Gujarat High Court Case Information System Print FA/252/2010 21/ 21 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 252 of 2010 With CIVIL APPLICATION No. 1536 of 2010 In FIRST APPEAL No. 252 of 2010 [ENTITY] & 1 - Appellant(s) Versus [ENTITY] - Defendant(s) Appearance : MS [ENTITY] for Appellant(s) : 1 - 2. None for Defendant(s) : 1, 1.2.1, 1.2.2,1.2.3 CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 11/02/2010 ORAL ORDER
Heard learned Advocate Ms. [ENTITY] for appellant [ENTITY]. This appeal is preferred by appellant challenging award made by claims tribunal, Rajkot in [CASE NUMBER] decided on 15th April, 2009 wherein claims tribunal has awarded Rs.3,95,000.00 with 9 per cent interest in favour of claimants.
Accident occurred on 12th April, 2002 between 13.00 to 13.30 hours near Rajkot-Gondal bypass. At the time of accident, deceased was travelling in ST Bus after sending his married daughter to the house of her inlaws. He had kept his bicycle on the roof of ST Bus and he was travelling in the said bus. Bus having reached to Rajkot bypass, had stopped. At that time, deceased [ENTITY] had gone on the roof for taking his bicycle from roof. At that time, while the said deceased was on roof of bus for taking his bicycle from roof, as the driver of the bus started bus all of a sudden, deceased had come in contact with the service line of GEB passing therefrom and therefore, deceased had fallen down from the roof of bus along with bicycle and received serious type of injuries and was admitted in Government Hospital at Rajkot where he died. Therefore, claim petition was filed by applicants claiming compensation of Rs.6,00,000.00 by alleging that said accident had occurred because of negligence on the part of ST Bus Driver and Conductor wherein claims tribunal made impugned award and, therefore, appellant has filed this appeal before this Court.
Ms. [ENTITY], learned Advocate appearing for appellant corporation has raised contention that there is no negligence of driver of ST Bus but it is a case of contributory negligence of deceased himself. GEB is not joined as a party opponent by claimants, whose live wires had touched to deceased and therefore he died. She further submitted that claims tribunal has not considered report of Sub Divisional Magistrate in award. She further submitted that the claims tribunal has committed gross error in not considering reply filed by appellant Exh. 16 and 21 where affidavit filed by driver was corroborated. She further submitted that it ought to have been appreciated by claims tribunal that deceased has not died because of negligence on the part of driver of ST Bus and claims tribunal has not at all discussed report of Sub Divisional Magistrate bearing No. 31 of 2002 under [SECTION] of [ACT] in which he had recorded statement and if those statements are seen, then, it becomes clear that driver of ST Bus has not committed any fault. Persons who were in nearby and eye witnesses had also supported these things that there was no fault on the part of the driver of ST Bus. She further submitted that claims tribunal has committed gross error in not deciding negligence in respect of bus driver. As per her submission, amount of compensation which has been awarded by claims tribunal is wrongly calculated and total compensation awarded by claims tribunal is on higher side and, therefore, matter would require interference of this court.
I have considered submissions made by Ms. [ENTITY], learned advocate appearing for appellant corporation. I have also perused impugned award made by claims tribunal. Issues were framed at Exh. 24 on 20.5.2004.
From perusal of impugned award, it appears that the affidavit in form of evidence was filed by claimant no.1 at Exh. 56 wherein applicant submitted that incident took place on 12.4.02 between 13.00 to 13.30 hours near Rajkot Gondal Bypass. At that time, husband of claimant No.1 was travelling in Bagasara Rajkot Local Route bearing No. GJ.18.V.3269 after leaving his daughter at the house of her in laws and after making payment of luggage, he was travelling in bus and his bicycle was kept by him on the roof of the bus. When bus had stopped, he had gone for taking his bicycle and said bus driver had started bus in his charge all of sudden and therefore, deceased came in contact with service line passing therefrom and had fallen down with bicycle and received injury and died subsequently. In support of their case, applicants produced certificate issued by Rajkot Taluka Police Station at Exh. 33, report under [SECTION] of [ACT] at Exh. 34, report for further proceedings after making note under [SECTION] at Exh. 35, inquest panchanama at Exh. 38, report forwarded towards Civil Surgeon at Exh. 39, panchanama of scene of offence at Exh. 40, PM Report at Exh. 55. Considering evidence produced on record, claims tribunal observed that there is no any dispute about incident and, therefore, claims tribunal held that the incident in question had taken place wherein husband of applicant no.1 died and answered issue no.1 in the affirmative by holding that deceased died due to serious injuries sustained by deceased due to rash and/or negligent driving of driver of vehicle involved in accident.
