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HIMACHAL ROAD TRANSPORT versus HARBANS KAUR & ORS

High Court of Punjab and Haryana, Chandigarh

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Himachal Road Transport v. Harbans Kaur & Ors - FAO-656-1989 [2006] RD-P&H 3547 (1 July 2006)

FAO No.656 of 1989 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

FAO No. 656 of 1989

Date of Decision : 5.7.2006

...

Himachal Road Transport

and another v. Harbans Kaur and others

CORAM:- HON'BLE MR. JUSTICE ARVIND KUMAR
Present: Ms. Radhika Suri, Advocate,

for the appellant-HRTC.

Mr. Bhag Singh, Advocate

for the respondents

...

JUDGMENT:

This is an appeal by the appellant, Himachal Road Transport Corporation (in short the HRTC) against award dated 10.1.1989 passed by the Motor Accident Claims Tribuinal, Chandigarh, awarding compensation of Rs.1,24,800/- to the claimants(respondents herein) on account of death of Ajaib Singh in motor vehicle accident that took place on 24.5.1986.

In brief, the facts of the case are that on 24.5.1986, Ajaib Singh resident of village Lakhnaur Sahib had come to Chandigarh to see a patient at PGI at about 5 P.M. After seeing the patient, he reached Bus Stand, Sector 17, Chandigarh to catch a bus for Ambala to reach his village. As he wanted to enter the bus bearing registration No.HPA-2165 from its front door when the same was standing near the outer gate of bus stand, respondents No.4 and 5, namely, driver and conductor of the bus, started the bus as a result of which Ajaib Singh fell down and the bus ran over him. He was taken to PGI where he was declared brought dead. The driver of the bus was stopped by the passengers and the public present at the spot. The FAO No.656 of 1989 2

body of deceased had to kept in General Hospital till 3.6.1986 as the police failed to locate his whereabouts, whereafter the post-mortem examination was conducted. Finally, on 9.6.1986 the brother of the deceased, namely, Daljit Singh identified the deceased from his photograph and clothes which were in possession of the police. On his statement, case FIR No.245 dated 24.5.1986 under Sections 279/337/304-A IPC was registered in Police Station, Central, Chandigarh. The legal heirs of the deceased, namely, widow, three sons and one daughter, then filed petition before the Motor Accident Claims Tribunal claiming compensation.

Upon notice of claim petition, respodnents 1 and 2 failed to appear in Court and were accordingly proceeded against ex-parte. The name of respondent No.5 was deleted after being given up by the order of the Court. The claim petition was contested by respondents 3 and 4 who filed their separate written statements. Respondent No.3 while admitting the accident, denied the averment that the deceased opened the door of the bus and wanted to enter the bus from its front door or that the bus was standing at the outer gate of the bus stand. It was stated that the bus being a delux coach bus had black-glasses with one door for coming and going out located in the centre of the left side and that the door cannot easily open from outside and has to be opened from inside. It was further stated that the bus is parked in the main bus stand near the booking counter towards the main gate. On the fateful day, the bus had left the bus stand at 5.30 PM and had just covered a few yards beyond the outer gate when a lady passenger of the bus shouted regarding falling of a person from behind upon which the bus was immediately brought to halt and it was found that the deceased while trying to jump at the bus from a wall of the outer gate had fallen down and in that process the wheel of the bus over-ran him. It was further stated that the accident took place entirely due to negligence of the deceased himself.

There was also a writing of passengers to this effect. Separate written statements were filed by respondents 4 and 5 which are also on the same lines.

Parties led evidence in support of their respective contentions.

On appreciation of evidence adduced by the parties, the learned Tribunal vide award dated 10.1.1989, awarded a sum of Rs.1,24,800/- as compensation to the claimants (respondents herein) along with interest at FAO No.656 of 1989 3

the rate of 12 per cent per annum from the date of claim petition till payment, payable by all the respondents therein. It was ordered that the amount, if any already paid as an interim compensation, shall be liable to be deducted from the compensation amount. The share of the claimant-minors was directed to be deposited in a nationalised bank in fixed deposit payable to them on attaining majority, with a direction that the interest accruable on the said amount shall be allowed to be withdrawn by the widow on her undertaking to utilise the same for the maintenance of minors.

Feeling dissatisfied with the award, the respondent-HRTC has approached this Court by way of present appeal.

There is no cross-appeal by the claimants-respondents.

I have heard learned counsel for the parties.

The accident near the outer gate of the Bus Stand, Sector 17, Chandigarh, is not in dispute. The death of Ajaib Singh in the said accident has also not been disputed. The only controversy is with regard to the negligence.

