Orissa High Court
Sri Inja Venkatrao vs Smt. Sundara Barik And Anr. on 21 August, 1990
Equivalent citations: II(1991)ACC461, 1991ACJ581, AIR1991ORI104, AIR 1991 ORISSA 104, (1991) 1 TAC 637, (1991) 2 ACC 461, (1991) 2 ACJ 581
JUDGMENT S.C. Mohapatra, J.
1. This is an appeal by the owner of a bus ORG 4844 under Section 110D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act').
2. Widow of Mohana alias Chintamani filed an application under Section 110 A of the Act for compensation of Rs. 60,000/- claiming that her husband was travelling in a bus on 10-3-1984. At village Totagumuda when the bus stopped he got down from the bus for answering call of nature. When he found the bus to have given a start he gave signal for stopping it. Instead of stopping it driver negligenly driving the bus, dashed against him who sustained fatal injuries. He was carried to Sub-divisional hospital at Parlakhemundi where he was declared dead.
3. Owner of the bus in reply stated that there was no accident as claimed. He, however, stated that his liability if any is covered by insurance. Insurer in reply claimed that his liability if any would be confined to the terms of the policy only.
4. Claimant examined three witnesses including herself. P.W. 1 is the paternal uncle of the deceased. He was a co-passenger. After the accident, he lodged information relating to the accident in Parlakhemundi Police Station, certified copy of which has been marked as Ext. 6. P.W. 2 is co-employee of the deceased in Balli Jute Mill. He proved weekly pay slips of the deceased marked as Ext. 2 and Ext. 3 is the overtime bill. He also stated about the facilities given to employees of the Jute Mill and stated that monthly wages of the deceased amounted to Rs. 900/-per month. Ext. 4 is the leave pass granted to P.W. 2 by the Mill Ext. 5 is identity card of the deceased issued by the Mill. P.W. 3 is the claimant who stated that she has a son left behind by the deceased. Certified copy of the post-mortem report, seizure lists and bail bond were filed and marked as Exts. 7 to 11. Owner examined two witnesses. O.P.W. 1 is the conductor and O.P.W. 2 is the driver. Certified copy of the First Information Report was filed which was marked as Ext. A. Insurer neither examined any witness nor produced any document.
5. Considering the materials on record, Tribunal held that deceased was travelling sitting on the top of the bus and died as his head dashed against branch of a tree. Average emoluments of the deceased was held to be Rs. 500/- and just compensation was determined at Rs. 60,000/- applying multiple of 15 to the annual income of the deceased. Tribunal held owner of the bus liable to pay the compensation and absolved insurer from such liability. Hence, owner has preferred appeal.
6. In view of the denial by the owner that there was no accident, it is to be considered whether deceased met with the fatal accident. Mr. A; Rautray, learned counsel for the owner appellant submitted that there being discrepancy in the story given out in the First Information Report, claim petition and evidence of P.W. 1, tribunal ought to have held that accident as asserted was a myth. O.P.W. 1 and O.P.W. 2 have asserted that there was no accident and deceased was not a passenger in the bus. Accordingly, Tribunal ought not to have connected fatal injury of the deceased with accident in the bus.
7. There is no dispute that deceased had fatal injuries. P.W. 1 who lodged information shortly after, narrated such injury has been sustained while deceased was moving on the top of the bus along with others as his head dashed against a branch of a tree. Certified copy of the First Information Report has been filed by the owner. Tribunal is therefore, justified in finding that deceased sustained fatal injury on account of his head being dashed against branch of a tree when he was travelling on the top of the bus.
8. Mr. Routrai submitted that driver cannot be held to be negligent when deceased was moving on the top of the bus. It is true that passengers are not to travel on roof of the bus. When the driver found passengers on the roof of the bus, he ought not to have driven the vehicle until passengers get down. In such circumstances, driver was negligent in driving the bus which resulted in the fatal injuries to the deceased.
9. Moving on the roof top of the bus is stated to be a contributory negligence. When conductor and driver allowed persons to take their seats on roof top of the bus taking into consideration status of the deceased, I am not inclined to hold that he had contributory negligence on that account. On account of negligence of the driver owner is vicariously liable to pay the compensation.