While examining issue no.2, claims tribunal considered affidavit of applicant no.1 at Exh. 56 wherein it was submitted by applicants that at the time of accident, deceased was doing labour work in Manidhar Machine Tools and was earning income of about Rs.3850.00 per month. Of course, no evidence in respect of income of deceased was produced but claims tribunal considered that applicant no.1 is widow of deceased and applicant no.2 is minor heir of deceased and in such circumstances, production of specific type of evidence from applicants cannot be expected. Therefore, claims tribunal considered that when applicants have come forward with specific case that the deceased was working in Manidhar Machine Tools, then, they are not having any reason to tell lie and give name of company falsely and therefore, claims tribunal considered monthly income of deceased at Rs.2500.00. Thereafter, considering decision of this court in case of [PRECEDENT], considered future prospective income of the deceased and thereafter, deducted 1/3rd towards personal expenses of the deceased and held that after deducting 1/3rd from prospective future income of deceased, remaining income would come to Rs.2500.00 and annual figure would come to Rs.30,000.00. Considering age of deceased 45 years at the time of accident, claims tribunal applied multiplier of 12 and held that claimants are entitled for Rs.3,60,000.00 towards loss of future income. Thereafter, considering the fact that the deceased died in hospital during the course of treatment, claims tribunal awarded Rs.10,000.00 towards pains, shock and suffering. Claims tribunal also awarded Rs.10,000.00 towards loss of company in favour of claimants and also awarded Rs.10,000.00 towards loss of amenities in life and Rs.5000.00 for transportation charges and funeral expenses etc. and thus, awarded total amount of Rs.3,95,000.00 in favour of claimants.
Before claims tribunal, contention was raised by learned advocate for opponents that whatever incident of accident took place, deceased [ENTITY] was going to take bicycle which was kept by him on the roof of bus as he came in touch with GEB Service Line and in such accident, there is no any negligence on the part of opponent No.1 ST Driver or opponent NO.2. Claims Tribunal considered that the accident had taken place because of contact of electricity wire and application has been filed by applicants against opponents no.1 and 2 ST Driver and ST for getting compensation wherein deceased was travelling in the capacity of passenger at the time of accident. Then, claims tribunal also observed after considering reply of opponent no.2 and cross examination that it is not the case of opponents that deceased was not travelling in the said bus and deceased had not kept his bicycle on the roof of bus and deceased had not gone on the roof of the bus for taking his bicycle. Only defence raised was to the effect that the deceased died because of current of electricity wire or contact of electricity wire. In light of such defence, claims tribunal considered panchanama Exh. 40 which is a panchanama of the scene of offence and considering said panchanama, observed that three electric wire are passing above the ST Bus. In view of that, claims tribunal observed that it was the duty of the ST Driver to take care and to see that his Bus is not parked below such wire or to park his bus in such a manner that if any passenger of bus is required to go on roof for taking his belonging or luggage, then, he may not come in contact of electricity wire in any manner. If such care and caution would have been taken by driver of ST Bus while stopping his bus and if he would have stopped his bus at such a place where electricity wire is not passing just above the bus, that would have avoided such accident. Lack of care also amounts to carelessness. Claims tribunal also considered responsibility of conductor that it is also his responsibility to see and verify as to whether any person has kept any luggage on the roof of bus or not and if yes, then, whether he has taken it back at proper place in proper manner or not and then, should start bus. If the care ought to be taken has not been taken, that also amounts to carelessness. Claims tribunal accordingly held that there was lack of reasonable care on the part of ST Bus driver and because of that, accident has taken place and, therefore, opponents are liable to pay compensation to claimants.
