Karnataka High Court
Radharani W/O Bireshwar vs The Manager on 3 August, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:8434-DB
MFA No. 100009 of 2021
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 100009 OF 2021 (MV-D)
BETWEEN:
1. RADHARANI W/O. BIRESHWAR MANDAL,
AGE: 45 YEARS, OCC: HOUSEWIFE,
2. POORNIMA D/O. BIRESHWAR MANDAL,
AGE: 20 YEARS, OCC: NILL,
BOTH ARE R/O. KISHMATH RAMAKRISHNAPUR,
CHINGISHPUR, BALURGHAT,
DIST. DAKSHINA DINAJPUR,
KOLKATTA WEST BENGAL.
ROHAN
HADIMANI REPRESENTED BY THEIR GPA HOLDER,
T
SHREE REVANASIDDAPPA BASAVARAJ DEVANAGER,
Digitally signed
by ROHAN AGE: 33 YEARS, OCC: LABOUR CONTRACTOR,
HADIMANI T
Date: 2023.09.16
11:00:58 +0530
R/O: 408, MAKHERI,
SHIRWAD, KARWAR, UK.
...APPELLANTS
(BY SRI R.H. ANGADI, ADVOCATE)
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NC: 2023:KHC-D:8434-DB
MFA No. 100009 of 2021
AND:
1. THE MANAGER,
N.W.K.R.T.C., NWKRTC DEPOT,
KARWAR, UK.
2. SRI MARUTI RAMA PADNEKAR,
AGED ABOUT 50 YEARS,
OCC. DRIVER OF BUS NO. KA-31/F-1429,
NWKRTC DEPOT KARWAR, UK.
...RESPONDENTS
(BY SRI M.C. HUKKERI, ADVOCATE FOR RESPONDENT NO.1;
NOTICE SERVED TO RESPONDENT NO. 2)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 11.09.2020 PASSED IN MVC
NO. 290/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND I ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, KARWAR, DISMISSING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
BASAVARAJA, J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:8434-DB
MFA No. 100009 of 2021
JUDGMENT
The appellants have preferred this appeal against the judgment and award dated 11.09.2020 passed in M.V.C.No.290/2017by the learned Principal Senior Civil Judge & 1st Addl. MACT., Karwar (hereinafter referred to as the 'Tribunal').
2. For the sake of convenience, the parties are referred to as per the rank before the Tribunal.
3. The factual scenario of the case is as follows:
On January 31, 2017, the deceased, Bireshwar Hiren Mandal, who was the husband of petitioner No.1 and the father of petitioner No.2, was a passenger aboard NWKRTC bus with registration number KA-31/F-1429, traveling from Majali to Karwar and about 7:00 p.m., the bus reached the vicinity of the Deputy Commissioner's office in Karwar, the deceased was in the process of disembarking from the bus. At this critical moment, the driver of the bus respondent No.2, abruptly initiated the -4- NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 movement of the bus. The sudden motion of the bus led the deceased, who was on the last step, to lose his balance and consequently fall onto the step and then onto the road. This unfortunate incident resulted in severe injuries to his head and body. Immediately, the injured was shifted to Karwar's Civil Hospital. The medical professionals at the Civil Hospital recommended that he be transferred for advanced treatment in Goa. Subsequently, he was transported to Bambolim Hospital in Goa, where he received inpatient care. His condition was critical, and he was placed in the Intensive Care Unit (ICU) for a duration of five days. The petitioners bore a financial burden of over Rs.2,35,000/- for medical and associated expenses. Tragically, despite their efforts and the medical care provided, the deceased succumbed to his injuries on 4th February, 2017, while still at the hospital.
4. Additionally, it is important to note that the deceased was a proficient and skilled worker, serving as a Centering Mestri or construction artist under the -5- NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 employment of Revanasiddappa B. Davanagere. It's worth highlighting that the deceased had been recruited from West Bengal due to his expertise in construction-related tasks. His monthly remuneration amounted to Rs. 35,000/-. Significantly, he held the position of being the sole breadwinner for the petitioners' family. Their financial sustenance was entirely reliant on his earnings. Regrettably, with his untimely demise, the petitioners were abruptly stripped of their only source of financial support. The emotional impact is profound as well, as both petitioners have suffered irreplaceable loss of the deceased's love and companionship. In light of these compelling circumstances, the petitioners earnestly seek the approval of the claim petition, with due consideration given to the aforementioned grounds.
5. Respondent Nos.1 and 2 appeared before the Tribunal and filed their written statement. The substance of the written statement of respondent No.1 is that the vehicle bearing Reg.No.KA-31/F-1429 (Mini Bus) was -6- NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 moving from Majali towards Karwar and the bus was stopped at D.C. Office, Karwar and in that stop, about 10 passengers got down (alighted) from the bus, but the victim while attempting to alight from the bus, got slipped at the door step and fell down on the road and was hit to the road side stone and he got injuries on his head. The bus was having pneumatic door system and as such, the bus was stopped while the victim was getting down. Therefore, the driver of the bus is not liable for the accident and is not liable to pay any compensation. On all these grounds sought for dismissal of the claim petition.
