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1999 DIGILAW 17 (GAU)

Union of India v. Kalpana Bhuyan

1999-01-16

J.N.SARMA

body1999
This appeal has been filed by the Union of India against the Award dated 10.01.1997 passed by Member, Motor Accident Claims Tribunal, Lakhimpur, North Lakhimpur in MACT Case No, 20 of 1994. By the impugned Award, the learned Tribunal awarded a sum of Rs. 1,07,1807- (Rs one lakh seven thousand one hundred eighty only) with 10% interest from the date of service of notice upon the opposite party minus the interim relief already paid. The brief facts are as follows: (i) The husband of the claimant one Shri Deepak Bhuyan died in a motor accident. On 17.02.1994 while her husband was traveling in the truck of Air Force belonging to the Union of India from Dulungmukh he fell down from the vehicle near Anandabagan Railway Crossing and died. It was alleged in the petition that the accident occurred due to rash and negligent driving by the driver of the truck, and as such an amount of Rs. 4.60 lakhs has been claimed as compensation. This daim was registered as MACT Case No. 20 of 1994. (ii) The opposite party, the Union of India filed a written statement wherein it was stated as follows: “2 That the opposite party totally deny the fact the deceased died due to any accident caused by the vehicle of the opposite party. 3. That the deceased die& the to his own fault and negligence and under the circumstances of the case the vehicle of the opposite party can not be involved for any motor vehicle accident causing injury or death of the deceased person. The vehicle neither hit the deceased, nor had any knowledge of the alleged accident for which the deceased sustained the fatal injuries. 4. That the fact of the case is that the vehicle No. 88 (D) 78440 (A) truck was coming from Dulung Air Ground Firing Range, Dulung of Indian Air Force to Pathalipam on Govt. duty. The deceased requested the driver of the vehicle to give him a lift on the board of the freak, where some other Air Force personnels were traveling. 5. That, since the Dulung area is an interior area and does not have proper communication, hardly any bus or other passenger vehicle ply on the road, the driver on humanitarian ground allowed the deceased to travel on the boated of the vehicle along with other Air Force personnel. 6. 5. That, since the Dulung area is an interior area and does not have proper communication, hardly any bus or other passenger vehicle ply on the road, the driver on humanitarian ground allowed the deceased to travel on the boated of the vehicle along with other Air Force personnel. 6. That when the vehicle of the opposite party reached the Subansiri Railway Crossing gate near Ananda Tea Estate, the vehicle did not get clearance to cross the Railway gate and stopped. 7. That as sods as the vehicle stopped near the Railway Crossing late the deceased got down of the vehicle. The deceased thereafter proceeded to his destination. He went to a nearby hut and handed over some items to an old lady and started gossiping with her. When the vehicle got clearance to cross the Railway gate, the driver started the vehicle after dropping the deceased there. 8. That, when the vehicle started and moved to cross the Railway gate the deceased leaving the old lady there, came running after the moving vehicle and hold of the tail board and at the edge of the hanging tarpaulin to get in the board, without any knowledge 6f any personnel's traveling in the vehicle and in the process he felt down and sustained fatal injuries. 9. That, seeing the deceased felt down on the road, the vehicle stopped, there gathered some villagers to see the deceased felling down and his injured. The villagers there requested the Air Force personnel's traveling in the vehicle to carry the deceased to Gugamukh Civil Hospital. Unfortunately no doctor could attend to the injuries. However, attendants of the Hospital examined the pulse of the deceased and advised to remove the deceased immediately to a nearby private clinic belonged to one Dr. Gogoi. 10. That the deceased was declared dead at the clinic. 11. That, in the circumstances of the case, the claim against the opposite party is illegal and not maintainable in law and the vehicle is illegally involved in the accident 2. So, the admitted position in this case is that the petitioner boarded the vehicle of the Union of India with the permission of the driver of the truck. It is also, further, admitted that there was no proper communication on the road and it was always the practice that the Air Force vehicle used to carry persons on request 3. So, the admitted position in this case is that the petitioner boarded the vehicle of the Union of India with the permission of the driver of the truck. It is also, further, admitted that there was no proper communication on the road and it was always the practice that the Air Force vehicle used to carry persons on request 3. So, admittedly from the above it appears that the husband of the petitioner was a gratuitous passenger of the vehicle. The first question is that whether he will be entitled to compensation. The 1939 MVA Act is now replaced by the 1988 Act and section 147 also has been an amended further and that amendment will show that now even a gratuitous passenger may be entitled to receive compensation even when .vehicle in question is insured. But the present case stand on a better footing inasmuch as it is not claimed against the insurance company but against the owner of the vehicle and the accident took place arising out of the use of vehicle. 4. So the first contention raised by the learned counsel for the appellant Mr. D. Sur that the claimant is not entitle^! to compensation shall fall through. The next question is that what will be the amount of compensation. A bare perusal of the written statement quoted above along with the statement of witnesses will reveal-that the deceased himself was negligent and in assessing the damage that should have been taken into consideration as held by a catena of decisions. In (1993) 2 GLR 193 (1993 (2) GLJ 82) the Division Bench of this court considered that aspect of the matter and law has been laid down as follows : “An important principle of common law of torts is that damage must be f attributed to the breach by the wrongdoer of some duty owing to the plaintiff, the duty being to take reasonable care against harm which a reasonable person would foresee as likely. There is no liable for damages which was not of a foreseeable type within the scope of duty to care.” 5. That being the position, I find that the award of compensation was on the higher side and as such this aspect of the matter was not considered. Accordingly Award shall stand reduced to an amount of Rs. 60,000 (Rs sixty thousand) with interest as granted by the learned Tribunal. That being the position, I find that the award of compensation was on the higher side and as such this aspect of the matter was not considered. Accordingly Award shall stand reduced to an amount of Rs. 60,000 (Rs sixty thousand) with interest as granted by the learned Tribunal. The appeal is partly allowed. The Award stands modified. Heard Mr. D. Sur, the learned counsel for the appellant and Mr. R. Bora, the learned counsel for the respondents.