Rajasthan High Court - Jaipur
The New India Assurance Co. Lt vs Smt Sarju Devi And Ors on 1 August, 2013
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :JUDGMENT: New India Assurance Company Ltd. Vs. Smt.Sarju Devi & Ors. S.B.Civil Misc.Appeal No.758/2007 DATE OF JUDGMENT : 1st August 2013 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Virendra Agarwal, for the appellant. Mr. Anshul Sharma, for the respondents. <><><> BY THE COURT:
By way of this appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act), the insurer of the vehicle involved in accident seeks to question the award dated 29.11.2006 made by the Motor Accidents Claims Tribunal [Additional District Judge (Fast Track) No.2], Beawar (the Tribunal) in Claim Case No.988/2005.
By the award impugned, the Tribunal has awarded compensation in the sum of Rs.2,67,000/- to the dependents of the vehicular accident victim, who was about 45 years of age and who died after falling from the roof of the bus insured by the appellant. The appellant-insurer has challenged the award in question principally on the ground that the Tribunal has erred in deciding the question of contributory negligence and in not holding that the deceased, travelling on the roof of the bus, was a contributory to the mishap. It is also contended that the compensation as awarded is too high and exorbitant.
In brief, the relevant background aspects of the matter are that on 28.07.2004, the victim Ridh Karan met with his unfortunate end after falling from the roof of bus bearing Registration No.RJ01-P-0894 near village Jiwana, Police Station Masuda. The claimants, mother, wife and children of the victim (respondents Nos.1 to 5 herein) claimed compensation while alleging that the accident occurred due to rash and negligent driving of the bus. The claimants suggested the age of deceased at 35 years and his monthly income at Rs.10,000/- from dairy, animal husbandry and agriculture.
The non-applicants Nos.1 and 2, respectively the driver and owner of the bus involved in accident, filed a reply contesting the claim application, inter alia, with the submissions that the deceased fell down for his own mistake; and in any case, he was guilty of contributory negligence. The said non-applicants also averred in the alternative that the liability for compensation, if at all, would be that of the insurer.
The insurer (appellant herein) submitted a separate reply and, again, contended that the deceased was guilty of contributory negligence. It was also contended that the age assertion of the deceased at 35 years was incorrect because the age of his son was about 20 years. The appellant also questioned the assertions about the income and contribution of the deceased. The appellant further took certain grounds seeking its exoneration from liability for the alleged violation of policy conditions.
On the pleadings of the parties, the Tribunal framed the following issues for determination of the questions involved:-
1. ??? ?????? 28.7.2004 ?? ???? ???? ?????? ????? ???? ????? ?? ????????????? ??? ????????? ??. 1 ?????? ???? ?? ?????? ??.??.-01-??-0894 ?? ?????? ??? ???????? ?? ????? ???????? ????? ??, ????? ???????????? ???????? ?? ?????? ????? ??? ?
2. ??? ?????????? ???? ???? ??? ?????? ??????????? ???? ??????????? ?? ???? ?? ??????? ?? ?
3. ??? ????????? ???? 1 ? 2 ?? ???? ?? ???? ?? ?????????? ??? ???? ???? ?? ??????? ??? ?? ?
4. ??? ????????? ???? 3 ?? ???? ?? ???? ?? ?????????? ??? ???? ???? ?? ??????? ??? ?? ?
5. ??? ????????? ???? 3 ?? ???? ?? ???? ?? ???? ???? ?? ?? ?? ?? ???? ????? ?? ????? ??, ???? ?????????? ?? ???? ?? ??? ???? ????? ?? ???? ?? ???????? ???? ??? ??, ??: ???????? ?? ???? ???? ????? ????????? ??, ?????? ??? ???? ??????? ??????? ?? ???? ?? ?
6. ??? ???? ???????? ????????? ???? 1 ?? ??? ??? ??? ??????? ???? ??????? ???? ??? ???? ?? ????????? ???? 3 ?? ??? ???????????? ??? ?? ?
