Shri. Mohan Laxman Chavan vs 1. The Transport Manager Thane Municipal Transport And Ors.

CNR No : HCBM010145182007

FA-39-2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.39 OF 2008
Digitally signed
by SATISH
RAMCHANDRA
SANGAR
Date:
2026.10.22
11:29:52
+0530
SATISH
RAMCHANDRA
SANGAR
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 ]
st
Traffic Department, 1 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 Advocate for Respondent No.1–
Limaye:- Thane Municipal Transport.
Ms.P.M.Bhansali a/w Mr.Arafat Advocates for Respondent No.2–
Siddique:- MSRTC.
Ms.Rashmi S. Tendulkar:- AGP for Respondent No.3–
Director of Insurance.
====================================================
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CORAM : S. M. MODAK, J.
th
RESERVED ON : 7 OCTOBER 2026
nd
PRONOUNCED ON : 22 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” .
th
2. The Tribunal as per his Award dated 8 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
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(a) The Appellant on 4 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
th
28 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
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buses have met with an accident on 4 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
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MSRTC was involved in the accident of 4 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
1
Transport Corpn. & Ors. and the observations in case of Kalim Khan
2
and others V/s. Fimidabee and others . It is on the point of use of
motor vehicle. I am not agreeable to the said submission. It is true,
1
II (2009) ACC 444 (SC)
2
2018 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
3
Company Limited .
(b) Vanita & Ors. V/s. M/s Shriram Insurance Company Ltd.
4
and Anr .
5
(c) Mohammed Aynuddin Alias Miyam V/s. State of A.P.
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
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3
Civil Appeal Nos.14718-14719 of 2025 : 12 December 2025 : Supreme Court of India
th
4
Civil Appeal No.6794 of 2025 : 4 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
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took place on 4 August 1998. Initially, the claimant was taken to Civil
Hospital and then to Arogya Hospital. Anyone from Arogya Hospital is
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not examined. Dr.Kelshikar has only assessed the disability on 20
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.
6
22. As held in Raj Kumar V/s. Ajay Kumar , “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/-.
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The claimant was not on duty on 5 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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