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2013 DIGILAW 820 (MP)

Bhura @ Gopal v. Shakuntala Bai

2013-07-17

G.D.Saxena

body2013
ORDER Saxena, J. 1. This appeal is preferred by the driver of the vehicle involved in accident under section 173 of the Motor Vehicles Act 1988 against an Award dated 26th October 2005 in Claim Case No. 3/2001 passed by the Additional Member of the Motor Accident Claims Tribunal Mungaoli, district Guna (M.P.) directing thereby both the driver and the owner of the offending vehicle to pay compensation to the claimants. 2. The facts, in short, are that on 12th December 2000, deceased Ram Singh along with the appellant and other labourers was going on a tractor bearing registration No. MKH 8700 attached with a trolley for loading the send (Muram). It is alleged that after the trailer was being loaded with muram from the quarry, the driver took the tractor in a reverse position, consequently, the deceased Ram Singh who was standing nearby the trolley fell down in a quarry and a huge quantity of muram had collapsed from the quarry due to which he was pressed and seriously injured. The incident was reported to the police on which an F.I.R. was lodged and crime was registered against the driver. After investigation, charge sheet was filed for commission of offence punishable under section 304A of I.P.C. read with sections 3/181, 39/152-A, 146/196 of the Motor Vehicles Act before the criminal Court. In a claim petition filed by the claimants of the deceased/labour, the tribunal concluded that the accident was as a result of rash and negligent driving on the part of the driver, hence, the owner as well as driver of the vehicle both were directed to pay compensation amount in the sum of Rs. 2,58,000/- in all heads along with interest @ 6 % per annum from the date of filing of claim within a period of one month, failing which the amount was directed to be paid alongwith penal interest @ 12%.Being aggrieved, the appellant has come to this Court with the present appeal. 3. The contention put forth by the learned counsel for the appellant is that the conclusion of the Tribunal that the accident was the result of the negligent act on the part of the driver was not in consonance with the facts as came out from the evidence. It is further submitted that the income of the deceased was determined at higher side and therefore the amount awarded was not properly assessed. It is further submitted that the income of the deceased was determined at higher side and therefore the amount awarded was not properly assessed. On this basis, it is prayed that by allowing the appeal, the award passed against the appellant may be set aside and the appellant may be absolved from the liability of satisfying the damages awarded to the claimants. 4. On the other hand, the submissions of the respondents No. 1 to 7 claimants of the deceased are that the Tribunal on the basis of evidence rightly held that the accident occurred due to negligence on the part of the driver as a result the trolley pushed the deceased Ram Singh down into a quarry who received serious injuries and died during treatment. On the report received from hospital, a Marg was lodged and after inquiry, the crime was registered. After investigation, the charge-sheet was filed. It is submitted that in such circumstances, the Tribunal passed the award in accordance with the evidence on record and rightly compensated the claimants. Hence, it is prayed that the appeal may be dismissed 5. The question for consideration in this appeal is whether the claimants have established their case by leading cogent evidence on record that the deceased died on account of negligence on the part of the driver which fact was rightly found to be proved by the Tribunal and for which proper compensation was awarded to them ? 6. Heard the learned counsel for the parties. Also perused the evidence on record and the law applicable to the present case. 7. On perusal of the record of the learned Tribunal, it appears that Raj Kumar lodged report in police station Mungaoli that on 12th December 2000, he and other labourers of the village Bhatpura including Ram Singh were going to load Muram in a trolley from the quarry. It is stated that after the trolley was being loaded with muram, the driver reversed the tractor pushing Ram Singh down into quarry. A huge quantity of muram collapsed from the quarry in which Ram Singh was pressed. He was taken out by other labouers in an serious condition and admitted in a hospital for treatment but he died. After investigation, charge sheet was filed before criminal court. A huge quantity of muram collapsed from the quarry in which Ram Singh was pressed. He was taken out by other labouers in an serious condition and admitted in a hospital for treatment but he died. After investigation, charge sheet was filed before criminal court. On perusal of the statement of Smt. Shakuntalabai (AW-1), wife of deceased, Awatar Singh (AW-2), and Raj Kumar Singh (AW-3) it is found that they all deposed that on a fateful day, deceased Ram Singh, Awatar Singh and Raj Kumar went on a tractor trolley of Mishrilal being engaged on contract for loading muram from quarry. They deposed that that after loading the muram in trolley, the deceased was standing behind the trolley but the driver reversed the tractor resultantly, he fell down into quarry. A huge quantity of muram had collapsed from the quarry smothering him to death. The persons accompanied him tried to remove the muram and took him out in an injured condition. The injured was carried to Mungawali hospital where he died during treatment. 