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Chintaman Sadashiv Deshpande Vs. the Maharashtra State Road Transport Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in1(1985)ACC143
AppellantChintaman Sadashiv Deshpande
RespondentThe Maharashtra State Road Transport Corporation and ors.
Excerpt:
.....no. consequently the plaintiff has utterly failed to prove by any cogent and convincing evidence that his promotion is barred due to his left hand injury and he is disentitled to claim damages and loss due to alleged postponement of promotion......evidence that his promotion is barred due to his left hand injury and he is disentitled to claim damages and loss due to alleged postponement of promotion. i, therefore, hold that the trial court has rightly held accordingly on the basis of sound reasonings and the finding in the respect needs no interference at all.8. the learned counsel for the plaintiff shri s.r. deshpande then urged that the plaintiff has sufficiently proved his claim for rs. 6,500/- as expenses incurred for his lodging and boarding and other medical expenses, inclusive of further expenses that will have to be incurred. it is difficult to accept his contention. the claim itself is vague as no specific details on account of such item of expenses are given so as to make a total of rs. 6,500/-. it is the.....
Judgment:

G.A. Paunikar, J.

1. The appellant-original plaintiff filed a suit for recovery of Rs. 20,000/- as compensation and damages on account of accident. His case was that he was travelling from Yeotmal of Pusad by S.T. Bus MHD-484, owned by the respondent No. 1 the original defendant No. 1 on 6-6-1971. This Bus started from Yeotmal at about 12,30 P.M. and was nearing Pusad. A mile or so before Pusad it had to cross a truck on the road being Truck No. BYY-7637 owned by the respondent No. 3 original defendant No. 3. The S.T. Bus was being driven by respondent No. 2, the original defendant No. 2, who was then in employment of the defendant No. 1. The truck was being driven by the respondent No. 4, the original defendant No. 4. The plaintiff was sitting in the bus. While the S.T. Bus was bypassing the truck, the driver of the Bus was so rash and negligent that he drove the bus close to the truck with the result that the hook of the truck entered the left hand of the plaintiff which was completely inside the bus and came out causing several injuries including multiple fractures in the left hand of the plaintiff. His injuries were profusely bleeding and he became unconscious. He was taken to Yeotmal for medical aid and then to Medical College at Nagpur and at Nagpur he was treated by Dr. Marwha. Various operations had to be performed. Two steel plates had to be inserted in his left hand. A. bone had to be planted and his bone was taken from abdomen of the plaintiff. He stayed at Nagpur for treatment from 8-6-1971 to 21-11-1971 as an indoor patient in the hospital and spend for lodging and boarding including special diet. He had to keep attendants. He had to spend for operations performed and for medicines and was not recovered even on the date of filing of the suit on 7-6-1972. He is an employee in the State Bank getting salary of Rs. 725/- P.M. He submitted that due to rashness and gross negligence of the defendant No. 2 while in employment of the defendant No. 1 he had to suffer physically, mentally and financially and hence the defendants Nos. 1 and 2 are both liable for compensation and damages jointly and severally as detailed in Paras 5A and B of the plaint. He also claimed that the defendants 3 and 4 are also jointly and severally liable to make good the loss alongwith defendants 1 and 2 since the defendant No. 4 was also rash and negligent and did not take proper and reasonable care in giving clear passage to the Bus. He, therefore, filed this suit after serving with information about the accident to the Divisional Controller, State Transport, Amraoti and preferring claims about damages.

2. The defendants 1 and 2 filed their written statement and submitted that the accident was unforeseen and sudden. They admitted that the plaintiff suffered and sustained injuries in a collision between the truck and the S.T. Bus. They submitted that the accident took place due to rash and negligent driving of the truck by the defendant No. 4. The truck was facing towards Pusad and while it was being crossed over by the defendant No. 2 the truck driver i.e. defendant No. 4 without giving any signal or indication took the truck all of a sudden on the reverse. The S.T. driver in an attempt to avoid collision tried to cross over the truck by taking vehicle towards right with all that the extreme end of the bus came in contact with the rear portion of the truck as a result thereof the left hand of the plaintiff received injuries. They contended that the plaintiff had projected his hand from the window and as such is responsible due to his own contributory negligence. According to these defendants, the accident took place on account of the rash and negligent driving of the truck by defendant No. 4. They denied plaintiff's claim in toto and submitted that they are not responsible for the mishap.

3. The defendants 3 and 4 also admitted in their written statement the occurrence of accident. They also submitted that the plaintiff had projected his hand from the window. Their defence is that the S.T. Bus was arriving from Divre's side with a high speed. The conductor of the truck Shri Kamble was giving signal to the S.T. driver to stop the bus as the truck had already covered the tar road portion. The defendant No. 2 did not mind to reduce the speed. The defendant No. 2 and the S.T. Driver attempted to cross over the truck without leaving any distance between the truck and the bus. In that course, rear portion of the touch came into contact with left side portion of the bus and in consequence thereof the left band of the plaintiff sustained injuries. According to them it is due to negligence of the S.T. Driver and the contributory negligence of the plaintiff in projecting his hand from the window the accident has taken place. They denied the amount of compensation and the damages claimed by the plaintiff.

4. The learned trial Court framed the necessary issues from the pleadings of the parties. The plaintiff examined himself as PW 1, one Vasant Chintaman, his relative as PW 2, Dattatraya as PW 3 and Manik as PW 4. Defendants Nos. 1 and 2 examined Yadao as DW 1 and Abdul son of Rahaman as DW 2. Defendants 3 and 4 examined Iswarprasad as witness No. 1, one Wamanrao as witness No. 2, Vithal as witness No. 3, Jugalkishore as witness 4 and Syed Karim as witness No. 5. Plaintiff also examined Dr. Marwha on commission.