6. The substance of written statement of respondent No.2 is that, respondent No.2 is not responsible for this accident. The accident has occurred only due to rash and negligent act on the part of the deceased. Respondent No.2 has not contributed any rash and negligent act towards the accident. Respondent No.2 was having valid and effective driving licence at the time of the accident and the bus was insured with respondent -7- NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 No.1. Hence, respondent No.1 is liable to pay compensation to the petitioners, if they are entitled. Further, he has denied all the averments made in the petition and sought for dismissal of the claim petition.
7. On the basis of all the pleadings, the following issues came to be framed by the Tribunal:
"1) Whether the petitioners prove that the deceased Bireshwar Hiren Mandal was succumbed to the injuries sustained in RTA occurred on 31.1.2017 at about 7.00 P.M., near D.C. office, Karwar, on account of rash and negligent manner of NWKRTC Bus bearing Reg. No.KA-31/F-1429, by its driver?
2) Whether the petitioners are entitled for compensation? If so, what amount and from whom?
3) What order or award?"
8. To prove the case of the petitioners, petitioners have examined one witness as PW1 and got marked documents as Exs.P1 to P17 in support of their contentions. The petitioners have also produced the salary certificate of the deceased issued by PW1 along with memo which is not marked.
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9. Respondent No.2/ driver of the bus, got himself examined as RW1 and conductor by name Dhananjay N.Harwadekar got examined as RW.2 and got marked two documents as Exs.R1 and R2 in support of their defence.
10. After taking into consideration all the material placed on record, the Tribunal has dismissed the claim petition.
11. Being aggrieved by the same, the petitioner/ appellants are before this Court.
12. Heard Sri. R.H.Angadi, learned counsel for the appellants and Sri. M.C.Hukkeri, learned counsel for respondent No.1.
13. Learned counsel appearing on behalf of the appellant/ petitioners submitted his arguments that the impugned judgment and award passed by the Tribunal is highly erroneous, perverse and capricious and is much contrary to the facts, law and circumstances of the case. The Tribunal has not at all applied its judicious mind to the -9- NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 facts of the case in proper perspective and thereby grossly erred to pass the impugned judgment. The reasons assigned and conclusions arrived at by the Tribunal are wrong and no proper reasons are assigned to dismiss the claim petition. Further it is submitted that the Tribunal has not at all applied its mind to the law laid down by the Hon'ble Apex Court in the case of Kusum and others Vs. Sattarbir and others reported in 2011 SAR (Civil) 319 wherein it is held that in the case of accident, claimants need not prove the case beyond all reasonable doubts but it is the preponderance of probability to prove an accident. Despite proving the rash and negligent act of driver, claimants have produced voluminous documents on their behalf to prove the accident. It is also submitted that the Tribunal ought to have applied the law laid down by Hon'ble Apex Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and Others reported in (2009) 13 SCC 530 in which, it is held that strict proof of an accident caused by particular bus in a particular manner may not be possible to be done by the
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 claimant. Claimants are merely to establish their case on the touch stone of preponderance of probability. The standard of strict proof beyond reasonable doubt is not required.
14. Further it is argued that the Tribunal ought to have applied the law laid down by the Hon'ble Apex Court in the case of Anita Sharma & Ors. Vs. The New India Assurance Co. Ltd., & Another reported in (2021) 1 SCC 171 wherein it is held that the examination of evidence in accident claim cases, the standard of proof in such like matters is one of the preponderance of probabilities, rather than beyond reasonable doubt.
15. Further it is submitted that since the claimants were not acquainted with local language, they have engaged a translator and have appointed the GPA holder for conducting their case. On all these grounds, sought for allowing the appeal.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021
16. As against this, learned counsel appearing on behalf of the respondent No.1 submitted his arguments that the Tribunal has appreciated the evidence on record in accordance with law and facts and there are no grounds to interfere with the impugned judgment and award passed by the Tribunal. On these grounds, sought for dismissal of the appeal.
17. Having heard the arguments on both the sides and perusal of records, the following points would arise for our consideration:
1) Whether the appellants have made out grounds to interfere with the impugned judgment and award passed by the Tribunal?
2) What order or award?
