Himachal Pradesh High Court
Mansa Devi And Anr. vs State Of Himachal Pradesh And Anr. on 3 March, 2005
Equivalent citations: III(2005)ACC200, 2006ACJ1135
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This appeal under Section 173 of the Motor Vehicles Act is directed against the award of the Motor Accidents Claims Tribunal-II, Kangra at Dharamshala, dated 2.5.1994, rendered in M.A.C. Petition No. 13 of 1992, whereby he has dismissed the claim petition filed by the claimants.
2. The facts necessary for the decision of the present appeal are that on 9.1.1992 bus No. HPK 2280 belonging to the Police Department and owned by the respondent No. 1 and driven by respondent No. 2 was going from Gaggal towards Pathankot. Motor cycle No. HIC 126 was being driven by deceased Hem Raj. Kamal Singh was the pillion rider. This motor cycle was also going in the same direction. After about 1 km from Gaggal there is a bifurcation and on the right side a road leads to Gaggal Airport. The admitted case is that the bus turned from the main road towards the airport and the motor cycle hit against the bus which Hem Raj was driving.
3. The appellants being the parents of late Hem Raj, who was a bachelor, filed a claim petition for grant of compensation. Learned Claims Tribunal below recorded evidence in the matter and dismissed the claim petition by holding that it was the motorcyclist who was negligent and that the accident had occurred due to rash and negligent driving of the motorcyclist and, therefore, no amount could be awarded in favour of the claimants.
4. The first issue to be decided is that who was negligent? Kamal Singh was the pillion rider and is the main eyewitness. He appeared as PW 3. In his statement on oath before the learned Tribunal below, he has stated that the bus was going ahead and when the motor cycle reached near Airport Road, Gaggal, the bus turned towards the airport side and that the driver of the bus did not give any signal and, therefore, the motor cycle struck against the bus. He has admitted in cross-examination that he has made statement, Exh. RA, immediately after the accident occurred. This is the statement which has been relied upon by the Tribunal to hold that this statement gives the correct version of the cause of accident and also shows that the bus driver was not guilty of rash and negligent driving.
5. PW 3 has stated that he has made the statement, Exh. RA, though he has stated that some portion of the statement has been made forcibly at the behest of the police. Relevant portion of the statement reads as follows:
When we went a little ahead at Sanora Chowk, a police bus bearing No. HPK 2280 was moving ahead of the motor cycle. When we reached near airport crossing, our motor cycle had started overtaking the bus and we had crossed half of the bus. We had not blown the horn. Then the driver of the motor cycle suddenly saw that the bus driver had given the signal for turning towards the airport. When the bus driver turned the bus towards the airport then suddenly the motor cycle struck against the rear right side of the bus.
6. The other evidence which is relevant is the statement of the driver of the bus who appeared as RW 1 and stated that when the bus had reached near the airport crossing, then he had given signal by hand to turn towards the airport. Immediately as he turned his bus towards the airport he heard a loud sound from behind as the motor cycle had hit the bus. Learned Tribunal below has relied upon this evidence to hold that the motorcyclist was negligent. He has held that since the motorcyclist did not blow the horn and was overtaking bus and, therefore, responsibility was of the motorcyclist.
7. The reasoning given by the learned Tribunal is totally fallacious. Admittedly, the road from Gaggal to Pathankot is a National Highway and 40 ft wide at the spot. The road leading to the airport leads from the right side of the road when one moves from Gaggal to Pathankot. The bus was on the left side of the National Highway. The motorcyclist had started overtaking the bus or was immediately behind the bus. The bus driver was turning from the left side of the National Highway and crossing the National Highway and then going on towards the right side. It was his duty to ensure that before he takes the turn by crossing the main road, there is no vehicle coming from behind. The driver in his statement has not even made a whisper about the fact that he looked at the side rear view mirror to see if any vehicle was coming from behind. This itself clearly shows that he was grossly negligent in driving the bus. He was turning from the left side of the road, crossing the entire road to go to the right side. It is expected that the driver should not only ensure that traffic is not coming from the opposite side but also that there is no vehicle coming behind him, which may hit his vehicle while he turns it. This the bus driver has admittedly not done.
8. Another important fact is that bus driver has not stated that he had given signal by using the indicator for turning before actually turning the bus. He only states that he gave signal by hand to turn right. All the vehicles are provided with indicators and a driver is expected to use it at the time of turning. In fact the driver is expected to switch on the indicator well before the turning. The fact that the driver gave signal by hand also goes to show that the signal was given at the last moment. Even merely switching on the indicator or giving a signal does not give an absolute right to a driver to turn his vehicle right across the National Highway. He is bound to see that there is no traffic coming from the opposite side or from behind, which may be affected by his turning. It is only after he has satisfied himself that there is not even a remote chance of anybody hitting him and that the road is absolutely clear that he should cross the road. In the present case, from the evidence it appears that the bus driver turned the bus without switching on the indicator. He gave the signal with his hand at the last moment. This resulted in the accident. I am of the considered opinion that the accident had occurred due to the fault of the bus driver and not due to the fault of the motorcyclist.
9. Admittedly, the deceased was about 22 years old. He is stated to be a mechanic and his father has claimed that he was earning Rs. 4,000 to Rs. 5,000 p.m. However, he also states that the deceased was keeping accounts but the same have not been produced in the court. Therefore, the version of father that his son was earning Rs. 4,000 to Rs. 5,000 per month cannot be accepted at its face value. The fact that the deceased was working as a motor cycle mechanic has not been seriously contested. Only suggestion put is that there are only a few motor cycles in the area and, therefore, income of the deceased could not have been very much. Keeping in view the above circumstances and the fact that the accident occurred in the year 1992, it would be reasonable to hold that the income of the deceased would be around Rs. 2,000 p.m. Claimants are the parents. The father in his statement has stated that he is aged 50 years. He also states that he owns 3 kanals of land. It has also come in evidence that the father is retired from armed forces and is getting pension. Therefore, it cannot be said that the father was dependent upon the deceased. The mother would definitely be dependent upon the deceased. The age of the mother has been stated to be 45 years.
10. One cannot lose sight of the fact that after a few years the son would have got married and he may not have been able to support his mother to the same extent since he would have to support his wife and children also. On the other hand, the income of the deceased would have increased over period of time. Therefore, keeping in view all these facts, I feel that the dependency of the mother can be fixed at Rs. 1,000 p.m. or Rs. 12,000 per annum. Keeping in view her age, a multiplier of 13 is applicable in the present case and, therefore, the compensation payable would be at Rs. 1,56,000. In addition thereto, the claimants would be entitled to further amount on account of conventional damages, funeral expenses and loss to estate, etc. Rs. 9,000 is awarded on these counts. Therefore, claimants are entitled to a total sum of Rs. 1,65,000. Out of Rs. 1,65,000, the mother, appellant No. 1, shall be entitled to Rs. 1,40,000 and the father, appellant No. 2, shall be entitled to Rs. 25,000.
Claimants shall also be entitled to interest at the rate of 9 per cent per annum on this amount from the date of claim petition, i.e., 22.4.1992 till the date of deposit. The respondents are jointly and severally liable to pay the said amount. Since the State of Himachal Pradesh is the owner of the bus it is primarily liable to pay the said amount. It is directed to deposit the amount within a period of eight weeks from today, failing which the claimants shall be entitled to interest at the rate of 12 per cent per annum from today.
11. The appeal is disposed of in the aforesaid terms. The appellants are also entitled to costs assessed at Rs. 3,000.