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2016 DIGILAW 1 (HP)

Krishanu Ram v. Krishanu Ram

2016-01-01

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 28.4.2009, made by the Motor Accident Claims Tribunal Bilaspur, H.P. in MAC No. 85 of 2007, titled Krishanu Ram versus Bhagi Rath and others, for short “the Tribunal”, whereby the claim petition filed by the claimant came to be dismissed, hereinafter referred to as “the impugned award”, for short. 2. Smt. Shanti Devi was traveling in the bus bearing registration No. HP-63-0467 owned by HRTC, on 21.8.2007, which met with an accident while she was de-boarding the said bus at Ghagus (Bridge) and died on the spot. The claimant Krishanu Ram-husband of the deceased, filed claim petition for the grant of compensation to the tune of Rs.10 lacs, as per the break-ups, given in the claim petition. 3. The claim petition was resisted and contested by the owner, driver and conductor and following issues came to be framed. (i) Whether the deceased Smt. Shanti Devi died in a motor vehicle accident on account of rash and negligent driving of Bus No. HP-63-0467, owned by respondent No.3 and being driven by respondent No. 1 which took place on 21.8.2007, at about 10 a.m. at village Ghagus (Ghagus Bridge), OPP. (ii) If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from which of the respondents? OPP. (iii) Whether the petition is bad for non-joinder of necessary party? OPR-2. (iv) Relief. 4. The claimant has examined H.C. Jai Ram (PW2), Sh. Mast Ram (PW3), Sh. Rattan Lal (PW4) and himself stepped into the witness-box as PW1. 5. Respondents, on the other hand, have not led any evidence. However, driver Bhagi Rath stepped into the witness-box as RW1. Thus, the evidence led by the claimant has remained un-rebutted and despite that impugned award has been passed by the learned Tribunal. 6. It is an admitted fact that the deceased was traveling in the offending vehicle and was de-boarding rather alighting from the bus and in that process, without getting signal from the conductor, the driver drove the bus ahead. In terms of the Motor Vehicles Act, for short “the Act” read with Motor Vehicles Rules, conductor was supposed to give signal to the driver and driver was supposed to wait for the signal of the conductor before starting the bus. 7. In terms of the Motor Vehicles Act, for short “the Act” read with Motor Vehicles Rules, conductor was supposed to give signal to the driver and driver was supposed to wait for the signal of the conductor before starting the bus. 7. The driver had to exercise due care and caution. It is beaten law of the land that it is the driver with whom the loss risk lies. 8. The Tribunal has recorded in the impugned award that the vehicle was in the state of slow pace and thus it is not the negligence of the driver or the conductor. Perhaps the learned Tribunal has lost sight of the fact that in the claim cases, the claimant has not to prove the case by preponderance of probabilities or beyond reasonable doubt but is supposed to prove the case by prima facie proof that the accident was outcome of the rash and negligent driving of the driver. 9. It is apt to record herein that the law on motor accidents claim has gone through the see change. Even police report can be treated as claim petition, under Sections 158(6) and 166(4) of the Motor Vehicles Act, for short “the Act”. The copy of FIR Ext. PW2/A is on the record, which do disclose that the FIR was lodged against the driver and the conductor. 10. The claimant has stated in the FIR that on reaching at Ghagus Bridge he and his wife were about to alight from the bus and his wife was standing at the front window of the bus. The driver suddenly drove the bus due to which his wife fell down on the bridge out of the front window of the bus and was crushed by rear tyre of the bus and died on the spot. 11. Respondent No. 3 in reply to para 24 of the claim petition stated that the bus was about to stop to give the pass to another vehicle and the deceased had jumped out of the window of the moving bus. It is apt to reproduce para 16 of the reply filed by respondent No. 3 herein. “16. Para No. 24 of the petition is admitted to the extent boarded the bus No. HP-63-0467 rest of the para is wrong and not admitted as correct. It is submitted that the deceased Smt. Shanti Devi had died due to her own negligence. It is apt to reproduce para 16 of the reply filed by respondent No. 3 herein. “16. Para No. 24 of the petition is admitted to the extent boarded the bus No. HP-63-0467 rest of the para is wrong and not admitted as correct. It is submitted that the deceased Smt. Shanti Devi had died due to her own negligence. In fact the bus was about to stop to give the pass to another vehicle coming from opposite direction and the deceased had jumped out of the window of the moving bus, as such there is no negligence on the part of the driver of the said bus.” 12. The Tribunal recorded the findings in para 12(a) of the impugned award contrary to the pleadings contained in para 16 quoted supra. It is apt to reproduce para 12(a) of the impugned award herein. “12 (a)That no passenger other than the deceased had alighted from the bus at Ghagus Bridge and (b) that the deceased had on her own without any signal to stop alighted or disembarked from the vehicle driven by respondent No. 1 at Ghagus Bridge and that too when the vehicle driven by respondent No. 1 had not fully halted, which in any case was not its regular place to stop, but, was then in a state of movement, though , ion a state of slow movement, which pace of the vehicle may have prompted the deceased to take to alight from the bus even when it was not the scheduled place for the vehicle owned by respondent No. 3 to stop, it, which scheduled place was rather a little ahead of Ghagus Bridge, till, which stage, the deceased ought to have waited to disembark from the vehicle. This issue is decided against the petitioner.” 13. It is apparent that the averments contained in the reply to para 24 of the claim petition, statement of the claimant recorded in the FIR and the findings recorded by the Tribunal to this effect are contradictory to each other. Thus, the respondents have failed to prove the defence taken by them in the reply. Thus, the evidence led by the claimant has remained unrebutted. 