FAO No. 2223 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2223 of 2010 (O&M) Date of decision: 30.04.2010 Uttrakhand State Transport Corporation ....Appellant Versus Jaspal Kaur and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. S.K. Verma, Advocate, for the appellant. VINOD K. SHARMA, J.(ORAL) CM No.10928-CII of 2010 For the reasons stated in the application, CM is allowed, delay of 99 days in refiling the appeal is condoned. FAO No.2223 of 2010 This judgment shall dispose of FAO No.2223 of 2010 titled Uttrakhand State Transport Corporation Vs. Jaspal Kaur and others and FAO No.2224 of 2010 titled Uttrakhand State Transport Corporation Vs. Mandip Kaur and others, as they arise out of the same award. For brevity sake, facts are being taken from FAO No.2223 of 2010. The owner of the offending vehicle, by way of these two appeals, has challenged the award dated 20.7.2009, passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Fast Track Court, Patiala, vide which the application moved by the claimants for grant of compensation under Section 166 of the Motor Vehicles Act, was allowed. On account of death of two persons, two separate claim petitions were filed. It was pleaded case of the claimants, that on FAO No. 2223 of 2010 (O&M) -2- 1.11.2005, Surjit Singh, Jasbir Singh, Bikram Singh, Kaku Singh, Labh Singh and Harbans Singh had gone to U.P. on three combines to harvest paddy crop. On 3.11.2005 at about 10.30 a.m., when they reached near Shiv Hari Plywood Factory on Jaspur-Kashipur road, combine No. PIP-4958 developed some fault. Combine was parked on the left side and other two combines stopped ahead of this combine. Surjit Singh and Jasbir Singh along with Bikramjit Singh, Kaku and Labh Singh were repairing this combine. In the meantime, bus No.UP- 02C-6894 came from Kashipur side and when reached near the combine, a car bearing registration No.DL-6CC-4068 came from Jaspur side, which was being driven by respondent No.7 herein i.e. Madhvi Bhattacharya, in a rash and negligent manner. While overtaking the combine, she lost control over the car and struck against bus No.UP- 02C-6894. Due to this, the bus driven by respondent No.11 herein i.e. Umedh Singh turned and struck against the stationery combine. Surjit Singh and Jasbir Singh were crushed between the combine and the bus and died at the spot. Bikramjit Singh, Kaku Singh and Labh Singh also received multiple injuries. Balbir Singh escaped narrowly. The deceased and the injured were taken to Hospital Jaspur. It was claimed, that the accident had taken place due to rash and negligent driving by both the drivers, which was witnessed by Harbans Singh. FIR No.1485 dated 3.11.2005 under Sections 279, 337, 338 and 304-A IPC was registered at Police Station, Jaspur, District Udhampur against respondent No.7. Surjit Singh was hale and hearty and 45 years of age. He owned 10 killas of land and two combines bearing No.PIP-4958 and PB-11 M-6684. He was said to be earning Rs.3,00,000/- (Rupees three lac only) per annum from agriculture and Rs.1,00,000/- (Rupees one lac only) per annum from combines. Jasbir Singh other deceased was 26 FAO No. 2223 of 2010 (O&M) -3- years of age. He owned one killa of land and was working as driver of combine No.PIP-4958 and earning Rs.20,000/- (Rupees twenty thousand only) per annum from agriculture and Rs.20,000/- (Rupees twenty thousand only) per annum as driver of the combine. Sum of Rs.30,00,000/- (Rupees thirty lac only) and Rs.20,00,000/- (Rupees twenty lac only), respectively, was claimed as compensation. Claim petitions were contested by respondent No.7 herein, by denying the facts pleaded in the claim petitions. She claimed not to be the owner of the car in question, which was said to be driven by her husband Sanjay Bhattacharya, who was the owner of the car. A criminal complaint in this regard was also filed in the Court of Judicial Magistrar, Kashipur. Preliminary objections were also raised. On merits, it was pleaded, that driver of the bus was negligent, and first struck the bus against the car driven by her husband and then struck it against the combine. Thus, it was pleaded, that the accident was caused due to the gross negligence and over speeding of the bus. It was the case of respondent No.7 alleged driver of the car, that FIR was registered in collusion with driver of the bus. The car was insured at the time of accident, however, Insurance Company was not made party. Income as claimed was also denied. Stand taken further was, that husband of respondent No.7 was driving the car at the time of accident. She was sitting on left seat of the car and her two children were also sitting in the car. They were going to Nainital, but when they reached near Shiv Plywood Factory, Jaspur, they saw combine No.PIP-4958 standing on the way and they overtook the combine. After going 50 kadams on left side of the road, bus No.UP-02C-6894 came from opposite side. The bus was driven in rash and negligent manner at very high speed. It hit the car on right side, resulting in damage to the door and mudguard of the car. The car was stopped. Respondent No.7, her FAO No. 2223 of 2010 (O&M) -4- husband and children were injured. The bus driver lost control over the bus and struck it against the combine, resulting in death of two persons, who were sitting near the combine. The bus driver ran away from the spot. Though the police recorded their statements, but false case was registered against her, qua which the respondent filed a criminal complaint against