{"id":54280,"date":"2008-08-21T00:00:00","date_gmt":"2008-08-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-jawaharlal-mannalal-bagadiya-vs-maharashtra-state-road-transport-on-21-august-2008"},"modified":"2017-08-27T07:06:01","modified_gmt":"2017-08-27T01:36:01","slug":"dr-jawaharlal-mannalal-bagadiya-vs-maharashtra-state-road-transport-on-21-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-jawaharlal-mannalal-bagadiya-vs-maharashtra-state-road-transport-on-21-august-2008","title":{"rendered":"Dr. Jawaharlal Mannalal Bagadiya vs Maharashtra State Road Transport … on 21 August, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dr. Jawaharlal Mannalal Bagadiya vs Maharashtra State Road Transport … on 21 August, 2008<\/div>\n
Bench: S.R. Dongaonkar<\/div>\n
                                   1\n\n     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n               NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                                      \n                  FIRST APPEAL NO. 188\/1993\n\n\n\n\n                                              \n    Dr. Jawaharlal Mannalal Bagadiya,\n    aged about 40 years,\n    Medical Practitioner,\n    Resident of Ratanlal Plots,\n\n\n\n\n                                             \n    Akola, Tq. & Distt. Akola,             APPELLANT\n\n                    ...versus...\n\n\n\n\n                                      \n    1) Maharashtra State Road Transport Corporation,\n    through Divisional Controller,\n                       \n    Amravati,\n                      \n    2) Rahamatullakhan Ibrahimkhan,\n    aged about 52 years, near Vitthal\n    Tekdi, Amravati, Tq. & Distt.\n      \n\n    Amravati.                             RESPONDENTS\n   \n\n\n\n      ======================================\n<\/pre>\n
     Shri B.N.Mohta, Adv. for the appellant.\n<\/p>\n
     Shri V.G.Wankhede, Adv. Respondents
\n     =================================<\/p>\n
      CORAM : S.R.DONGAONKAR, J
\n      JUDGMENT RESEVED ON : 12\/08\/2008
\n      JUDGEMENT PRONOUNCED ON : 21\/08\/2008<\/p>\n
       1\/-       The appellant has preferred this appeal under<\/p>\n
       Section 173 of the Motor Vehicle Act, 1988 (in short M.V.Act)<\/p>\n
       to challenge the judgment and the award of Member, Motor<\/p>\n
       Accident Claims Tribunal, Akola, in M.C.A.P. No. 80\/90, dated<\/p>\n
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\n                                  2<\/span><\/p>\n
    12.1.1993.\n<\/p>\n
    2\/-       The appellant\/original petitioner had preferred a<\/p>\n
    claim under Section 166 of the M.V.Act, for compensation<\/p>\n
    against the respondents; Respondent no.1 being the owner of<\/p>\n
    the vehicle allegedly involved in the accident bearing Bus No.<\/p>\n
    MH-31-8080 and respondent no. 2, the driver of the said bus.\n<\/p>\n
    It was the claim of the petitioner that he is a physiotherapist,<\/p>\n
    practicing in revenue colony of Akola. On 10.1.1990 at about<\/p>\n
    5 p.m. he was proceeding to visit one patient.                He was<\/p>\n
    proceeding on his scooter i.e. Vijay Super Scooter bearing No.<\/p>\n
    MTR-7593. He started from Revenue Colony, travelled upto<\/p>\n
    main road of Akola, which runs South-North from Ashok Vatika<\/p>\n
    towards Railway Station.    There is a road divider having a<\/p>\n
    platform of width of 3-4 feet.    It is in between two roads,<\/p>\n
    which are in a way, “one ways”. The western side road is for<\/p>\n
    the vehicles coming from Ashok Vatika towards railway station<\/p>\n
    and Eastern side is for vehicles coming from Railway Station<\/p>\n
    side towards Ashok Vatika, on which S.T. Bus Stand is situated.\n<\/p>\n
    When the petitioner\/appellant crossed the Eastern side road,<\/p>\n
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\n                                   3<\/span><\/p>\n
    he waited at the side of road divider to get clearance from the<\/p>\n
    vehicles coming from Ashok Vatika side and proceeding<\/p>\n
    towards Railway Station including the Bus Stand.           According<\/p>\n
    to him, his scooter was standing. At that very moment, one<\/p>\n
    S.T. Bus allegedly driven by Respondent no.2 came from Ashok<\/p>\n
    Vatika side, which was proceeding towards Railway Station<\/p>\n
    side for Bus Stand. When the petitioner was waiting, as stated<\/p>\n
    above, for getting clearance for his way, the said bus went<\/p>\n
    upto middle portion of its body ahead, however, the bus driver<\/p>\n