7. ?????? ?
It is borne out from the record that on 17.01.2006, at the request, the insurer-appellant was granted permission to defend the matter per Section 170 of the Act. In evidence, the claimant No.2, wife of the deceased, was examined as AW-1 whereas on behalf of the non-applicant, its Administrative Officer was examined as NAW-1.
The Tribunal proceeded to determine the questions involved in the matter in its impugned award dated 29.11.2006. In issue No.1, with reference to the evidence on record, the Tribunal held that the accident occurred for rash and negligent driving of the bus which resulted in the death of the victim Ridh Karan. After rejecting the other objections of the non-applicants and deciding issue Nos.3,4 & 6 against them, the Tribunal proceeded to consider the plea regarding contributory negligence in issue No.5. With reference to the facts emerging on record, particularly as per the contents of the FIR, the Tribunal found that the passengers were indeed travelling on the roof of the bus; but observed that the very act of making the passengers sit on the roof had been of negligence on the part of the driver and conductor. The Tribunal further observed that even if the deceased was assumed to have taken to the roof of the bus of his own accord, the driver and conductor were not absolved of their legal duty. The Tribunal yet further observed that the driver and conductor were definitely in know of the fact that the passengers were on the roof of the bus and neither the driver of the bus nor its conductor came in the witness-box to assert that the deceased took to the roof of the bus without their knowledge. The Tribunal also distinguished the decisions cited on behalf of the appellant-insurer and proceeded to quantify the amount of compensation to be awarded to the claimants.
On the aspects relating to quantification, the Tribunal rejected the contention of the claimants that the deceased was 35 years of age and, particularly with reference to the ration card (Ex.A/2), put an estimate on his age between 45 to 50 years. The Tribunal also observed that the claimants though alleged that the deceased was earning from dairy, artificial insemination centre and agriculture but, no specific proof as regards his income was produced. The Tribunal, of course, found with reference to the certificates Ex.9, 10 and 11 that the deceased had taken the training in the jobs relating to animal husbandry and placed an estimate on his income at Rs.2,500/- per month i.e., Rs.30,000/- per annum; and, after deducting one-third on personal expenditure, put an estimate on the loss of dependency at Rs.20,000/- per annum; and then, with application of a multiplier of 13, assessed the pecuniary loss at Rs.2,60,000/-. The Tribunal further awarded Rs.2,000/- towards funeral expenses and Rs.5,000/- towards loss of consortium and in this manner, quantified the amount of compensation at Rs.2,67,000/-. The Tribunal also awarded interest at the rate of 6% per annum on the said amount to the claimants.
Assailing the award aforesaid, it has been contended on behalf of the appellant-insurer that when it was clearly established that the deceased was travelling on the roof of the bus, the Tribunal fell in error in deciding issue No.5 against the non-applicants and in not holding the deceased guilty of contributory negligence. The learned counsel for the appellant has particularly referred to the part of the statement of the claimant that her husband took to the roof of the bus of his own accord and has strenuously argued on its basis that the victim voluntarily invited the accident. The learned counsel for the appellant has referred to and relied upon a Division Bench decision of this Court in the case of Rajasthan State Road Transport Corporation Vs. Shashi Kala Vyas & Ors.: D.B.Civil Special Appeal No.53/1996, decided on 12.12.2002 and another decision by a co-ordinate Bench in R.S.R.T.C. Vs. Hussain & Ors.: 2007 WLC (UC) 15. It has also been contended that the loss as assessed is much on the higher side and the impugned award deserves to be modified with suitable reduction of the amount of compensation.
Per contra, the learned counsel for the respondents-claimants has duly supported the award impugned and submitted that merely for travelling on the roof of the bus, a passenger cannot be said to be guilty of contributory negligence. The learned counsel has referred to the decision of a co-ordinate Bench in Sohanlal & Ors. Vs. Mangilal & Ors.: 2006 ACJ 1323. According to the learned counsel, the ultimate award amount remains rather moderate and the same does not require any revision downwards.
