Allahabad High Court
U.P. State Road Transport Corporation vs Pankaj And Ors. on 13 April, 2006
Equivalent citations: I(2007)ACC300
Author: R.P. Yadav
Bench: R.P. Yadav
JUDGMENT U.K. Dhaon, J.
1. Heard Mr. Sharad Kumar Srivastava, learned Counsel for the appellant, Mr. U.P.S. Kushwaha, learned Counsel for the respondent No. 4 and Mr. R.K. Dubey, learned Counsel appearing on behalf of the claimant-respondents.
2. This First Appeal from Order under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 31st May, 2003, passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 5, Unnao, allowing the claim petition and granting compensation to the tune of Rs. 2,47,000 with interest @ 8% per annum.
3. Claim petition was filed by Shri Pankaj, aged about 20 years, son and Smt. Brij Rana, widow of deceased, Shri Radhey Shyam, aged about 42 years who was driver of a Swaraj Mazda U.P. 32-T/41157 and died in the accident in question on 1st May, 1997, at 6.30 a.m., when he was driving the said vehicle within the jurisdiction of Police Station, Pawal, District Faizabad. It was alleged that a U.P. Roadways Bus No. 80-A 9093 coming from the opposite direction, which was being driven rashly and negligently, hit his vehicle Swaraj Mazda, with the result, driver Shri Radhey Shyam died on spot.
4. It was alleged that deceased Radhey Shyam, who was employed as a driver was getting Rs. 5,000 per month as salary.
5. The petition was contested by the appellant-the U.P. State Road Transport Corporation. The grounds raised in the written statement were that the deceased who had been driving the Swaraj Mazda was himself responsible for the rash and negligent driving and, therefore, his legal representatives are not entitled to any compensation.
6. The Insurance Company denied its liability in its written statement on the ground that the driver of the vehicle Swaraj Mazda was not responsible in any way for this accident as the accident took place due to rash and negligent driving of the Roadways bus.
7. The owner of the vehicle Swaraj Mazda supported the case of claimants and admitted that the deceased was getting Rs. 5,000 per month as salary.
8. The claimant-respondents examined Smt. Brij Rana PW 1 (one of the claimants) and PW 2 Virendra Kumar, an eye-witness of the accident whereas the appellant examined Shri Mohd. Yunus, the conductor of the bus, who stated that the accident took place due to the Mini Truck having gone to wrong side.
9. The learned Tribunal, after considering the entire evidence, came to the conclusion that it was the rash and negligent driving of the Roadways bus that the accident took place. It was also held that the driver of the Swaraj Mazda was not, in any way, responsible for the accident in question. The Tribunal further assessed the monthly income of the deceased at Rs. 2,000 on that basis, applied the multiplier of 15 and after deducting 1/3rd for the own expenses of the deceased, allowed the claim for a sum of Rs. 2,40,000. Rs. 2,000 for funeral expenses and Rs. 5,000 for loss of consortium, total Rs. 2,47,000 with interest at the rate of 8%.
10. The learned Counsel for the appellant has vehemently submitted that the Tribunal has wrongly fixed the responsibility for the accident on the driver of the bus, whereas the accident had taken place due to wrong and negligent driving of the Swaraj Mazda by the deceased himself. He submitted that the appellant was not in any way liable for compensation and the liability, if any, was on the Oriental Co. Ltd. with which the vehicle in question was insured. Mr. U.P.S. Kushwaha, the learned Counsel appearing for the Insurance Company did not dispute the insurance of the Swaraj Mazda vehicle in question with the Insurance Company. He submitted that the Tribunal has rightly and correctly appreciated the evidence and held the responsibility of the appellant for the payment of compensation as the accident had taken place due to rash and negligent driving of the Roadways bus. Fie submitted that in the event this Hon'ble Court holds that the accident was the result of the rash and negligent driving of the deceased himself then his legal representatives would not be entitled to any compensation. In support of this contention, he placed reliance on the case of National Insurance Co. Limited v. Prembai Patel and Ors. II (2005) ACC 361 (SC) : 2005 (60) ALR 159, in para 6 of it, it was held that "in a petition under the Workmen's Compensation Act the injured or the legal heirs of the deceased workmen have not to establish negligence as a pre-condition for award of compensation. But the claim petition before the Motor Accident Claims Tribunal is an action in tort and the injured 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 deceased and they were not responsible for the accident. The exception to this general rule is given in Section 140 of the Act where the Legislature has specifically made provisions for payment of compensation on the principle of no fault liability".
11. The learned Counsel for the claimant-respondents has urged that no error has been committed by the Tribunal in assessing the evidence adduced by the parties. He submitted that the driver, who had been driving the Roadways bus, did not enter the witness-box. The conductor, who sits on the rear seat in the bus was not expected to have seen the events preceding to the accident, therefore, his evidence is of no value and the only evidence left was that of eye-witness, Shri Virendra Kumar PW2, who had specifically stated that it was the rash and negligent driving of the Roadways bus driver that the accident took place.
12. On a perusal of the judgment and considering the arguments advanced by the parties' Counsel and the evidence referred to by them, we find no infirmity in the appreciation of evidence by the learned Tribunal and no good reason to interfere with the finding recorded by it on the point of rash and negligent driving by the bus driver.
13. In this view of the matter, when we have confirmed the finding recorded by the Tribunal regarding the accident having taken place due to rash and negligent driving of the bus driver, the liability to pay compensation lies on the appellant alone and the Insurance Company which insured the Swaraj Mazda vehicle was in no way liable for any compensation. The question of the applicability of the case laws cited by the learned Counsel for the Insurance Company does not arise at all.
14. The learned Counsel for the appellant did not dispute the quantum of compensation awarded by the Tribunal, which in our opinion, cannot by any stretch of imagination, be said to be on higher side if not on the lower side.
15. No other point was urged or pressed. This appeal is, therefore, devoid of any merit. It is accordingly dismissed. The appellant shall deposit the rest of the amount with the Tribunal within six weeks after adjusting the amount already deposited by it either in the Tribunal or in this Court. The amount so deposited shall be released in favour of the claimant-respondents without any unreasonable delay.