    Respondent no. 2 slightly swerved it towards left side, so right<\/p>\n
    side of hind portion of the bus brushed to the scooter of the<\/p>\n
    petitioner. As a result of this, he fell down and sustained<\/p>\n
    injuries to his right leg.   Bus, however, did not stop, went<\/p>\n
    ahead and entered the S.T. stand which was at a distance of<\/p>\n
    about 150 ft. from the spot of accident. It is alleged that one<\/p>\n
    person went ahead and informed the bus driver and controller<\/p>\n
    of the bus-stand regarding the accident. At that time petitioner<\/p>\n
    was shifted to the hospital of one Dr. Rathi, who is orthopedic<\/p>\n
    surgeon. The petitioner sent complaint to City Kotwali Police<\/p>\n
    Station, Akola. It is alleged that the police made inquiry and<\/p>\n
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\n                                  4<\/span><\/p>\n
    registered the offence vide Crime No. 22\/1990 against<\/p>\n
    respondent no.2 and later on he was prosecuted. Thus, it is<\/p>\n
    alleged that because of the negligence of respondent no. 2 in<\/p>\n
    driving the said bus,   petitioner had suffered accident and<\/p>\n
    consequent injuries to his right leg. It is further alleged that<\/p>\n
    the petitioner was bed ridden due to plaster put up on his leg,<\/p>\n
    for about 5 months. He was unable to carry his usual practice<\/p>\n
    of Physiotherapist for about 8-9 months.\n<\/p>\n
                     ig                                      He suffered<\/p>\n
    permanent disability of 10% because of mal-fracture. He thus<\/p>\n
    claimed compensation of Rs. 1,20,000\/- for which the details<\/p>\n
    are mentioned in the claim petition. It may be stated that he<\/p>\n
    has given up the claim of Rs. 2,700\/- to round up the figure of<\/p>\n
    compensation.\n<\/p>\n
    3\/-       The respondents        resisted the     claim with the<\/p>\n
    contention that there was no impact between bus & scooter of<\/p>\n
    the petitioner. According to them, the petitioner had rushed to<\/p>\n
    the road from the side lane and he came on the main road and<\/p>\n
    in order to take right turn on the Western side of the road i.e.<\/p>\n
    proceeding from Ashok Vatika towards the Station Road, his<\/p>\n
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\n                                   5<\/span><\/p>\n
    Scooter slipped near the road divider and he fell down and he<\/p>\n
    sustained the injury. Thus, it is alleged that the petitioner was<\/p>\n
    himself negligent and in fact the S.T. Bus was not at all<\/p>\n
    involved in the accident.         The claim as preferred by the<\/p>\n
    petitioner was also denied.\n<\/p>\n
    4\/-       The learned Member, M.A.C.T. found that the<\/p>\n
    situation of the spot and the position of the petitioner at the<\/p>\n
    time of relevant accident, are such that the only inference that<\/p>\n
    can be drawn is that the petitioner himself was negligent. He<\/p>\n
    considered the evidence led by the parties and found that the<\/p>\n
    petitioner should blame himself for the said accident.                 It is<\/p>\n
    further his finding that the petitioner was granted no fault<\/p>\n
    liability amount of Rs. 12,000\/- together with interest. He also<\/p>\n
    held that if so advised, respondent no.1 may take appropriate<\/p>\n
    action if permitted by law to recover that amount from the<\/p>\n
    petitioner. Needless to say that the claim petition was<\/p>\n
    dismissed with costs to the respondents.\n<\/p>\n
     5\/-       Learned counsel for the appellant while challenging<\/p>\n
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\n                                   6<\/span><\/p>\n
     this award, submitted that the petitioner has examined one<\/p>\n
     eye witness to the incident namely Ajaykumar Tapadiya, who<\/p>\n
     had seen the accident and had supported the claimant.                  He<\/p>\n
     also submitted that the claimant’s evidence shows that the bus<\/p>\n
     was negligently swerved on the left side and therefore, its<\/p>\n
     right backside portion had hit the petitioner whereby this<\/p>\n
     accident had occurred and the petitioner suffered injuries.\n<\/p>\n
     According to him, the evidence led by the respondent i.e. of<\/p>\n
     Respondent no.2 – driver – Rahemtullakhan and one shoe<\/p>\n
     shiner, who was doing his business in the precinct of the bus<\/p>\n
     stand who had allegedly seen the bus coming, saying that the<\/p>\n
