at Rs.6,567/-. The disability of the claimant as assessed by the doctor was to the extent of 70%. Taking one- fourth of 70% disability, the Tribunal computed the future prospective monthly income of the claimant at Rs.1182/- (18% of Rs.6567/-) and the yearly future prospective loss at Rs.14,184/-. Having regard to the fact that the claimant was aged about 31 years, the Tribunal adopted a multiplier of 15 and accordingly, worked out the future economic loss at Rs.2,12,760/-. The Tribunal further awarded Rs.15,000/- under the head of pain, shock and suffering; Rs.9,000/- towards actual loss of income and Rs.15,000/- towards medicines, transportation etc. In all, total compensation of Rs.2,51,760/- together with costs and interest at the rate of 7.5% per annum came to be awarded in favour of the claimant. Being aggrieved, the Corporation is in appeal.
5. Ms. Falguni Patel, learned advocate for the appellant - Corporation submitted that the Tribunal has erred in coming to the conclusion that the accident had taken place on account of Page 4 of 29 C/FA/2031/2008 JUDGMENT negligence on the part of the driver and conductor of the offending bus without there being any evidence on record in support of such finding. The attention of the court was invited to the first information report which came to be lodged in connection with the accident in question, to point out that the said first information report had been lodged by the claimant wherein he has stated that he was working with Tushar Enterprises as a fitter and that he had gone from Race Course Circle to go towards Station at 06:00 O'clock and upon reaching the station, he tried to alight from the bus whereupon, the ticket checkers of the bus came and while he was looking at the checkers and was trying to alight, he thought that the bus was stationary, however, the bus was moving. Hence, while trying to alight, his right leg came in front of the front wheel on the left side of the bus and he sustained injuries on his leg. It was submitted that thus, according to the claimant himself, he had mistakenly tried to alight from the moving bus and in the process, had sustained injuries. In this factual scenario, the Tribunal was not justified in holding that the driver of the bus and the conductor were negligent and on account of their negligence, the accident had occurred. Under the circumstances, the claimant was guilty of contributory negligence and hence, the Corporation ought not to have saddled with the entire liability to pay compensation to the claimant. It was further pointed out that the driver and the conductor of the bus had both deposed in the proceeding before the Tribunal and had described the manner in which the accident had taken place and that in the absence of any evidence to the contrary, the evidence of the driver and the conductor ought not to have been discarded by the Tribunal. Reference was made to the decision of the Supreme Court in Page 5 of 29 C/FA/2031/2008 JUDGMENT the case of Oriental Insurance Co. Ltd. v. Premlata Shukla and others, JT 2007 (8) 575, wherein it was held that once a part of a document is relied upon by both the parties, the Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document having been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise. It was submitted that in the present case, it is the claimant who has placed reliance upon the first information report in question and as such, the contents thereof could not have been discarded by the Tribunal.
6. Reliance was also placed upon the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Rattani and others, (2009) 2 SCC 75, for the proposition that ordinarily an allegation made in the first information report would not be admissible in evidence per se, but where the allegation made in the first information report had been part of a claim petition, the Tribunal and consequently, the appellate courts would be entitled to look into the same. It was submitted that both the above decisions would be squarely applicable to the facts of the present case.
7. On the question of quantum of compensation, it was submitted that the Tribunal had erred in granting Rs.2,12,760/- towards future economic loss, inasmuch as, the record of the case reveals that the claimant had in fact not suffered any economic loss. It was, accordingly, urged that the appeal requires to be allowed by holding that there was contributory Page 6 of 29 C/FA/2031/2008 JUDGMENT negligence on the part of the claimant, as also by holding that the claimant is not entitled to any compensation towards future economic loss.
