Dhuliben v. Mahmadiya Amirmiya Malek — 1986 DIGILAW 112 (GUJ)

JUDGMENT : R.C. Mankad, J. This appeal by the original claimants is directed against the judgment and order dated January 27, 1978, passed by the Motor Accidents Claims Tribunal, Kaira at Nadiad (hereinafter referred to as the "Tribunal"), by which their claim petition claiming compensation for the death of deceased Lalbhai Mangalbhai (hereinafter referred to as the "deceased") who was killed in a vehicular accident at about 5.30 P.M. on March 6, 1977, has been rejected. 2. The case of the appellants is that respondent No. 1 original opponent No. 1 was driving bus No. GTH 4127 of the second respondent Gujarat State Road Transport Corporation from Ransol to Anand on March 6, 1977. When he was at a distance of about one furlong from Chikhodra at about 5.30 P.M. he knocked down the deceased by driving the bus rashly and negligently. The appellants contend that they are entitled to claim compensation or damages to the tune of Rs. 40,000/- from the respondents for the death of the deceased, who was earning Rs. 400/- per month at the time of his death. 3. The respondents resisted the claim made by the appellants, and their main contention was that the deceased was not killed on account of any rash or negligent driving on the part of respondent No. 1. Their version is that the day on which the accident occurred was a DHULETI day and the deceased along with some others, who were indulging in mischief on the road, blocked the road and stopped the bus which respondent No. 1 was driving. They smeared respondent No. 1 with dung, mud and colour. It is the case of the respondents that when respondent No. 1 reprimanded them, the whole crowed went behind the bus and respondent No. 1 then started the bus According to the respondents, respondent No. 1 did not know anything about the accident and therefore, they denied that the accident had occurred on account of rash and negligent driving on the part of respondent No. 1. The respondents also dispute the amount of compensation claimed by the appellants contending that the damages or compensation claimed is excessive. 4. The Tribunal, on appreciation of the evidence, came to the conclusion that the appellants had failed to prove that the accident occurred on account of rash and negligent driving of the bus on the part of respondent No. 1. 4. The Tribunal, on appreciation of the evidence, came to the conclusion that the appellants had failed to prove that the accident occurred on account of rash and negligent driving of the bus on the part of respondent No. 1. In the view it took, the question of determining compensation did not survive. Flowever, the Tribunal held that even if the appellants were entitled to claim compensation for the death of the deceased, such compensation would be Rs. 27,000/- for the loss of dependency benefit and Rs. 3000/- for the loss of expectation of life and thus in all Rs. 30,000/-. The Tribunal also proceeded to apportion the said amount amongst the appellants. However, since in its view the accident had not occurred on account of rash and negligent driving on the part of respondent No. 1, the claim application made by the appellants deserved to be dismissed. In the result, the Tribunal dismissed the claim application made by the appellants. Being aggrieved by the rejection of their application, the appellants have come up in appeal before us. 5. The Tribunal's finding that the accident did not occur on account of rash and negligent driving on the part of respondent No. 1 is unsustainable. Bhailalbhai Mangalbhai, brother of the deceased, who was an eyewitness to the accident, has deposed that on the day of the accident, they were celebrating DHULETI. S.T. bus came there and driver of the bus, namely, respondent No. 1 called the deceased and while the deceased was talking to the driver after climbing over his cabin, the bus suddenly started and the deceased fell down from the bus. Bhailalbhai has deposed that the deceased was crushed under the bus. As against this version of Bhailalbhai, version of respondent No. 1 who is examined on behalf of the respondents is that some persons including the deceased stopped the bus by blocking the road when he was one furlong away from Chikhodra. He requested the persons who were blocking the road to leave the road. The deceased climbed over his cabin and threw at him a bucket full of dung and colour. Then the children who were on the road moved away and he started the bus. He did not know what happened thereafter. He stopped the bus at Chikhodra bus stop, where about 30 passengers boarded the bus. The deceased climbed over his cabin and threw at him a bucket full of dung and colour. Then the children who were on the road moved away and he started the bus. He did not know what happened thereafter. He stopped the bus at Chikhodra bus stop, where about 30 passengers boarded the bus. According to him, till that time, he did not know about any mishap. Thereafter he went to Anand and informed police that when he was on the way to Anand miscreants who were drunk had blocked the road. Police informed him that they have already received a call from Chikhodra that one man was killed. According to him, he did not know the deceased nor had he called him after stopping the bus. 6. Of the aforesaid two different versions, we are inclined to accept the version of Bhailalbhai, brother of the deceased. We are not prepared to believe that respondent No. 1 would not know about the deceased being crushed under his bus. It appears that after causing the accident, respondent No. 1 drove away the bus and went to Anand to report the accident to police. If respondent No. 1 did not know the deceased, we fail to understand as to how has he able to state that it was the deceased, who climbed over the cabin and threw bucket full of dung and colour at him. One common fact which emerges from the testimony of respondent No. 1 and Bhailalbhai is that deceased had climbed over the cabin of the bus. The difference between the two versions is that while according to respondent No. 1, deceased threw bucket full of dung and colour at him; according to Bhailalbhai, the deceased who was called by respondent No. 1 was talking with him when the bus started. It is also pertinent to note that respondent No. 1 has not deposed that when he started the bus after the kids who were blocking the