     petitioner had himself lost control and scooter fell on his right<\/p>\n
     leg,   so he had suffered injuries, is totally untrustworthy.\n<\/p>\n
     He,    therefore,   submitted that the evidence led by the<\/p>\n
     petitioner is quite reliable and therefore, the involvement of<\/p>\n
     the bus in the accident is clearly established.              It is his<\/p>\n
     submission further that respondent no. 2 was prosecuted for<\/p>\n
     the aforesaid accident for negligent driving and the result of<\/p>\n
     his prosecution is not known and therefore, it has to be held<\/p>\n
     that respondent no.2 was negligent in driving his bus and<\/p>\n
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\n                                    7<\/span><\/p>\n
     therefore this accident had occurred and as such the liability as<\/p>\n
     claimed by the petitioner needs to be cast upon the<\/p>\n
     respondents. He supported the quantum of the compensation<\/p>\n
     as claimed in the petition. In the alternative, his submission is<\/p>\n
     that the appellant\/ petitioner should be allowed to convert his<\/p>\n
     petition under Section 163-A of the M.V.Act and as per<\/p>\n
     structured formula,       he should be granted compensation,<\/p>\n
     inasmuch as the involvement of the vehicle (bus) is apparent.\n<\/p>\n
     As such, according to him, this appeal should be allowed and<\/p>\n
     proper compensation should be granted. He pressed into<\/p>\n
     service the decision of the Apex Court in (2001) 2 SCC 9;\n<\/p>\n
     Kaushnuma Begum and others vs. New India Assurance<\/p>\n
     Co. Ltd. and others<\/a>, for this submission.\n<\/p>\n
     6\/-       Per   contra,      Shri   Wankhede,       Advocate,          for<\/p>\n
     respondents, submitted that the bus station chowk through<\/p>\n
     which the bus was to take immediate right turn to reach bus<\/p>\n
     station was not far away. There was considerable traffic on<\/p>\n
     the road as it was just evening time, so the bus was driven in a<\/p>\n
     very slow manner. As admitted by the claimant’s witness, the<\/p>\n
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\n                                  8<\/span><\/p>\n
     bus was proceeding from a distance of about 4 ft., from the<\/p>\n
     divider. The scooter of the petitioner was at about 2 ft. from<\/p>\n
     the divider on the road and as such he did not take proper<\/p>\n
     precaution to stay away from the main road on which there<\/p>\n
     was heavy traffic just by the side of the divider and as such he<\/p>\n
     was grossly negligent. According to him, the driver of the bus<\/p>\n
     was driving the bus with due care. The scooter had if at all<\/p>\n
     suffered dash, had suffered it on the back right side of the<\/p>\n
     same, for which the driver cannot be said to be negligent.\n<\/p>\n
     According to him, the petitioner is not entitled even for no<\/p>\n
     fault liability claim as observed by the learned Member,<\/p>\n
     M.A.C.T.     According to him further,           simply because<\/p>\n
     respondent no.2 was prosecuted, it does not lead to the<\/p>\n
     finding of guilt of rash or negligent driving by respondent<\/p>\n
     no.2. In fact, no panchnama of the bus was prepared and<\/p>\n
     therefore, it cannot be held that the said bus had dashed the<\/p>\n
     scooter of the petitioner. It is his contention further that the<\/p>\n
     petitioner cannot be allowed to convert the petition under<\/p>\n
     Section 163-A of the M.V.Act when complete trial is over.\n<\/p>\n
     Therefore, according to him, the appeal should be dismissed.\n<\/p>\n
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\n                                   9<\/span><\/p>\n
     7\/-       In order to consider the rival contentions of the<\/p>\n
     parties, it is necessary to see the reasons recorded by the<\/p>\n
     learned Member,        M.A.C.T. for coming to the relevant<\/p>\n
     findings. He has found that the roads i.e. on the Western side<\/p>\n
     and Eastern side which are apparently one-way roads are of<\/p>\n
     sufficient width. He also noticed that the width of the divider<\/p>\n
     was about 3-4 ft.ig  He has further noticed that Eastern side of<\/p>\n
     the main road,      the lane coming from Revenue Colony by<\/p>\n
     which the petitioner was coming, there is a petrol pump and<\/p>\n
     on the Northern side of this lane, there is Akola S.T. Bus stand,<\/p>\n
     meaning thereby the Akola S.T. Bus Stand was on the right<\/p>\n
