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Madhya Pradesh High Court · body

2000 DIGILAW 258 (MP)

Bhagwandas Tiwari v. Ratni Bai

2000-03-09

ARUN MISHRA, BHAWANI SINGH

body2000
JUDGEMENT Singh, C.J. -- 1. We propose to dispose of both the Appeals (M.A. No. 1038/97 -- Bhagwandas Tiwari and 4 others V/s. Ratnibai and others; and M.A. No. 1090/97 -- Ratnibai and others V/s. Bhagwandas Tiwari and others), by this common order, since they arise out of the same accident and award dated 16.5.1997 passed by the Motor Accidents Claims Tribunal, Begumganj, District Raisen, in Claim case No. 3/89. 2. It may be noted that former appeal is at the instance of the owners and driver of the vehicle in question for setting aside the award and exonerating them from the liability for payment of compensation while the later appeal is filed by the legal heirs of the deceased Chandra Kumar for enhancement of the award. 3. The brief facts are that on 5.6.1989 Chandra Kumar (deceased) was going from Sultanganj to Begumganj on motor-cycle No. M.K.D. 3300. A bus No. C.P.Q. 9207 dashed against the motor-cycle, as a result of which Chandra Kumar died spontaneously on the spot. The motor-cycle was also badly damaged. Consequently, claim petition for Rs. 28,57,000/- along with interest was filed before the Motor Accidents Claims Tribunal, Begumganj. It is stated that Chandra Kumar was a Private Medical Practitioner and was earning Rs. 9000/- per month. He was 45 years 9 months at the time of accident. He was spending Rs. 4,000/- per month on his family members and in addition to this, Rs. 1,000/- was also spent for religious ceremonies. 4. The allegation is that the bus was driven rashly and negligently by the driver, which caused the accident. The case set up by the non-claimants No.1 to 5 is that Chandra Kumar (deceased), who was driving the motor-cycle, was trying to overtake the bus, but he lost balance of his motor-cycle and dashed against the bus. Therefore, there is no negligent on the part of the bus driver, rather the same is on the part of the motor-cyclist The bus was not being driven by Sant Singh (non-claimant No.5), therefore, non-claimants are not liable for payment of compensation. 5. It is mentioned in the claim petition that the bus was registered in the names of non-claimants No.1, 2 and 3, namely, Bhagwandas Tiwari, Hanumant Singh and Gandharva Singh. 5. It is mentioned in the claim petition that the bus was registered in the names of non-claimants No.1, 2 and 3, namely, Bhagwandas Tiwari, Hanumant Singh and Gandharva Singh. The bus was being plied by non-claimant No.4 (Tilak Singh), on basis of hire purchase agreement between the non-claimant No. 1, 2 & 3 and the non-claimant No.4, and therefore, the non-claimant No.4 (Tilak Singh) was owner of the vehicle. This statement has been admitted by the owners in paragraph 3 of the written statement and Tilak Singh has also confirmed this fact in his written statement. 6. On the pleadings of the parties, the Claims Tribunal framed the following issues: (1) Whether the Claimants are the legal heirs of the deceased? (2) Whether Karodilal was also the name of deceased Chandrakumar ? (3) Whether, on the date of accident, the non-claimants No.1 to 3 were owners of Trimurti Bus No. C.P.Q. 9207 ? (4) Whether on 5.6.1989, the non-claimant No.4 (Tilak Singh) was owner of the vehicle and plied the bus on the basis of hire purchase agreement.? (5-A) Whether on the date of accident, motor-cycle No. M.K.D. 3300 was being driven by Sadhu alias Laxman Singh? (5-B) Whether on the date of accident., deceased Chandra Kumar was pillion rider of the motor-cycle.? (6-A) Whether the non-claimant No.5 was plying the vehicle rashly and negligently. as a result of which the vehicle dashed against the motor-cycle on public high-way near Modakpur Ghati ? (6-B) Whether Chandra Kumar died as a result of accident? (7-A) Whether deceased Chandra Kumar was a medical practitioner? (7-B) Whether age of Chandra Kumar on the date of accident was about 46 years ? (7-C) Whether the income of the deceased Chandra Kumar was Rs. 300/per day? (7-D) Whether Chandra Kumar was spending Rs. 4000/- per month on his family? (8-A) Whether the claimants are entitled for compensation? (8-B) if so, from whom and to what extent? (9) Relief and cost? 7. The parties led evidence in the case and the Claims Tribunal came to the conclusion that the claimants were entitled to compensation. On Issue No.3, the finding is that on the date of accident, the non-claimants No. 1 to 3 were owners of the bus and it was being plied by non-claimant No. 4(Tilak Singh) in the capacity of owner on account of hire purchase agreement. On Issue No.3, the finding is that on the date of accident, the non-claimants No. 1 to 3 were owners of the bus and it was being plied by non-claimant No. 4(Tilak Singh) in the capacity of owner on account of hire purchase agreement. The accident has taken place and it was result of rash and negligent driving by the bus driver. 