This Court had an occasion to consider such identical matter where unauthorizedly, passengers were travelling on roof of bus of ST. In that case, after starting journey, driver opponent no.1 was driving said bus in full speed and in negligent manner and at about 9.00 hours, bus had reached near Khojawadi on Khedoi Anjar Road. It was also alleged by claimants therein that near Khojawadi, crossing the road, electric wires were passing. Because of rain that had fallen on the last night, electric wires had come down to some extent. It was also alleged by the claimants therein that having seen electric wires, passengers had made much shouting for getting the bus stopped but opponent no.1 had, instead of stopping the bus, driven it in more speed and when bus had passed from near the wire, at that time, bus had jumped and deceased had come in contact of electric wire and had fallen down on the road and received serious physical injuries wherein he ultimately died. It was alleged that the deceased was aged 32 years, serving as assistant and earning Rs.2000.00. Based upon aforesaid facts, claim petition was filed by claimants therein before claims tribunal against ST Corporation and this Court was considering [CASE NUMBER] arising from such award on 17.4.2009. This Court considered decision in case of [ENTITY] Versus Haryana Roadays and another, AIR 1990 Punjab & Haryana pg. 334. Relevant para 11 of said decision of this court is reproduced as under:
11. I have considered submissions made by learned advocate MR. [ENTITY] that the claims tribunal should have held negligence on the part of the deceased while keeping in view reasoning given by claims tribunal as considered herein above. I have also considered decision of Punjab & Haryana High Court in case of [ENTITY] (Supra) wherein facts were similar to the facts of the case before hand. In the said case before Punjab & Haryana High Court, claimant was thrown off bus roof after being hit by electric wires hanging across road. In the said case, it was held by Punjab & Haryana High Court that travelling on the bus roof not per se contribution or negligence. It was held that if the passenger was travelling on bus roof, he cannot be considered to be guilty of contributory negligence. Facts of present case are quite similar to said case because in present case also, deceased was thrown off the bus roof after being hit by electric wires hanging across road and same is the situation in case before Punjab & Haryana High Court. Considering said decision of Punjab & Haryana High Court as aforesaid, relevant observations made by Punjab & Haryana High Court in para 8 of judgment are reproduced as under:
As regards the bus driver, there can be no escape from the conclusion that he was indeed negligent in not taking due care to safeguard the safety of persons travelling even on the roof of his bus. The over head hanging wires were clearly visible to him and having seen them, it was not only possible but incumbent upon him to see it that no harm was caused by them to any person in the bus. Breach of this duty of care on the part of the bus driver is that writ large. The accident must accordingly be held to have been caused wholly and entirely due to the negligence of the bus driver.
Division Bench of Karnataka High Court, in case of [PRECEDENT], observed as under:
[ACT] Liability of insurer 'Passenger travelling on roof of offending bus No attempt made by driver or person in charge of vehicle to stop passengers from travelling on roof Violation of R. 123 invites penal action Accident occurred on account of use of offending public service bus Deceased being passenger under S. 147 of said Act and covered under insurance policy.- Insurer liable to pay compensation.
In case of [PRECEDENT], it was a case of negligence, accident while alighting. Husband boarded bus from its front door, wife could not board the same. Husband requested conductor to stop the bus. It was stopped for a while. Husband was getting down when driver moved bus without ensuring that husband had actually got down, he fell down, rear wheel of the bus ran over him and he sustained fatal injuriesDefence was to the effect that deceased tried to board the bus which was full of passengers when he fell down and sustained injuries and, therefore, he was himself negligent. In that case, statement of widow of deceased could not be successfully challenged in cross examination and her statement was corroborated by FIR. In light of such facts, it was held by claims tribunal that accident occurred due to rash and negligent driving of the bus by its driver. Such finding was upheld by Punjab and Haryana High Court.
Recently, this court had occasion to consider question of negligence of bus driver in case of [PRECEDENT]. Relevant observations made by this court in para 13,14,16,17,18 and 19 of said decision are reproduced as under:
13. What is the duty of the conductor and driver in Public Transport to maintain the safety of the passengers those who are driving in public transport.
The Madras High Court has recently examined this question having almost similar facts in case of [PRECEDENT], where, the accident while alighting the passengers, passenger was getting down from the bus when the driver suddenly moved the bus, passenger fell down and wheel of bus ran over his left leg, the defence that passengers attempted to get down from the moving bus, lost balance and fell down. The bus driver deposed that injured had alighted the bus at a turning which was not supported by evidence of the conductor. The Tribunal held that bus driver was rash and negligent in causing the accident. That finding is confirmed by the High Court. The Madras High Court has considered one decision of Madras High Court in case of [PRECEDENT].
(21) The life and limb of the passengers are to be borne in mind by the crew, namely, the driver and the conductor of a bus. It is not for merely mechanically driving the bus and for collecting the fares from passengers that both of them are employed in a bus. The driver of the bus has to look into both the entrances, front exit as well as rear exit, before actually starting the vehicle, even though whistle might have been given by the conductor inadvertently without noticing both the exits due to the pressure of collection of fares from the passengers or due to his noting in the memo, as in the instant case before us. But the fundamental duty of both the driver as well as the conductor is to verify specifically whether any passenger is getting into the bus or getting down from the bus before actually the bus is moved from the bus stop where it is stopped, irrespective of the fact whether that place of stopping is a bus stop or not
14. The Apex Court has also considered the question that what is the duty of the driver and conductor and whether it would consider to be negligence on their part or not in case of [PRECEDENT], which is quoted as under :
5. It is always important to have coordination between the conductor and the driver, whenever passengers start getting down or are led to get down, to see that before any signal is given by the conductor, in any form, as normally there is bell in most of the buses which conductor rings signaling the driver to start the bus, the driver should not restart the bus. In the absence of coherence or lack of coordination between the two, it is bound to result into accident, which has happened in the present case. This would constitute to be negligence on the part of both the conductor and the driver. Once this evidence is accepted, which has been in this case, there is no scope to reassess the evidence in the present proceedings, about which attempt has been made, unless it can be said, this finding is based on no evidence or is perverse.