     side & nor far away from the spot of accident. This would<\/p>\n
     mean that the bus may not be very fast at the relevant time.\n<\/p>\n
     8\/-       Learned Member has also found that the evidence of<\/p>\n
     the alleged eye witnesses Ajaykumar Tapadiya and the<\/p>\n
     petitioner is not sufficient to show that the bus was negligently<\/p>\n
     swerved on the left side to brush it on the right side to the<\/p>\n
     petitioner from back side.       He has also found that simply<\/p>\n
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\n                                  10<\/span><\/p>\n
     because the police has taken action and respondent no. 2 is<\/p>\n
     prosecuted, no inference about rashness or negligence can be<\/p>\n
     drawn. It is his observation that when the bus had gone ahead<\/p>\n
     of the scooter and the scooter had dashed on the back side of<\/p>\n
     the bus, the driver cannot be expected to take care as to what<\/p>\n
     is happening behind his bus. He has to look forward.                The<\/p>\n
     same cannot be said to be incorrect. He has also noticed that<\/p>\n
     petitioner’s witness Ajaykumar Tapadiya has admitted that the<\/p>\n
     main road was straight (by which the bus was proceeding) and<\/p>\n
     there was no curve on the right side and as such the bus was<\/p>\n
     going in the straight line. Considering the fact that it was a<\/p>\n
     time of busy traffic, vehicles must be on either side of the bus<\/p>\n
     and therefore, the bus is expected to be driven in a straight<\/p>\n
     line at that very spot. The learned Member has found that the<\/p>\n
     bus must be going in the very slow speed inasmuch as there<\/p>\n
     was a square ahead and the bus was to take right turn for<\/p>\n
     reaching bus stand at that very square. This would show that<\/p>\n
     the bus must be driven very slow. The petitioner admittedly<\/p>\n
     was about 2 feet ahead from the divider side on the road and<\/p>\n
     the bus was at about 4 ft from the said divider. In such<\/p>\n
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\n                                  11<\/span><\/p>\n
     circumstances it is difficult to say that due to swerving of the<\/p>\n
     bus on the left side, which is not possible because of the<\/p>\n
     possibility of the vehicles on the left side of the bus at that<\/p>\n
     time and the road was straight, bus must not have touched<\/p>\n
     the scooter of the petitioner can be said to be unfounded. The<\/p>\n
     learned Member has further pointed out as to how the<\/p>\n
     petitioner was negligent in driving his scooter. All these<\/p>\n
     observations cannot be said to be without any basis. Thus the<\/p>\n
     findings of the learned Member that the petitioner himself<\/p>\n
     was negligent in disregarding the traffic rules that the vehicles<\/p>\n
     on main road should get first preference to proceed and the<\/p>\n
     person coming from the lane (from the Revenue Colony<\/p>\n
     by-lane), to allow such vehicular traffic to proceed cannot be<\/p>\n
     said to be incorrect.\n<\/p>\n
     9\/-       Learned counsel for the appellant\/petitioner has<\/p>\n
     contended that the respondents’ witness i.e. Shoe Shiner<\/p>\n
     Hansraj cannot be said to be trustworthy, as he was sitting on<\/p>\n
     the foot-path near the exit gate of S.T. Bus stand and he could<\/p>\n
     not notice the said impact of the bus with the scooter.\n<\/p>\n
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\n                                   12<\/span><\/p>\n
     Assuming that his evidence cannot be believed, fact remains<\/p>\n
     that for that reason even the evidence of Ajaykumar Tapadiya<\/p>\n
     cannot be believed. It is necessary to bear in mind that he was<\/p>\n
     coming from his motor-cycle from Ashok Vatika side towards<\/p>\n
     Railway Station side. He has stated that he was coming from<\/p>\n
     Western half portion of the road and he arrived in front of<\/p>\n
     Rungta Petrol Pump. He has given the details as to how the<\/p>\n
     accident might have occurred, but one aspect that cannot be<\/p>\n
     missed is the fact that he was proceeding on motor-cycle and<\/p>\n
     therefore, he must be on the left side of the bus, as there was<\/p>\n
     only (approximately) 4 ft gap between the divider and the<\/p>\n
     bus. Because of the busy traffic, he could not be on the right<\/p>\n
     side of the bus.    Admittedly,    the accident had occurred,<\/p>\n
