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2012 DIGILAW 1015 (JHR)

Bindu Devi v. Akhilesh Kumar Singh

2012-07-19

JAYA ROY

body2012
JUDGMENT Jaya Roy, J. Heard the parties. 2. This appeal has been filed by the Claimants against the Judgment and award dated 5.2.2004 passed by the Motor Vehicle Accident Claims Tribunal cum Additional District Judge, Lohardaga in Comp. Case No. 49/1994/50/1994 dismissing the claimant's claim for compensation for death of Bhuneshwar Prasad Jaiswal who died on 9.11.1993 after the accident occurred due to rash and negligent driving of the Arbind Bus having Registration No. BR-24P-0035/UP 65A-4263. It is alleged that Bhuneshwar Prasad Jaiswal was traveling in the Bus as he was agent of the Bus and his age was about 34 years. The claimants are mother of the deceased namely Anand Kunwar Devi, wife of the deceased Smt. Bindu Devi and their minor sons (i) Bikram Kumar (ii) Shivam Kumar (iii) Satyam Kumar and one minor daughter Miss Neelam Kumari. 3. The claimant's case is that the deceased was bus agent and was traveling in the Bus and he was earning about Rs.5,000/-(Five thousand) and his age was 34 years at the time of said accident. They claim compensation of Rs.10,00,000/-(Ten lakhs.). The case of the claimants are that Bhuneshwar Prasad Jaiswal (the deceased) was agent of the Bus and on 9.11.93 he boarded the Bus at about 4 O'clock in the morning for checking the passenger's tickets. The driver of the vehicle all of a sudden moved the bus rashly and negligently and due to that there was sudden Jark and Bhuneshwar Prasad Jaiswal fell down from the Bus on the road, he shouted for stopping the bus but the driver of the bus without taking any notice of his call, drove the bus negligently and fled away. Bhuneshwar Prasad Jaiswal sustained grevious multiple injuries on his person, subsequently he was taken to Ghaghra Hospital, but he died at the hospital. 4. That the opposite party No.2 the New India Assurance Co. Ltd. appeared and filed written statements on 21.4.1995 controverting the statements made in the claim petition stating interalia that claim application is hopelessly barred by law of Limitation as the accident has taken place on 9.11.93 and claim petition was filed on 16.5.94. The claimants has not deposited relevant documents required under the Bihar Motor Vehicles Rules 1992. The opposite party no.1, Akhilesh Kumar Singh owner of the alleged bus involved in the accident has not appeared in the case inspite of Gazette publication. 5. The claimants has not deposited relevant documents required under the Bihar Motor Vehicles Rules 1992. The opposite party no.1, Akhilesh Kumar Singh owner of the alleged bus involved in the accident has not appeared in the case inspite of Gazette publication. 5. In order to prove their case the claimants/appellants examined as may as Nine witnesses. Claimants witness No.7 is Bindu Devi wife of the deceased and she is claimant No.2. All of them have stated that Bhuneshwar Prasad Jaiswal was working as bus agent of Arbind Bus and other buses. He was working as agent of total seven buses. Applicants witness No.1, Arjun Thakur an assistant of Bhuneshwar Prasad Jaiswal in para-10 of the evidence has stated that during ordinary time Bhuneshwar Prasad Jaiswal was earning Rs.300/-per day and during labourers migration period was earning Rs.1000/-per day. The learned tribunal after considering all the evidence about income of the deceased Bhuneshwar Prasad Jaiswal come to a finding that his monthly income was Rs.5000/-(fife thousand) per month. The learned tribunal considering the evidence regarding issue No.4 about rash and negligent driving of the Bus and validity of the driving license came to a finding at para 21 and 22 of the judgment holding that the alleged bus was not driving rash and negligently at the relevant time of accident and the Driver had a valid driving license not established and the Insurance Company could not be held liable to compensate. 