Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2666 (RAJ)

RSRTC v. Bhajan Kaur

2005-10-17

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.- The appellant Rajasthan State Road Transport Corporation (the Corporation for short) has filed this appeal being aggrieved of the award dated 29.09.1995 made by the Motor Accidents Claims Tribunal, Raisinghnagar in Claim Case No.1/1989. 2. Briefly put, the facts relevant for determination of the questions involved in this appeal are that the Respondents No. 1 to 4, wife and children of the deceased Jogendra Singh, filed the claim application under Section 110-A of the Motor Vehicles Act, 1939 against the appellant-Corporation and its driver Krishan Ram with the submissions that on 21.01.1985 at about 2.00 PM, the deceased Jogendra Singh and his brother Darshan Singh boarded the Corporations bus bearing No. RRB 2850 at Ramsinghpur for going to Anupgarh. Darshan Singh entered inside the bus whereas Jogendra Singh climbed the roof of bus where several passengers were already sitting. The bus was being driven rashly and negligently and when it reached near the curve at 66 GB, the bus skidded to the left and capsized; and the passengers sitting on the roof got injured by falling on the road; and Jogendra Singh also sustained injuries and although he was taken to the hospital at Anupgarh but succumbed to the injuries. Thereupon, a report was lodged by Darshan Singh at 5.20 PM at Police Station, Anupgarh and driver of the bus was duly challaned after investigation. 3. Stating the claim for compensation, the claimants alleged that the non-applicants were liable for compensation for the death of Jogendra Singh who was 40 years of age. The claimants asserted that the deceased was khatedar of 31 bighas of land and was also managing the cattles and was earning Rs. 1,800/-per month. The claimants made a claim of Rs. 6 lacs towards pecuniary loss; Rs. 20,000/-for loss of consortium for the wife; Rs. 20,000/-for loss of love and affection for the children; Rs. 5,000/-towards funeral expenses and Rs. 5,000/-towards litigation expenses. 4. The non-applicants submitted separate replies to the claim application. While stating a general denial to the claim averments, the appellant-Corporation asserted that the income of the deceased was not more than Rs. 6,000/-per annum. 20,000/-for loss of love and affection for the children; Rs. 5,000/-towards funeral expenses and Rs. 5,000/-towards litigation expenses. 4. The non-applicants submitted separate replies to the claim application. While stating a general denial to the claim averments, the appellant-Corporation asserted that the income of the deceased was not more than Rs. 6,000/-per annum. In respect of the accident and its cause, it was stated that the accident was not caused for any mistake on the part of the driver but suddenly the wheel-steering of the bus got jammed, the driver reduced the speed of the bus and warned the passengers to remain alert and then, because of a ditch, the bus got tilted and some of the passengers inside the bus of course received certain injuries. When the driver warned the passengers to alertness, the passengers riding on the roof started jumping and it was possible that the deceased jumped from the above and sustained serious injury but there was no fault of any of the employees of the Corporation. It was also alleged that the deceased was not a passenger of the bus and he climbed the roof without permission. It was alleged that the bus capsized for mechanical fault and otherwise, there was no negligence on the part of the non-applicants; and that climbing to the roof of the bus from behind was unauthorised. The bus driver filed a separate reply denying rash and negligent driving and submitted that the mechanical inspection of the bus made on 24.01.1985 makes it clear that the break liner came out and stuck in the wheel stud which resulted in jamming of the wheel for which the bus capsized; and the accident was caused only due to a mechanical fault and not due to rash and negligent driving. It was also alleged that looking to the curve at the site and the tyre marks as shown in the site inspection report, it was clear that the driver has attempted his best to prevent the accident and the bus has not upturned for any mistake on the part of the driver. 5. It was also alleged that looking to the curve at the site and the tyre marks as shown in the site inspection report, it was clear that the driver has attempted his best to prevent the accident and the bus has not upturned for any mistake on the part of the driver. 