FA-39-2008.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO.39 OF 2008

Mohan Laxman Chavan, ]

Aged about 54 years, Occupation : Service, ]

Residing at : B1/201, Bramhand Complex, ]

Phase III, C.H.S. Proposed Azad Nagar, ]

Thane – 400 608. ] ...Appellant

Versus

1.The Transport Manager, ]

Thane Municipal Transport, ]

Administrative Building, Wagle Estate, ]

Thane. ]

2.Maharashtra State Road Transport Corporation ]

Traffic Department, 1

st

Floor, Opp. Vandna ]

Talkies, Old Bombay Agra Road, Thane – ]

400 602. ]

3.The Director of Insurance, ]

Government of Maharashtra, Griha Nirman ]

Bhavan (MHADA), 264, Kala Nagar, ]

Bandra (East), Mumbai – 400 051. ] ...Respondents

=================================================== =

Mr.T.J.Mendon:- Advocate for Appellant.

Mr.Vedant Bende i/b. Mr.Mandar

Limaye:-

Advocate for Respondent No.1–

Thane Municipal Transport.

Ms.P.M.Bhansali a/w Mr.Arafat

Siddique:-

Advocates for Respondent No.2–

MSRTC.

Ms.Rashmi S. Tendulkar:- AGP for Respondent No.3–

Director of Insurance.

=================================================== =

Satish Sangar 1/15

SATISH

RAMCHANDRA

SANGAR

Digitally signed

by SATISH

RAMCHANDRA

SANGAR

Date:

2026.10.22

11:29:52

+0530

FA-39-2008.doc

CORAM :S. M. MODAK, J.

RESERVED ON : 7

th

OCTOBER 2026

PRONOUNCED ON : 22

nd

OCTOBER 2026

JUDGMENT :-

1.The only issue arisen in this Appeal is:-

“Whether the Motor Accident Claims Tribunal – Thane

(“Tribunal”) was correct in holding that it was not the driver

of TMC and MSRTC Bus who were negligent but it is the

Appellant/Claimant only who is responsible for the

accident”

.

2.The Tribunal as per his Award dated 8

th

December 2006 passed

in M.A.C.P. No.205 of 1999 has dismissed the Claim Petition and

hence, this Appeal at the instance of the Appellant.

3.I have heard learned Advocate Shri.Mendon for the Appellant,

learned Advocate Shri.Bende for Respondent No.1–Thane Municipal

Transport (“TMT”) and learned Advocate Ms.Bhansali for Respondent

No.2–MSRTC. The relevant facts in nutshell are as follows:-

Facts

(a) The Appellant on 4

th

August 1998 had gone to Thane Janata

Sahakari Bank, Ulhasnagar Branch for some work. He

finished his work at 6.00 p.m., and boarded a bus owned by

the Respondent No.1 – TMT at Gokul Nagar Bus Stand in

the vicinity of castle mills, Thane.

(b) There was crowd in the bus and he could not enter the bus.

He was compelled to stand on the footboard.

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(c) The conductor gave signal. The driver of TMT bus started

the bus and he overtook the standing bus belonging to

MSRTC–Respondent No.2. In that exercise, the TMT bus

grazed the MSRTC bus.

(d) As a result, the Appellant was thrown out of bus who was

standing at the footboard.

(e) Inspite of this incident, the conductor of TMT bus did not

give a signal to the driver, as a result, the driver took the bus

ahead.

4.This is long and short of the incident. The Appellant was first

taken to Civil Hospital at Thane and then shifted to Arogya Hospital.

He was admitted there for 12 days. The injuries sustained by him are as

follows:-

(a) Still plate in right wrist joint.

(b) Left wrist plaster was put in a plaster.

He met Dr.Sandeep Kelshikar and obtained disability certificate dated

28

th

January 2006. The disability ascertained by him is 30%.

5.He filed a Claim Petition under Section 166 of the Motor

Vehicles Act, 1988 (“M.V.Act”). He claimed compensation of

Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand) on all count.

The Claim Petition was filed against TMT–Respondent No.1, MSRTC

–Respondent No.2 and Respondent No.3–Director of Insurance. Even

though main allegation is against the TMC, they have chosen not to

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file a Written Statement. The MSRTC has denied allegation of

negligence against them. The Director of Insurance has pleaded about

absence of bus number.

6.On this background, the claimant examined himself and Vivek

Trambak Shelke being a representative of Bharti Bijali employer of the

claimant and Dr.Sandip Kelshikar who has issued the disability

certificate. As against this, the TMT has examined their Traffic

Controller–Yelkantha Patil. It is important to note that the TMT has

not filed the Written Statement though they examined a witness. It is

cardinal principle that evidence can be given only on the basis of

pleadings. There is no pleading, still the Tribunal allowed the TMT to

examine the witness. Its evidentiary value will be decided later on.

