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Himachal Pradesh High Court · body

2005 DIGILAW 208 (HP)

H. R. T. C. v. NIRMALA DEVI

2005-06-24

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J. (Oral):- This appeal under Section 173 of the Motor Vehicles Act), has been filed against the award of the Motor Accident Claims Tribunal, Hamirpur in MAC Case No. 13 of 1996, decided on 4.8.1998. 2. The facts necessary for the decision of the case are that the claimants who are the widow and two minor children of one Raghubir Singh, filed a claim petition under Section 166 of the Act for grant of compensation. The allegations made in the claim petition were that on 30.9.1955 at about 11.00 p.m. the deceased was hit by bus No. HP-07-2820 belonging to the H.R.T.C. and died instantaneously. It was further averred that the deceased was earning about Rs. 6,000/- per month from the business of agriculture and, therefore, compensation be awarded to his heirs. The owner and drive of the bus contested the claim petition on the ground that in fact no accident had taken place with the bus in question. The claims tribunal after recording evidence and hearing the parties came to the conclusion that the accident had occurred due to the rash and negligent driving of the driver of the bus and further held that the claimants were entitled to compensation of Rs. 2,52,000/-. 3. This appeal has been filed by the H.R.T.C. Mr. Ashok Sharma, learned counsel appearing on behalf of the appellant-HRTC, contended that the statements of the two alleged eye witnesses, i.e. PW-2 and PW-7 are totally inconsistent and the claimants have failed to prove that the accident had occurred due to the negligence of the driver of the bus. It is also alleged that the amount of compensation granted is excessive. 4. The most important witness in this case is PW-7. This witness has deposed that on 30.9.1995 at about 11.00 p.m. he and the deceased were walking on the side of the road when an accident occurred. One bus hit the deceased who died on the spot. He has given the number of the bus as HP-07-2820. He has stated that this bus was a semi deluxe bus and was going from Dharamshala to Shimla. He has stated that the saw the number of the bus because another semi deluxe bus of HRTC was following this bus and with the help of the light of the second bus he could re9d the number of the first bus. He has stated that this bus was a semi deluxe bus and was going from Dharamshala to Shimla. He has stated that the saw the number of the bus because another semi deluxe bus of HRTC was following this bus and with the help of the light of the second bus he could re9d the number of the first bus. His house is situated only 20 to 25 meters from the place of accident. He states that after the accident he had informed the family members of the deceased regarding the accident. Thereafter he had gone to the house of Dr. Hans Raj, who was also Pradhan of the Panchyat at the relevant time. Hans Raj had telephonically informed the police about the accident. He has stated that PW-2, Balbir Singh had also come to the spot of the accident. According to him both the buses died not stop near the site of the accident. In cross examination he has stated that PW-2, Balbir Singh and one Tilak were traveling in the second bus. He states that they might have got down at the station. 5. PW-5, Hans Raj has proved that the FIR, Ex. PA was recorded at his instance at about 12 mid-night after about one hour of the accident. He has stated hat his house is about 2 k.m. from the place of the accident. He has sated that there is no other telephone available in between. 6. PW-2 is Balbir Singh. He states that he was traveling in a bus belonging to the H.R.T.C. He had boarded the bus at Nadaun. The bus which he boarded was going from Chamba to Shimla. Another semi deluxe bus of the H.R.T.C. catering to Dharamshala-Shimla route was moving in front and according to him the said but had hit the deceased. Thereafter his bus had stopped and he had got down and found that the deceased had died. 7. Mr. Ashok Sharma, learned counsel contends that the statements of PWs 2 and 7 are contradictory in as much as PW-7 has stated that when the accident took place none of the buses stopped near the site of the accident, whereas according to PW-2 they had got down near the site of the accident. In my opinion the version of PW-2 cannot be accepted. It does not appear to be true. In my opinion the version of PW-2 cannot be accepted. It does not appear to be true. However, the deposition of PW-7 inspires confidence and is supported by contemporaneous* evidence. This person is a neighbour of the deceased. He says that they were both walking back together as he was going to drop the deceased to his house. The deceased had called upon this witness in connection with some work. His version that the deceased was hit by a bus belonging to H.R.T.C. finds mention in the FIR, Ex. PA. This FIR has been shown to be recorded at 12.05 (midnight). The accident took place at about 11 and 11.15 p.m. Thereafter this witness first went to inform the relatives of the deceased. Obviously some time must have been spent there. The witness thereafter went to the house of PW-4, Hans Raj, who is Pradhan of the village. His house is situated at a distance of more than 2 k.m. Therefore, it would take about 15 minutes to walk to his house. The FIR was lodged within an hour of the accident. In this FIR though the number of the bus is not given, it is clearly stated that a semi deluxe bus belonging to H.R.T.C. and plying on Dharamsala - Shimla service had hit the deceased at about 11.15 p.m. It may be, that the witness has made some improvements while making the statement in court. In the court he has deposed that he had noted down the bus number. This does not appear to be correct since if he had noted down the bus number, this would have been found mentioned in the FIR. However, what is clear is that he had clearly stated that the bus involved in the accident belonged to the HRTC and was plying form Dharamshala to Shimla. The H.R.T.C. has not denied that the bus bearing.» registration No HP-07-2820 was plying form Dharamshala to Shimla. 8. For reasons best known to the appellant, the driver of the bus who was arrayed as respondent No.2 in the claim petition did not choose to step into the witness box. He was best person who could have deposed as to whether the accident had happened or not and if the accident had occurred with his buts, in what circumstances. For reasons best known to the appellant, the driver of the bus who was arrayed as respondent No.2 in the claim petition did not choose to step into the witness box. He was best person who could have deposed as to whether the accident had happened or not and if the accident had occurred with his buts, in what circumstances. Since the driver of the bus has not been examined an adverse inference has to be drawn against the owner and driver of the bus. 9. In view of the above discussion, the finding of the tribunal that the accident had occurred due to rash and negligent driving of the driver of the bus is upheld. 10. The next question raised by the H.R.T.C. is with regard to the quantum of compensation. The deceased was aged about 37 years at the time of his death. He was running a small general merchandise shop in the village. Prior to this he was working as a driver. The tribunal has assessed his income at Rs. 2,000/- per month and the dependency at Rs. 1500/- per month. In my opinion both, the income and the dependency, have been assessed on the lower side. Even the multiplier of 14 applied is on the lower side. The award is in fact on the conservative side and cannot be said to be excessive by any stretch of imagination. 11. The appeal is, therefore, without any merit and the same is dismissed with no order as to costs.