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Rajasthan High Court · body

2012 DIGILAW 2003 (RAJ)

Rajasthan State Road Transport Corpn. v. Braj Lal

2012-09-24

MAHESH CHANDRA SHARMA

body2012
JUDGMENT 1. - The Rajasthan State Road Transport Corporation (in short RSRTC) has filed the above these three appeals against the common award dated 15.3.2011 passed by the Judge, Motor Motor Accident Claims Tribunal,( Communal Riots) Jaipur City Jaipur ( in short MACT) in Claim Cases Nos. 1102/2004 (1071/1996), 1107/2004 (1670/1997) and 1103/2004 (1630/1996) whereby the claim petitions filed by the claimants were allowed and they were awarded compensation in the amount of Rs. 2,25,000/-, 3,75,200 and 1,91,900 respectively. SBCMA No.2410/2011 related to death of Kumari Deepa (passenger) daughter of Brijlal, SBCMA No.2402/2011 related to death of Ramjilal (driver) and SBCMA No.2413 of 2011 related to injuries sustained and 30% permanent disability by the claimant Mitthan Lal (conductor). It will be proper for this Court to decide these appeals by this common order. 2. The facts have been set out in the impugned award and hence I am not repeating the same here except wherever necessary. 3. Brief facts of the case are that on 22.5.1996 deceased Ramjilal was driving Bus No. RJ 07 P 1038 (RSRTC's bus) going from Mahwa to Dausa Due to bomb blast in the bus on account of terrorist activities, Ramjilal (driver of the bus) and Kumari Deepa (passenger) died and Mitthan Lal (who was conductor in the bus) injured received injuries. Ramjilal was driver of the bus and Kumari Deepa, who was daughter of Brijlal was travelling in the bus as passenger, and Mitthan Lal was conductor of the bus of the RSRTC. On account of death of Ramjilal and Kumari Deepa, their legal heirs filed claim petitions and on account of 30 per cent permanent disablement and injuries received by injured Mitthan Lal he also filed claim petition for the injuries received by him in the accident. The reply to the claim petitions were filed and issues were framed and after recording the evidence of the parties and production of documents, the MACT after hearing the parties allowed the claim petitions vide common award dated 15.3.2011 mentioned above. Against the award of compensation by the MACT, the RSRTC preferred these three appeals against the claimants. 4. Common arguments of the learned counsel for the RSRTC in all the three appeals is that the findings regarding issues 1 and 3 are absolutely perverse and contrary to the record. Against the award of compensation by the MACT, the RSRTC preferred these three appeals against the claimants. 4. Common arguments of the learned counsel for the RSRTC in all the three appeals is that the findings regarding issues 1 and 3 are absolutely perverse and contrary to the record. The MACT committed serious error in holding that accident in question occurred due to negligence of the driver of the RSRTC. It has been argued that there was no offence made out punishable under Section 279 of Indian Penal Code against the driver regarding rash and negligent driving and as such merely because there was bomb blast on account of terrorist activities, it cannot be said it is a case comes under the purview of Act of 1988. The conductor of the bus who lodged the FIR has been examined by the RSRTC and it has come on the record that the bus was examined before its journey and there was no negligence on the part of the driver and conductor of the RSRTC and the accident took place due to the reasons beyond the control of the RSRTC and hence the accident in question does not fall within the purview of the Act of 1988. It has been further argued that it is the basic principle of law that the owner of the vehicle is vicariously liable for compensation on account of negligence of his employee under the law of torts, but when it is established that there was no negligence of the driver of the bus and thus the impugned order being contrary to law liable to be quashed. 5. In SBCMA No.2413 of 2011, it has been argued by the counsel for the RSRTC that the claimant was conductor of the bus in question and as such being employee of the RSRTC and hence the claim petition filed on account of the injury received by the conductor of the bus is not maintainable under the provisions of Act of 1988. The claimant was employee of the RSRTC and was beneficiary of ESI facility and hence the claim petition on account of the employee who is availing facility of ESI is not maintainable and what under the ESI Act and hence the claim petition is liable to be dismissed. The claimant was employee of the RSRTC and was beneficiary of ESI facility and hence the claim petition on account of the employee who is availing facility of ESI is not maintainable and what under the ESI Act and hence the claim petition is liable to be dismissed. Claimant being employee of RSRTC was beneficiary of ESI Act and hence the claim petition filed on account of injuries to the employee is barred as provided by section 53 of the ESI Act and hence the claim petition is liable to be dismissed. In relation to issue NO.4 it was argued that the MACT has not deducted the amount paid to the claimants as an interim relief provided to them by local administration as well as by the RSRTC before filing the claim petition. While placing reliance on Raj Kumar v. Ajay Kumar decided on 18.10.2010 the tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity in most cases the percentage of economic loss i.e. percentage of loss of earning capacity arising from a permanent disability will be different from the percentage of permanent disability. 