18. Our answers to the above points are as under:
Point No.1 - In the affirmative Point No.2 - As per final order.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 Reasons to Point No.1:-
19. It is the case of the petitioners that on 31.01.2017 at about 07:00 PM, the deceased Bireshwar Hiren Mandal was traveling as a passenger in NWKRTC bus bearing Reg.No. KA-31/F-1429 from Majali to Karwar. When the bus reached near the office of the Deputy Commissioner, Karwar, the deceased was alighting from the bus, at that time, respondent No.2/ driver of the bus suddenly moved the bus, the deceased who was stepping on the last step of the bus has lost his control due to sudden movement of the bus and fell on the step of the bus and thereafter fell on the road and sustained grievous injuries on his head and body. He was shifted to Civil Hospital, Karwar. The Doctor in Civil Hospital advised to take the injured for higher treatment to Goa, accordingly he was shifted to Bambolim Hospital, Goa wherein, he has taken treatment as an inpatient and was in ICU for five days. The petitioners have spent more than Rs.2,35,000/- towards medical and other expenses, but he succumbed to
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 the injuries on 04.02.2017 in the hospital. The accident has occurred due to rash and negligent driving of the bus driven by respondent No.2 and sought for compensation.
20. To substantiate the case of the petitioners, the General Power of Attorney holder of the petitioners, who was examined as PW1 has reiterated the averments in the petition. Apart from this oral evidence seventeen documents were produced in support of their contentions. A perusal of the material placed before the Court, makes it crystal clear that on the basis of the complaint filed by Revanasiddappa Davangere who is examined as PW1, Karwar Traffic Police registered the case in Crime No.5/2017 against respondent No.2- Maruti Rama Pednekar, the driver of the NWKRTC bus bearing Reg.No.KA-31/F-1429 for commission of offence punishable under Sections 279 and 304A of the IPC. Thereafter the Police have visited to the spot and conducted spot panchanama in presence of the panchas as per Ex.P3. Police have also seized the offending vehicle
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 under Ex.P4- seizure mahazar. The Investigation Officer (IO) has also prepared the rough sketch as per Ex.P5. IO has also prepared inquest panchanama- Ex.P7. After obtaining M.V.I.Report, recorded the statement of witnesses. IO has submitted the charge sheet against the driver of the bus i.e., respondent No.2 for the commission of offences punishable under Sections 279 and 304A of the IPC.
21. Respondent No.2- Maruti Rama Pednekar, the driver of the bus got examined as RW1 and he has not disputed the accident. He has stated that when the deceased was getting down from the bus, he fell down and sustained injuries and he has stated that he and bus conductor have shifted the injured to the Government Hospital, Karwar. RW2- Dhananjay N.Harwadekar- the conductor of the bus also deposed the same in his evidence.
22. The charge sheet- ExP9 submitted by the IO reveals that on 31.07.2017 at about 19:00 hours when the
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 driver of the NWKRTC bus bearing Reg.No.KA-31/F-1429 was stopped near Deputy Commissioner Office, Karwar, the deceased was getting down from the bus, at that time, all of a sudden, the driver of the bus moved the bus negligently, as a result of which, the deceased lost his balance and fell down and sustained grievous injuries on his head and died at Bambolim Hospital, Goa on 04.02.2017. Thus, the accused has committed alleged offence.
23. A careful examination of the oral and documentary evidence placed by the parties, it is crystal clear that RWs1 and 2 are the driver and conductor of the bus respectively. It is not in dispute that deceased died due to accidental injuries. The Tribunal has dismissed the claim petition only on the ground that there is delay in lodging the complaint, forwardal of FIR to the Court, preparation of spot mahazar, seizure mahazar, recovery of offending vehicle and also for the reason that the
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 petitioners have failed to appear before the Court to depose their evidence.
24. The alleged accident occurred on 31.01.2017 at about 7:00 PM near the office of the Deputy Commissioner, Karwar. The complaint- Ex.P1 came to be filed on 04.02.2017 at 09:15 PM. That there is four days delay in filing the complaint. It is admitted fact that since after the accident, RWs1 and 2, the driver and conductor of the bus respectively have shifted the injured to the Government Hospital, Karwar and when the injured is admitted to the hospital with a history of road traffic accident, it is the duty of the concerned Medical Officer to register the case as a Medico Legal Case and intimate the same to the jurisdictional Police. But the concerned Medical Officer has failed to discharge his legal duties.
25. The duty of the driver in case of accident and injury to a person is explained under Section 134 of the Motor Vehicles Act, 1988 (for short, the 'M.V.Act'). The same is as under:
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 "134. Duty of driver in case of accident and injury to a person.- When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall--
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, 1[by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities], unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence.
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(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:---
(i) insurance policy number and period of its validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed in the accident;
(iv) name of the driver and the particulars of his driving licence.."
26. It is also pertinent to note the powers of licensing authority to disqualify the licence under Rule 21 of The Central Motor Vehicles Rules, 1989, which reads as under :
"21. Powers of licensing authority to disqualify.--For the purpose of clause (J) of subsection (1) of section 19, the commission of the following acts by holder of a driving licence shall constitute nuisance or danger to the public, namely:--
(1) Theft of motor vehicle.
(2) Assault on passengers.
(3) Theft of personal effects of passengers.