5. The learned trial Court after appreciating the evidence, held that (1) plaintiff proved that he sustained injuries to his left hand due to rash and negligent driving of the S T. Bus by defendant No. 2, (2) that the plaintiff did not sustain injuries also by rash and negligent driving of the truck by defendant (No. 4, 3) that the plaintiff did not sustain injuries due to his contributory negligence, (4) that there was no rash and negligent driving of the truck by defendant No. 4, (5) that the accident took place on account of rash and negligent driving of the S.T. Bus by defendant No. 2. He, therefore, held that defendants 1 and 2 are liable to pay the damages for injuries sustained by the plaintiff to the extent of Rs. 6,600/- only i e. Rs. 6,000/- as general damages for physical and mental strain, Rs. 200/- on account of rickshaw charges incurred by him and Rs. 400/- as travelling expenses from Pusad to Yeotmal and further to Nagpur. The learned Civil Judge vide his judgment and decree dated 7-6-1976 therefore decreed the claim of the plaitnig against the defendants 1 and 2 jointly and severally for Rs. 6,600/- alongwith proportionate costs, dismissing the rest of the plaintiff's claim as against the defendants 1 and 2 and entire claim against the defendants 3 and 4. The plaintiff has now come up in this appeal against the dismissal of his claims as aforesaid.

6. The learned Counsel for the appellant Shri S.R. Deshpande stated that he does not want to press the claim of the plaintiff against the respondents 3 and 4 and he is restricting his claims in this appeal as to the extent of compensation. There is, therefore, no dispute about the facts held established by the trial Court. He submitted that the trial Court should have granted the plaintiff compensation of Rs. 18,000/-. It may be noted that the initial claim before the trial Court was for Rs. 20,000/-. The claim in this appeal is for Rs. 11,400/-. Thus claim for Rs. 2,000/- is given up. 1 sought clarification for this discrepancy. The learned Counsel made a statement that as the plaintiff is reimbursed with some amount of medical treatment, he does not press for his claim for Rs. 2,500/- detailed in Para 5A of the plaint. The plaintiff is already awarded Rs. 6,000/- as general damages. Then only claim which will survive in this appeal is item No. (ii) and (iii) in para 5(A) of the plaint i.e. Rs. 6,500/- on account of alleged expenses incurred by the plaintiff for his lodging, boarding and other incidental expenses, inclusive of further expenses that will have to be incurred and Rs. 5,000/- as alleged damages and loss due to postponement of promotion. Towards this claim, the plaintiff has been awarded Rs. 600/- only as stated by me in para No. 4 above. Thus the only question that now survives for consideration in this appeal is whether the plaintiff is entitled to Rs. 10,900/-more on account of the said claims.

7. The learned Counsel for the appellant urged that had there been no accident, he would have been promoted as an officer Grade I drawing basic pay of Rs. 1,350/- as against the salary drawn by him as Head Clerk of Rs. 700/- at the time of accident and hence the plaintiff has suffered a loss of Rs. 500/- p.m. due to with holding of promotion. He heavily relied on certificate Exhibit 9A marked before the Commissioner. It is seen that the State Bank of India issued him a letter that the Head Office has decided not to consider has case for appointment as an official in charge for the present; however he was given liberty to produce fitness certificate to reconsider his case. The certificate by a Medical Officer below this letter reveals that the plaintiff should have no difficulty in his working at any level in his line. In view of this certificate it cannot be said that the promotion of the plaintiff is barred on medical grounds. There is no evidence to prove that his promotion is withheld on medical grounds. The evidence on record reveals that the plaintiff is not a graduate but a matriculate. Requisite examinations required to be passed are also not passed by him. Consequently the plaintiff has utterly failed to prove by any cogent and convincing evidence that his promotion is barred due to his left hand injury and he is disentitled to claim damages and loss due to alleged postponement of promotion. I, therefore, hold that the trial Court has rightly held accordingly on the basis of sound reasonings and the finding in the respect needs no interference at all.

8. The learned Counsel for the plaintiff Shri S.R. Deshpande then urged that the plaintiff has sufficiently proved his claim for Rs. 6,500/- as expenses incurred for his lodging and boarding and other medical expenses, inclusive of further expenses that will have to be incurred. It is difficult to accept his contention. The claim itself is vague as no specific details on account of such item of expenses are given so as to make a total of Rs. 6,500/-. It is the established principle of law that the evidence in the absence of pleadings cannot be accepted. It is only at the stage of evidence the plaintiff to the utter surprise of the defendants stated that he used to pay Rs. 500/- to his relative Shri Harkare and his stay with him was for 5 months. There is neither any documentary evidence that he did pay Rs. 500/- p.m. to Shri Harkare nor Mr. Harkare is examined to support him. There is no documentary evidence to prove incidental expenses. Still he has been awarded Rs. 400/- and he should in fact rest content with this amount. It is not known nor can it be ascertained as to how much amount is included in Rs. 6,500/- on account of further expenses that will have to be incurred. It cannot be forgotten that this is a suit for damages. The plaintiff has to specifically plead the nature and extent of damages. The adversary cannot be taken by surprise at the stage of evidence. In this case, the pleadings so far as this claim of Rs. 6,500/- is concerned are too vague and general and further there is no proof for the same. Consequently, I hold that the trial Court is justified in rejecting this claim except of Rs. 600/- which is unchallenged by the defendants as no cross-objection is preferred by them.

9. In view of the discussions above, this appeal is without substance and dismissed. However, in view of the facts and circumstances of this case, I order that the parties shall bear their own costs of this appeal.


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