Learned counsel for appellant submitted with vehemence and attempted to take us to the evidence to show that there was no negligence on the part of the driver. However, as we have said, it is not proper for this court to reassess the evidence and even if another view is possible, this court would not do so in a proceeding under [SECTION] of the [ACT]. In the present case, we further find, as per evidence of PW 1, that he was getting down from the front gate of bus, which is almost adjacent to he driver. If that be so, there is no difficulty for the driver to take this much of care, even if the version of RW 1 is accepted, to restart the bus suddenly when the passengers were getting down (Emphasis added)
16. The Apex Court has recently considered the same question in case of [PRECEDENT], where, in case of contributory negligence, test is that of the two vehicles who was driving his vehicle negligently and rashly and in case both were not so doing who was more responsible for the accident and who of the two had the less opportunity to avoid the accident are the relevant facts. The Apex Court has also observed that in case of contributory negligence if driver ought to have forcing that if he did not act as a responsible reason man, he might himself by hit and he must take into account the possibility of others being careless. Therefore, considering the facts of this case, at the time when bus was within compound on stand, no doubt, bus was not moving, claimant had made efforts to alight in the bus from the rear door, the driver was definitely aware about the fact that one passenger was trying to alight in the bus from the rear side, but, he could not immediately start the bus and he could not move the bus after knowing fully well that one passenger was trying to alight in the bus, he should have to take care for safety of the passenger, which has not been maintained by the bus driver and accident occurred. Such statement has given by the driver while giving evidence before the Claims Tribunal even conductor has not been examined. A Head Constable who was not an eye-witness was examined only to prove the statement obtained by him of the claimant vide Exh.63. The relevant Para 11 from the decision of Apex Court as referred above is, therefore, quoted as under :
11. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligency and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of others being careless.
17. Recently, in case of [PRECEDENT], where, question of contributory negligence is decided on the basis of the facts that passenger jumped from front gate of a moving bus and sustained injury. The Apex Court has discussed that it is a duty of the driver and conductor of bus to ensure that passenger stand inside of bus and not on foot-board; owner of passenger bus plying within the city has a duty to install movable devise which opens/closes the exit gate and is operated by the driver to open the exit gate by causing the devise to move.
18. The Division of this Court in case of [PRECEDENT], where, issue of negligence has examined in detail, where, in case of fault liability where the burden is on the defendant to prove that he took all reasonable care and precautions, i.e., the accident did not result from any fault or negligence or wrongful act on his part. The relevant discussions are made in Para 22 and Para 35, therefore, the same are quoted as under :
22. To appreciate the heart of the debate, we may broadly categorise the civil liability to pay compensation in different categories in terms of the burden of proof on the plaintiff/claimants arranged in the descending order:
Fault Liability
(i) burden of proof on plaintiff
(ii) burden of proof on defendant II Strict Liability III No Fault Liability I Fault Liability:
(i) Where the burden is on the plaintiff to prove some fault, negligence or wrongful act on the part of the defendant:
The common law as well as the [ACT] provide for this kind of tortious liability. Here, even after it is admitted or shown that the accident arose out of the use of the motor vehicle in question, if no further evidence is led on the relevant issue by any party, the plaintiff will fail and the claim petition will be dismissed.
(ii) Where the burden is on the defendant to prove that he took all reasonable care and precautions i.e. the accident did not result from any fault or negligence or wrongful act on his part:
Once it is shown that the accident arose out of the use of the motor vehicle in question, if no evidence is led by any party on the relevant issue, the Court will decide the issue in favour of the plaintiff and proceed to quantify the compensation amount in favour of the claimant.