road, moved away the deceased had climbed down from the cabin. It would, therefore, appear that as stated by Bhailalbhai, the deceased who had climbed over the cabin was there when respondent No. 1 started the bus. The deceased must have fallen down when the bus was started and he came under the bus and was crushed. It would, therefore, appear that as stated by Bhailalbhai, the deceased who had climbed over the cabin was there when respondent No. 1 started the bus. The deceased must have fallen down when the bus was started and he came under the bus and was crushed. If nothing had happened, except for blocking up the road by some persons and his being smeared by dung and colour by the deceased, respondent No. 1 would not have gone to police at Anand. The fact that respondent No. 1 went to report to police, clearly indicates that respondent No. 1 who now pleads ignorance, knew that deceased was crushed under the bus and killed. Considering the evidence as a whole, we have no hesitation in believing Bhailalbhai's version. If the deceased was standing just outside the cabin, respondent No. 1 ought not to have started the bus. It is not very important whether the deceased was hanging on the cabin or not as described by bhailalbhai, but the fact was that the deceased was outside the driver's cabin on the bus. The legitimate inference that can be drawn is that he must have peeped in the cabin of the driver through the window which was on the driver's side by climbing over the step to go into the driver's cabin. While he was standing on the step, the bus was driven by respondent No. 1 which resulted into fall of the deceased and his being crushed under the bus We have, therefore, no hesitation in disagreeing with the finding of the Tribunal and holding that the deceased was crushed under respondent No. I's bus which was driven by respondent No. 1. It is a clear case of rash and negligent driving on the part of respondent No. 1. Both the respondents are, therefore, liable to pay the damages to the appellants for causing death of the deceased. It is not disputed that the deceased had crushed injuries and he died on the spot as a result of the injuries received by him. This is evident from the medical evidence which is brought on record. 7. Next question is what compensation are the appellants entitled to claim from the respondents. Evidence of appellant No. 1 widow and Bhailalbhai reveals that the deceased was earning Rs. 400/- per month. He was getting a salary of Rs. 250/- per month and he was paid Rs. This is evident from the medical evidence which is brought on record. 7. Next question is what compensation are the appellants entitled to claim from the respondents. Evidence of appellant No. 1 widow and Bhailalbhai reveals that the deceased was earning Rs. 400/- per month. He was getting a salary of Rs. 250/- per month and he was paid Rs. 5/- by way of allowances per day. Thus his salary would work out at Rs. 400/- per month. Out of this income of Rs. 400/- the deceased had to maintain himself, his wife and four children. The personal expenses of the deceased would work out to Rs. 100/- per month. After deducting this amount from the income which the deceased was earning Rs. 300/- per month would be available to the wife and children of the deceased. In other words, the dependency benefit of the appellants would work out to Rs. 300/- per month or Rs. 3600/- per year. The deceased was 30 years old when he died and therefore, it would be safe to apply the multiplier of 15 to work out compensation for the loss of dependency benefit to the appellants. If so worked out, compensation for loss of dependency benefit would corns to Rs. 54,000/-. In addition to this amount, the appellants are entitled to claim Rs. 3000 for expectation of life. Thus the total amount which is payable to the appellants would work out to Rs. 57,000/-. However, the appellants have restricted their claim to Rs. 40,000/-. We, therefore, award Rs. 40,000 to the appellants by way of compensation which is apportioned as follows: Rs. 20,000/- to appellant No. 1 widow of the deceased. Rs. 5,000/- to each of the four minor children of the deceased. Respondents will be liable to pay the said amount of compensation with interest at the rate of 6 per cent per annum from the date of application till payment and costs of the application and this appeal. 8. In the result, this appeal is allowed. Respondents do pay to the appellants Rs. 40,000/- as compensation for the death of the deceased together with interest at the rate of 6 per cent per annum from the date of the application till payment and costs of the application and this appeal. Amount of Rs. 40,000/- shall be apportioned as follows: Rs. 20,000/- to appellant No. 1 widow of the deceased. Rs. 40,000/- as compensation for the death of the deceased together with interest at the rate of 6 per cent per annum from the date of the application till payment and costs of the application and this appeal. Amount of Rs. 40,000/- shall be apportioned as follows: Rs. 20,000/- to appellant No. 1 widow of the deceased. Rs. 5,000/- to each of the four minor children of the deceased. Out of the amount of Rs. 20,000/- plus proportionate interest payable to appellant No. 1, appellant No. 1 shall be entitled to withdraw Rs. 5000/-. Balance of the amount shall be invested in a fixed deposit for a period of ten years with a nationalised bank. Rs. 5,000/- plus proportionate interest payable to each of the four minor children shall also be invested for a period of ten years with nationalised bank. Appellant No. 1 shall be entitled to withdraw interest accruing on the fixed deposit of the amount invested in her name and in the name of four children till they attain majority. After the minors attain majority, they shall be entitled to withdraw interest accruing due on their respective fixed deposits. They shall not be entitled to raise any loan on the fixed deposit or encash it before maturity. The Fixed Deposit Receipts shall be kept in the safe custody of the Tribunal. Appellant No. 1 shall be entitled to withdraw costs after deduction of Court fees payable by the appellants in this Court and the trial Court. 9. Respondents shall deposit the aforesaid amount of compensation, interest and costs within 8 weeks from to-day and the amount shall be invested as directed above within one week from the date of deposit. Appeal allowed.