10. Mr. Routray is correct that loss of dependency is (he basis for determining just compensation and monthly or annual income of the deceased cannot be the basis. According to Mr. Routrai, when tribunal found monthly income to be Rs. 500/-, his contribution to the claimant is to be found lesser than the monthly income which should be reasonably guessed to be half i.e. Rs. 250/-since deceased must have his own expenditure, On that basis if multiple of fifteen is adopted just compensation is to be much less. According to Mr. Routrai, no appeal or cross-objection having been filed by the claimant, this finding has become final.
11. Finding that just compensation is Rs. 60,000/ - has become final. If the reasons . for such determination fail, in appeal the'' same can be justified by other reasons. For the said purpose, other findings of-the tribunal can be disturbed in appeal to justify the determination. Compensation determined, however, cannot be enhanced in absence of appeal or cross-objection.
12. P.W. 3 has stated the average monthly income of deceased to be Rs. 900/-. In view of the leave pass there cannot be any doubt that P.W. 3 was a co-employee of the deceased. There is no reason to disbelieve P.W. 3 that average monthly income of deceased at the time of death was Rs. 900/-per month. Deceased was maintaining his widow, the claimant and their son. In absence of any other material, it can be reasonably guessed that there were some expenses for the deceased himself. Even assuming that Rs. 400/- was spent by the deceased for himself balance Rs. 500/- per month would be his contribution to the claimant and their son. Annual loss of dependency is thus, Rs. 6,000/-. Deceased was about 28 years at the time of his death. He would have the earning capacity for about 30 years more. Deceased had the obligation to maintain the claimant throughout her life. Even if loss of dependency is taken for 30 years, mathematically compensation would be about Rs. 1,80,000/-. However, mathematics may be a good servant but it cannot always be the master. Claimant has herself determined just compensation to be Rs. 60,000/-.
13. Mr. Routrai, submitted that insurer is liable to pay the entire compensation. Mr. S.D. Das, learned counsel for the insurer submitted that under terms of policy insurer is not liable at all. Since deceased being on the roof of the bus is not a passenger in the bus.
14. I am not able to appreciate contention of Mr. Das. Since insurance is admitted, insurer is liable in the minimum to pay compensation of Rs. 15,000/ - even if there is no negligence of the driver. A person travelling as passenger on the roof top of the bus comes within the meaning passenger in the bus. In case of passenger in the bus insurer is liable to the extent of Rs. 15,000/- also. In any case, insurer is liable to the extent of Rs. 15,000/ - only. When owner appeared, he could have produced the policy to make insurer liable for more amount. As the policy has not been produced by the owner and no explanation has been offered why the same was not produced, liability of the insurer cannot be more than Rs. 15,000/- in the circumstances of this case.
15. In view of the aforesaid discussion, insurer is liable for Rs. 15,000/-and owner is liable for Rs. 45,000/- out of the compensation of Rs. 60,000/- payable. Owner not having paid the amount within time stipulated by tribunal is to pay interest at the rate of 10 per cent from the date of application till payment as directed by Tribunal in this appeal. However, in view of admission of the insurance, it ought to have immediately offered Rs. 15,000/- to the claimant as provided under Section 92A of the Act since there is no dispute that claimant is the widow. Therefore, I direct that insurer shall pay Rs. 15,000/-within two months with interest at 10% per annum from the date of application till payment within two months. In case payment is not made within two months as directed, interest shall be payable at 12 1/2 per annum from the date of application.
17. Entire amount of compensation with interest shall be deposited by the insurer with the Tribunal which shall be invested by the insurer kept in fixed deposit in joint name of claimant and her minor son Sanatan Barik, represented by mother guardian. Claimant shall be permitted to draw the annual interest only. When amount is realised from the owner, Rs. 45,000/- out of it shall be invested in fixed deposit in the name of claimant and her minor son Sanatan jointly by the Tribunal. In case, claimant files an application for release of any amount from the fixed deposit, considering the cause for which the amount is sought to be released, tribunal may permit such amount as would be reasonable, to meet the necessity. Otherwise, the amount shall continue in fixed deposit till the son Sanatan attains majority.
18. In the result, appeal is allowed in part. There shall be no order as to costs in this appeal.