6. In the SBCMA No.2402 of 2011, it has been argued by the counsel for the RSRTC that the claimant was driver of the bus in question and as such being employee of the RSRTC and hence the claim petition filed on account of the death of the driver of the bus is not maintainable under the provisions of Act of 1988. The deceased was employee of the RSRTC and was beneficiary of ESI facility and hence the claim petition on account of the employee who is availing facility of ESI is not maintainable and what under the ESI Act and hence the claim petition is liable to be dismissed. Deceased being employee of RSRTC was beneficiary of ESI Act and hence the claim petition filed on account of death of the employee is barred as provided by section 53 of the ESI Act and hence the claim petition is liable to be dismissed. In relation to issue NO.4 it was argued that the MACT has not deducted the amount paid to the claimants as an interim relief provided to them by local administration as well as by the RSRTC before filing the claim petition. In relation to issue NO.4 it was argued that the MACT has not deducted the amount paid to the claimants as an interim relief provided to them by local administration as well as by the RSRTC before filing the claim petition. The widow in her testimony stated that she has been paid Rs. 85000/- by RSRTC before filing claim petition and as such that amount should have been deducted from the assessed compensation amount and thus the impugned award deserves to be reduced. The MACT has not considered the fact that only dependent was the widow and the claimant respondents 2 to 4 being adult sons cannot be said to be dependent and hence one half amount should have been deducted while computing dependency and thus the impugned award deserves to be reduced. 7. In SBCMA No.2410 of 2011, the RSRTC has argued that the MACT while deciding issue No.4 has awarded excessive amount as compensation to the claimants. The MACT while passing the award has not deducted the amount paid to the claimants as a interim relief. The interest can only be awarded from the date of filing the claim petition and rate of interest 6 per cent is also excessive. The MACT awarded penal interest @ 9% per annum in default of payment is contrary to law. 8. Mr. B.C. Rawat, learned counsel for the claimants in SBCMA No. 2302 of 2011 claiming compensation for death of Ramjilal (driver) has argued that the MACT has properly passed the award after considering the facts and circumstances of the case and hence the award passed by the MACT should not be interfered with at this stage. It was the duty of the RSRTC to make security arrangements etc. in the Corporation Bus and on account of that the Bomb was blast took place on account of negligence at the level of administration of the RSRTC. He has placed reliance on Samir Chand v. M.D. Assam State Transport Corporation (1998 (2) TAC 643 : AIR 1999 SC 136 , in support of his argument, in which the Apex Court observed that explosion took place inside the bus in an admitted fact and the usual police escort was not there." Where the explosion took place inside the bus and the usual police escort was not there, there was negligence on the part of the owner of the driver of the bus. 9. 9. I have heard the learned counsel for the RSRTC and the claimant- respondents. The Apex Court in Samir Chand v. M.D. Assam State Transport Corporation (supra) held as under : "10. At the notice stage, this Court by order dated 18.9.1995 observe as follows:- "The first question which arises for consideration is whether the bomb blast which caused injuries to the petitioner took place outside the motor vehicle and whether the petitioner sustained injuries as a result thereof. The High Court appears to have taken the view that it was so. The jurisdiction of the Motor Accident Claims Tribunal depends on the correctness of this finding. the learned counsel for the petitioner wants to produce the entire evidence adduced before the Tribunal to enable proper examination of this finding of the High Court. This be done within eight weeks. List thereafter." 11. After perusing the documents produced pursuant to the above order dated 18.9.1995, this Court granted leave on 20.11.1995. 