IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No.159 of 2005 with Cross Objection No.322 of 2005 alongwith FAO(MVA) No.202 of 2005 Decided on: 18.12.2009 FAO No.159 of 2005 with Cross Objection No.322 of 2005 Sh.Karam Chand …..Appellant. VERSUS Smt.Anjula and others …..Respondents. FAO No.202 of 2005 HRTC and another. ….. Appellant VERSUS Smt.Anjula and others ….. Respondents _________________________________________________ Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Appellant: Sh.J.D.Sharma,Advocate vice Mr.H.S.Rawat, Advocate for the HRTC. For the Respondents: Mr.Harish Dod, Advocate, for the claimants. Mr.Anand Sharma, Advocate for the Driver of the bus. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Deepak Gupta,Judge (Oral) These two appeals and cross objection are being disposed of by this common judgment since they arise out of the same accident. The undisputed facts of the case are that late Sh.Lalit Kumar was travelling from Delhi to Dhanotu in bus No.HP-33-5410 on 19.1.2003. The claimants who are the widow, minor son and parents of Sh.Lalit Kumar filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’) claiming compensation for his death. In this petition, they alleged that when Lalit Kumar was collecting his luggage to de-board the bus at Dhanotu, the driver suddenly applied the brakes as a result of which the door flew open and the deceased fell from the bus. It was alleged that the accident occurred due to the rash and negligent driving of the driver of the bus. The HRTC in its reply took up the plea that the deceased had died due to his own negligence. According to the HRTC as well as the driver of the bus, the deceased had …3… gathered his luggage and could not manage the same since it was heavy. He received a push and fell down from the parked bus and as such, there was no negligence on the part of the driver of the bus. The driver in his written statement took the plea that he had not applied the brakes all of a sudden. According to the driver, the bus left Sundernagar Bus Stand at 10.10 a.m after the conductor had closed both the doors of the bus and gave a whistle to start the journey. When the bus was near Dhanotu, it was at a normal speed and suddenly the driver heard the conductor and passengers shouting that a passenger had fallen down from the bus. He then immediately stopped the bus. On inquiry, he was told that the passenger tried to get off the bus before the destination and unlocked the bolt of the door and the door opened and as such, the deceased fell down. Evidence was led by both the parties. The learned Tribunal held that the accident had occurred due to the rash and negligent driving of …4… the driver of the bus and awarded compensation of Rs.11,30,000/- in favour of the claimants. As far as the issue of negligence is concerned, the main question to be decided is whether the deceased was himself negligent or the accident took place due to the crew of the bus as pointed out. There is a discrepancy between the stand taken by the HRTC and the stand taken by the driver. According to the HRTC, the bus was parked, meaning thereby that it was standstill when the deceased fell down. Reply on behalf of the driver is that he did not know what happened. He only came to know about the deceased having fallen when the conductor and passengers shouted that a passenger had fallen. He thereafter stopped the bus. The claimants in support of their claim examined PW2 who proved the FIR No.22 of 2003 which was recorded on 19.1.2003. This FIR was exhibited as Ext.PB. It would be pertinent to mention here that the FIR was lodged by Sh.Chet Ram, PW/4 who has also been examined. This FIR is the first version of the accident and in this FIR …5… also the version given tallies with the claim made by the petitioners. PW/4 while appearing in the witness box has clearly stated that the deceased had to get down at Dhanotu. He, therefore, collected his luggage which consisted of two bags and a suitcase. The deceased went towards the front door of the bus. In the meantime, the driver of the bus suddenly applied the brakes as a result of which, there was a big jerk and the front door flew open and the deceased fell down. The suggestion put to him in cross-examination was that in fact it was the deceased who had unbolted the door of the bus while the bus was moving and as a result of which he fell down. PW/5 also purports to be a passenger of the same bus. According to this witness, the bus conductor had asked the passengers who were to get down at Dhanotu to get ready. Thereafter, the deceased collected his luggage. His statement otherwise is similar to that of PW-4. The driver appeared as RW/1. In cross- examination, he states that he came to know …6… about the accident only after the conductor and passengers shouted and he has no personal knowledge as to how the accident occurred. RW/2 is the conductor of the bus. According to him, the deceased started collecting his luggage and went to the front door of the bus and opened the door. The conductor asked him not to open the door but in the meantime, the deceased fell down. He states that the deceased was occupying seat No.17-18 which was located two seats behind the front door. RW/3 alleges to be a passenger in