Learned counsel for the appellant-Himachal Road Transport Corporation has laid her stress that deceased Ajaib Singh in an attempt to board the running bus fell of his own and thus, was himself negligent in the said accident. She in support of the argument has referred to mark 'A' i.e.

writing of some of the passengers in the bus and also the statement of RW-1 Rachhpal Singh,driver, RW-2 Gopal Dass, Conductor, and RW-3 Nachhattar Singh, posted to collect parking fee at the bus stand. She has also argued that despite the case registered on the statement of constable Amar Singh (PW-6), the driver of the bus was not challaned. Counsel referred to the statement of PW-2 Inspector Surjit Raj (Investigating Officer) who stated that during investigation, he found that there was no rashness or negligence on the part of the bus driver and the case was sent back untraced. There is some force in the arguments addressed by the counsel for the appellants. The case of the respondent-claimants mainly rests on the statement of PW-6 Constable Amar Singh, an eye-witness to the accident, who happened to be posted at General Bus Stand, Sector 17, Chandigarh, and was on duty at the relevant time. His statement is very relevant to resolve the controversy of negligence. He stated that on 24.5.1986 at about 5.30 PM he was posted in General Bus Stand, Sector 17, FAO No.656 of 1989 4

Chandigarh. At the main outer gate when he was coming after taking water, he saw Deluxe bus No.HPA-2167 coming from the bus campus. The deceased wanted to enter the bus by opening the door but the bus driver started the bus and drove it rashly and negligently and the deceased fell down. The rear wheels of the said bus ran over the body of the deceased.

He took the body of the injured to PGI where he died. He in his cross- examination admitted that when the accident took place, the bus had just started moving. He also admitted that at the time of accident, the conductor was standing on the door. When he saw the bus, it was in motion. When the person tried to board the bus, the bus was in motion but was slow. On a close look at the statement of PW-6 Amar Singh, two things emerge; namely (i) the bus was in motion; and (ii) the deceased tried to board the bus by opening the door. The tenor of the evidence thus emerges that though the conductor was standing on the door after getting the gate pass and closing the door of the bus, it cannot be assumed that the conductor was standing at the door with the door open as in that situation there was no occasion for Ajaib Singh to open the door in order to enter the bus, as stated by PW-6 Constable Amar Singh, the sole eye-witness. This aspect of the situation fortifies the stand of the driver Rachhpal Singh and conductor Gopal Dass who appeared as RW-1 and RW-2 respectively, stating that after taking the outer gate pass, the conductor came in the bus and closed the door.

Therefore, in that situation, Ajaib Singh was not expected to board the bus when it was already on move to onward destination. It cannot be also expected that the driver and the conductor would know Ajaib Singh's action in boarding the running bus. In this back-drop, the observation of the learned Tribunal that it was obligatory for the driver to see that no passenger was in the process of boardingthe bus before he started the bus, is beyond the purview of the evidence on record because there was no occasion for the driver to start the bus since as already discussed above the deceased trying to board the running bus. Even PW-6 Constable Amar Singh no where stated that the bus was in stationary position when the deceased tried to board the bus. The learned Tribunal has laid much stress on the contradiction in the statements of RW-1 Rachhpal Singh, RW-2 Gopal Dass while observing that RW-1 Rachhpal Singh had stated that when the conductor went for taking the gate-pass the engine of the bus was in starting FAO No.656 of 1989 5

position whereas RW-2 Gopal Dass stated that it had been switched off.

The said contradiction is inconsequential as it relates to the position prior to the accident. Therefore, it hardly matters if at that point of time the engine of the bus was in starting position or switched off. However, the entire negligence cannot be attributed to the deceased. The driver and the conductor if were having more caution the accident could have been averted. As discussed above, no doubt the bus was in motion and the door was closed with conductor standing near the door. The statement of PW-6 Constable Amar Singh suggests that though the bus was in motion but was slow. Otherwise also,when the deceased tried to board the running bus, the conductor could direct the driver to stop the bus immediately. RW-1 Rachhpal Singh, in cross-examination has admitted that the gate(door) of the bus was visible from his seat. On seeing the deceased boarding the bus, he himself could stop the same since at that time the bus was in slow motion. However, none had acted in that manner. Rather, the driver of the bus drove it rashly and negligently resulting in fall of the deceased as evident from the statement of PW-6 Constable Amar Singh. This shows not only lack of co-ordination between the driver and the conductor but also lack of presence of mind of the driver which is very essential while sitting on driver seat concerning the safety of the public. On the facts and circumstances of the case, I am of the view that the negligence of the deceased and the driver of the bus can be apportioned at 30:70 per cent.

Accordingly, the claimants shall be entitled to get compensation only to the extent of 70 per cent of the amount awarded by the Tribunal. No doubt, as per statement of PW-4 Harbans Kaur, the deceased was aged 44 years but as per post-mortem report, Exhibit P-17, the age of the deceased is mentioned as 40-45 years. The multiplier of 16 applied by the Tribunal, though on liberal side, needs no interference.

Coming to the rate of interest, previously it used to be 12 per cent, however, in the recent years the bank rates have been considerably reduced and the rate of interest is being awarded at the rate of 7-1/2 per cent in view of the judgment of the Supreme Court in Tamil Nadu State Transport Corporation Limited v. S.Rajapriya and others, (2005-2) P.L.R.

650. Therefore, in that back-drop of the situation, the remaining outstanding amount payable to the claimants shall carry interest at the flat FAO No.656 of 1989 6

rate of 9 per cent per annum from the date of filing of the claim petition till its payment.

Consequently, the appeal stands partly allowed with the modification indicated above. No costs.

( ARVIND KUMAR )

July , 2006 JUDGE

JS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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