(4) Theft of goods carried in goods carriages.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 (5) Transport of goods prohibited under any law. 44[(6) Driver, while driving a transport vehicle, engages himself in activity which is likely to disturb his concentration.] (7) Abduction of passengers.
(8) Carrying overload in goods carriages. (9) Driving at speed exceeding the specified limit. (10) Carrying persons in goods carriage, either inside the driver's cabin in excess of its capacity or on the vehicle, whether for hire or not.
(11) Failing to comply with the provisions of section
134. (12) Failure to stop when signaled to do so by any person authorised to do so. 44 CI. (6) substituted by G.S.R. 933(E), dated 28-10-1989(w.e.f. 28-10-1989). (13) Misbehaviour with and showing discourtesy to passengers, intending passengers or consignors and consignees of goods.
(14) Smoking while driving public service vehicles. (15) Abandoning vehicle in a public place causing inconvenience to other road users or to passengers in the vehicle.
(16) Driving vehicle while under the influence of drink or drugs.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 (17) Interfering with any person mounting or preparing to mount upon any other vehicle.
(18) Allowing any person to sit or placing things in such a way as to impede the driver from having a clear vision of the road or proper control of the vehicle. (19) Not stopping a stage carriage at approved stopping places for a sufficient period of time in a safe and convenient position upon demand or signal of the conductor or any passenger desiring to alight from the vehicle and unless there is no room in the vehicle, upon demand or signal of any person desiring to becoming a passenger.
(20) Loitering or unduly delaying any journey and not proceeding to the destination as near as may be in accordance with the time table pertaining to the vehicle, or, where there is no such time table, with all reasonable despatch.
(21) Not driving a contract carriage, in the absence of a reasonable cause, to the destination named by the hirer by the shortest route.
(22) The driver of a motor cab not accepting the first offer of hire which may be made to him irrespective of the length of the journey for which such offer is made. (23) The driver of a motor cab demanding or extracting any fare in excess to that to which he is legally entitled or refusing to ply motor cab.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 (24) Abandoning a transport vehicle as a mark of protest or agitation of any kind or strike in a public place or in any other place in a manner causing obstructions and inconvenience to the public or passengers or other users of such places.] (25) Using mobile phone while driving a vehicle.] Endorsement in driving licence."
27. The duties and conduct of driver and conductor is also explained in Karnataka Motor Vehicles Rules, 1989 i.e., as per Rules 13 and 25 respectively, which read as under:
"13. Duties and conduct of driver of transport vehicle.-The driver of a transport vehicle while on duty,-
(a) Shall, as far as may be reasonably possible, having regard to his duties, be responsible for the due observance of the provisions of the Act and the rules framed thereunder;
(b) shall not smoke;
(c) Shall behave in a civil and orderly manner with passengers, intending passengers, considgnaors and consignees of goods;
(d) shall wear clean dress and in the manner prescribed;
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021
(e) shall maintain the vehicle in a clean and sanitary conditions:
(f) shall not solicit custom save in a civil and quiet manner and shall not shout in order to attract a customer;
(g) shall not interfere with persons, mounting or preparing to mount any other vehicle;
(h) Shall not cause or allow to enter into or to be placed or carried in the vehicle, persons whom he knows or has reason to believe to the suffering from any infectious or contagious disease, or the corpse of any person whom he knows or has reason to believe to had been suffering from any such disease;
Provided that where a person suffering from any infectious or contagious disease, or the corpse of any such person has been carried in a public service vehicle, the driver of the vehicle shall be responsible to report the fact of such carriage to the medical officer in charge of the nearest municipal, local board or Government dispensary, and to the owner of the vehicle, and neither the owner nor the driver shall cause or allow any person to use the vehicle until the driver and the vehicle have been disinfected in such manner as the said medical officer may specify and a certificate to this effect has been obtained from the said medical officer.
(i) Shall not cause or allow any person, animal or thing to be placed or to be in the space reserved for the driver's seat in accordance with these rules of otherwise in such a
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 way as to impede him form having a clear vision of the road, or proper control of the vehicle;
(j) shall, subject to any rules or regulations in force prohibiting the taking in or setting down of passengers at or except at certain specified places, bring the vehicle to rest for a sufficient period of time in a safe and convenient position upon the demand and signal of the conductor or of any passenger desiring to alight from the vehicle and unless there is no room in the vehicle, upon the demand or signal of any person intending to travel in the vehicle.
Note.-The provision of this sub-rule shall not apply to the driver of a maxi-cab or motor-cab or an autorickshaw-cab.