8. On the date of accident, the age of the deceased Chandra Kumar was 46 years and he was Medical Practitioner. With respect to payment to the family, the finding is that the exact amount has not been proved, but the income of the deceased has been fixed at Rs. 2500/ per month and the dependency has been worked out to Rs. 1000/- per month. The total amount of compensation is Rs. 1,80,000/- and the liability for paying the same has been fixed on the non-claimants No. 1 to 5 jointly and severally. The amount of compensation has been ordered to be paid with interest at the rate of 12% per annum from the date of application till date of payment. Out of this award, these two appeals arise, since the parties do not feel satisfied with the same. Accordingly, we hold that the claimants shall be entitled to payment of Rs. 2,74,896/- by way of compensation for the death of Chandra Kumar and in case, interim award has been made in this case, the amount so paid shall be deducted from this amount. The amount shall he paid with interest awarded by the Tribunal. 9. The first question that arises for consideration is whether Misc. Appeal No. 1038/97 (Bhagwandas Tiwari and others v. Ratni 13ai and others) is maintainable. It is contended by Shri Rakesh Jain learned counsel for the claimants that this appeal is not maintainable, since the non-claimants have not complied with the requirement of Section 173 of the Motor Vehicles Act. 1988, particularly, the first proviso thereto making it mandatory for appellants (non-claimants) to deposit Rs. Twenty Five Thousand or fifty percent of the amount so awarded. whichever is less, before the appeal is entertained. Shri N.K. Patel, learned counsel for the non-claimants (appellants in M.A. No. 1038/97). contends that this requirement does not apply to the present case. With a view to rebut this submission, the learned counsel placed reliance on Sect ion 6 of tile General Clauses Act. 1897 (10/1897). whichever is less, before the appeal is entertained. Shri N.K. Patel, learned counsel for the non-claimants (appellants in M.A. No. 1038/97). contends that this requirement does not apply to the present case. With a view to rebut this submission, the learned counsel placed reliance on Sect ion 6 of tile General Clauses Act. 1897 (10/1897). which says the legal proceeding pending on the date of commencement of the Act. meaning thereby the legal proceedings. which stand initiated before the commencement of the Act. can he carried on in accordance with the provisions of the existing Act. learned counsel contends. Reliance is placed on the Apex Court decision reported in AIR 1996 SC 1560 (Ramesh Singh v. Cinta Bai). We rind substance in this contention. In this case, The accident look place on 5.6.1980. The Motor Vehicles Act. 1988 came into force on 1.7. 1980. In our considered opinion, the position would he governed by the law which existed on 5.6.1980. the right existed to the party on tile date of accident with respect to lodging and continuing the action could not he defeated by the new Act coming into force at this stage. That being the position, the first proviso to Section 173 of the Motor Vehicles Act 1988, would he inapplicable in this case and the requirement of making deposit of amount specified therein would not apply in this appeal. Accordingly, we hold that this appeal (M.A. No. 1038/97) is maintainable. 10. In other Appeal (M.A. No. 1090/97) - Rantihai and others v. Bhagwandas Tiwari and others). the non-claimants No. 2 to 5 have filed cross-objection. Since we have found that the appeal at their instance, is maintainable, these objections loose importance since both the appeals are to be considered on merits. 11. The case has two aspects - the first is with respect to the liability to pay compensation and the second. the reasonableness of the amount of compensation awarded by the Tribunal. We take second aspect first for consideration. It may he true that from the evidence adduced by the claimants before the Tribunal, it is not satisfactorily established that the income of the deceased Chandra Kumar on the date of accident. was Rs. 300/- per day. But the Tribunal has fixed the income of the deceased at Rs. 2500/- per month. We take second aspect first for consideration. It may he true that from the evidence adduced by the claimants before the Tribunal, it is not satisfactorily established that the income of the deceased Chandra Kumar on the date of accident. was Rs. 300/- per day. But the Tribunal has fixed the income of the deceased at Rs. 2500/- per month. In absence of any other satisfactory evidence, it is difficult to dislodge the findings of the Tribunal Even if it is taken to he true. in that case, after deducting 1/3rd of this amount for personal expenses of the deceased, it would come to Rs. 1.666/- per month and the yearly dependency comes to Rs. 1.666 x 12 = 19,992/-. with multiplier of 13. the amount payable to the claimants would he Rs. 19, 992 x 13 = Rs. 2.59.896/-. and in addition to this, an amount of Rs. 10,000/- should he added towards consortium and Rs. 5000/- towards funeral expenses, taking the total amount of compensation to Rs. 2.74.896/-. Accordingly, we hold that the claimants shall be entitle to payment of Rs. 2,74,896/- by way of compensation for the death of chandra Kumar and in case, interim award has been made in this case, the amount so paid shall be deducted from this amount. The amount shall be paid with interest awarded by the Tribunal. 