5. On the pleadings of the parties, the following issues were framed:- 1& vk;k rkjh[k 21-01-1985 dks nks cts nksigj izfr i{kh ua- 1 dh cl ua- vkj-vkj-ch- 2850 ds MªkbZoj }kjk t xfr vkSVuk dkfjr dh ftlesa tksxsUnzg dh e`cl dks rsj ykijokgh ls pyk dj nq?kZflaR;q gq;hA ¼vkosnd x.k ½ 2& vk;k vkosnd x.k fdl gn rd izfrdj izfr i{khx.k ls ikus ds vf /kdkjh gSaA ¼vkosnd x.k½ 3& vk;k nq?kZVuk cl dh ;kaf =d [kjkch ds dkj.k gq; hA ¼izfri{khx.k½ 4& vk;k tksxsUnz flg e`rd cl dk lnHkkfodh ;k= h ugha Fkk ¼izfri{khx.k½ 5& vk;k tksxsUnz flag dh ekfld vk; vkosndx.k }kjk vf /kd fn[kkbZ xbZ gSaA ¼izfri{khx.k½ 6& vuqrks"kß 6. In evidence, the claimants examined Bhajan Kaur AW. 1 (claimant), Satya Prakash Sharma AW. 2, the doctor who conducted post mortem of the deceased, Darshan Singh AW. 3, brother of the deceased and co-passenger in the bus involved in the acident, Biharilal AW. 4, Head Constable of Police Station Ramsinghpur, Ashwini Kumar AW. 5, another co-passenger of the bus riding on the roof , Karnail Singh, AW. 6, ASI of Police Station Anupgarh, the Investigating Officer who had been examined on 24.01.1994 and again on 14.09.1995. The non-applicants examined Kuldeep DW.1, conductor of the bus, Ram Prakash Sharma DW. 2, Machanic Grade-II of the appellant-Corporation, Moolchand Jat DW. 3, the Assistant Depot Manager of the appellant-Corporation at Sriganganagar, and Krishan Ram Jat, again marked as DW. 2, driver of the bus. 7. In documentary evidence, the claimants produced certified copies from the documents in Criminal Case No. 81/1985 which include the FIR Exhibit-6, site plan and site inspection report Exhibit-2, post mortem report Exhibit-3 and so also the statement of Kuldeep Singh conductor as made on 21.01.1985 during police investigation Exhibit-10. The non-applicants produced a report made by the employees of the Corporation about the condition of the bus involved in the accident as Exhibit A-1. 8. The non-applicants produced a report made by the employees of the Corporation about the condition of the bus involved in the accident as Exhibit A-1. 8. Learned Judge of the Tribunal took Issues No. 1 and 3 together for consideration involving the questions as to whether the accident was caused by rash and negligent driving of the bus by its driver, or that the accident was caused due to mechanical fault? After considering the entire evidence on record and the law applicable to the case, learned Judge of the Tribunal was of opinion that the story put forward by the non-applicants was clearly an afterthought; that it was required of the appellant before permitting the bus to ply, to have checked for its road worthiness and to have ensured that there was no mechanical mistake. With reference to the statement of the witnesses, it was found that the accident was caused by rash and negligent driving of the bus by its driver and the deceased Jogendra Singh sustained head injury in the accident which resulted in his death. 9. In Issue No. 4, learned Judge considered the question as to whether the deceased was no a bond fide passenger of the bus with reference to the allegations of the driver and conductor that the deceased boarded the bus without ticket and the learned Judge found that it was the duty of the conductor to have issued the tickets before taking the bus ahead. Learned Judge was of opinion that the conductor and the driver of the bus permitted the passengers to ride at the roof and they were responsible for the accident. 10. Taking up quantification of compensation, learned Judge was of opinion that in district Sriganganagar, even a labourer was earning Rs. 60/-per day i.e., Rs. 1,800/-per month and, therefore, the income of deceased stated at Rs. 1,800/-per month was taken as reasonable. Deducting one third for his personal expenditure and taking his contribution at Rs. 1,200/-per month, learned Judge assessed the multiplicand at Rs. 14,400/-per annum and capitalized it by a multiplier of 16 taking pecuniary loss at Rs. 2,30,000/-. The wife of the deceased was allowed Rs. 10,000/-towards loss of consortium and children at Rs. 5,000/-each for loss of love and affection and further Rs. 5,000/-were allowed towards funeral expenses and Rs. 2,000/-towards litigation expenses and, therefore, compensation was calculated at Rs. 2,62,400/-and deducting Rs. 2,30,000/-. The wife of the deceased was allowed Rs. 10,000/-towards loss of consortium and children at Rs. 5,000/-each for loss of love and affection and further Rs. 5,000/-were allowed towards funeral expenses and Rs. 2,000/-towards litigation expenses and, therefore, compensation was calculated at Rs. 2,62,400/-and deducting Rs. 15,000/-granted under no-fault liability, an award in the sum of Rs. 2,47,400/-was made in favour of the claimants with interest at the rate of 12% per annum from the date of filing of the claim application. Hence, this appeal by the bus owner. 