(k) shall not, when bringing the vehicle to rest for the purpose of picking up or setting down any passenger at or near the place where another vehicle I sat rest for the same purpose, driver the driver or the conductor of the other vehicle or any person mounting or preparing to amount thereon or alighting therefrom, and shall bring the vehicle to rest in front or behind the other vehicle and on the left hand side of the road or place and shall draw it up as near the kerb as possible;
(l) shall at all times exercise all reasonable care and diligence to maintain his vehicle in a fit and proper condition and shall not knowingly driver the vehicle when it or any brake, tyre or lamp thereof is in a defective condition likely to endanger any passenger or other
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 person or when there is not sufficient fuel in the tank of the vehicle to enable him to reach the nearest fuel filling station on the route;
(m) shall not loiter or unduly delay upon any journey but shall proceed to this destination or as near as may be in accordance with the time-table pertaining to the vehicle, or where there is no such timetable with the reasonable dispatch;
(n) shall not carry or allow any person to sit or allow any goods to be placed on the right of the driver if the vehicle is fitted with right hand steering control and on the left of the diver if the vehicle is fitted with left hand steering control;
(o) shall during the course of a journey, if the conductor absents himself, due to some emergency or sickness, perform the duties and functions of the conductor prescribed in Chapter III of the Act and the rules framed thereunder;
(p) shall not be under the influence of any intoxicating drink or drug;
(q) shall where the conductor is absent, be responsible for the proper maintenance and production of the trip sheet when demanded by a competent authority;
(r) shall be responsible for the proper exhibition or production, as the case may be, of the following documents:-
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(i) Part 'B' of the permit or the temporary permit issued to the vehicle;
(ii) Insurance Certificate;
(iii) Registration certificate;
(iv) Fitness certificate;
(s) shall on demand by any police officer in uniform or any officer of the Motor Vehicles Department not below the rank of an inspector of Motor Vehicles produce his driving licence for inspection;
(t) shall see that no passenger is seated in the vehicle when the same is being filled with petrol or other liquid fuel;
(u) shall not demand or extract any fare or freight in excess of that which he is legally entitled to;
(v) shall keep the first-aid box intact with the medicines and equipment in readiness.
14 to 24 xxxxxxxxxxxxxx
25. Duties and conduct of conductors.- The conductors of a stage carriage,-
(1) shall, as far as may be reasonably possible, having regard to his duties, be responsible for the due observance of the provisions of the Act and rules made thereunder;
(2) shall not smoke while on duty;
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 (3) shall behave in a civil and orderly manner to passengers and intending passengers;
(4) shall wear a clean dress consisting of Khaki shirt or khaki bush shirt and khaki trousers: Provided that nothing in this clause shall apply to persons lawfully working as conductors in accordance with Rule 18.
(5) shall maintain the vehicle in clean and sanitary condition;
(6) shall not solicit custom save in a civil and quiet manner;
(7) shall not interfere with persons mounting or preparing to amount any other vehicle;
(8) shall not allow any person to be carried in any stage carriage in excess of the seating capacity specified in the certificate of registration of the vehicle and any additional number of passengers permitted under the terms of the permit to be carried standing in the vehicle;
(9) shall not save for good and sufficient reason, refuse to carry any person tendering the legal fare:
(10) shall not allow any passenger to be carried in any stage carriage without payment of the legal fare:
Provided that this clause shall not apply to any Government servant on duty, as the State Government may, from time to time by notification specify in this behalf. Explanation.-Where the legal fare is less than one rupee, a demand by such person for change in excess of
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 that sum shall be a good and sufficient reason for refusing to carry such person for the purpose of this sub-rule:
(11) shall, where goods are carried on a vehicle in addition to passenger, take all reasonable precautions to ensure that passengers are not endangered or unduly inconvenienced by the presence of goods;
(12) shall not, save for good and sufficient reason, require any person who has paid the legal fare to alight from the vehicle before the conclusion of the journey;
(13) shall not loiter or unduly delay upon any journey but shall proceed to his destination as near as may be in accordance with the timetable with all reasonable dispatch.
(14) shall in the event of the vehicle being unable to proceed to its destination on account of mechanical breakdown or other cause beyond the control of the driver or conductor, arrange to convey the passengers to their destination in some other similar vehicle or, if unable so to arrange within a period of an hour after the breakdown of the vehicle, shall on demand refund to each passenger a proper portion of the fare relating to uncompleted part of the journey for which the passenger has paid the fare:
(15) shall not cause or allow anything to be placed in the vehicle in such a manner as to obstruct the entry or exit of passengers;
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 (16) shall issue a ticket immediately on payment of the legal fare or freight by the passenger except where arrangement outside the vehicle for the issue of tickets in advance to the intending passengers on payment of the legal fare has been made;
(17) shall, at the conclusion of any journey make reasonable search in the vehicle for anything left by any passenger and shall take into his custody anything so found by him or any other person in such vehicle and as soon as may be make over the same to a responsible person at any office or station of the holder of the permit for the vehicle;
(18) shall not cause or allow to enter into or to be placed or carried in the vehicle any person whom he knows or has reason to believe to be suffering from any infectious or contagious disease, or the corpse;
(19) may notwithstanding anything contained in Clause (20) on application in writing by a registered medical practitioner allow a person, suffering from any infectious or contagious disease to be carried in a stage carriage provided that no other person shall be carried in the vehicle at the same time.