After having given thoughtful consideration to the rival submissions and having examined the record, this Court is clearly of the view that no case for interference at the instance of the insurer in the amount as awarded by the Tribunal is made out.
Appropriate does it appear to take up for consideration at the first the question regarding contributory negligence of the victim, as urged on behalf of the appellant. The question of negligence on the part of persons related with the offending vehicle as also the question of contributory negligence of the victim are essentially those of facts and depend on a variety of factors and circumstances; and difficult it is to find any strait-jacket formula for arriving at the finding on the question relating to the primary negligence, or contributory negligence, or the proportion of contributory negligence, if any. At this juncture, apposite it would be to refer to the decisions cited by the learned counsel for the parties.
So far as the decision in RSRTC Vs. Hussain & Ors. (supra) is concerned, the facts stated in the report only indicate that the deceased was travelling on the roof top of the bus but the manner and cause of occurrence are not available. Therein, a co-ordinate Bench has referred to decision in Shashi Kala Vyas's case (supra) and has held that in the given case too, there was 25% contributory negligence of the victim. In the case of Shashi Kala Vyas (supra), the facts are partially noticeable to the extent that the victim was sitting on the roof of the bus; and that the accident occurred underneath a bridge known as 'Khatarnak Pulia'. Some of the suggestions on the part of the witnesses examined by the non-applicants had been that the bus was stopped at some distance from the bridge and the passengers on the roof were asked to get down but such passengers suggested that they would be saving themselves from the structure of the bridge. Although this part of the evidence was not accepted by the Courts for want of necessary pleadings but, for the present purpose, it could be assumed that in the said case, the accident occurred for the persons sitting on the roof of the bus having been hit by the bridge when the bus was passing thereunder. In the said case, the Hon'ble Division Bench held that primary negligence had been on the part of the driver and conductor who had issued tickets in excess of the capacity of the bus and then, had induced the passengers to travel on the roof. However, the Hon'ble Division Bench also observed that the passenger agreeing to travel on the roof accepted the legitimate risk to be the victim of any accident and suffering injuries because of fall from the roof; and total absence of contributory negligence of the passenger could not be accepted. In the given case, the Hon'ble Division Bench considered it just and proper to put the proportion of contributory negligence of the victim at 25%.
On the other hand, in the case of Sohanlal (supra), it appears that the victim was a minor in 15 years of age, who was travelling on the roof of the bus and was run over by the tyre of the bus after falling from the roof. In the said case, a co-ordinate Bench referred to the two decisions of the Honble Punjab and Haryana High Court, said to be dealing with a similar situation; and agreed with the ratio therein that such passengers would not be guilty of contributory act.
Therefore, as per the observations of the Hon'ble Division Bench in Shashi Kala Vyas (supra), the matter could be proceeded on the principle that contributory negligence of a passenger travelling on the roof of the bus is not ruled out altogether. However, the Hon'ble Division Bench has not laid down any fixed formula that in such cases, the proportion of contributory negligence would be invariably 25%. This Court is of the view that the proportion of contributory negligence in such a case would definitely depend on several of the facts and factors including the circumstances in which the passenger had been travelling on the roof of the bus, as also the cause of accident and the manner in which it occurred.