11. It has been vehemently contended on behalf of the appellant that the learned Judge was in error in deciding Issues No. 1 and 3 in favour of the claimants; that the learned Judge has failed to appreciate the circumstances in a proper perspective inasmuch as the accident happened due to mechanical fault in the bus and the driver cannot be held responsible for causing the accident; that the learned Judge was in error in drawing conclusions on the basis of charge-sheet papers which cannot be made the basis to decide the issues against the appellant; that the learned Judge was in error in observing that the witnesses of the appellant have put forward an after thought story. It has further been contended that the deceased Jogendra Singh was sitting on the roof of the bus at his own risk and then voluntarily jumped and, therefore, the appellant Corporation was not responsible for the accident or the injuries. In the alternative, it has also been submitted that there was contributory negligence on the part of the deceased and the appellant Corporation was not liable for entire damages. It has also been alleged that deceased was travelling without ticket and took to the roof of the bus contrary to the warnings and then jumped from the bus that shows that the deceased was largely responsible for the injuries. Quantum of compensation has also been assailed with the submissions that learned Judge has assessed the income of the deceased on assumptions and the award so made by application of a multiplier of 16 is highly excessive. Even other damages of non-pecuniary losses and funeral expenses etc. have been awarded on much higher side. .12. Quantum of compensation has also been assailed with the submissions that learned Judge has assessed the income of the deceased on assumptions and the award so made by application of a multiplier of 16 is highly excessive. Even other damages of non-pecuniary losses and funeral expenses etc. have been awarded on much higher side. .12. Per contra, it has been asserted on behalf of the claimants that the findings have been arrived at by the Tribunal after thorough consideration of the material available on record and call for on interference. The alleged mechanical fault is directly attributable to the appellant alone; the deceased climbed the roof of the bus as permitted by the driver and conductor and there were other passengers on the roof; it is wrong to contend that the deceased jumped from the bus and on the contrary, his death is clearly established to be a result of injuries sustained because of capsizing of the bus. It has also been asserted that the quantum of compensation awarded by the Tribunal is not excessive as the income of the deceased has been assessed as that of a labourer and a multiplier of 16 only has been applied although the deceased was only 40 years of age and his widow being of 36 years of age and his children being respectively of 19 ½ , 17 and 15 years of age. .13. From the rival submissions, following points arise for determination in this case appeal:- .(1) Whether the accident in question was an inevitable incident on which the appellant has no control, and, therefore, the appellant deserves to be exonerated; .(2) Whether the deceased sustained injuries on account of his own fault and, therefore, the appellant is not liable for payment of compensation; .(3) Whether the deceased contributed to the injuries and, therefore, the appellant is not liable for the entire amount of compensation. .(4) Whether the quantum of compensation awarded by the Tribunal remains highly excessive and deserves to be reduced? 14. Having given thoughtful and anxious consideration to the rival submissions, having scanned through the record and having considered the matter in its entirety, this Court is satisfied that the impugned award is valid and justified and calls for no interference. 15. .(4) Whether the quantum of compensation awarded by the Tribunal remains highly excessive and deserves to be reduced? 14. Having given thoughtful and anxious consideration to the rival submissions, having scanned through the record and having considered the matter in its entirety, this Court is satisfied that the impugned award is valid and justified and calls for no interference. 