Whereas, MSRTC examined their Traffic Inspector Ales Salu Nigrel.

7.It is true that the witness Patil and Nigrel are not the witness

about manner of commission of the accident. So, the evidence only of

claimant is available. It is important to consider the findings by the

Tribunal. They are as follows:-

(a) The claimant has neither in his Petition nor in the evidence has

stated about the registration number of TMT bus nor S.T. bus.

The number which is appearing in the Police statement at

Exhibit–55 is 6616 belonging to TMT.

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(b) On the basis of evidence of Yelkantha Patil, Traffic Controller,

they are not having any bus having number 6616. He has

produced another list of TMT buses available at Wagale

Depot. Even Mr.Patil has also examined that none of their

buses have met with an accident on 4

th

August 1998.

(c) The Traffic Inspector Shri.Nigrel has also deposed that there

was no report about accident involving S.T. bus which was

driven.

(d) The Tribunal has believed the testimony of both these

witnesses and concluded that neither the bus of TMT nor

MSRTC was involved in the accident of 4

th

August 1998.

(e) However, the Tribunal has agreed with the submission of

learned Advocate for the claimant that public can identify

TMT bus or MSRTC bus only by visual inspection (paragraph

No.10).

(f) On the point of negligence, the Tribunal observed that the

claimant was standing in the bus at the footboard and he was

carrying his belongings in one hand. The Tribunal concluded

that the claimant was standing in their dangerous position.

(g) The Tribunal observed that the claimant ought not to have

boarded the bus as there was crowd. This observation is

erroneous because even though TMT bus was crowded, the

claimant has boarded the bus and he was not stopped by the

conductor. At least, there is no evidence.

(h) The Tribunal has blamed the claimant for not going inside the

bus immediately. The Tribunal has blamed the claimant for

keeping his hand projecting outside the bus.

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(i) On this background, the Tribunal has concluded that in fact it

was the claimant who was negligent.

(j) The Tribunal considered Police statement of the claimant and

he has not mentioned that due to the negligence on the part of

the driver of TMT bus or S.T. bus, he has sustained injuries.

The Tribunal has blamed the claimant.

8.I have read the Police statement at Exhibit–55. The claimant has

stated how the accident has taken place, how the TMT bus driver

overtook the MSRTC bus which was stationary and how he has fallen

down. Even though there is no mention about negligence, the Court

can infer on the basis of circumstance. The Claim Petition is not to be

decided only on the basis of Police papers. The Police papers is one of

the circumstances. But it has to be coupled with the oral evidence.

9.The Tribunal has rightly not held the driver of MSRTC bus

negligent because it was stationary bus. (paragraph No.13). Learned

Advocate Shri.Mendon has challenged this finding. He relied upon the

observations in case of Bimla Devi and Ors. V/s. Himachal Road

Transport Corpn. & Ors.

1

and the observations in case of Kalim Khan

and others V/s. Fimidabee and others

2

. It is on the point of use of

motor vehicle. I am not agreeable to the said submission. It is true,

1II (2009) ACC 444 (SC)

22018 ACJ 2025

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vehicle should not be moving. If there is vehicle which is capable of

moving it is sufficient. But, in this case, there is no evidence that

MSRTC bus was parked at wrong place and in wrong manner. I am

confirming the finding given by the Tribunal thereby exonerating the

MSRTC.

10.The Tribunal has observed that there was no dent on either of

the buses. It is true, both the witnesses for MSRTC and TMT have not

deposed about receipt of accidental report. It is correct but there may

be various reasons for not receiving the accidental report from the

concerned person. It may be due to absence of accident or it may also

be due to failure on the part of the concerned person to give report.

11.It is true, there is no evidence that the driver of either TMT or

MSRTC bus is prosecuted. Admittedly, the claimant has not adduced

any evidence. As said above, the criminal prosecution is not the sole

circumstance for deciding the negligence. The Tribunal has opined

that there were only fractures on both the hands of the claimants and if

the buses had grazed against each other, there could have been serious

injuries and it has not happened.

12.The Tribunal opined that the injuries caused to the claimant

were due to fall from the moving bus and it was due to his negligence.

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13.Mr.Bende has relied upon the following judgments:-

(a)Sithara N.S. & Ors. Etc. V/s. Sai Ram General Insurance

Company Limited

3

.

(b)Vanita & Ors. V/s. M/s Shriram Insurance Company Ltd.

and Anr.