8. Opposing the appeal, Mr. Mohsin Hakim, learned advocate for the respondent - claimant in First Appeal No.2031 of 2008 and for the appellant in First Appeal No.2490 of 2008, supported the impugned judgement and award to the extent the same holds the driver and the conductor of the bus negligent for the accident in question. He, however, assailed the impugned award on the ground that the Tribunal has seriously erred in assessing the actual loss of income at Rs.9,000/- for six months only, whereas in fact, the claimant was not in a position to attend his work for a period of eighteen months and as such, the actual loss of income should have been considered at Rs.22,400/- for eighteen months. It was further submitted that the claimant's right leg had been amputated below the knee joint in consequence of the accident and hence, the Tribunal ought to have awarded at least Rs.1,50,000/- under the head of pain, shock and suffering. It was further submitted that the amount awarded towards medical expenses as well as conveyance was on the lower side and that the Tribunal also ought to have awarded Rs.27,000/- towards expenses of the attendant. The learned advocate has further invited the attention of the court to the deposition of the claimant, to submit that the claimant was required to incur recurring costs for replacement of the artificial leg and as such, some amount was also required to be awarded towards future medical expenses. Inviting attention to the deposition of the claimant, it was pointed out that the claimant had retracted the statement made in the first Page 7 of 29 C/FA/2031/2008 JUDGMENT information report at the first point of time before the police by stating that the first information report had not been lodged in a fit state of mind. It was submitted that thus, the contents of the first information report have rightly been ignored by the Tribunal. Referring to the deposition of the claimant, it was pointed out that the period during which he was required to be hospitalized has been clearly stated therein which reveals that for a long period of time, he was disabled from attending any work. It was submitted that the doctor had certified the permanent partial disability sustained by the claimant to be 70% of his right lower limb. The claimant on account of the disability was not in a position to carry on work as a fitter in the manner he was doing prior to the incident and as such would not be in a position to get proper employment after his retirement and as such, he is entitled to compensation towards future loss of income by adopting a multiplier of 5.
9. In support of his submissions, the learned counsel placed reliance upon a decision of this court in the case of (The) New India Insurance Co. v. (Shri) Ratilal Jivabhai Patel and others, 1996 (2) GLH 712, wherein it has been held that though there was no decrease in the earning capacity of the claimant on account of injuries sustained by him, the fact that the bodily integrity of the man who is the victim of the tort had been shattered, cannot be overlooked. The court, accordingly, awarded compensation towards future economic loss. Reliance was also placed upon the decision of a Division Bench of this court in the case of Dahyabhai Somchand Parmar v. Ramavtar B. Sharma and another, 2006 (4) GLR 2844, wherein the court has observed that though the claimant was working as a cashier and may be continued in service in the Page 8 of 29 C/FA/2031/2008 JUDGMENT State Bank of India for various reasons, he was not able to carry on his work as cashier because for the work of cashier, admittedly two hands are necessary. The court, accordingly, was of the view that the 80% disability assessed by the doctor was reasonable and fair. The court after considering monthly salary of the claimant and considering the disability at 80% and adopting a multiplier of 5, quantified the compensation accordingly. It was submitted that in the facts of the present case, a multiplier of 5 may be adopted by considering the disability at 70% as assessed by the doctor.
10. Reliance was placed upon the decision of this court in the case of State of Gujarat v. Somabhai Dhurabhai Sindhava and others, 1993 (2) GLR 1043, wherein the court had observed that the disability certified by the doctor has not actually resulted in economic loss and it is not likely to result in such a loss till retirement. It can of course be said that loss of earning capacity on account of physical disability would materialise after retirement when in normal physical conditions the claimant would be expected to do some private work on re-employment or some security job. Such a loss can be assessed for a period of about 5 years after retirement. Reliance was also placed upon the decision of the Supreme Court in the case of Lal Dei v. Himachal Road Transport, (2007) 8 SCC 319, for the proposition that while calculating the dependency, family pension cannot be deducted. It was submitted that by drawing an analogy, while calculating the future loss of income, the pension or other service benefits that may be received by an injured claimant ought not to be taken into consideration. Reliance was placed upon the decision of a Division Bench of this court in the case of (M/s) Page 9 of 29 C/FA/2031/2008 JUDGMENT Prakash Chemicals Pvt. Ltd. v. Krishnasingh Satasingh Kaaniyara and another, 1993 (1) GLH 149, and more particularly, paragraphs 16 to 19 thereof. The decision of a Division Bench of this Court in the case of Rameshbhai Ramnikbhai Vyas v. Ismail Ibrahim and Suleman Ibrahim and another, 2012 (2) GCD 1388 (Guj), was cited for the proposition that in some cases, there cannot be any loss of future earning on account of injury, still, the claimant may be awarded compensation on account of different factors.
11. On the question of contributory negligence, the learned counsel invited the attention of the court to the deposition of the claimant to submit that it was the case of the claimant that he had alighted from the bus and was standing in front of it for the purpose of crossing the road at which point of time, the bus started without sounding any horn and dashed against him and his right leg came under the wheel of the bus. It was pointed out that the claimant had also deposed that after he was taken to the SSG Hospital, the police had come to the hospital and had recorded his statement at which point of time, he was not fully conscious. It was further pointed out that he has categorically denied that in his complaint, he has stated that his leg had come under the bus while he was trying to alight from it. It was further contended that though the claimant has been cross-examined by the learned Advocate for the Insurance Company, the statements made in the examination-in-chief have not been dislodged. Referring to the findings recorded by the Tribunal, it was submitted that the Tribunal has appreciated the evidence on record in proper perspective while coming to the conclusion that the accident had occurred on account of the negligence on the part of the Page 10 of 29 C/FA/2031/2008 JUDGMENT driver and the conductor.
