IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No.454 of 2002. Reserved on: 25.05.2007. Decided on: June 27, 2007 Himachal Road Transport Corp. & Anr. …..Appellants. VERSUS Smt.Kamla & Ors. …..Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants: Mr.Ashok Sharma, Advocate for appellant No.1. Mr.Rajesh Vats & Mr.Varinder Rathore, Advocates for appellant No.2. For Respondents: Ms.Seema Guleria, Advocate for respondents No.1 to 5. Kuldip Singh, Judge The respondents are in appeal against award dated 7.8.2002 passed by learned Motor Accident Claims Tribunal (II), Shimla in M.A.C. No.26-S/2 of 1999 awarding Rs.3,70,000/- compensation to the petitioners / claimants along with 9% interest per annum from the date of filing of the petition till the same is paid or deposited. The parties are referred herein in the same manner as in the impugned award. 1 Whether the reporters of the local papers may be allowed to see the Judgment ? Yes …2… 2. The brief facts, as alleged in the petition, are that on 17.8.1998 Bansi Lal alias Bansi was traveling in Himachal Road Transport Corporation bus (for short ‘Corporation’) bearing No.HP-07- 2868 from Shimla to Jubbal which met with an accident near Charach Dhar due to rash and negligent driving on the part of respondent No.2 driver of the bus. The further facts are that the deceased boarded the bus at place known as Dhavas and was going to Chopal. The bus was being driven under a ‘Dhank’ and a big stone fell down over the bus tearing the roof of the bus and struck the head of Bansi Lal causing crush injury as a result of which Bansi Lal died on the spot. The petitioners are widow and children of the deceased. At the time of accident deceased was 39 years of age. He was forest contractor as well as agriculturist and was earning Rs.6000-7000 per month from all sources. He was spending Rs.5000-5500 per month on the petitioners. The petitioners claimed Rs.9 lacs by way of compensation. 3. The respondent No.1 Corporation filed reply and contested the claim of the petitioners. In the reply, preliminary objection of maintainability of the petition has been taken. On merits, it has been pleaded that no accident of bus No.HP-07-2868 had taken place on 17.8.1998. It has been denied that accident took place due to rash and negligent driving of respondent No.2. The claim of the petitioners was denied. Respondent No.2 adopted the reply filed by respondent No.1. …3… 4. The learned tribunal held that Bansi Lal alias Bansi died in motor vehicle accident out of the use of the vehicle, i.e., Bus bearing No.HP-07-2868. The compensation has been apportioned amongst the petitioners. The petitioner No.1 was given 60% share and petitioners No.2 to 5, 10% share each in the compensation. The respondents No.1 and 2 are in appeal against impugned award. 5. I have heard the learned counsel for the parties and have also gone through the record. 6. The learned counsel for respondents No.1 and 2, who are appellants, has submitted that accident has not taken place due to rash and negligent driving of the driver of the bus. A stone came down rolling and after tearing the roof of the bus struck the head of Bansi Lal causing his death. The respondents in no way are negligent and they have been wrongly held responsible for the accident by the tribunal. There is no negligence on the part of the driver. The compensation awarded is excessive. The learned counsel for the petitioners has supported the impugned award. 7. PW-1 Smt.Kamla has deposed that on 17.8.1998 her husband Bansi Lal boarded bus No.HP-07-2868 which was being driven by respondent No.2 and due to the rash and negligent driving of the driver a stone fell on the roof of the bus and after tearing the roof of the bus struck Bansi Lal as a result of which he died. Ext.PW-1/A is the F.I.R. Ext.PW-1/B is the post mortem report. The deceased used …4… to earn Rs.6000-7000 per month and used to pay to her Rs.5000-6000 per month. The petitioners No.2 to 5 are her children who were studying and were in the age group of 12 to 16 years, her own age was 32 years and the age of her husband at the time of accident was 38 years. In cross examination, she was given suggestion that her husband died due to fall of stone when he was walking on the road. PW-2 Mangat Ram has deposed that Bansi Lal died on 17.8.1998 when a stone fell on the roof of the bus, his own daughter was also injured in that bus due to tearing of the roof of the said bus. This witness has also been given suggestion that Bansi Lal died due to fall of stone when he was walking on the road. PW-3 Roshan Lal has deposed that he was working with Bansi Lal as labourer who used to pay him Rs.1500/- per month. PW-4 Mohinder Singh, Constable has proved Rapat dated 17.8.1998 Ext.PW-1/A. PW-5 Inder Pal has stated that Bansi Lal was having business dealings with him. The deceased used to work as his agent. He used to supply dry flowers to him to the extent of about Rs.3 lacs in a year. He used to deal in potatoes, peas etc. Ext.PW-1/B is the death certificate of Bansi Lal. The respondents did not lead any evidence and their evidence was closed on 26.11.2001. 