15. So far the defence theory suggested by the appellant about the pin form the wheel having come out, having got stuck and the wheel movement having got jammed and break pipe busting out etc. are concerned, it is evident on the face of the record that all these happening are directly attributable to the appellant alone. The vehicle in question was a bus of State Transport Undertaking meant for carrying passengers. Every vehicle owner, for the very reason of his owning the vehicle and using it on the roads owes a direct duty to keep the vehicle in good repair and to maintain it properly so as to avoid against any mishap by or because of use of the vehicle. When playing a public service vehicle, this duty becomes more onerous. The defects occurring or developing during the journey of a vehicle cannot happen except for some loopholes in its maintenance. The Corporation is not justified in representing that even when the accident is caused because of malfunctioning of its vehicle, the fault be not attributed to it. Honble Supreme Court applying the principles of strict liability as developed from the rule stated in Rylands vs. Fletcher, has held in Kaushnuma Begums case, AIR 2001 SC 485 , that:- “11. It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.” 16. Once the strict liability rule is applied, the other species of liability i.e., negligence, ceases to be the prime basis of cause of action and, instead, a person is responsible even for accidental harm even though he is not guilty of either wrongful intent or negligence. There are other premises for such cause of action.” 16. Once the strict liability rule is applied, the other species of liability i.e., negligence, ceases to be the prime basis of cause of action and, instead, a person is responsible even for accidental harm even though he is not guilty of either wrongful intent or negligence. The rule of strict liability hits the appellant fair and square when the accident has happened, admittedly for mechanical defect and malfunctioning of its vehicle. 17. Moreover, in the present case it has been categorically established in evidence, particularly in the testimony of PW. 3 Darshan Singh and PW. 5 Ashwini Kumar that the vehicle was being driven in rash manner and in his first statement before the investigating agency even the conductor of the bus, Kuldeep has categorically stated that the bus capsized because of its brisk speed. Site Plan Exhibit-2 shows that before and after the site of accident there are sharp curves and it appears that the vehicle has upturned for uncontrolled speed driving and the so called mechanical mistakes were put forward only in a late attempt to disown the mistake on the part of the driver. Having examined the evidence available on record, this Court is satisfied that learned Judge of the Tribunal was perfectly justified in recording the finding against the appellant. Point No. 1 is answered in the negative and it is held that the accident in question was not an inevitable incident on which the appellant has no control and the appellant remains liable for damages and injury. 18. So far as the question of fault of negligence or contribution on the part of the deceased are concerned, a close scrutiny of the record makes it apparent that the appellant and its employees came out with this story of the deceased traveling without ticket, and having sustained injuries because of jumping from the roof of the bus, only as an afterthought; the story remains hollow and baseless. From the evidence available on record, it is not in doubt that the deceased was traveling while sitting on the roof of the bus and several other persons were definitely sitting on the roof of the bus. From the evidence available on record, it is not in doubt that the deceased was traveling while sitting on the roof of the bus and several other persons were definitely sitting on the roof of the bus. The suggestion of the deceased having voluntarily taken to the roof without ticket cannot be accepted because, firstly it cannot be believed that the conductor of the bus knowingly permitted any passenger to take the ride without ticket; and secondly Darshan Singh AW. 3 has specifically stated that himself and the deceased both purchased the tickets, he entered inside the bus whereas the deceased took to the roof at the asking of the conductor. 