Himachal Pradesh High Court
Kashmiri Lal vs Doaba Roadways And Ors. on 10 July, 1997
Equivalent citations: 1(1998)ACC50
Author: P.K. Palli
Bench: M. Srinivasan, P.K. Palli
JUDGMENT P.K. Palli, J.
1. The claim petition filed by the appellant, who is husband of deceased Mst. Kishna Devi alias Satya Devi, who died in an accident, stands dismissed by the Motor Accident Claims Tribunal. However, the appellant has been granted compensation of Rs. 15,000/- under Section 92-A of the Motor Vehicles Act. It has been found that the death occurred on account of the negligence of the deceased and not on account of rash and negligence driving of the driver. Respondent No. 1 is the owner of the bus, respondent No. 2 is the driver, respondent No. 3 is the conductor of the bus, whereas respondent No. 2 is the Insurance Company. The parties, herein-after in this judgment, shall be referred to as 'claimant' and 'respondents'.
2. The wife of the claimant, as per averments in the claim petition, was in the process of boarding the bus when the bus took up speed due to rash and negligent driving of the driver and in sequence was thrown out and crushed under the wheels.
3. The version given by the other side is that the deceased while attempting to board the bus, opened the front gate, that is, exist gate and immediately thereafter jumped out of the bus and was crushed under the wheels. According to them, the bus was in the first gear when the deceased opened the door and jumped out of it and due to pressure of the door, she could not have safe landing and fell under the rear wheel of the bus. It was denied that the accident took place due to rash and negligence driving on the part of the driver.
4. Learned Counsel appearing for the claimant contends that the Motor Accident Claims Tribunal, herein-after referred to as the 'Tribunal', has erred in holding that the accident had not taken place due to rash and negligent driving of the vehicle on the part of respondent Nos. 1 and 2 and it is also pleaded that in any situation the claimant was entitled to the statutory amount as amended and the grant of compensation amounting to Rs. 15,000/- under this head is not proper. In support of his argument reliance is being placed on a judgment of the learned Division Bench of this Court in FAO (MVA) No. 205 of 1995, decided on July 16, 1996, titled as Oriental Insurance Co. Ltd. v. Khem Chand and Ors.
5. Reliance is also placed on the judgment given in FAO (MVA) No. 177 of 1988, decided on April 21,1997, Gian Chand and Ors. v. Amarjeet Singh and Anr. Reliance is also being placed on , Manjit Singh v. Rattan Singh and Ors.
6. Learned Counsel appearing for the respondents, in reply, have adopted the same line of reasoning, as has been given by the Tribunal in the impugned award. It is further sought to be argued, in reply, that the award is based on sound reasoning and the evidence placed on record by the parties stands correctly appreciated and no fault could be found with the award.
7. After having heard the learned Counsel for the parties at length and on careful scrutiny of the award and the record, we find that there is no merit in this appeal.
8. The accident took place on October 16, 1984 at about 10.00 a.m. The deceased was carried to a hospital at Nangal and died soon thereafter. On our pointedly asking the learned Counsel to refer to any piece of evidence on the basis of which it could be urged that the mishap took place due to rash and negligent driving of the vehicle on the part of respondent No. 2, the learned Counsel has not been able to give any satisfactory reply. The only evidence placed from the side of the claimant is his own statement as PW-1 and one Kimti Lal, who has been examined as PW-2, in his statement, the claimant has categorically stated that the accident did not take place in his presence. He got the information on telephone. It has been stated by him that the accident was witnessed by Kimti Lal and one Raj Rani. In his statement, Kimti Lal as PW-2, who is said to have witnessed the occurrence, has admitted that it is correct that the bus-stand is not visible from his shop. Admittedly, as said by him, the bus-stand is quite at a distance from his shop and he has not given the distance. It has also been admitted by him that it was only when he heard some noise that his attention was attracted that a woman has been run over by a bus. He came to enquire about it. The police-chowki is said to be at a distance of 15-20 shops from his shop and, admittedly, he did not go there to call the police or give any information. It has also been admitted by him that he was attending the customers at his shop and 10-15 passengers were already there to board the bus.
9. This witness was neither present in the vehicle nor at the bus-stand when the accident occurred. This witness is also not known to the claimant nor he saw his deceased wife at the bus-stand.
10. It has been admitted from the side of the claimant that one Raj Rani was present at the spot. This Raj Rani was accompanying the deceased and infact both of them were to board the bus. The deceased somehow boarded the bus from the. exit gate, whereas, Raj Rani could not manage it.
11. It has come in evidence that when the deceased noticed that her companion was unable to board the bus she jumped out of it and in the meantime the bus had started moving.