Umedh Singh driver of the bus. Sanjay Bhattacharya was subsequently impleaded as a party, who filed separate written statement and took similar pleas, which were taken by respondent No.7. Respondent No.8/Insurance Company filed written statement, and denied the averments on merits regarding profession of the deceased. It was pleaded, that liability of respondent No.8 herein was limited as per terms and conditions of the insurance policy, and the provisions of the Motor Vehicles Act. However, it was denied that the car was not being driven by respondent No.7 in rash and negligent manner. It was pleaded, that accident had occurred due to rash and negligent driving of bus in question. The plea was also taken that the drivers did not have valid and effective driving licence. It was also pleaded, that car in question was not having valid registration and fitness certificates. Respondent No.11 in the written statement, denied that the bus in question struck against combine or Surjit Singh and Jasbir Singh were crushed between combine and bus. It was pleaded, that the accident had occurred due to the negligence of the car driver. The driver of the bus denied his involvement in the accident. He denied the allegations regarding rash and negligent driving of the bus. Respondent No.4 (in the claim petitions) did not contest the claim petitions. On the pleadings of the parties, the learned Tribunal framed the following issues: - FAO No. 2223 of 2010 (O&M) -5- “1. Whether on 3.11.2005 on Jaspur-Kanshipur road, the respondent No.1 while driving the Bus bearing No.UP-02C-6894 rash and negligently caused the death of Surjit Singh as alleged? OPP 2. Whether the claimants are the legal heirs of the deceased Surjit Singh as alleged? OPP 3. Whether the claimants are entitled for compensation. If so, to what amount and from whom? OPP 4. Whether the claim petition is not maintainable as alleged? OPR 5. Whether the respondent no.1 was not holding any valid and effective driving license at the time of alleged accident? OPR 6. Whether the claim petition is bad for mis-joinder of necessary parties as alleged? OPR. 7. Relief.” Similar issues were framed in the second claim petition. The learned Tribunal, on appreciation of evidence, held, that the accident had occurred due to the rash and negligent driving of car as also that of bus. The reason for coming to this conclusion was, that respondent No.7 had chosen not to appear in the witness box to prove the pleaded case. The learned Tribunal further held, that the bus hit the combine, due to the rash and negligent driving of the car driver as well as the bus driver, for the reason, that, in case, the bus driver was not negligent, he could control the bus, after hitting the car, but instead he hit the stationery combine, which resulted in death of two persons. On appreciation of evidence, the learned Tribunal allowed the compensation to the tune of Rs.4,92,000/- (Rupees four lac and ninety two thousand only) in the first claim petition and Rs.4,82,000/- (Rupees four lac and eighty two thousand only) in the second claim petition. Interest @ 6% per annum was awarded. FAO No. 2223 of 2010 (O&M) -6- Mr. S.K. Verma, learned counsel, appearing on behalf of the appellant, has challenged the finding of the learned Tribunal on issue No.1 by contending, that as per first version given in the FIR, as well as the evidence on record, which went unrebutted, it was proved, that the accident had occurred due to the rash and negligent driving of the car, by respondent No.7, therefore, no liability could be fastened on the appellant. The contention of the learned counsel for the appellant further was, that it was on account of the rash and negligent driving of the car, that it hit the bus on account of which the bus turned towards combine and crushed deceased between combine and the bus. The act of driver of bus was claimed to be for the reason beyond his control. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. There can be no dispute, that the negligence of the car driver was proved, therefore, the learned Tribunal rightly held, the driver of the car to be negligent. No fault can be found with the finding recorded by the learned Tribunal holding the driver of the bus also to be negligent. The learned Tribunal was right in holding, that in case, the bus driver was not negligent or driving at a moderate speed, there was no occasion for him to hit the stationery combine. The finding, that the accident with the combine had occurred due to the rash and negligent driving of both the bus driver as well as the car driver, cannot be faulted with. The situation would have been different if it was the case between the car and the bus. In that event it was the car driver who was guilty. The appellant cannot escape its liability merely on the ground, that car driver was negligent, when it was proved that after hitting the car, the bus turned and hit the combine, which was standing on the left side. This resulted in death of two persons . FAO No. 2223 of 2010 (O&M) -7- The finding on issue No.1 is affirmed. No other finding was challenged. It may further be noticed that keeping in view the negligence of both the drivers, the learned Tribunal rightly fixed the liability to pay compensation against all the respondents jointly and severally. The quantum of compensation was not challenged. For the reasons stated above, no ground is made out to interfere with the award passed. No merit. Dismissed. (Vinod K. Sharma) Judge April 30, 2010 R.S.