\
12. In support of his submissions, the learned counsel placed reliance upon the decision of the Rajasthan High Court in the case of Makbool Ahmed and others v. Bhura Lal and others, 1986 ACJ 219, for the proposition that when the bus stops on the road at stoppages, the duty of the conductor is to stand at the gate of the bus to see that the passengers who want to get down have got down and those who want to board it have boarded it. He should keep the bus stationary till every passenger has boarded the bus. It is only thereafter that he should give the signal to the driver to start the bus. If the conductor gives the signal when passengers are still on the footboard, he is guilty of dereliction of his duty, exhibiting rashness and negligence on his part. Reliance was also placed upon the decision of the Madras High Court in the case of Venkataswami Motor Service v. C. K. Chinnaswamy and others, 1989 ACJ 371, wherein a lady passenger was alighting from the front exit of the bus and her one foot was on the footboard and other on the road when the conductor blew the whistle and the driver moved the bus and the lady was knocked down and dragged along by the body of the bus and sustained fatal injuries. On behalf of the respondents, it was pleaded that there was no bus stop at the place of accident and she jumped from the running bus. The court held that the crew of the bus was negligent for the accident which occurred at a place where the bus had stopped and it was not a bus stop. Reliance was placed upon the decision of the Madras High Court in the case of Managing Director, Thanthai Periyar Transport Corporation Ltd. v. N. Hussain Mohindeen, 1993 ACJ 1259, wherein the claimant was getting Page 11 of 29 C/FA/2031/2008 JUDGMENT down with one foot in the bus and the other on the road, and the driver suddenly started the bus and claimant fell down and his right leg was run over by the bus. The defence was that the claimant got down from the front exit when the bus was moving slowly despite a warning not to do so. The court held that admission by the driver and conductor that there was a traffic obstruction falsified the plea that the bus was moving slowly. The court upheld the finding of the Tribunal that the accident was caused due to rash and negligent driving of the bus. Reliance was also placed upon the decision of the Supreme Court in the case of Pallavan Transport Corporation Ltd. v. M. Jagannathan, 2001 ACJ 5. It was, accordingly, submitted that even if the version given by the Corporation were to be accepted, even in that case, it would be the driver and the conductor of the bus who would be negligent and as such, the finding recorded by the Tribunal that the driver and conductor of the bus were negligent, does not warrant interference.
13. Mr. Hakim also relied upon the decision of the Supreme Court in the case of Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683, wherein the court had awarded a sum of Rs.2,00,000/- to the appellant therein for future treatment in a case where he was required to periodically get the artificial limb replaced. The court also awarded a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg. The court also awarded a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life. The decision of a Division Bench of this court in the case of Mahendrakumar Manilal Patel and another v. Ramjibhai Dalsibhai Chaudhary and others, 2006 (1) GLR 637, was Page 12 of 29 C/FA/2031/2008 JUDGMENT cited for the proposition that the compensation payable in case of disablement would be higher than in fatal cases. The court considering the seriousness of injuries resulting in amputation of one leg, long treatment, was of the view that the claimant must have undergone great pain, shock and suffering and would continue to suffer in future and therefore, the compensation under the head of pain, shock and suffering came to be increased to Rs.1,25,000/-. The court also observed that according to the doctor, the artificial leg was required to be replaced every two years and accordingly, was of the view that the claimant was entitled to expenses for replacement of the artificial leg after two years.
14. In the backdrop of the aforesaid facts and contentions, the following points arise for consideration:
(i) Whether there was any contributory negligence on the part of the claimant in respect of the accident in question?
(ii) Whether the Tribunal was justified in awarding compenstion of Rs.2,12,760/- towards future economic loss?
(iii) Whether the compensation awarded under the heads of pain, shock and suffering, actual loss of income, medicines and transportation is required to be enhanced?