6. Mr. Arbind Kumar Lal, the learned counsel appearing for the appellants, has submitted that applicants/ appellants witness nos.1 and 9 are eye witnesses to the occurrence who have stated in their evidence that the accident took place due to rash and negligent driving of the driver and Bhuneshwar Prasad Jaiswal was traveling in the bus as agent of the bus inspite of that the learned tribunal has dismissed the claim of the appellants. He further submits that the learned tribunal has calculated the amount of compensation to be paid to the claimants which shows his intention to pay compensation to the claimant otherwise why he had calculated the same. He further submits that the learned tribunal has calculated the amount of compensation to be paid to the claimants which shows his intention to pay compensation to the claimant otherwise why he had calculated the same. From the evidence on record it is clear that Bhuneshwar Prasad Jaiswal was in the Bus, as he was agent of the bus and was checking passenger's tickets and he fell down from the bus due to sudden jolt of the bus which occurred due to rash driving of the bus and ultimately he died in the hospital. This fact shows that the deceased was agent of the bus as such he was in the bus to examine the tickets of the passengers as such claimants are entitled to get compensation. 7. The learned counsel appearing for the appellants, referred a decision reported in 1985 A.C.J. Page-379 Abdul Hakim & others – Vrs.-Paras Mal and others and submitted that in the said case the Rajasthan High Court has held that the statements of the witnesses should be read as whole and should not consider the minor variance. 8. It is further contended that refusing to give compensation to the claimants shows that the learned tribunal has shown a very harsh and indifferent attitude towards the claimants. It is the duty of the tribunal to consider the evidence as a whole and give his finding accordingly. 9. The learned counsel appearing for the respondent no.2 the Insurance Company, has submitted that if Bhuneshwar Prasad Jaiswal was agent of the bus the claimants should have placed license of agent in the record and proved it. Learned counsel submits that according to Rule 101 (1) of the Bihar Motor Vehicles Rules 1992, which reads as follows:- “No owner shall employ any person to act as an agent for sale of tickets for travel by public service vehicles unless that person holds a valid agents license” He has pointed out that at para-10 of the Judgment the learned tribunal has f ound:- “In the present case no any document has been filed on behalf of the claimants to substantiate their claim that Bhuneshwar Prasad Jaiswal was doing agent of the alleged Arbind Bus on the alleged time of accident”. The learned counsel further submits that very root of the claim of the claimants/appellants is demolished as such they are not entitled to any compensation. 10. The learned counsel further submits that very root of the claim of the claimants/appellants is demolished as such they are not entitled to any compensation. 10. The learned counsel for the company has placed reliance on 2009 (1) J.C.R. Page-335 (Jhr) Tripuri Mandal – Vrs. Oriental Insurance Co. & Anr, which holds that Burden is on the insured to assert that the driver was holding a valid driving license at the time of handing over the vehicle. But in the instant case the learned tribunal has come to a finding at para-22 that the Driver had a valid driving license is not established and the insurance company could not be held liable to compensate. 11. Mr. Alok Lal, the learned counsel appearing for the Insurance Company has further contended that there are major contradictions in the evidence of the witnesses as it has come in the evidence of the some of the witnesses are different from the each other which totally contradictory regarding of the movement of the Bus. Mr. Lal has further contended that Bhuneshwar Prasad Jaiswal (the deceased) had habit of boarding the bus on running condition and thus it was the negligent on his part and he fell down from the bus. It is also contended that the aforesaid decision cited by the counsel of the appellants is not at all applicable in the present case and the facts of both the cases are totally different. 12. Having regard to the facts that there is absolutely no evidence from the side of claimants/appellants that Buneshwar Prasad Jaiswal (the deceased) was agent of the bus. As agent's license was not filed and proved and it has also not been proved that the driver had a valid driving license, in my considered opinion the Tribunal has rightly dismissed the claimant's application for the compensation. I do not find any merit in this appeal, accordingly, this appeal is dismissed.