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2005 DIGILAW 11 (JK)

Commissioner/Secy. v. Khati

2005-02-07

HAKIM IMTIYAZ HUSSAIN

body2005
1. This appeal is directed against the order passed by Motor Accidents Claims Tribunal, Srinagar (for short the Tribunal) Srinagar on 15.3.2003 in a claim petition No. 79/2000 titled Mst. Khati & Ors. v. State of J&K & Ors. The matter arises out of an accident which took place on 29.4.2000 at Jammu-Srinagar National High-way, Official Ambassador car No. 0468/JK0IC belonging to respondent Chairman J&K State Consumer Protection Forum was coming from Jammu to Srinagar on the eve of annual Darbar-move. The driver of the vehicle was in the employment of the forum. One Bashir Ahmed Kumar who was class IV employee of the High Court of J&K was also travelling in it. When the vehicle reached near Maghar Kot Panthal National High Way it fell into a deep gorge resulting in the death of both said Bashir Ahmad Kumar as well as the driver of the vehicle. 2. The legal heirs who are the brothers and sisters of deceased Bashir Ahmed Kumar filed a claim petition before the Tribunal on 3.8.2000 claiming compensation for the death of their brother Bashir Ahmed Kumar. It was alleged by them that the accident took place due to the rash and negligent driving of the driver and that the deceased was at the time of accident of 22 years of age and had further 36 years of service career and that he was drawing more than 4000/- rupees as pay per month which would have increased in due course of time. The legal heirs claimed loss of future earnings and dependency and also compensation on account of shock and pain, funeral expenses and the amount spent by them at the place of accident for fishing out the dead body of the deceased from the Nallah which was recovered after 45 days of the accident from water at Jotipora. 3. Appellant (resspondent before the Tribunal) did not appear before the Tribunal despite service. Respondent Chairman J&K State Consumer Protection Forum, however, contested the claim. On the pleadings of the parties the following issues were framed by the Tribunal in the case on 14.5.2002:- 1. 3. Appellant (resspondent before the Tribunal) did not appear before the Tribunal despite service. Respondent Chairman J&K State Consumer Protection Forum, however, contested the claim. On the pleadings of the parties the following issues were framed by the Tribunal in the case on 14.5.2002:- 1. Whether on 29.4.2000 the driver of respondent No. 3 was driving an Ambassador Car bearing registration No. JK01C/0468 rashly and negligently and the said vehicle rammed near about 400 into a Nallah near Maghar Kot Panthal which resulted into the death of one Bashir Ahmad Kumar who was travelling in the said Car? OPP 2. In case issue No. 1 is proved in affirmative to what amount of compensation are the petitioners entitled to, from whom and in what proportion? OPP 3. Whether the deceased had boarded the offending vehicle on his own without seeking permission to do so from the answering respondent No. 3 and as such the respondent No. 3 is not liable to pay any compensation to the petitioners OPR-3 4. Relief. 4. Legal heirs examined witnesses Nasir Ali, Ab. Aziz Dar, Ali Mohd Dar, Showkat Ali and Gh. Rasool Kumar before the Tribunal and on the basis of the evidence on record the Tribunal disposed of the petition by means of the impugned order on 15.3.2003 and granted an amount of Rs. 3,92,200/- as compensation under different heads in favour of the legal heirs of the deceased. The Tribunal found that the accident has taken place due to the rash and negligent driving of the vehicle by the deceased driver and directed respondent No. 2 (appellant herein) for immediate compliance of the order. 5. The Tribunal allowed Rs. 3,67,200/- for loss of life earnings and dependency, Rs. 20,000 for shock and pain and Rs. 3000/- for expenditure on visiting the place of accident to find out the body of the deceased. The Tribunal also allowed Rs. 2000/- for the amount spent by the legal heirs on entertaining the relatives and other people who have visited their home to offer condolence. 6. Aggrieved by the order of the Tribunal the present appeal has been filed by Commr./Secy. To Govt. Food & Supplies Deptt; ( Consummer Affairs & Public Distribution Deptt;) Jammu. It is alleged that the Tribunal has disposed of the matter without affording opportunity of being heard to the appellant. 6. Aggrieved by the order of the Tribunal the present appeal has been filed by Commr./Secy. To Govt. Food & Supplies Deptt; ( Consummer Affairs & Public Distribution Deptt;) Jammu. It is alleged that the Tribunal has disposed of the matter without affording opportunity of being heard to the appellant. It is further alleged that the Tribunal was under an obligation U/s 168 to give an opportunity of being heard to the appellants and further to hold an enquiry into the claim of the respondent but no such opportunity was given to him as such the award is bad in law and deserves to be set aside. It is further alleged that the fact that the driver was driving the vehicle rashly and negligently is not proved on evidence and that the Tribunal has based his conclusion on inferences as such the award is bad in law. It has also been pleaded in the memorandum of appeal that the legal heirs of the deceased had no locus-standi to claim compensation as they were living separately and that all the brothers are Govt. employees and sisters have married outside. 7. Heard. Considered. The main objection raised in the memorandum is that there is no evidence on record on the rash and negligent driving as such the tribunal was not justified in granting compensation in favour of the legal heirs. A perusal of the order impugned shows that a specific issue regarding the rash and negligent driving of the vehicle was framed in the case as issue No. 1 which is as under:- "Whether on 29-04-2000 the driver of respondent No. 3 was driving an Ambassador Car bearing registration No. JK0IC/0468 rashly and negligently and the said vehicle rammed near about 400 into a Nallah near Maghar Kot Panthal which resulted into the death of one Bashir Ahmad Kumar who was travelling in the said car? OPP 8. The Tribunal has come to the conclusion that there is sufficient material on record to show that deceased Bashir Ahmed Kumar lost his life in the road traffic accident caused out of the use of official Ambassador Car No. JK0IC-0468 which at the relevant time was being plied by the driver of respondent No. 3 ( J&K State Consumer Forum). The issue has, therefore, been decided in favour of the petitioner and against the respondents. While coming to such a conclusion the ld. The issue has, therefore, been decided in favour of the petitioner and against the respondents. While coming to such a conclusion the ld. Tribunal has taken into account all the aspects of the case and has succinctly dealt with the evidence led by the petitioners before it in the case. The Tribunal has rightly observed that in the instant case there is no body to explain as to how the accident took place as the driver himself has lost his life in the accident so in view of the facts of case the Tribunal has applied doctrine of res-ipsa loquitur and has inferred that the accident took place due to the rash and negligent driving of the driver. 