     according to the petitioner by dash to his scooter by the right<\/p>\n
     back portion of the bus. Therefore, unless this witness would<\/p>\n
     have been on the right side of the bus, he could not have<\/p>\n
     noticed the accident in full details and therefore, possibility of<\/p>\n
     his taking hasty action to go to bus-station and trying to book<\/p>\n
     the bus driver cannot be said to be improbable. It is pertinent<\/p>\n
     to note that in his evidence he has stated that he was the<\/p>\n
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\n                                  13<\/span><\/p>\n
     President of Akola Municipal Corporation.                  Therefore,<\/p>\n
     possibility of police taking action against respondent no. 2 in<\/p>\n
     haste to prevent uproar of the public in such cases of the<\/p>\n
     accident, cannot be overruled. In such circumstances, merely<\/p>\n
     because the result of the prosecution is not made known by<\/p>\n
     the respondents to the tribunal,     that fact by itself will not<\/p>\n
     lead to the conclusion that respondent no. 2 was negligent in<\/p>\n
     driving his bus. Therefore, the inference drawn by the learned<\/p>\n
     Member that respondent no.2 cannot be held to be negligent,<\/p>\n
     cannot be said to be perverse or unreasonable.\n<\/p>\n
     10\/-      It is further pertinent to note that in cross<\/p>\n
     examination, witness Arunkumar Tapadiya has stated that the<\/p>\n
     bus had slightly turned to the left side of the spot but he could<\/p>\n
     not give the angle. It is difficult to say that while taking bus<\/p>\n
     on the left side, back portion of the bus on the right side<\/p>\n
     would shift for about 2 ft., and therefore dash the scooter of<\/p>\n
     the petitioner. The possibility, because the petitioner was in<\/p>\n
     hurry, of the petitioner’s scooter by himself dashing the bus on<\/p>\n
     the rear portion on the right side, cannot be overruled. In any<\/p>\n
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\n                                       14<\/span><\/p>\n
     case,     in the above circumstances,             the inference of the<\/p>\n
     negligent driving by respondent no. 2 cannot be drawn. In<\/p>\n
     this view of the matter, therefore, the finding of the learned<\/p>\n
     Member that petitioner has failed to prove the negligence on<\/p>\n
     the part of respondent no.2 cannot be held to be assailable. I,<\/p>\n
     therefore, agree with the learned Member in this regard.<\/p>\n
\n\n\n\n\n                                         \n    11\/-            Turning to the aspect of the compensation,\n                           ig                                                      the\n\n<\/pre>\n
    learned Member in his impugned judgment has given the<\/p>\n
    reasons as to why he would say that in case the petitioner is<\/p>\n
    entitled for any compensation,             he would be entitled to<\/p>\n
    Rs. 26,609\/-. But for the aforesaid finding, this would be only<\/p>\n
    academic question, not warranted for the decision.                            This<\/p>\n
    inference also can not be said to be incorrect.\n<\/p>\n
    12\/-            Turning to the submissions of the learned counsel for<\/p>\n
    the petitioner that the petitioner should be allowed to convert<\/p>\n
    his petition under Section 163-A of the M.V.Act, suffice it to<\/p>\n
    say      that    once   the   claim    petition     has     been       decided;\n<\/p>\n
    unfavourable to the petitioner, in my opinion, he cannot be<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:42:46 :::<\/span>
\n                                    15<\/span><\/p>\n
    allowed to take a stand that his petition should be allowed to<\/p>\n
    be converted under Section 163-A of the M.V. Act.\n<\/p>\n
    13\/-       Learned counsel has relied on the decision of the<\/p>\n
    Apex Court in (2001) 2 SCC 9; Kaushnuma Begum and<\/p>\n
    others    vs.   New India Assurance Co. Ltd., and others<\/a>,<\/p>\n
    wherein it has been held in paras 12, 13, 15 & 16, thus-\n<\/p>\n
             “12. Even if there is no negligence on the part of the<\/p>\n
             driver or owner of the motor vehicle, but accident
\n             happens while the vehicle was in use, should not the
\n             owner be made liable for damages to the person who<\/p>\n
             suffered on account of such accident? This question
\n             depends upon how far the rule in Rylands vs.