15. On the question of contributory negligence, it would be germane to refer to the evidence on record as the same involves a pure question of fact. The claimant Maheshbhai Bhagvatlal Joshi has been examined at Exhibit 20. He has deposed that the accident had occurred on 22 nd January, 1992 Page 13 of 29 C/FA/2031/2008 JUDGMENT at six o'clock in the evening near the station. He was going in a city bus bearing No.GJ-1-Z-1049. The bus was coming from Race Course Circle and he had boarded the bus from Race Course to go to the station. At the railway station, the bus had halted and he had alighted. He was required to cross the road and hence, he was standing at a distance of 2 to 3 feet in front of the bus. At that time, the engine of the bus was on and the bus driver took a turn. When the driver started the bus and took a turn, he did not sound the horn and all of a sudden, started the bus. The bus dashed against him and he fell down and his front leg came under the front wheel of the conductor side of the bus. The S.T. authorities took him to the Sayaji Hospital. He has further deposed that the very same bus, from which he had alighted, had dashed against him. After he was taken to the SSG Hospital, the police had come. The S.T. authorities had brought the police to the hospital and they had questioned him. At that time, he was not fully conscious. He has stated that it is not true that in his complaint, he has stated that while getting down from the bus, his leg had come under the wheel. In his cross-examination by the learned Advocate for the Insurance Company, he has denied that the accident had taken place at the S. T. stand near the station. He has admitted that when the bus was passing near the railway station, the accident had taken place. He has stated that the contents of the first information report are false and that the complaint had been lodged by the S.T. authorities. He has denied that he has lodged the first information report and has stated that it was the S.T. authorities who have given the same. He has denied that there is no bus stand at the place where the accident had taken place as also the fact that he had tried to alight from the bus while it was moving. He has Page 14 of 29 C/FA/2031/2008 JUDGMENT admitted the fact that he had fallen in front of the left side of the wheel of the bus.
16. A perusal of the first information report lodged in connection with the accident in question shows that the first informant is the claimant whose age and address have been stated therein. It is further stated therein that the complainant was working as a fitter with Tushar Enterprises and that he had started at six o'clock from Race Course Circle towards the station. On reaching the station, he was trying to alight from the bus at which point of time, the bus checkers had come and upon seeing them, while trying to alight from the bus, he felt that the bus was stationary, however, the bus was moving and upon his trying to alight, his right leg came under the left side wheel of the bus and he sustained injuries.
17. On behalf of the S. T. Corporation, the driver of the offending bus - Nanaksinh Nathusinh Chauhan has been examined at Exhibit-41. As per his deposition, while he was trying to park the bus on the side so as to enable passengers to alight, at that time, a person was trying to alight from the moving bus and he had tried to stop him, however, the said person had jumped from the bus. That the accident had taken place before he parked the bus. That the exit door was in the front of the bus, while the entry door was on the rear side. He has further deposed that the moment he saw the person trying to alight, he had immediately applied the brakes and stopped the bus. He has denied that after the person had gotten down and was walking, he had driven the bus at full speed and dashed against him. He has further denied that the bus had dashed against the claimant while he was trying to cross the Page 15 of 29 C/FA/2031/2008 JUDGMENT road after alighting from the bus. In his cross examination by the learned Advocate for the insurance company he has denied that the accident had taken place at a distance of 40 feet from the bus stand. He has denied that at the time of the incident there were checkers. He has stated that there were about seventy passengers in the bus and that the claimant was on the front side nears the steps. The claimant was standing near him beside the machine. There was a line of passengers behind the claimant. There were three four persons behind the claimant. The claimant was standing about one foot away from his seat. He has admitted that the accident had taken place when the bus was going at a slow speed. He has stated that he was not aware as to where the conductor was at the time of the accident. After the accident he had got down from the bus and had taken the claimant to the hospital. The S. T. Officer had come with him to the hospital. He has admitted that at the time of the accident, his bus had taken a turn and had halted. He, however, has denied the suggestion that the accident had taken place after the claimant had alighted from the bus.
18. The conductor of the offending bus - Chhatrasinh Dhulabhai Padhiyar has been examined at Exhibit-42. He has deposed that at the time of the accident, the driver Nanaksinh Nathusinh Chauhan was with him. That while the bus was moving, the passengers had started to get up. The S. T. stand was at a distance of about fifty feet and about four to five passengers were standing. Hence, he had told them that they should alight only after the bus halts, despite which one person had alighted from the front door while the bus was moving, hence, he had fallen down in front of the front wheel and the front wheel had dashed against him. He has further deposed Page 16 of 29 C/FA/2031/2008 JUDGMENT that the bus had a front and a rear door and there is an exit door in the front side of the bus on the driver's side. He has denied that the bus was going at full speed and had dashed against the claimant. He has denied that the accident had taken place on account of negligence on the part of the driver. In his cross-examination, he has stated that he was standing near the front door of the bus and that the claimant was inside the bus and was sitting on the front seat. He has denied that when the bus reached the bus stand, prior thereto, Maheshbhai (the claimant) had already gotten down.