4

(c)Mohammed Aynuddin Alias Miyam V/s. State of A.P.

5

They are on the point of how to deal with the cases wherein vehicle

registration number is not mentioned in the F.I.R.

14.In case of Vanita & Ors. (supra), the Supreme Court dismissed

the Appeal filed by the claimants against the judgment of the High

Court. In the said judgment, the High Court has allowed the Appeal of

the Insurance Company and dismissed the Claim Petition. It was on

account of involvement of the offending vehicle Tata Magic was not

proved. Ultimately, the ratio of the judgment is nothing but the facts,

its appreciation and the law. There was delay in lodging the F.I.R. for

26 days. The explanation offered for the delay was not accepted. The

First-Informant was not the eye–witness to the accident. The vehicle

number was not told to him by the deceased or by the persons who

brought the deceased to the hospital. The inquest panch has not

informed about vehicle number. Even one of the eye–witnesses has not

3Civil Appeal Nos.14718-14719 of 2025 : 12

th

December 2025 : Supreme Court of India

4Civil Appeal No.6794 of 2025 : 4

th

September 2025 : Supreme Court of India

5(2000) 7 Supreme Court Cases 72

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provided the vehicle number at any point of time. It is observed:-

“Merely stating the description of the vehicle as Tata Magic is

not sufficient”

.

15.In case of Mohammed Aynuddin Alias Miyam (supra), it was

criminal prosecution. The Supreme Court differentiated in between

the culpable negligence and other negligence. There was no evidence

that the driver suddenly moved the bus before the passenger could get

into it or without getting a signal from rear side.

16.In case of Bimla Devi relied upon by Mr.Mendon, it is held:-

“Strict proof of an accident caused by a particular bus in a

particular manner may not be possible to be done by the

claimants. The claimants were merely to establish their case on

the touchstone of preponderance of probability. The standard

of proof beyond reasonable doubt could not have been

applied”

.

17.The Supreme Court interpreted the meaning of use of vehicle in

case of Kalim Khan (supra). There was blasting machine kept on the

tractor for digging a well. Due to blasting, a stone flew and fell on the

head of the nearby person resulting into death. It was held that tractor

was used.

18.It is an admitted fact that the registration number of MSRTC bus

or TMT bus is not given. But whether it is always possible to see the

number and give it and inform about the same. The Tribunal has

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concluded that both the buses referred by the claimant were TMT and

MSRTC buses. This Court confirmed this finding. The claimant

boarded the bus and the accident happened immediately. He has fallen

down. There could not be any question for him to see and note the

registration number of any of the buses, because his priority is to save

him. There is no record that any bus of MSRTC and TMT has met

with an accident on the relevant date at the relevant spot. It may be for

several reasons. It is not required for the claimant to prove what was

the registration number of the bus. It is sufficient if he describes that it

is TMT bus or MSRTC bus. The observations made in the judgments

relied upon by learned Advocate Shri.Bende are not applicable as the

facts are different. There was occasion to see the registration number

and even though it was not before the Police. That is why there was

doubt about the involvement of particular bus. When registration

number was there and other evidence suffered from infirmities and

that is why there was doubt about involvement of the particular

vehicle. However, the Tribunal has concluded that the claimant

boarded TMT bus, it is sufficient. I already held that the MSRTC bus

driver cannot be fastened with liability.

19.It is true that the claimant stood on footboard of the bus, he has

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not entered inside. It is true, he was holding some article in his hand.

At the same time, it is true that there was crowd in the bus. It is also

true that the conductor has not asked the claimant

‘not to enter the

bus’

. It is possible that the claimant has not fallen down if he was not

standing on the the footboard. Certainly, he is responsible to certain

extent. At the same time, it is true that the driver of the TMT bus took

his bus in such a manner that it has grazed the stationary MSRTC bus.

The issue is why he grazed the bus with MSRTC bus. It may be due to

fast speed or not paying attention to the parking of MSRTC bus. There

is every reason to believe that driver of TMT bus has not taken

precaution while overtaking MSRTC bus. The claimant’s hand struck

S.T.Bus. He took ahead his bus without taking proper precaution. That

is the reason why the claimant has fallen down and sustained injuries.

20.The Tribunal has overlooked this aspect and has only focused on

the fault of the claimant. In fact, this is a case wherein there is fault of

claimant, so also, the driver of TMT bus. I consider the liability of

claimant to the extent of 25% and that of TMT bus driver to the extent

of 75%. Not mentioning the TMT bus or the MSRTC bus driver in

the Police statement will not non suit the claimant. The contents of

Police statement is one of the circumstance. But, if there is oral

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evidence thereby explaining the manner of accident, the Tribunal can

certainly consider it. That is how it is considered by this Court.