\n             Fletcher can apply in motor accident cases. The said
\n             rule is summarised by Blackburn, J., thus:\n<\/p><\/blockquote>\n
                  “The true rule of law is that the person<\/p>\n
               who, for his own purposes, brings on his land,
\n               and collects and keeps there anything likely to
\n               do mischief if it escapes, must keep it in at his<\/p>\n
               peril, and, if he does not do so, he is prima
\n               facie answerable for all the damage which is
\n               the natural consequence of its escape. He can
\n               excuse himself by showing that the escape was
\n               owing to the plaintiff’s default, or, perhaps,<\/p>\n
               that the escape was the consequence of vis
\n               major, or the act of God; but, as nothing of
\n               this sort exists here, it is unnecessary to
\n               inquire what excuse would be sufficient.”\n<\/p><\/blockquote>\n
             13. The House of Lords considered it and upheld the
\n             ratio with the following dictum:\n<\/p><\/blockquote>\n
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\n                                16<\/span><\/p>\n
                       “We think that the true rule of law
\n           is that the person who, for his own purposes,
\n           brings on his land, and collects and keeps there<\/p>\n
           anything likely to do mischief if it escapes,
\n           must keep it in at his peril, and, if he does not<\/p>\n
           do so, he is prima facie answerable for all the
\n           damage which is the natural consequence of its
\n           escape. He can excuse himself by showing that
\n           the escape was owing to the plaintiff’s default,<\/p>\n
           or, perhaps, that the escape was the
\n           consequence of vis major, or the act of God;
\n           but, as nothing of this sort exists here, it is
\n           unnecessary to inquire what excuse would be<\/p>\n
           sufficient.\n<\/p><\/blockquote>\n
     14………….\n<\/p>\n
     15. The Rule in Rylands v. Fletcher has been referred<\/p>\n
     to by this Court in a number of decisions. While
\n     dealing with the liability of industries engaged in
\n     hazardous or dangerous activities P.N. Bhagwati, C.J.,
\n     speaking for the Constitution Bench in M.C. Mehta<\/p>\n
     vs. Union of India<\/a> expressed the view that there is no<\/p>\n
     necessity to bank on the rule in Rylands v. Fletcher.
\n     What the learned Judge observed is this: (SCC p. 420,
\n     para 31)<\/p>\n
              “We have to evolve new principles and lay
\n           down new norms which would adequately
\n           deal with the new problems which arise in a
\n           highly industrialised economy. We cannot
\n           allow our judicial thinking to be constricted by<\/p>\n
           reference to the law as it prevails in England
\n           or for the matter of that in any other foreign
\n           country. We no longer need the crutches of a
\n           foreign legal order.”\n<\/p>\n
     16.        It is pertinent to point out that the
\n     Constitution Bench did not disapprove the rule. On<\/p>\n
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\n                                   17<\/span><\/p>\n
           the contrary, learned Judges further said that “we are
\n           certainly prepared to receive light from whatever
\n           source it comes”. It means that the Constitution<\/p>\n
           Bench did not foreclose the application of the rule as
\n           a legal proposition.”\n<\/p>\n
    14\/-        It is true that the compensation was awarded in that<\/p>\n
    case considering the provisions of Section 163-A of the M.V.\n<\/p>\n
    Act.   However,     in this context, it is necessary to bear the<\/p>\n
    principles laid down by the Apex Court in I(2004) ACC 728<\/p>\n
    (SC)<\/p>\n
             Deepal Girishbhai Soni & ors.           vs. United India<\/p>\n
    Insurance Co. Ltd., Baroda,<\/a> wherein it has been held in para<\/p>\n
    64 thus–\n<\/p>\n
             “64. We, therefore, are of the opinion that Kodala<\/p>\n
             (supra), has correctly been decided. However, we do
\n             not agree with the findings in Kodala (supra) that if<\/p>\n
             a person invokes provisions of Section 163-A, the