14. It is beaten law of the land that the claim petition is to be determined summarily and that is why the Code of Civil Procedure is not applicable. Thus, the respondents have failed to prove the defence taken by them in the reply. Thus, the evidence led by the claimant has remained unrebutted. 14. It is beaten law of the land that the claim petition is to be determined summarily and that is why the Code of Civil Procedure is not applicable. Some of the provisions of Code of Civil Procedure have been made applicable in terms of the provisions of the Rules framed by the Central Government as well as State Government. The State of Himachal Pradesh has also framed the Himachal Pradesh Motor Vehicles Rules, 1999 (for short "the Rules") in terms of Sections 169 and 176(b) of the Motor Vehicles Act, and only some of the provisions of the Code of Civil Procedure have been made applicable. The mandate of Chapter XI of the Motor Vehicles Act provides for the grant of compensation to the victim without succumbing to the niceties and technicalities of procedure. It is beaten law of the land that technicalities or procedural wrangles and tangles have no role to play. 15. My this view is fortified by the judgment delivered by the apex court in Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646, N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354 and Oriental Insurance Co. versus Mst. Zarifa and others, reported in AIR 1995 Jammu and Kashmir 81. 16. This Court has also laid down the similar principles of law in FAO No. 692 of 2008 decided on 4.9.2015 titled Cholamandlan MS General Insurance Co. Ltd. Versus Smt. Jamna Devi and others, FAO No. 287 of 2014 along with connected matter, decided on 18.9.2015 titled Tulsi Ram versus Smt. Mena Devi and others, FAO No. 72 of 2008 along with connected matter decided on 10.7.2015 titled Anil Kumar versus Nitim Kumar and others and FAO No. 174 of 2013 decided on 5.9.2014 titled Kusum Kumari versus M.D. U.P Roadways and others. 17. Having said so, it is held that the claimant has proved that the accident was outcome of the rash and negligent driving of the driver. Accordingly, findings returned on issue No. 1 are set aside and is decided in favour of the claimant. 18. 17. Having said so, it is held that the claimant has proved that the accident was outcome of the rash and negligent driving of the driver. Accordingly, findings returned on issue No. 1 are set aside and is decided in favour of the claimant. 18. The Tribunal has not discussed issues No. 2 and 3 in view of the findings recorded on issue No. 1. It has to be determined to what amount of compensation the claimant is entitled to. 19. Before I deal with issue No. 2, I deem it proper to deal with issue No. 3 at the first instance. Respondent No. 2, i.e., conductor of the offending bus had taken the plea in his reply that the claimant has not arrayed his legal representatives as party petitioner in the claim petition. 20. It is stated that deceased was 55 years of age at the time of accident. She has left behind her husband claimant Krishanu Ram, one son and two daughters. All are entitled to compensation for the simple reason that the son and daughters have also lost their mother. The loss of mother is irreparable. The claim petition cannot be dismissed on the said count. Accordingly, issue No. 3 is decided in favour of the claimant and against the respondents. 21. Issue No. 2. The question is what is just and appropriate compensation to be awarded in favour of the claimant. Admittedly, the deceased was a house wife, 55 years of age, was maintaining house hold goods, her husband and also looking after the children and her family. By a guess work, it can be safely held that her contribution towards the family was not less than Rs.5000/- per month for the simple reason that if a person has lost his wife he has to manage the house-holds and has to pay not less than Rs.4500/- per month to a labourer. Accordingly, it is held that the claimant has lost source of dependency to the tune of Rs.5000/- per moth. 22. Keeping in view Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120, 1/3rd has to be deducted. Thus, the claimant has lost source of dependency to the tune of Rs.4000/- per month. 23. 22. Keeping in view Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120, 1/3rd has to be deducted. Thus, the claimant has lost source of dependency to the tune of Rs.4000/- per month. 23. Admittedly, the age of the deceased was 55 years at the time of accident. Keeping in view the age of the deceased read with Munna Lal Jain and another versus Vipin Kumar Sharma and others reported in 2015 AIR SCW 3105, the multiplier is to be applied according to the age of the deceased. The multiplier of ‘9’ is applicable, keeping in view Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120, referred to supra and is applied accordingly. Thus, the claimant has lost total source of dependency to the tune of Rs.4000x12x9= Rs.4,32,000/-. 24. The claimant is also entitled to Rs.10,000/- each under the heads “Loss of consortium”, “Funeral expenses” loss of “love and affection” and “loss of estate”. Total to the tune of Rs.40,000/-. 25. The deceased had one son and two daughters. All are held entitled to compensation. 26. Thus, in all, the claimants are held entitled to Rs.4,72,000/-, alongwith interest @7.5% per annum from the date of claim petition till its realization. 27. The HRTC is directed to deposit the entire amount in this Registry within eight weeks from today. The Registry, on deposit of the amount, is directed to release 50% of the amount in favour of the claimant-husband and 50% to the son and daughters in equal sharers, through payees cheque account, or by depositing in their accounts. 28. The impugned judgment is set aside, claim petition is granted and award as indicated above is passed in favour of the claimants and against the owner-HRTC. 29. The appeal stands disposed of, as indicated hereinabove. 30. Send down the record forthwith, after placing a copy of this judgment.