(20) shall be responsible when a person suffering from an infectious or contagious disease, or the corpse of any such person has been carried in a stage carriage, for reporting the fact to a medical officer of health and to the owner of the vehicle and neither the owner nor the driver nor the conductor shall cause or allow any person to use
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 the vehicle until the driver and conductor and the vehicle have been disinfected in such manner as the said medical officer may specify and a certificate to this effect has been obtained form the said medical officer;
(21) shall, assist the driver and be on the look out for other motor vehicle approaching from behind and effectively signal their approach to the driver;
(22) shall take all reasonable precautions to prevent luggage being miscarried or lost on the way;
(23) shall not, while on duty be under the influence of drink or of a drug to an extent rendering him incapable of discharging his duties efficiently; [(23-A) shall not allow or cause to be allowed any person to enter or travel in the vehicle whom he knows or has reason to believe to be under the influence of any intoxicating drink or drug.] (24) shall, on demand by any passenger, produce the complaint book for recording such remarks as the passenger may desire to make therein;
(25) shall not, while he is no duty, permit the vehicle to be used for illegal or immoral purpose;
(26) shall not permit any petrol to be poured into the fuel tank while the engine is in motion;
(27) shall, whenever the stage carriage approaches an unguard level crossing, cause it to be stopped and after alighting therefrom and ensuring that no train is approaching from either direction, cause the vehicle to
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 follow him till the other side of the level crossing is reached;
(28) in case of an accident to the bus, shall make all reasonable efforts to help the injured persons and to inform the nearest police station immediately;
(29) shall help the infant, disabled, pregnant ladies, old aged passengers and the ladies with child in arm, to board and alight the bus;
(30) when the driver is taking the bus in reverse, shall get down from the bus and be on the look out for other motor vehicles or any other obstacle in the back of the vehicle and effectively give signal to the driver;
(31) shall not allow any explosive of dangerous or flammable substances to be carried in the bus either as personal luggage or cargo"
28. In the case on hand, RWs.1 and 2 being the driver and conductor of the bus, have failed to discharge their duties as required under Section 134 of the M.V.Act which is punishable under Section 187 of the M.V.Act.
29. The IO ought to have taken legal steps against the driver of the bus for commission of offences punishable under Sections 134A read with Section 187 of
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 the M.V.Act, but he has not done so. The driver of the bus ought to have intimated as to the injuries caused to the deceased in road traffic accident to the Jurisdictional Police, but both RWs.1 and 2 have failed to discharge their legal duties.
30. From perusal of the evidence placed before the Court, it is crystal clear that both RWs.1 and 2 being the driver and conductor of the bus, have not followed the aforesaid duties enumerated under M.V.Act and Karnataka Motor Vehicles Rules, 1989. Apart from this, it is the specific defence set up by the respondents that while moving from Majali to Karwar, the bus was stopped at D.C. Office, Karwar and at that stop, 10 passengers got down from the bus, the victim while alighting from bus, got slipped at the door step and fell down on the road and was hit to the road side stone and he got injuries to his head. Further it is stated that the offending vehicle had pneumatic door system and as such, the bus was stopped while the victim was getting down from the bus. When the
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 offending vehicle has pneumatic door system, the driver of the bus should not have moved the bus before closing the doors of the bus. Apart from this, the conductor is also engaged to safeguard the interest of the passengers, he ought to have taken precautionary measures to avoid any un-toward incident. If the deceased was attempting to alight from the bus, the driver of the bus should not have moved the bus or the conductor should not have allowed him to get down from the bus, but RW2/ conductor has not made any efforts to avoid this accident. The driver has failed to discharge his duties and moved the bus without locking pneumatic door system. This conduct of RWs1 and 2 amounts dereliction of duty and also negligence on their part. If RWs1 and 2 being the driver and conductor had taken precautionary measures, this untoward incident would not have occurred. The conduct of RWs.1 and 2 itself shows their negligence and the driver has violated the provisions of Section 134 of the M.V.Act and also the conductor has also violated the provisions of Rule 25 of the Karnataka Motor Vehicles Rules, 1989.
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31. Hence, non-registration of a police case regarding the accident does not give rise to any adverse inference that no such motor accident occurred.
32. The failure on the part of the Medical Officer to exercise the basic/primary duty to report the medico-legal case to the police is also no circumstance to deny the claim of the claimant if the evidence on record establishes the claim from other acceptable evidence.
33. In the case on hand, as already discussed above that the petitioners have placed sufficient material before the Tribunal to prove the case of the petitioners and though the respondents have not challenged the charge sheet submitted by the IO, the Tribunal has not considered the same. Even RWs1 and 2 have not whispered anything as to the documentary evidence placed by the petitioners.