\n             annual income of Rs. 40,000\/- per annual shall be
\n             treated as a cap. In our opinion, the proceeding<\/p>\n
             under Section 163-A being a social security
\n             provision, providing for a distinct scheme, only
\n             those whose annual income is upto Rs.40,000\/- can
\n             take the benefit thereof. All other claims are
\n             required to be determined in terms of Chapter XII of<\/p>\n
             the Act”.\n<\/p><\/blockquote>\n
    15\/-        Here is the case where petitioner has alleged his<\/p>\n
    income of Rs. 5000\/- per month.          Therefore, he would be<\/p>\n
    obviously disentitled for claiming compensation under section<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 13:42:46 :::<\/span>
\n                                  18<\/span><\/p>\n
    163-A of the M.V. Act. This is not a case where the respondents<\/p>\n
    are admitting about the involvement of their vehicle in the<\/p>\n
    accident. In fact, the Claims Tribunal has found otherwise. It<\/p>\n
    is further necessary to bear in mind that it is not a death claim.\n<\/p>\n
    The evidence of the victim of the alleged accident and one<\/p>\n
    alleged eye witness is available on record. The claimant has<\/p>\n
    tried to lead evidence to show the involvement of the bus in<\/p>\n
    the accident causing injury to the petitioner. That evidence has<\/p>\n
    been disbelieved or atleast found unacceptable by leading to<\/p>\n
    the inference of the guilt of the driver of the bus – respondent<\/p>\n
    no.2.     In such circumstances, and more so because the<\/p>\n
    petitioner has consciously filed the claim petition under section<\/p>\n
    166 of the M.V.Act, he cannot be allowed to convert the same<\/p>\n
    under Section 163-A of the M.V. Act, after disposal of his<\/p>\n
    petition on merits. No doubt, appeal is the continuation of the<\/p>\n
    proceedings, but then this after-thought plea of the petitioner<\/p>\n
    cannot be allowed to stand, for the obvious reasons & as stated<\/p>\n
    above.   In this view of the matter,     this contention of the<\/p>\n
    learned counsel for the appellant is far from acceptance.\n<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:42:46 :::<\/span>
\n                                    19<\/span><\/p>\n
    16\/-         It is informed that the respondents had not taken any<\/p>\n
    action to recover the amount of N.F.L. paid to the petitioner\/<\/p>\n
    appellant,     as such no further orders are necessary. The<\/p>\n
    submissions of the learned counsel for the appellant that in<\/p>\n
    view of the statutory enhancement of the N.F.L. quantum from<\/p>\n
    Rs. 12,000\/- to Rs. 25,000\/-, the appellant should be awarded<\/p>\n
    this much compensation,        also cannot be accepted for the<\/p>\n
    aforesaid reasons.  ig Though the evidence of the Orthopedic<\/p>\n
    Expert could have been available to him for proving the<\/p>\n
    medical expenses, the percentage of disability and his bed<\/p>\n
    riddenness, etc., the same is not led. All these circumstances<\/p>\n
    would speak against the case of the petitioner in appeal.                As<\/p>\n
    such the appeal will have to be dismissed.               The same is<\/p>\n
    dismissed. However, in the circumstances of the case, with no<\/p>\n
    order as to costs.\n<\/p>\n
                                                        JUDGE<\/p>\n
    Rvjalit<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 13:42:46 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dr. Jawaharlal Mannalal Bagadiya vs Maharashtra State Road Transport … on 21 August, 2008 Bench: S.R. Dongaonkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR FIRST APPEAL NO. 188\/1993 Dr. Jawaharlal Mannalal Bagadiya, aged about 40 years, Medical Practitioner, Resident of Ratanlal Plots, Akola, Tq. & Distt. Akola, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-54280","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDr. Jawaharlal Mannalal Bagadiya vs Maharashtra State Road Transport ... on 21 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-jawaharlal-mannalal-bagadiya-vs-maharashtra-state-road-transport-on-21-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Jawaharlal Mannalal Bagadiya vs Maharashtra State Road Transport ... on 21 August, 2008 - 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