12. The next question is who should suffer the liability to pay the amount assessed hereinbelow. Learned counsel for the parties extensively made submissions on this question. Shri N.K. Patel, learned counsel for the non-claimants contended that the non-claimants No. 1 to 3 (original owners) cannot be fastened with the liability to pay this compensation, since they had parted with the possession of the vehicle in favour of the non-claimant No. 4(Tilak Singh) on the basis of hire purchase agreement. The contention of the learned counsel precisely is that this liability should be suffered by Tilak Singh (non-claimant No.4), who was owner of the vehicle on the basis of hire purchase agreement and was in possession of the same and plying it on the relevant day through his driver. In support of this contention, the learned counsel has placed reliance on the decision of the Supreme Court reported in AIR 1997 SC 3444 (Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & others). In support of this contention, the learned counsel has placed reliance on the decision of the Supreme Court reported in AIR 1997 SC 3444 (Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & others). Shri Rakesh Jain, learned counsel for the claimants, submits that the hire purchase agreement has not been produced by the non-claimants. Therefore, the vehicle has to be taken to be of the non-claimants No. 1 to 3. Further, even if, it was being flied by the non-claimant No.4 (Tilak Singh), in addition, it is also contended that the driver of the vehicle was of the non-claimants No. 1 to 3. Consequently, the non-claimants No. 1 to 3 are liable to pay the compensation. We have given serious consideration to the contention so raised. The evidence has been considered in the context of the submission advanced by the learned counsel for both the sides. It may be true that the registered owners of the vehicle, on the date of accident, were non-claimants No. 1 to 3, but the possession of the vehicle had gone over to the non-claimant No.4 (Tilak Singh) on the basis of hire purchase agreement. The contention that the hire purchase agreement has not been filed in the Court, is misconceived. Since it is a case of claimants that on the basis of hire purchase agreement, the vehicle was being plied by the non-claimant No.4 (Tilak Singh). who was the owner of the vehicle. In view of this position, it was not necessary to produce the hire purchase agreement and prove the same in this case. 13. When we proceed further, we rind that the non-claimant No. 4(Tilak Singh) was in possession of the vehicle and was plying the same. Obviously, in absence of evidence to the contrary, he was charging the fare from all the passengers and was utilising the same. Legitimately, it can be concluded that the bus was being plied by him through driver and conductors working under his command. Therefore, he has to he taken as owner of the vehicle within the meaning section 2(19) of the Motor Vehicles Act, 1939, corresponding to Section 2(30) of the new Act of 1988. Legitimately, it can be concluded that the bus was being plied by him through driver and conductors working under his command. Therefore, he has to he taken as owner of the vehicle within the meaning section 2(19) of the Motor Vehicles Act, 1939, corresponding to Section 2(30) of the new Act of 1988. It det1nes 'owner' as under: "S. 2(30) : "owner" means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of bypothecation, the person in possession of the vehicle under that agreement." This question has been answered in Rajasthan State Road Transport Corporation (supra) 14. Turning to the facts of the case, it can be stated that the claimants have said that the vehicle was being driven by Sant Singh (non-claimant No.5), driver of the non-claimants No.1 to 3. But, this fact has not been satisfactorily established since there is evidence on record to suggest that it was being driven by Shivraj Singh. The non-claimant No.4 (Tilak Singh) has said that the vehicle was being driven by his driver and on being asked, who is his driver, he stated that his driver was Shivraj Singh and Sant Singh alias Santu Singh (non-claimant No.5) is his nephew. With respect to hire purchase agreement, Hanumat Singh (non-claimant No.2) has not been subjected to cross examine on the line the case is sought to be put by the claimants. Therefore, in view of our conclusion. the most important factor is to be seen in such a case, who is in possession or the vehicle and who had the power to control the movement of the same and utilise the income. 15. No other questions arise for our consideration nor pressed by the learned counsel for the both the sides. 16. Consequently. M.A. No. 1038/97 (Bhagwandas Tiwari and others v. Ratnihai and others) is allowed to the extent that the liability to pay compensation would he or non-claimant No. 4 (Tilak Singh ) and not of non-claimants No. 1 to 3. 17. Misc. Appeal No. 1090/97 (Ratnihai and others v. Bhagwandas Tiwari and others) is also allowed and the amount or compensation is enhanced to the extent mentioned in the preceding paragraphs of this Order. 17. Misc. Appeal No. 1090/97 (Ratnihai and others v. Bhagwandas Tiwari and others) is also allowed and the amount or compensation is enhanced to the extent mentioned in the preceding paragraphs of this Order. The cost of the petition shall he horn by the parties.