19. Mr. Hakim, learned counsel for the claimant drew the attention of the court to the depositions of the conductor and driver of the bus, to point out certain discrepancies in the depositions of the said witnesses, to submit that while the driver has stated that the claimant was standing near him, the conductor has stated that he was sitting on the front seat. Other discrepancies in their depositions were pointed out to submit that the versions of the said witnesses cannot be believed.
20. At this juncture, reference may also be made to the medical case papers issued by the SSG Hospital, Vadodara (Exhibit-39) which reveal that the claimant had suffered from 4.1/2 CLW medial side of right foot and compound fracture with dislocation of right foot. Exhibit-31 is a certificate issued by Dr. Anand Merh, Orthopaedic Surgeon to the effect that the claimant has been operated at his clinic and his leg has been amputated. The disability certificate at Exhibit-30 shows that the claimant had suffered crush injury of right foot and was operated at the hospital of Dr. Merh and below knee Page 17 of 29 C/FA/2031/2008 JUDGMENT amputation was done. In his deposition also, the claimant has said that his right foot came under the wheel of the bus. Thus, the evidence on record shows that the only injuries sustained by the claimant are on his right leg.
21. As regards the manner in which the accident has taken place, there are two versions coming on record. One is the version of the claimant that he had alighted from the bus and was standing in front of it at a distance of about 2 to 3 feet as he wanted to cross the road, when all of a sudden the driver started the bus and took a turn without sounding the horn as a result whereof, the bus dashed against him and he fell down and his right leg came under the conductor side wheel of the bus. The other version put forth by the driver and conductor of the bus and emerging from the first information report is that the claimant alighted from the moving bus and fell, whereupon his leg came under the front wheel of the bus. Thus, what is required to be examined is as to which theory is more compatible with the evidence that has come on record.
22. As noticed earlier, the evidence on record shows that the claimant has sustained injuries only on the right foot. If the version given by the claimant to the effect that the bus had dashed against him and he had fallen down after which his leg had come under the wheel were true, he certainly would have sustained injuries on some other part of his body on account of the bus dashing against him, however, he does not appear to have sustained any injury except those on his right leg. Besides, the version as given by the claimant otherwise also does not inspire confidence, inasmuch as, a person after alighting from the bus would not go and stand in front of it, Page 18 of 29 C/FA/2031/2008 JUDGMENT more so when the engine is still on, as reflected from the deposition of the claimant. Thus, on an overall appreciation of the version given by the claimant in the context of the medical evidence, the same does not appear to be the correct one.
23. On the other hand, it is the case of the Corporation, which is also reflected in the first information report lodged at the first point of time that the claimant had tried to alight when the bus was in motion, due to which he fell and his leg came under the wheel of the bus. The Tribunal has not accepted this version for the reason that according to it, if the claimant had alighted from the moving bus, his leg could have come under the rear wheel but not under the front wheel. The reasoning adopted by the Tribunal does not appear to be correct as both the learned advocates for the parties have submitted that the front i.e. the exit door is situated opposite the driver's door and the front wheels are located slightly behind the door. Thus, if a person alights from the front door and falls, his leg could very well come under the front wheel. On a preponderance of probabilities, it therefore, appears that the claimant had alighted from the moving bus and had fallen and his right leg had come under the front wheel of the bus due to which, he sustained injuries on the right leg. It cannot be gainsaid that a passenger in a bus is also required to be cautious and not take unnecessary risks like trying to get off while the bus is in motion. Before the Tribunal, on behalf of the Corporation, reliance had been placed on a decision of the Madras High Court in the case of Managing Director, Metropolitan Transport Corporation Ltd. v. V. Balamurugan, 2005 ACJ 1239 wherein it was held thus:
"4. From the evidence and discussion of the Tribunal, it Page 19 of 29 C/FA/2031/2008 JUDGMENT is clear that the bus was stopped in a place, where there is no bus stop. We are not having any material to see for what purpose the bus was stopped in the said place. But in the said place, taking advantage of the stoppage of the bus, the petitioner tried to step down from the bus. It is not the case of the claimant that he informed the driver or conductor that he wanted to step down from the bus. Merely because some other persons got down from the bus, it cannot be said that he is having every right to get down from the bus on the basis that the bus was stopped in a place where there is no bus stop. Had information been given to the driver or conductor that he wants to get down, the driver could have moved the bus after the petitioner got down from the bus. The passengers are not expected to get down from the bus other than the bus stop. It cannot be expected that the driver and conductor knew about the claimant's action to step down from the bus. So the driver moved the bus, as he could not expect anybody to step down from the bus, which is not stopped at the bus stop. So it cannot be said that the negligence can be attributed only on the driver of the bus.
