IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA.) No.297 of 2003. Reserved on: 28.05.2008. Date of decision: May 29, 2008. H.R.T.C. … Appellant Versus Smt.Tarnika Kazur & Anr. … Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr.Raman Sethi, Advocate. For the Respondents : Mr.Naveen Bhardwaj, Advocate for respondent No.1. Mr.Vinay Thakur, Advocate for respondent No.2. Kuldip Singh, Judge. Himachal Road Transport Corporation (for short ‘Corporation’) owner of bus No.HP-06-2046 is in appeal against the award dated 22.3.2003 passed by learned Motor Accident Claims Tribunal, Kinnaur Division at Rampur Bushehar in MAC Case No.18 of 1998/02 awarding Rs.3,03,000 in favour of respondent No.1 - claimant with directions that since respondent No.2 - driver was an employee of appellant / owner, therefore, the appellant / owner shall pay the award amount. Out of the award amount, Rs.4000 paid Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… earlier shall be adjusted. In case the award amount is not deposited within 30 days from the date of award then interest at the rate of 9% per annum shall be payable from the date of petition till its realization. 2. The facts, in brief, are that respondent No.1 – claimant filed claim petition against the appellant / owner and respondent No.2 driver on the grounds that Jai Parkash aged about 20 ½ years son of respondent No.1 – claimant was going on foot to Rampur and he was hit at place Pat Bangla Rampur at about 11.30 a.m. on 4.3.1998 by bus No.HP-06-2046 while negotiating the curve. The accident took place due to rash and negligent driving on the part of respondent No.2 driver of the bus. Jai Parkash after the hit from the bus fell down 100 feet below. He sustained head injury and other multiple injuries on his body and he succumbed to injuries and died on 4.3.1998. The deceased was working as mason and earning Rs.3900 per month, he had education up to 10th standard. The respondent No.1 – claimant claimed Rs.7 lacs compensation on account of death of her son Jai Parkash along with interest at the rate of 18% per annum from the date of accident. 3. The petition was contested by appellant / owner in which various paragraphs of the petition have been denied generally. In Para-22 of the reply it has been pleaded that no accident took place, the driver was also not negligent and, therefore, liability to pay the compensation was denied. It has also been submitted that compensation claimed is excessive, the amount of Rs.4000 was already paid as interim relief. The respondent No.2 – driver filed separate reply and has pleaded that two persons who were coming …3… towards Rampur were hit by the rear door of the bus while the bus was negotiating a curve. He blamed a passenger Dalak Raj for hitting those persons who suddenly opened the door and tried to run away from the spot out of fear. There was no negligence on the part of the replying respondent. Respondent No.2 – driver pleaded his ignorance that Jai Parkash died in the accident. 4. On the pleadings of the parties, following issues were framed by the learned Tribunal:- i) Whether the deceased sustained fatal injuries due to rash and negligent driving on the part of respondent No.2? OPP ii) Whether the claim petition is not maintainable as alleged? OPR-1 iii) To what amount the petitioner is entitled to receive as compensation? OPP iv) Relief. The learned Tribunal has held that deceased sustained fatal injuries due to rash and negligent driving on the part of the driver and awarded the compensation to respondent No.1 – claimant, as noticed above. The Corporation has filed the appeal. However, respondent No.2 driver has not filed any appeal against impugned award or filed cross objections. 5. I have heard Mr.Raman Sethi, learned counsel for the appellant, Mr.Naveen Bhardwaj, learned counsel for respondent No.1, Mr.Vinay Thakur, learned counsel for respondent No.2 and gone through the record. On behalf of the appellant, it has been submitted that there is no negligence on the part of the driver of the …4… bus. The accident took place due to sudden opening of the rear door by Dalak Raj passenger which hit Jai Parkash and in these circumstances no negligence can be attributed to driver for causing the accident. He has submitted in any case excess compensation has been awarded to respondent No.1 - claimant who is mother of the deceased. Mr.Naveen Bhardwaj, learned counsel for respondent No.1 – claimant has supported the impugned award, Mr.Vinay Thakur, learned counsel for respondent No.2 - driver, has submitted that the Tribunal has wrongly held that accident took place due to rash and negligent driving on the part of the respondent No.2 - driver. 6. PW-1 Tarnika Kazur has stated that her son was 21 ½ years and was mason. He was earning Rs.3000 per month and was paying Rs.2000 to her for meeting the expenses. He died in the accident. In cross examination, she has stated that she has to more living sons but both of them are unemployed, her husband is also unemployed. PW-2 Sunil Kazur has stated that his younger brother Jai Parkash was a mason and in Bihar he used to earn Rs.130 per day and he was earning Rs.3000 per month. He came to Rampur on 28th February, 1998. He was hit by the bus on a curve, he fell down and sustained injuries and later on died. He has also stated that his father is a labourer and his another brother is unemployed. He has also stated that these days he was working in Bihar. The deceased was bachelor and mason. He lived separately from his parents and is married. In cross examination, he has stated that he saw the accident. The deceased was working as mason for the last two years, the daily wages of mason were earlier Rs.60 which were …5… increased to Rs.130 per day. The learned counsel for the claimant tendered in evidence copy of Parivar Register Ext.PA, copy of school leaving certificate Ext.PB, copy of F.I.R. Ext.PC and post mortem report Ext.PD. 7. RW-1 Narain Chand Sharma, Traffic Manager, H.R.T.C., has stated that Rama Nand was driving bus No.HP-06-2046 on 4.3.1998. Bhagat Ram was the conductor of the bus. Dalak Raj, a passenger all of a sudden opened the door for de-boarding from the bus. Two persons who were standing on the parapet were hit by the door and fell down. RW-2 Rama Nand has stated that he was driving bus No.HP-06-2046 on 4.3.1998. One passenger Dalak Raj all of a sudden opened the rear door which hit two persons who were walking on the road and they fell down. RW-3 Pyare Lal has also made similar statement. 