9. The doctrine of res-ipsa-loquitur means that accident speaks for itself or tells its own story. Normally it is for the person who alleges rash and negligent act on the part of the driver of the vehicle in an accident case to prove these facts but where there is no sufficient evidence and circumstances are such that no such evidence could be procured the court can apply the doctrine to deduct from the facts as to how the accident took place. 10. 10. Salmond in the law of Torts 15th Addition at page 306 about the doctrine writes as under:- "The maximum res-ipsaloquitur applies whenever it is so improbable that such an accident would have happen without the negligence of the defendants that a reasonably jury could find without further evidence that it was so caused." In Halsburys laws of England 3rd Addition Vol 28 page 77 the maxim is described as under:- "An exception to the general rule that the burden of the proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendants negligence, or where the event charged as negligence `tells its own story of negligence on the part of defendants, the story so told being clear and unambiguous." Supreme Court in Pushpabai Parshottam Udesh v. M/s Ranjit Guning AIR 1977 SC 1735 (para 6) held: "The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence." It was further observed as under:- "Where the maximum is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care." Where offending vehicle went off the road, and hit against the tree and roll down killing a passenger it was held by the Madras High Court in M/s Oriental F & G Insurance Co. Ltd. v. Alamelu AIR 1983 Mad. 221 that doctrine of res-ipsa-loquitur was attracted and that the accident was solely due to the rash and negligent driving of the bus by its driver. Similarly where the bus suddenly crushing through the bridge railings fell 50"feet down below on the rocky river bed, it was held by Madhya Pradesh High Court that the doctrine of res-ipsa loquitur was attracted as it was by itself sufficient proof of negligent driving. In General Manager Orissa S.R.T.; Corpn. v. Maheswar Rout AIR 1983 Orissa 128 where the offending vehicle in which the deceased was travelling while moving on a National Highway went off the road and rolled over twice and in the process deceased was thrown out and crushed to death, it was held that the principle of res-ipsa-liquotur applied and that there was rash and negligent driving in question. This principle applied to the present case too. It has rightly been observed by the Tribunal that there was evidence on file that the vehicle scattered off the National High Way road and went into deep Nallah and that the rest of the story can be gathered from the fact that the accident was so serious that despite best possible efforts the dead body could not be fished out for two days. The Tribunal has further rightly observed that the vehicle was going on National Highway road on which daily thousands of vehicles move to and fro and that the circumstances were sufficient to infer that the driver was rashly and negligently driving the vehicle. The Tribunal further found that the respondent J&K State Consumer Forum has not made out a case to rebut such inference. 11. Under these circumstances I find sufficient justification has been given by the Tribunal to arrive at the conclusion that the accident took place due to the rash and negligent act of the driver. 12. The Tribunal further found that the respondent J&K State Consumer Forum has not made out a case to rebut such inference. 11. Under these circumstances I find sufficient justification has been given by the Tribunal to arrive at the conclusion that the accident took place due to the rash and negligent act of the driver. 12. So far the objection of the appellant that he was not given an opportunity of being heard is concerned, it is devoid of any merit as the Tribunal records show that the respondent (the appellant herein) was duly served through registered notices and that no body appeared on their behalf. The proceedings were pending before the Tribunal for about more than six months but the appellant has not taken trouble to appear before the tribunal and present its case. It was due to these facts that the appellant was proceeded ex-parte by the Tribunal and the case was decided in ex-parte in so far the State of J&K and the appellant was concerned. 13. To rebut the argument that the legal heirs being the brothers and sisters of the deceased have no right to claim compensation the respondent-legal heirs relied on an authority reported as National Ins. Co. v. Bashir Ahmed Gojri & Ors. 2000 ACJ 1108 where this court observed as under:- "No evidence or proof has been placed on record to deny that the petitioners are not the legal representatives of the deceased. Even during cross-examination, no such question has been asked from any of the witnesses. The relation of the petitioners with the deceased is not refuted. Even one of the petitioners Mohammad Ramzan, in his statement before the Tribunal has stated that the petitioners alone are entitled to the compensation. Notwithstanding that the petitioners may not be joint in mess and residence the petitioners have been put to loss and have suffered damages due to death of their brother. The question of dependency on the deceased may have a bearing on the quantum of just compensation, but cannot be altogether a ground to exclude the petitioners from the category of legal representatives entitled to lay claim and an action for compensation under the provisions of the Motor Vehicles Act. The question of dependency on the deceased may have a bearing on the quantum of just compensation, but cannot be altogether a ground to exclude the petitioners from the category of legal representatives entitled to lay claim and an action for compensation under the provisions of the Motor Vehicles Act. Viewed thus, it cannot be said that the petitioners are not the legal representatives of the deceased and have no locus to lay claim for compensation before the Claims Tribunal for recovery of compensation consequent on vehicular accidental death of their brother Abdul Rashid Parra." 14. In view of the reasons given in said authority, I fully concur with the law laid down by the said authority. 15. In view of these facts I find no force in this appeal which is hereby dismissed. Order accordingly.