5. Learned counsel appearing for the respondent submitted that he relies on the judgment of this court in M. Jaganathan v. Pallavan Trans. Corpn. Ltd., 1999 ACJ 366 (Madras). In the said case, the bus was stopped at the place, where there is no bus stop but conductor himself asked the passenger, whose destination was next stop, to get down at the said place. Having said so, the bus was moved when the claimant was getting down from the bus and the Division Bench held that the negligence is only on the part of the driver. The said judgement of the Division Bench was confirmed by the Apex Court in Pallavan Trans. Corpn. Ltd. v. M. Jagannathan, 2001 ACJ 5 (SC). The Apex Court has taken into consideration the fact that the conductor told the passenger who were to go to Parrys Corner to get down here itself, where the bus was stopped, though there was no bus stop. Admittedly, in the said case, passengers got down and without even having a signal from the conductor, the driver started to move the bus. So the Supreme Court found that there is a lack of coordination between the conductor and the driver. The said judgement of the Division Bench which was confirmed by the Supreme Court cannot be made Page 20 of 29 C/FA/2031/2008 JUDGMENT applicable to the facts of the present case.
6. In the present case, as stated already, the bus was stationed at a place where there was no bus stop and no evidence is available to show that the driver or the conductor permitted the passenger to get down or the claimant has informed the conductor or driver that he was going to get down and in spite of that, the driver moved the bus. In view of the above said facts, the negligence has to be fixed on the claimant and the driver of the bus equally. There is no argument made with respect to the quantum. So, we are not interfering with the quantum fixed by the Tribunal.
7. In view of the above said discussion, the claimant is entitled to get the compensation only 50 per cent of the amount awarded by the Tribunal. The appellant is permitted to withdraw the balance amount."
24. In the present case, it is not even the case of the claimant that the bus had stopped other than at the bus stop or that other persons had gotten down. Clearly therefore, the claimant was negligent in getting down from the moving bus. At the same time, it may be germane to refer to the depositions of the bus driver as well as the conductor, both of whom say that they had cautioned the claimant not to get down from the moving bus. Thus, when both of them were aware that the claimant was trying to alight from the moving bus, they too had a duty to take care to see that no mishap occurs. The Tribunal has observed that the claimant had informed the driver and the conductor of his intention to get down, despite which the driver had moved the bus. The said finding of the Tribunal is not in consonance with the record of the case, inasmuch as, there is nothing on record to show that the claimant had declared his intention of getting off the moving bus. Besides, it is not as if the driver had set in motion a stationary bus. The bus was in motion at the time when the Page 21 of 29 C/FA/2031/2008 JUDGMENT claimant alighted from it, and hence, the Tribunal was not justified in holding the driver and conductor wholly liable for the accident. Therefore, instead of holding either the claimant or the driver and conductor to be totally liable for the accident, contributory negligence to the extent of 50% can be attributed to the claimant on the one hand and the driver and conductor on the other hand.
25. On behalf of the claimant, the learned counsel has placed reliance upon the decision of the Rajasthan High Court in the case of Makbool Ahmed and others v. Bhura Lal and others (supra), however, the said decision would not be applicable to the facts of the present case, inasmuch as, in the facts of the said case, the deceased placed his foot on the footboard of the stationary bus and the driver started the bus all of a sudden and the deceased fell down and was run over by the rear wheel. The decision of the Madras High Court in the case of Venkataswami Motor Service v. C. K. Chinnaswamy and others (supra) also does not carry the case of the claimant any further, inasmuch as, in the facts of the said case, a lady passenger was alighting from the front exit of the bus and her one of her feet was on the footboard and other on the road when the conductor blew the whistle and the driver moved the bus as a result whereof the lady was knocked down and dragged along by the body of the bus and sustained fatal injuries. The decision of the Madras High Court in the case of Managing Director, Thanthai Periyar Transport Corporation Ltd. v. N. Hussain Mohindeen (supra) also would not be applicable to the facts of the present case, because in the facts of the said case, the bus which could not enter the bus stand due to traffic obstruction, stopped Page 22 of 29 C/FA/2031/2008 JUDGMENT outside and passengers started getting down and when the claimant was getting down with one foot in the bus and the other on the road, the driver suddenly started the bus and claimant fell down and his right leg was run over by the bus. The decision of the Supreme Court in the case of Pallavan Transport Corporation Ltd. v. M. Jagannathan (supra) also does not support the case of the claimant, inasmuch as, in the facts of the said case, the bus had stopped at a place due to traffic jam and the conductor asked the passengers whose destination was the next stop to get down. Many passengers got down but when the claimant was getting down, driver moved the bus and the claimant fell down and wheel of the bus ran over his left leg. Thus, in all the above cases, it was not as if the claimant had tried to alight from a moving bus. In all those cases, the bus was stationary and the passengers were either alighting or climbing the bus and the driver suddenly started the bus.