8. In the case of Andhra Pradesh State Road Transport Corporation Hyderabad v. Dodda Somayajulu Sitaramamurthy ( AIR 1982 AP 436 ), the High Court of A.P. observed as follows :- “9. It is the normal rule that mere happening of a motor accident is no evidence of negligence on the part of the driver. The person claiming compensation for personal injury has to establish negligence and the extent of loss suffered due to the injury But there is an exception to the normal rule. This exception is in respect of accidents, attracting the Doctrine of res ipsa loquitur. In these cases, the mere proof of accident raises the presumption of negligence unless rebutted by the wrong-doer. The Supreme Court in Pushpabai Purshottam, Udeshi v. M/s. Ranjit Ginning and Pressing Co. Pvt, Ltd., AIR 1977 SC 1735 , held at p.1735): “Normally it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff us 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 principles of res ipsa loquitur.” 10. This hardship is sought to be avoided by applying the principles of res ipsa loquitur.” 10. To establish negligence, the claimant must prove that the driver did not stick to the standard of care in driving, expected of a reasonable person. A reasonable man who drives a motor cut on a highway should have the skill of a competent driver and possess complete knowledge of highway code. In evaluating the evidence, the Courts should consider the cause of the accident not either as a scientist or metaphysician but as the “man in the street”. The question to be asked is, “what does a layman think to be the cause of the accident ? In other words, broad view and not a microscopic analysis of the cause is the imperative in accident claims “ 9. To defy the charge of negligence, the driver Gopal (DW-2) and Head Constable Satya Bhan Singh (DW-1), who recorded dying declaration were examined before the Tribunal. The driver Gopal (DW-2) deposed that on a fateful day Ram Singh, resident of village Bharatpura Toria was digging the Muram from quarry of Bharatpura. During that process, he fell down into quarry and was pressed under huge quantity of muram. A report of the incident was lodged by Raj Kumar, brother of deceased who was present on the spot at the time of the accident. He denied that any accident had occurred due to his act. He alleged that a false criminal case was built up against him. Satya Bhan Singh (DW-1), at the relevant time was posed as Head Constable in Police Station Mugaaoli. He deposed that he recorded statement (Ex.D/1) of Ram Singh in presence of the witnesses Chatri and Malkhan Singh. 10. The documents available on the record of criminal case, such as Marg Intimation Report (Ex.P/1), Memo of dead body (Ex.P/2) and postmortem Report (Ex.P/3) which were produced and proved by the claimants indicated that the accident happened due to negligent act on the part of the driver in reversing the tractor back, as a result, Ram Singh fell down into quarry and was pressed under huge quantity of muram collapsed from the quarry. He was seriously injured and died after sometimes during treatment in the hospital. He was seriously injured and died after sometimes during treatment in the hospital. It is also proved from the evidence that when deceased was standing nearby the trolley after the trailer was being loaded with muram, the driver took the position of the vehicle in reverse and consequently he fell down into quarry and sustained serious injuries. Therefore, it is a case where the death occurred on account of use of the vehicle at the time of accident. It cannot be said there was no actual use of the vehicle and connection between the cause of death and the use of the vehicle. The expression “use” in the statute is with reference to “use of the motor vehicle”. Whether there was a use of the motor vehicle has to be factually analysed in the case. On discussion of the evidence, this court finds that there was proximate connection between the use of the vehicle and the actual cause of death. The evidence suggested affirmatively that there was a use of the motor vehicle and the driver did not stick to the standard of care in driving, which was expected of a reasonable person. In that view of the matter, the learned claims tribunal has not committed any error in holding the driver as well as the owner of the offending vehicle responsible to satisfy the award. The claimants by leading cogent evidence successfully proved that the driver negligently moved the tractor trolley towards back side and pushed the deceased down into quarry. So, the negligence on the part of driver in the case is well proved. 11. Resultantly, appeal fails and is hereby dismissed. Appellant to bear his own costs as well as of respondents. Lawyer’s fee to the tune of Rs.1,000/- (Rs. One Thousand Only) per lawyer, if pre-certified.