21.About disability there is evidence of Dr.Kelshikar. The accident

took place on 4

th

August 1998. Initially, the claimant was taken to Civil

Hospital and then to Arogya Hospital. Anyone from Arogya Hospital is

not examined. Dr.Kelshikar has only assessed the disability on 20

th

January 2006 after a gap of almost 8 years. He had also seen the

discharge certificate issued by Arogya Hospital. He has not examined

the claimant immediately after the accident. He has assessed the

disability to the extent of 30%. However, in his evidence, except

deposing that he has got pain and swelling, he has not said how it has

affected his functions. In fact, in the cross-examination, he has deposed

that he got promotion (paragraph No. 14). On the basis of certificate

issued by Arogya Hospital, he has deposed about the injuries sustained

by the claimant. They are as follows:-

(a) Compound comminuted fracture of right Humerus

and Colles fracture of left Radius.

(b) There was plate.

22.As held in Raj Kumar V/s. Ajay Kumar

6

,

“there may not be

any need to award any compensation under the head of ‘loss of

6 (2011) 1 SCC 343

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future earnings’ if the claimant continues in government service

though he may be awarded compensation on the head of ‘loss of

amenities’ as a consequence of loosing his hand”

. In this case, as

said above, there is no evidence how the physical disability has

affected his earning capacity and evidence suggests that he was

promoted. Hence, I am not inclined to grant him any

compensation on account of

‘loss of income’ due to disability.

Income

23.The claimant has examined Vivek Shelke. The claimant was

working as an Inspector. In the year 1998, his salary was Rs.11,123/-.

The claimant was not on duty on 5

th

August 1998 upto November–

1998. He was on sick–leave. It is true the salary certificate does not

denote deductions. At the time of evidence, the claimant is promoted

to Senior Inspector. The claimant was paid salary during sick–leave

period. There was no occasion for the Tribunal to comment upon the

income because the Petition was dismissed.

24.As per the certificate, salary without deduction was shown as

Rs.11,123.30/-. There has to be deduction towards the professional tax

and income tax. Those figures are not available. I consider it as

Rs.400/-. So, the salary available comes to Rs.10,723/-. This

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calculation has no meaning because I am not granting any

compensation on account of

‘loss of income’. Even though the

claimant received salary for three months of sickness, the liability as per

the M.V.Act is a statutory liability. It is independent of the salary for

sick leave. Because if the sick leave is granted, that sick leave period is

excluded from his total sick leave period and in future, he cannot seek

sick leave for that period.

25.The medical expenses claimed is Rs.23,196/-. It is true that 48

medical bills are produced. The total comes to Rs.16,716/-. The

amount of Arogya Hospital bills comes to Rs.16,480/-. These amounts

can be granted. Dr.Kelshikar has deposed that there will be expenditure

of Rs.15,000/- for removal of the plate and screw. It is also true that

some of the patients may not remove the implant fixed. I am granting

it. I quantify the compensation as below:-

Loss of income Rs.10,723/-X3 Months:- Rs.32,169/-

Future medical expenses:- Rs.15,000/-

Medical bills:- Rs.16,716/-

Arogya Hospital bills:- Rs.16,480/-

Pain and Suffering:- Rs.50,000/-

Attendance Charges:- Rs.10,000/-

Loss of Comfort and Amenities:- Rs.50,000/-

Conveyance Charges:- Rs.10,000/-

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Special diet:- Rs.10,000/-

Received amount:- Rs.00.00/-

Enhanced amount:-Rs.2,10,365/-

26.The apportionment of negligence is only for the purpose of

calculating the loss of income and it cannot be for the purpose of

expenses incurred and to be incurred. The Respondent No.1–The

Transport Manager, Thane Municipal Corporation is liable to pay the

compensation. The Respondent No.3–The Director of Insurance,

Government of Maharashtra being the Insurer of Respondent No.1 is

also liable to pay the compensation.

27.For the above reasons, the following order is passed:-

-: O R D E R :-

(a)The Appeal is allowed.

(b) The Respondent Nos.1 and 3 are directed to pay jointly and

severally Rs.2,10,365/- to the Appellant within a period of

12 weeks along with interest at the rate of 7.5% per annum

from the date of Petition till realization of the amount.

(c) From the above said amount, the amount granted, if any, for

no fault liability, be deducted.

(d) Additional Court fee be paid before the Tribunal.

28.In the light of the above observations, the Appeal is disposed of.

29.Pending Applications, if any, also stand disposed of.

[S. M. MODAK, J.]

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