26. The next question that arises for consideration is as to whether the Tribunal was justified in awarding Rs.2,12,760/- towards future economic loss. In this regard, the record of the case shows that at the relevant time when the accident took place, the claimant was working as a fitter with Tushar Enterprises on a monthly salary of Rs.1,720/-. The claimant has testified that after the accident, he had applied to the G.S.F.C. for a job under the Physically Handicapped category and was appointed in the year 1993. As per the appointment letter dated 17th November, 1995 (Exhibit-35), the claimant was appointed as an Assistant (Junior) in Grade V-A with effect from 18.09.1995. At the time of his appointment, his basic salary was Rs.1,300/- and Dearness Allowance of Rs.2,462/- was Page 23 of 29 C/FA/2031/2008 JUDGMENT admissible. The salary certificate for October, 2004 (Exhibit-36) shows that the gross monthly income was Rs.9,875=50. Evidently therefore, the claimant did not suffer any loss of income on account of the disability suffered by him. The Tribunal ought to have noted that at the time of the accident, the claimant was earning Rs.1,500/- per month and at the relevant time when the evidence came to be recorded, he was earning a gross salary of Rs.11,635/- per month. The Tribunal took the average of the said salaries for the purpose of computing the future prospective income as follows :
Rs.1,500 + Rs.11,635 = Rs.13,135/-. Dividing the said figure by 2, the Tribunal computed the monthly salary at Rs.6,567/-. The Tribunal thereafter took note of the fact that the doctor had assessed the permanent disability at 70% and considered the disability of the body as a whole at one-fourth thereof i.e. 17.5% and rounded it off to 18% and accordingly, computed the future prospective monthly loss of income at Rs.1,182/- and yearly Rs.14,184/-. Having regard to the fact that the age of the claimant was 31 years, the Tribunal adopted a multiplier of 15 and calculated the future loss of income at Rs.2,12,760/-. The aforesaid approach adopted by the Tribunal is not in consonance with the principles laid down for computing loss of future income. In the present case, the claimant did not suffer any loss of income as is apparent from the facts noted hereinabove. However, the learned advocate for the claimant has submitted that after retirement, in view of the disability suffered by him, he would not be able to earn as much as he would otherwise have earned had he not suffered from such disability. Therefore, in view of the above decisions of this court, the claimant should be awarded compensation Page 24 of 29 C/FA/2031/2008 JUDGMENT towards future loss of income by considering a multiplier of 5 on the basis of his income at the time of the accident by considering the disability at 70% as certified by the doctor. In the opinion of this court, the claimant has not brought any evidence on record to show that he suffers from functional disability to the extent of 70%. However, at the same time, the Tribunal was not justified in considering the disability of the body as a whole at one-fourth of 70% and ought to have considered the disability of the body as a whole to half of 70% at 35%. In the light of the decisions of this court in the case of State of Gujarat v. Somabhai Dhurabhai Sindhava and others (supra) and in the case of Dahyabhai Somchand Parmar v. Ramavtar B. Sharma and another (supra), the above submission of the learned advocate is required to be accepted and the future loss of income is required to be computed on the basis of the income of the claimant at the relevant time when the accident occurred by adopting a multiplier of 5 and considering the disability at 35%. Accordingly, the future loss of income can be worked out as follows:
Monthly income = Rs.1,500/-
Annual income = Rs.1500/- x 12 = Rs.18,000/-. Annual loss of income = Rs.18,000/- x 35% (disability) = Rs.6,300/-. Future loss of income = Rs.6,300/- x 5 (multiplier) = Rs.31,500/-.
27. As regards the other heads of income, the Tribunal has awarded a sum of Rs.15,000/- towards pain, shock and suffering. Having regard to the fact that the claimant's right leg was required to be amputated on account of the injuries sustained by him and he was required to take treatment for a Page 25 of 29 C/FA/2031/2008 JUDGMENT longer period, the compensation under this head is required to be increased to Rs.1,00,000/-.