As noticed, the facts of the present case are that the victim Ridh Karan, about 45 years of age, met with his accidental end on 28.07.2004 for having sustained injuries after falling from the roof of bus bearing Registration No.RJ01-P-0894 near village Jiwana, Police Station Masuda. In evidence, only 2 witnesses were examined, viz., AW-1 Jasu Devi (claimant) and NAW-1 Amardeen Singh, Administrative Officer of the Insurance Company. Admittedly, AW-1 was not travelling in the same bus. She had suggested that her husband fell from the roof of the bus because of sudden application of breaks but admitted in the cross-examination that she was not at the site and could not specify the facts regarding sudden application of breaks. She had also stated that her husband took to the roof of his own volition. NAW-2 was also not available at the site and his statement had essentially been to suggest that the insurer was not liable in relation to the person travelling on the roof of the bus; and that there had been a violation of policy conditions. It has, of course, been shown on behalf of the claimant that a charge-sheet was filed by the police against the driver of the bus. The indications in the charge-sheet (Ex.2) filed against the driver are to the effect that the bus was being driven at a brisk speed and because of negligent application of breaks, some of the passengers on the roof fell down; and the victim Ridh Karan succumbed to the injuries sustained in the process.
A line occurring in the cross-examination of the claimant about the deceased taking to the roof of the bus of his own volition cannot be picked out and read against her when she was not present at the site. She was, obviously, not knowing as to whether her husband took to the roof of his own accord or the driver and/or conductor made him to do so. Viewed from another angle, the meaning of the aforesaid part of her statement could only be that her husband was not physically forced to go to the roof of the bus. This Court is clearly of the view that even if not physically forcing any passenger, the driver and/or conductor of the bus are definitely compelling him to take to the roof if the bus is already over-crowded and passengers are taken more than the sitting, and even standing, capacity.
An observation by the co-ordinate Bench in Sohanlal's case (supra) appears apt that on account of lack of space inside the bus plying in rural areas, it is not uncommon for the passengers taking the risk of going to the roof and it remains a matter of common knowledge which cannot be ignored while deciding the motor accident claim case. Such observations relate to the ground realities and deserve to be kept in view in similar nature matters. This Court would hasten to observe that even these observations cannot be taken altogether decisive of the question of contributory negligence but as observed above, it would depend on variety of facts and factors of a given case. The present one too had been a case of the bus plying in the rural area. Then, in order to establish the aspect of contributory negligence, it was required of the non-applicants that at least the driver and conductor of the bus concerned were examined in evidence. The omission of such an evidence definitely leads to an adverse inference against the appellant.
In the totality of circumstances, this Court is clearly of the view that even if some part of contribution to the occurrence could be imputed on the deceased because of his travelling on the roof of the bus, the proportion of his contribution to the accident cannot be 25%, as taken in other cases. In the given set of facts and circumstances, such contribution could only be taken to be that of a small fraction, not having a material bearing on the ultimate amount of just compensation to be awarded to the claimants.
This Court does not consider it necessary to specify the percentage of contribution of the victim in this case for the basic reason that in the ultimate analysis, the Tribunal has even otherwise been too restrictive while awarding compensation and the amount as awarded by the Tribunal has been on the lower side. The deceased was definitely having a specialised knowledge of the job relating with animal husbandry. He was supporting a family of six persons including himself. His age has been taken at about 45 years with reference to the ration card though it was suggested to be 35 years in the post mortem report. In the overall circumstances, the estimate on his income only at Rs.2,500/- per month has apparently been on the lower side. The application of multiplier of 13 has also not been on the higher side. Then, the Tribunal has awarded only an amount of Rs.5,000/- towards general damages though the claimants were the mother, wife and three children of the deceased. The rate of interest awarded has also been only 6% per annum. Thus, in the ultimate analysis, the amount as awarded by the Tribunal could only be said to be rather on the lower side. The contention on the part of the appellant that the amount awarded has been excessive is required to be, and is, rejected.
In the overall facts and circumstances and with restrictive quantification of compensation by the Tribunal, even if some contributory negligence on the part of the deceased is to be taken only for the reason of his travelling on the roof of the bus, and then, some enhancement is also considered because of too restrictive an award made by the Tribunal, the net result is that award made by the Tribunal does not call for a revision downwards.
Accordingly and in view of the above, this appeal at the instance of the appellant-insurer stands dismissed. No costs.
(DINESH MAHESHWARI),J.
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