34. The IO has investigated the case submitted the charge sheet. To aid us, such a provision exists in Section
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 114(e) of the Indian Evidence Act contemplating "the Court may presume that judicial and official act has been regularly performed". Article 261 of the Constitution also deserves to be noticed in this connection. There is presumption under Section 114(e) of the Indian Evidence Act, 1872 that, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case that the judicial and official acts have been regularly performed.
35. In view of Section 35 of the Indian Evidence Act, 1872, an entry in any public or other official book, register or stating a fact in issue or relevant fact, made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or is kept, it itself a relevant fact. It is also
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 relevant to deduce Article 261 of the Constitution of India, which reads as under:
"261. Public acts, records and judicial proceedings.- Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.
(2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.
(3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law."
35.1 Clause (1) of Article 261 of the Constitution of India regarded as a rule of evidence concerning the admissibility and proof of public acts and judicial decisions. In contrast, Clause (2) is seen as having a distinct purpose, as it stipulates that the effect or validity of these acts is subject to parliamentary law. Clause (3) enforces the rule against collateral attacks, requiring the execution of final orders and judgments in accordance with the
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 relevant law. While the passage underscores the formal validity ensured by Article 261 of the Constitution of India, it also acknowledges the need for challenges to arise when legality is in question, with such challenges to be pursued through prescribed legal procedures. It further emphasizes the protection of acts carried out under "colour of lawful authority" while disallowing those performed with usurped authority for unlawful purposes.
36. A perusal of the FIR reveals that since the complainant had taken the injured to the hospital at Goa for higher treatment, and as the injured had not recovered and died in the hospital, he could not file the complaint on the date of the accident. This averment made in the FIR discloses that the petitioners have properly explained as to the delay in filing the complaint. In this regard, we rely on the decision of the Hon'ble Apex Court in the case of RAVI V. BADRINARAYAN AND OTHERS reported in (2011) 4 SCC 693 wherein at para No.17 their Lordships observed as under:
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 "17. It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim."
37. In the case on hand, first of all, as already discussed above, RWs1 and 2 having failed to discharge their legal duties as contemplated under provisions of M.V.Act, 1988 and Karnataka Motor Vehicles Rules, 1989, the respondents cannot take advantage of their own wrong by setting up defence that there is a delay in filing the complaint. RWs.1 and 2 are main cause for delay in filing the complaint. The concerned Medical Officer has also failed to discharge his legal duty as to the registration of case as Medico Legal Case and intimate the same to the jurisdictional police. The respondents cannot escape from
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 their liability by setting up false defence without any acceptable legal evidence. The Tribunal has ignored the documentary evidence placed by the petitioners and also the provisions of Indian Evidence Act, 1872, M.V.Act, 1988 and Karnataka Motor Vehicles Rules, 1989 and Article 261 of the Constitution of India.
38. The Tribunal has also committed an error in holding that the petitioners have not entered the witness box though the petitioners have examined PW1 on their behalf. The PW1 being the General Power of Attorney holder of the petitioners, adduced the oral evidence and also produced the documentary evidence before the Tribunal, which is permissible under law.
39. The Tribunal ignored the dictum of the Hon'ble Apex Court rendered in the case of Kusum and others (supra); in the case of Bimala Devi and others (supra); and also the decision of Anita Sharma & Ors. (supra) regarding standard of proof in accidental claim cases.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021
40. Viewed from any angle, the Tribunal has committed a grave error in appreciating the evidence on record. The impugned judgment and award passed by the Tribunal is perverse, illegal and not sustainable under law. On re-appreciating all the evidence on record, we are of the considered opinion that the petitioners have proved that, the alleged accident occurred due to gross negligence and also the dereliction of discharge of legal duties of the driver and conductor of the offending vehicle and accordingly, the respondents are liable to pay the compensation.