12. The learned counsel appearing for the appellant invited our attention to a decision of this Court in Shivaji Dayanu Patil and Another v. Vatschala Uttam More (Smt), (1991) 3 SCC 530 : AIR 1991 SC 1769 to support and to restore the Award of the Tribunal which has been set aside by the High Court. In said case, there was a collision between a petrol tanker and a truck on a National Highway at about 3.00 A.M. , as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the Highway. As a result of the collision, the petrol contained in the tanker leaked out and collected nearby. About four hours later, an explosion took place in the tanker causing burn injuries to those assembled near it and one such person's legal representative filed claim petition before the Tribunal under section 92-A as well as under section 110 of the Motor Vehicles Act, 1939. 13. This Court while repelling various arguments put forward, repudiating the claim, held as follows : "26. 13. This Court while repelling various arguments put forward, repudiating the claim, held as follows : "26. These decisions indicate that the word "use" in the context of motor vehicles, has been construed in a wider sense to include the period when the vehicle is not moving and is stationary, being either parked on the road and when it is not in a position to move due to some breakdown or mechanical defect. relying on the above mentioned decisions, the appellant bench of the High Court has held that the expression "use of a motor vehicle" in Section 92-A covers accidents which occur both when the vehicle is in motion and when it is stationary. With reference to the facts of the present case, the learned Judges have observed that the tanker in question while proceeding along National Highway 4 (i.e. while in use) after colliding with a motor lorry was lying on the side and that it cannot be claimed that after the collision the use of the tanker had ceased only because it was disabled. We are in agreement with the said approach of the High Court. In our opinion, the word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstance, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck." 14. This view has been referred to and applied in a recent decision of this Court in Union of India v. United India Insurance Co. Ltd. & Others, (1997) 8 SCC 683 : AIR 1998 SC 640 . 15. After going through the judgment of the High Court, we are of the view that the High Court was not right on facts that there was no negligence on the part of the owner or the driver of the bus especially when the appellant has specifically pleaded about the negligence which was accepted by the Tribunal in the light of the pleadings and of the evidence produced before it. The explosion took place inside the bus is an admitted fact and the usual police escort was not there. The explosion took place inside the bus is an admitted fact and the usual police escort was not there. The High Court, except observing that there was no negligence, has not upset the finding of the Tribunal that the atmosphere during the period of accident was so polluted requiring care on the part of the conductor and driver of the bus. There cannot be any doubt that the accident arose out of the use of the motor vehicle justifying the claim of the appellant. We are satisfied with the assessment of the Tribunal in quantifying the compensation in a sum of Rs. 1,20,000/- with interest at the rate of 12%. 16. In the result, the appeal is allowed, the judgment under appeal is set aside and the Award of the Tribunal is restored. There will be no order as to costs. 17. When the matter was before the High Court, it appears that a sum of Rs. 25,000/- was given to the appellant and the High Court while disposing of the appeal directed that the amount already paid need not be refunded by the appellant herein. This amount of Rs. 25,000/- must be given credit to while realising the award amount." 10. It is clear from the principles laid down in the case of the Samir Chand (supra) that where the explosion took place inside the bus and the usual police escort was not there, there was negligence on the part of the owner or the driver of the bus. In the instant matter admittedly bomb blast took place inside the bus and the driver and passenger died and the conductor of the bus received injuries and 30 per cent permanent disability and the claim petitions filed by them were rightly allowed by the MACT. I have also considered the compensation awarded to the claimants in all the three appeals and in my opinion the said amount cannot be said to be excessive. The interest awarded is also not excessive. There is no perversity in the common award passed by the MACT. The appeals filed by the RSRTC deserve to be rejected. 11. These three appeals being devoid of merit stand dismissed. The stay applications also stand dismissed. Appeal dismissed. *******