the bus. His statement is similar to that of the conductor RW/2. He however, could not either identify the driver or name any other persons sitting in the bus. He states that his statement was recorded by the police. It would be pertinent to mention here that he was never examined in the criminal case. He in fact goes on to state that his signatures had been obtained on the statement recorded by the police. This itself belies his statement because in a statement recorded …7… under Section 161, Cr.P.C, the signatures of the witness would not have been taken by the police. RW/4 is an employee of the HRTC. According to him, he was employed as a conductor in the said bus and his duty was upto Swarghat and thereafter, RW/2 was the conductor of the bus. He accompanied the bus for depositing the cash at Mandi. Surprisingly, this stand was not taken by the HRTC nor any documentary evidence with regard to the duty roster of the conductor was produced before the learned MACT. If the duty of the conductor (RW/4) was only upto Swarghat, obviously he would only be required handover the cash to the conductor who was to replace him and it was no part of his duty to go to Mandi to deposit the cash. That would defeat the very purpose of dividing he duty between two persons. It appears that this witness was not even travelling in the bus at the relevant time. Admittedly the deceased was carrying two bags and a suitcase. Even as per conductor, he was occupying seat No.17 and 18 which was …8… located two seats behind the front door. He could not have got off in a second and reached the front door. A suggestion has been put by the respondents to PW/4 that deceased was having difficulty in managing his luggage. When a person is carrying two bags and a suitcase, he cannot reach the front door in moving bus in a quick speed. The conductor would have been aware that some passenger is getting up and it was his duty then to have blown the whistle and asked the driver to stop the bus. The version put up that the deceased himself unbolted the door is highly unbelievable. It cannot be believed that some person carrying three pieces of luggage would unbolt the door of a moving bus, that too on the National Highway. The respondents have also taken different stand at different places. In the reply filed by the HRTC, it was alleged that the bus was parked. This is obviously incorrect since even all the defence witnesses admit that the bus was moving, though according to them, it was moving at a normal speed. Even normal speed on the …9… National Highway would not have been less than 50-60 k.ms per hour. Therefore, it cannot be believed that the deceased would have himself opened the door. The probability is in favour of the version of the claimants that when the deceased was getting off, the conductor blew whistle and the driver suddenly applied the brakes with great force causing jump to the bus and door flew upon. This also indicates that the door was not properly bolted when the bus left Sunder Nagar. If the door had been properly bolted, it could not have been opened even if the brake was applied suddenly. Therefore, the crew of the HRTC was definitely negligent and this issue is decided in favour of the HRTC. Coming to the quantum. The facts proved on record are that the deceased was getting salary of Rs.11027/- per month. The deceased left behind a widow, a minor child and parents. However, there is no sufficient evidence on record to show that the parents were dependent upon the deceased. Be that as it may, it would not be unreasonable to hold that since …10… the deceased was living away from his home at Delhi, he would have been spending Rs.4000/- on himself and the dependency of the family was Rs.7000/- per month or Rs.84,000/- per year as assessed by the learned Trial Court. However, multiplier applied by the Tribunal is on the lower side. The Tribunal has applied a multiplier of 13. The deceased was aged only 33 years left behind a widow who was aged 29 years at the time of the accident and a minor child aged 3 years. Keeping in view the law laid down by the Apex Court in Sarla Verma (Smt.) and others Versus Delhi Transport Corporation and another, 2009 (6) SCC 121, the appropriate multiplier in such a case would be 16 and accordingly the claimants are held entitled to 13,44,000/- on account of loss of dependency alone. In addition thereto, the claimants are entitled to Rs.6,000/- for funeral expenses and Rs.10,000/- for conventional damages. The widow is also entitled to a further sum of Rs.10,000/- for loss of consortium. The total compensation, therefore, works out to Rs.13,70,000/-. The same is apportioned as follows:- …11… Claimant No.1, widow Rs.6 lacs Claimant No.2, minor son Rs.5 lacs Claimant No.3, mother Rs.2,70,000/- Claimant No.4, father No amount The claimants shall also be entitled to interest on this amount @ 7.5% per annum from the date of filing of the claim petition, i.e., 7.3.2003 till the deposit of the amount. The HRTC is directed to deposit the entire enhanced amount in the Registry of this Court within twelve weeks from today. Both the appeals are dismissed and the cross objections are allowed to the aforesaid extent. No order as to costs. December 18, 2009 ( Deepak Gupta ) (m) Judge.