28. The Tribunal has not awarded any compensation under the head loss of amenities. The learned advocate for the claimant has submitted that in the light of the injuries sustained by him, he was disabled from leading a normal life and as such, the Tribunal was not justified in not awarding any compensation under the said head. It was also submitted that the Tribunal ought to have awarded a sum of Rs.1,50,000/-
under the said head. In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Govind Yadav v. New India Insurance Co. Ltd. (supra), wherein the Supreme Court in a case where the appellant was a young man of 24 years and whose leg was amputated, held that it can only be a matter of imagination as to how the appellant will have to live for the rest of his life with one artificial leg. The court observed that the appellant could be expected to live for at least 50 years during which period, he would not be able to live like a normal human being and would not be able to enjoy life. The prospects of his marriage have considerably reduced. The court, accordingly, awarded a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life. In the facts of the present case, the claimant is 31 years of age. The marital status of the claimant has not come on record. In his deposition, there is nothing to indicate as to the nature of the difficulties faced by the claimant on account of the disability. However, it cannot be gainsaid that on account of his leg being amputated and his having to use an artificial leg, the claimant certainly would have to face a lot of difficulties and would not be able to lead a Page 26 of 29 C/FA/2031/2008 JUDGMENT totally normal life. However, in the facts of the present case, as noticed earlier, the claimant on account of the injuries sustained by him, had applied for a job in the Physically Handicapped category and as a consequence thereof, got a job with a much higher pay scale than what he was earning earlier. Under the circumstances, the Court is of the view that the ends of justice would be met if an amount of Rs.50,000/- is awarded under the head of loss of amenities.
29. In his deposition, the claimant has stated that one year after the accident, he had got an artificial leg fixed on his right leg. That the artificial leg is required to be changed every two years and the same costs Rs.2,500/- to Rs.3,000/-. Thus, the claimant has to incur a recurring expense for changing the artificial leg. Having regard to the age of the claimant and considering the fact that artificial leg has to be changed every two years, the claimant would be required to change the artificial leg at least about fifteen times. Considering the cost of an artificial leg at Rs.3,000/-, the claimant would be entitled to an amount of Rs.45,000/- towards future medical expenses.
30. The Tribunal has considered the actual loss of income at Rs.9,000/-. However, having regard to the facts of the case, it cannot be gainsaid that the claimant was not in a position to resume work for a period of at least one year. Therefore, the loss of income is required to be computed at Rs.1,500/- x 12 = Rs.18,000/-. The Tribunal has awarded a sum of Rs.15,000/- towards medical expenses and transportation on the basis of evidence which has come on record. The said amount is maintained. The total amount of compensation, accordingly, would work out as under :
Page 27 of 29 C/FA/2031/2008 JUDGMENT
Future loss of income Rs. 31,500/-
Pain, shock and suffering Rs. 1,00,000/-
Loss of amenities Rs. 50,000/-
Future medical expenses Rs. 45,000/-
Actual loss of income Rs. 18,000/-
Medical expenses and transportation Rs. 15,000/-
Total Rs. 2,59,500/-
31. Since 50% contributory negligence has been attributed to the claimant, the compensation would be required to be sliced down by 50% and therefore, the same would come to Rs.1,29,750/-, which can be rounded off to Rs.1,30,000/-. The Tribunal has awarded compensation of Rs.2,51,760/- to the claimant. The same shall stand reduced to Rs.1,30,000/-.
32. In the light of the above discussion, both the appeals partly succeed to the aforesaid extent. The claimant would be entitled to compensation of Rs.1,30,000/- with interest at the rate of 7.5% from the date of filing of the claim petition till realization thereof. The impugned award shall stand modified accordingly.
33. By an order dated 06.05.2008 passed in Civil Application No.4961 of 2008, this court while issuing rule had recorded the statement of Ms. Falguni Patel, learned advocate for the Corporation, that the amount due under the award shall be deposited with the Tribunal on or before 23.05.2008. The court had directed that the amount deposited with the court shall be transmitted to the Tribunal concerned. Subsequently, by an order dated 22.07.2008, this court had directed the Tribunal to Page 28 of 29 C/FA/2031/2008 JUDGMENT pay 30% thereof to the claimant by account payee cheque and the rest of the amount was ordered to be invested in a nationalized bank in the name of the claimant, initially for a period of five years, with cumulative interest with periodical renewal till the appeal is finally decided by this court. The said fixed deposit receipt though in the name of the claimant, was ordered to remain with the Nazir of the concerned Tribunal till the appeal was finally decided. It was also observed that the claimant would not be entitled to interest on the said fixed deposit receipt. In the aforesaid premises, the Tribunal shall disburse the compensation as determined by the present judgement to the claimant after giving set off the amount which has already been paid to the claimant and the remaining amount shall be forthwith returned to the Corporation with the interest accrued thereon.
(HARSHA DEVANI, J.) parmar* Page 29 of 29