12. Learned Counsel states that the statement of Gurdev Singh, driver, does not inspire confidence, as he is deeply interested in his own cause. Even if the statement made by the driver is completely ignored, there is no piece of evidence on record on the basis of which it could be held that the bus was being driven in a rash and negligent manner. The claimant himself had pleaded that the bus had hardly gone 4-5 yards when the deceased fell down. We are unable to agree that after having moved 4-5 yards the bus could be said to have been driven rashly and negligently by the driver. It has come in evidence that the bus was still in the first gear.
13. Surpringly, the companion, of the deceased, Raj Rani has not been produced for the reasons best known to the claimant. She was an important witness, who was accompanying the deceased and wanted to board the bus alongwith her. It is a settled proposition that if a witness is not examined an, adverse inference has to be drawn that if that witness had appeared he or she would have gone against the claimant.
14. It is in this situation that the statement made by the driver has to be accepted that the occurrence did not take place due to his rash and negligent driving.
15. The occurrence, no doubt, most unfortunate, but it was on account of the deceased when she boarded the bus all of sudden and that too from the exit door from the front side and after boarding, she realised that her companion could not board and she decided to jump out of it. If she was really desirous to get down of the bus, she could have made a request to the driver and admittedly, no such request was made. The bus started moving. The door was not bolted. After jumping out of the vehicle, she could not keep balance and resultantly fell down and was run-over.
16. No other person, who was travelling in the bus or was present at the bus- stand, has been examined from the side of the claimant. The Tribunal, thus, rightly concluded that the mishap took place for the fault of the deceased herself and not due to rash and negligent driving on the part of the driver. The evidence has been correctly appreciated and does not call for any interference by this Court.
17. So far as the argument for enhanced amount of compensation under no fault liability, as is being claimed by the claimant under the amended law, is concerned, it has no force. Under the amended provision of Section 140(2) of the Motor Vehicles Act, a claimant is entitled to compensation of Rs. 50,000/-. The judgments relied upon by the claimant, noticed above in the earlier part of this judgment, have granted compensation after holding that it was just and reasonable as well as with legislative purpose to hold that the provisions relating to compensation under this head, are retrospective in its application and would govern all the pending cases.
18. The Tribunal while dealing with this issue has taken notice of the insurance policy as Ext.R-1 and also the special endorsement No. 13 added to it. Admittedly, the liability of the insurer under this document is limited to Rs. 15,000/- only. So far as the facts of the present case are concerned, the deceased was, admittedly, in the process of boarding the bus. She had yet to get a seat in the vehicle as a passenger and the ticket was still to be bought by her. In the given situation, the liability of the insurer was limited to Rs. 15,000/- in peculiar circumstances of the case. The claimant has been granted a compensation of Rs. 15,000/- under this head. As noticed above, the occurrence in this case took place on October 16, 1984 and the present appeal was filed on June 17, 1986. No such ground has been taken in grounds of appeal either. Be that as it may.
19. In , Padma Srinivasan v. Premier Insurance Co. Ltd., it was held by their lordships that the liability of the insurer would be extended to the legal provision as it stood on the date of accident. In paragraph 7 it was laid down, "the application of a law to facts which come into existence after that law has come into force does not involve giving retrospective operation to the law, merely because the facts to which the law is being applied are relatable to a contract or an instrument which had come into operation prior to the date on which the law itself had come into force."
20. In , M.K. Kunhimohammad v. P.A. Ahmedkutty and Ors., while dealing with a case of the death of a passenger, the liability of the Insurance Company and the limit of the liability were examined. It was held that under Sub-clause (4) the amount has been prescribed which is the maximum amount payable in respect of each passenger.
21. In a recent judgment of the Supreme Court , Ramesh Singh and Anr. v. Cinta Devi and Ors., it has been held that the provisions of the new Act are not applicable retrospectively. After noticing three decisions rendered by the Supreme Court earlier it was ruled that the issue stands squarely covered that unless the new Act expressly or by necessary implication makes the provision applicable irretrospectively, it cannot be held so. In paragraph 3 while dealing with Section 6 effect of repeal, it has been held that the new Act does not expressly or by necessary implication make the relevant provisions retrospective in character.
22. In view of the latest pronouncement of the Supreme Court, as noticed above, the claimant is not entitled to any relief whatsoever under the amended provisions which came into force with effect from November 14, 1993.
23. There is, thus, no merit in the appeal and the same is ordered to be dismissed. There shall, however, no order as to costs. CMP No. 185 of 1997.
As the main appeal stands dismissed, this application is also dismissed.