35. In light of the above discussion, we are of the view that even if the Courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, the Court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines :-
(i) When the motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, the rule of res ipsa loquitur as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three Judge Bench in [PRECEDENT] quoted in para 23 above)
(ii) In claim petitions where the victim was not driving any of the motor vehicles involved in the accident, the Courts may, therefore, raise a presumption of fact (and not a presumption of law) that the accident in question was caused on account of the motor vehicle not having been driven with reasonable care. Even where such a presumption is raised, it is open to the defendant in the claim petition to plead and prove that he had taken all care and precaution or that the injured claimant himself (or the deceased) was guilty of a negligent act resulting into the accident. In case of such a plea and proof, the injured plaintiff or the legal representatives of the deceased have to establish by preponderance of evidence that there was no negligence on the part of the injured or the deceased (vide three Judge Bench decision in [ENTITY] case [PRECEDENT].
By the above process, the burden of proof may ordinarily be cast on the defendant in a motor accident claim petition to prove that the motor vehicle was being driven with reasonable care.
(iii) the rule of strict liability as explained in [ENTITY]'s case [PRECEDENT] should apply when the person who was injured on account of the motor vehicle accident, or who died on account of the injuries sustained in such accident, was a pedestrian/ bystander/ on road not travelling inside the vehicle.
The justification for this distinction could be that -
(a) The provisions for compulsory insurance provided by Legislature for the benefit of third parties would not be meaningful and efficacious without applicability of strict liability rule.
(b) while pedestrians have no choice about the vehicles being plied on the roads, passengers travelling in motor vehicles have some choice about the vehicle/s in which they would travel.
19. Therefore, in absence of due diligent on the part of the driver and conductor, the safety of the passengers are danger which has been resulted into number of serious accidents. Similarly, in the facts of the present case also, due diligent was not maintained knowing fully well that from rear door, a passenger was making efforts to get in the bus, even though, bus was started by the driver. Not only that but driver has not informed to the office immediately though wheel of the bus was run over on the right leg of the claimant. These are the hard reality which cannot be ignored by this Court even though claimant was not able to make clear statement before the Head Constable Exh.63 as deposed by Head Constable vide Exh.61. The Claims Tribunal has to consider entire statement not in peaceful manner. Therefore, as basic error committed by the Tribunal in appreciating the evidence of Head Constable and claimant.
In light of aforesaid discussion and considering reasoning given by claims tribunal and also appreciating documents which are on record as appreciated by claims tribunal and panchanama on record, one fact is very much clear that the deceased was a passenger travelling in owned by ST Corporation and driven by driver of ST Corporation and luggage was paid by him for keeping his bicycle on roof of bus and bicycle was thereafter kept by him on the roof of the bus. Conductor of the bus was supposed to keep these facts because luggage ticket as well as passenger ticket was issued by conductor to the deceased. These facts have not been disputed by appellant Corporation before claims tribunal. When bus had stopped on Rajkot-Gondal Bypass, in such a situation, knowing fully well that the deceased got down and had gone on roof for taking his bicycle, it was the duty of driver to stop bus in such a place where there is no risk of such electric live wire at all. Driver of ST Bus ought to have taken such care that bus cannot stop at a place where electric live wires of Gujarat Electricity Board are passing over the roof of the ST Bus so that any passenger who has gone on roof for collecting his belonging may not come in contact with such live electric wire and the bus ought to have been stopped at some distance from such live electric wire. Even the conductor of said ST Bus has also not taken such care to instruct driver to stop the bus at such safe place for securing safety of passengers who are going on roof for collecting their goods or belonging kept by them on roof of bus. Therefore, according to my opinion, it is a clear case of sole negligence of driver and conductor of Bus owned by ST Corporation. If the driver of ST Bus would not have immediately started bus and if he would have verified whether any passenger is on roof of bus or not, then, that also would have secured safety of deceased who had gone on roof of bus for taking his bicycle kept on roof and then, he would not have come in contact with electric wire passing above the bus and such care on the part of the bus driver would have saved life of the deceased. This aspect has been rightly examined by claims tribunal while making award in question and, therefore, contentions raised by learned Advocate Ms. [ENTITY] for appellant in that regard cannot be accepted. According to my opinion, it was duty of driver of bus to take all care and caution which has not been taken by driver of bus. Compensation which has been worked out is also properly considered by claims tribunal. Claims tribunal has properly considered future prospective income of deceased and has rightly applied multiplier and, therefore, according to my opinion, award made by claims tribunal is quite just, reasonable and proper and claims tribunal has rightly decided matter and, therefore, there is no error committed by claims tribunal which would require interference of this court. Hence, there is no substance in this appeal and accordingly, this appeal is dismissed.
Today, this Court has dismissed first appeal. Therefore, no order is required to be passed in civil application for stay. Therefore, civil application for stay also stands disposed of.
(H.K. Rathod,J.) [ENTITY]