8. The case as projected by the appellant / owner and respondent No.2 driver is that Jai Parkash was walking on the road and at the place of accident Dalak Raj passenger in the bus suddenly opened the rear door of the bus which hit Jai Parkash and in these circumstances negligence cannot be attributed to respondent No.2 driver. It has not been denied that Jai Parkash sustained injuries in the accident and he died on 4.3.1998 on the date of accident. The learned Tribunal has recorded a finding that accident took place due to rash and negligent driving on the part of respondent No.2 driver. This finding has been accepted by the driver as he has not filed any appeal or cross objection against the impugned award. RW-1 has stated that two persons, who were standing on the parapet, were hit …6… by the rear door of the bus. It appears the driver had not left sufficient space from the edge of the road and for that reason the rear door of the bus hit two persons who were on parapet and this itself is negligence on the part of the driver inasmuch as driver is expected to take all precautions while driving the vehicle. This apart, Jai Parkash had died when the rear side of the bus struck him. In Kaushnuma Begum and others versus New India Assurance Co. Ltd. and others, 2001 ACJ 428, the Apex Court has held as follows:- “11. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Rylands v. Fletcher, 1861-73 All ER 1, can apply in motor accident cases. The said rule is summarized by Blackburn, J. thus: ‘The true rule of law is that the person who for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.’ …7… 18. Like any other common law principle, which is acceptable to our jurisprudence, the rule in Reylands v. Fletcher, 1861-73 All ER 1, can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.” Applying the ratio of Kaushnuma Begum’s case (supra) in the facts and circumstances of the present case, the appellant / owner cannot escape the liability to pay compensation on account of death of Jai Parkash due to injuries sustained by him in accident on 4.3.1998 involving bus No.HP-06-2046. 9. The next question is of quantum of compensation. It has come on record that deceased was earning about Rs.130 per day as mason, but he was not employed in an organized sector. The learned Tribunal has taken monthly income of the deceased at Rs.3000. The appellant / owner and respondent No.2 driver in their evidence have not rebutted the evidence of income led by respondent No.1 – claimant. In these circumstances, no fault can be found with the finding of learned Tribunal while assessing the monthly income of deceased at Rs.3000. The respondent No.1 – claimant is the mother of the deceased and in her statement she has given her age 45 years. The deceased was about 21 years at the time of his death. In New India Assurance Co. versus Prem Chand & others, Latest HLJ 2007 (HP) 1046, a Division Bench of this Court has held that in …8… normal circumstances when the parents are the claimants, their dependency is to be assessed at 1/3rd of the total income. This is because the child would in normal course get married in near future. After the marriage, the deceased would have had his own spouse and family to look after and would not contribute that much amount to the parents. The normal rule is that the dependency of the parents should not be taken at more than 1/3rd of the income. In H.S.Ahammed Hussain and another versus Irfan Ahammed and another, (2002) 6 SCC 52, the age of the mother of victim Vazeer was 45 years and that of victim Vazeer was 22 years, the Supreme Court has allowed multiplier of 15 in the compensation case filed by the parents of Vazeer. In the present case, monthly income of the deceased has been rightly assessed Rs.3000 by the learned Tribunal, therefore, respondent No.1 / claimant – mother at the most is entitled to Rs.1000 from the income of the deceased and keeping in view her age the multiplier of 15 is the appropriate multiplier. In these circumstances, the respondent No.1 claimant is entitled to Rs.1000 x 12 x 15 = Rs.1,80,000. Respondent No.1 mother is also entitled to Rs.20,000 collectively on account of loss of natural love and affection, funeral expenses and other conventional amounts. Thus, respondent No.1 - claimant is entitled to in all Rs.2 lacs. It has come on record that Rs.4000 was already paid by appellant / owner as interim relief on account of death of Jai Parkash, therefore, this amount is to be excluded from the compensation. The respondent No.1 - claimant is entitled to in all Rs.1,96,000 compensation. On the amount of Rs.1,96,000 the respondent No.1 - claimant is also entitled …9… to 9% interest per annum from the date of filing of the petition till realization. The Tribunal has held the liability of appellant / owner to pay the entire amount of compensation to respondent No.1 claimant. 10. No other point was urged. 11. In view of the above discussion, the appeal is partly allowed and the award dated 22.3.2003 passed by learned Motor Accident Claims Tribunal, Rampur Bushehar in MAC No.18 of 1998/02 is modified. Respondent No.1 - claimant is held entitled to Rs.1,96,000 compensation which shall be paid by appellant / owner. On the amount of Rs.1,96,000, respondent No.1 - claimant is further entitled to interest at the rate of 9% per annum from the date of institution of the petition i.e. 4.6.1998 till realization which shall also be paid by appellant / owner to respondent No.1 - claimant. May 29, 2008. ( Kuldip Singh ) (soni) Judge.