8. The respondent No.1 in its reply has totally denied the accident. However, a suggestion was given to PW-1 Smt.Kamla on behalf of respondent No.1 that her husband died when he was struck by a stone while he was walking on the road. This suggestion was given to …5… PW-2 Mangat Ram also. There is positive evidence on record that a stone fell on the roof of the bus and after tearing the roof of the bus it struck against the head of Bansi Lal who died on the spot. The respondents have totally denied the accident. It is not the case of the respondents that driver could not anticipate the falling of the stone or the stone all of a sudden fell on the roof of the bus. The Corporation is aware that in hilly terrain falling of stones etc. from hill side is not so uncommon. The tearing of the roof of the bus by the stone indicates that stone was not very big otherwise it would have crushed the bus itself. This raises another question that the roof of the bus was not enough strong to withstand the impact of a stone. This shows that the Corporation was negligent in not having roof of the bus sufficient strong to withstand the impact of the stone. The driver has not appeared in the witness box to explain the circumstances how deceased Bansi Lal sustained injuries in the bus. In these circumstances, adverse inference is to be drawn against respondents No.1 and 2 regarding the cause of accident. In Kaushnuma Begum and others Versus New India Assurance Co. Ltd. and others [2001 ACJ 428], the vehicle involved in the accident was Jeep. It capsized while it was in motion. The cause of capsize of the Jeep was attributed to bursting of the front tyre of the Jeep. In the process of capsizing the vehicle hit against one Haji Mohammad Hanif who was walking on the road at that ill-fated moment and consequently that …6… pedestrian was crushed and subsequently succumbed to the injuries sustained in that accident. The Supreme 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 owning 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.’ 18. Like any other common law principle, which is acceptable to our jurisprudence, the rule in Rylands v. Fletcher, 1861-73 All ER 1, can be followed at least until any other new principle …7… 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.” In the present case, it is not the case of respondents No.1 and 2 that accident had taken place due to negligence of deceased or it was a case of vis major or the act of God. No such plea has been taken. By applying the ratio of Kaushnuma Begum’s case (supra), the Corporation is liable to compensate the petitioners on account of death of Bansi Lal. 9. The tribunal has rightly appreciated the material on record and correctly returned the finding that the accident has arisen out of the use of bus bearing No.HP-07-2868. 10. The next question is about quantum of compensation. On behalf of the Corporation, submission has been made that tribunal has awarded excess compensation to the petitioners. The tribunal has assessed the loss of petitioners at the rate of Rs.2000/- per month after taking into consideration the income of the deceased Rs.4000- 5000//- per month. The tribunal has applied the multiplier of 15 which is slightly on the higher side keeping in view the age of the deceased who was 40 years of age at the time of accident. After assessing the income of deceased Rs.4000-5000 per month, the tribunal has assessed contribution of the deceased Rs.2000/- per month which, in my opinion, is on the lower side. The tribunal has awarded Rs.10,000/- …8… by way of loss of expectation of life but nothing has been awarded towards loss of consortium, love and affection and expenses towards funeral and last rites. The tribunal has awarded Rs.3,70,000/- in all to the petitioners, therefore, even if multiplier has been applied slightly on the higher side but keeping in view the cut in dependency made by the tribunal and no amount has been awarded under other heads, the amount of Rs.3,70,000/- awarded to the petitioners on account of death of Bansi Lal appears to be just and reasonable. The learned counsel for the Corporation and the driver has failed to make out any case for interference on quantum also. 11. In view of the above discussion, the appeal fails and is dismissed. There shall be no order as to costs. ( Kuldip Singh ) June 27, 2007 Judge. (soni)