41. With regard to the compensation is concerned, the Tribunal has rejected the claim petition. The Tribunal has observed that the petitioners have produced the salary certificate with application but same has not been marked. Further it is observed that the petitioners have not produced any document to show the relationship with the deceased and they were dependent upon the income of the deceased. This observation is apparently wrong for the
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 reason that PW1 has clearly deposed in his evidence that he is the General Power of attorney holder of the petitioners and the petitioner No.1 is the wife of the deceased and petitioner No.2 is the daughter of the deceased. During the cross examination, the respondents have not disputed the relationship between the deceased and the petitioner Nos.1 and 2. PW1- Revanasiddappa B.Davanagere reveals that Smt. Radharani being the wife of the deceased i.e., Bireshwar Mandal executed the General Power of Attorney- Ex.P13 in his favour to prosecute this case. The death certificate of the deceased is also marked as Ex.P15. Ex.P17- the voter ID copy issued by the Election Commission of India which pertains to the deceased. RWs.1 and 2 have not disputed as to the relationship between the petitioner Nos.1 and 2 and the deceased. However, the Trial Court has ignored the evidence placed by the petitioners and dismissed the claim petition which is not sustainable under law.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021
42. Ex.P8- Memorandum of Autopsy issued by the Goa Medical College, Department of Forensic Medicine & Toxicology, Bambolim, Goa reveals that the age of the deceased Mondal Bireshwar was 45 years at the time of the accident. Same is not disputed by the respondents. Ex.P11, the certificate issued by the Police Inspector, also reveals that the age of the deceased was 45 years. The petitioners have produced the salary certificate of the deceased issued by PW1 who is the labour contractor in which it is stated that the deceased Bireshwar Mondal was working under him as Design Worker since 2011 and he used to pay him Rs.35,000/- per month and the deceased was a skilled worker, but this document is not marked. Apart from this, the petitioners have not produced the bank passbook of the deceased. The employer has also not produced the wage registrar extract to prove that he was paying salary of Rs.35,000/- to the deceased. Hence, this contention taken by the petitioners cannot be accepted. Since the petitioners have failed to produce the cogent and convincing evidence as to the income of the deceased, this
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 Court can assess the income of the deceased as per the chart issued by the Karnataka State Legal Services Authority. In view of the said chart, for the accident of the year 2017, the notional income of the deceased would be taken at Rs.10,250/- per month. Then 25% is to be added as to the future prospects of the deceased as the age of the deceased was 45 years at the time of the accident, which comes to Rs.12,813/- (i.e., Rs.10,250 + 25% [future prospects]). Out of the same, 1/3rd has to be deducted towards personal expenses of the deceased which comes to Rs.8,542/- (i.e., Rs.12,813 less 1/3rd [personal expenses]). As the age of the deceased was 45 years at the time of the accident, the appropriate multiplier would be '14' for assessing loss of dependency. Accordingly, the petitioners are entitled for compensation of Rs. 14,35,056/- (i.e., Rs.8,542 X 12 [months] X 14 [multiplier]) towards loss of dependency.
43. The petitioners have stated in their petition that they have spent more than Rs.2,35,000/- towards medical
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 expenses. PW1 has also deposed the same in his evidence and further he has specifically stated that he has spent Rs.35,000/- to shift the dead body of the deceased to West Bengal and also spent Rs.15,000/- for packing the dead body of the deceased and spent more than Rs.50,000/- towards traveling expenses from Karwar to Goa. He also deposed that he has spent towards traveling expenses for the petitioners to travel from West Bengal to Karwar and Karwar to West Bengal and he deposed that totally he has spent Rs.3,35,000/-.
44. The petitioners have not produced any documents as to the medical expenses and the expenses towards transportation of the dead body. It is not in dispute that after the accident, the injured was shifted to the Government Hospital, Karwar and as per the advice of the Doctor, he was shifted to the Government Hospital, Goa and it is not in dispute that the injured was treated and was inpatient till his death on 04.02.2017. Considering the evidence of PW1, it is just and proper to award
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 compensation of Rs.1,00,000/- towards medical expenses and Rs.50,000/- towards the transportation charges of the deceased.
45. Considering the evidence placed by the petitioners and also keeping in mind the decision of the Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED V. PRANAY SETHI AND ORS. (AIR 2017 SC 5157), it is just and appropriate to award the compensation to the petitioners as under:
Sl. Heads Amount
No. (In Rupees)
1. Towards loss of Dependency 14,35,056.00
2. Towards loss of Estate 15,000.00
3. Towards Funeral Expenses 15,000.00
4. Towards loss of Consortium 80,000.00
(i.e.,Rs.40,000 X 2 claimants)
5. Towards medical expenses 1,00,000.00
6. Towards transportation charges 50,000.00
Total 16,95,056.00
46. Accordingly, we answer the above point partly in the affirmative and proceed to pass the following:
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NC: 2023:KHC-D:8434-DB
MFA No. 100009 of 2021
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award dated
11.09.2020 passed in MVC.No.290/2017 on the file of the Principal Senior Civil Judge & 1st Addl.
M.A.C.T., Karwar is set aside. It is held that the respondents are liable to pay the compensation of Rs. 16,95,056/- to the petitioner/ claimants with interest at 6% per annum from the date of petition till realisation and respondents are directed to deposit the said amount within 60 days from the date of receipt of the copy of this judgment and award.
(iii) After deposit of the amount, the Tribunal is directed to pass suitable orders as to the apportionment, disbursement and deposit of the compensation amount in accordance with law. Office to draw the award accordingly.
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NC: 2023:KHC-D:8434-DB MFA No. 100009 of 2021 Send back the trial Court records along with the copy of the judgment and award.
The advocate's fees is fixed at Rs.5,000/-.
Sd/-
JUDGE Sd/-
JUDGE RH LIST NO.: 1 SL NO.: 5