19. The deceased and so also this witness Darshan Singh boarded the bus at Ramsinghpur and admittedly, there was a booking window of the appellant at Ramsinghpur. The appellant has failed to produce the way-bill of the vehicle, and the record of the booking window to consider the number of passengers issued tickets from this station. It is not in dispute that several persons were sitting on the roof in the knowledge of the driver and conductor of the bus. When admittedly the conductor and the driver of the bus knew that the passengers have taken to the roof , yet if they continued with the journey of the bus, obviously they did so at their own peril and cannot impute contribution of the deceased merely for his sitting on the rooftop. As per the assertion of the driver, there were nearly 100-125 passengers on board. It is evident that the driver and conductor of the bus have operated this vehicle in a wholly irresponsible manner, firstly by allowing overcrowding, then permitting rooftop travelling, and above all, driving the vehicle in higher speed. 20. So far jumping of the deceased from the roof is concerned; firstly, the conductor and the driver of the bus were never in a position to see if the deceased took a jump. Secondly, this story of the deceased jumping from the bus is negated by the postmortem report, which does not show any other injury, except head injury on the body of the deceased. Had he jumped form the bus, he would have received some other injuries also. Thirdly, the person sitting on the roof of the bus alongside the deceased, AW. Secondly, this story of the deceased jumping from the bus is negated by the postmortem report, which does not show any other injury, except head injury on the body of the deceased. Had he jumped form the bus, he would have received some other injuries also. Thirdly, the person sitting on the roof of the bus alongside the deceased, AW. 5 Ashwini Kumar has categorically denied the suggestion that the deceased jumped from the bus. Moreover even if it be assumed that the deceased took a jump while the bus was in the process of turning turtle, no fault can be found in him, because in the face of such a sudden danger, in an impulsive reaction, any human being would naturally be impelled to run away from the danger. Whatever might have happened at that unfortunate moment, it remains certain that it happened only for the fault of the appellant and its employees and they remain squarely liable for the injuries caused to Jogendra Singh, which led to his death. It has been clearly established on record that the bus was being driven at a high speed and then, the bus capsized and the deceased sustained injuries because of such upturning of the bus. Points for determination Nos. 2 and 3 are also answered in the negative. The appellant remains liable for entire damages. 21. On the facts and in the circumstnaces of the case, the quantification of compensation as made by the learned Tribunal cannot be said to be too excessive then an adequate just compensation. In appeal, quantum of award is required to be interfered with when the same appears to be highly excessive or too inadequate in proportion to a reasonable figure of just compesnation in a given case. In the present case, the deceased was 40 years of age and although alleged to be engaged in agriculture, his income has been assessed on the basis of the wages of a labourer in Sriganganagar area at Rs. 60/-per day and contribution factor for the wife and three children has been taken only at Rs. 1,200/-per month and to a multiplicand of Rs. 14,400/-per annum, a multiplier of 16 has been provided to arrive at a pecuniary loss figure of Rs. 2,30,400/- and adding Rs. 5,000/- towards funeral expenses, Rs. 25,000/- towards non-pecuniary compensation and Rs. 2,000/-towards costs of litigation, an award of Rs. 1,200/-per month and to a multiplicand of Rs. 14,400/-per annum, a multiplier of 16 has been provided to arrive at a pecuniary loss figure of Rs. 2,30,400/- and adding Rs. 5,000/- towards funeral expenses, Rs. 25,000/- towards non-pecuniary compensation and Rs. 2,000/-towards costs of litigation, an award of Rs. 2,62,400/-has been made which cannot be said to be highly excessive so as to warrant interference in appeal. Choice of multiplier of 16 appears a bit higher but with lowest minimum amount taken towards earnings and nothing having been provided for future prospects, it does not appear to be a case of awarding highly disproportionate amount then a just compensation. While applying the principles for awarding a just compensation, this Court finds in this case that the amount of award of Rs. 2,62,400/-alongwith interest of 12% per annum, in the award made on 29.09.1995 cannot be said to be unjust and, therefore, no interference is called for. Point No. 4 is also answered in the negative. 22. As a result of the aforesaid, the appeal turns out to be having no substance, and is, therefore, dismissed. However, in the circumstances of the case, there shall be no order as to costs.