Skip to content


Sabira Begum and ors. Vs. the Raipur Transport Co. (P) Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in2(1985)ACC58
AppellantSabira Begum and ors.
RespondentThe Raipur Transport Co. (P) Ltd. and anr.
Cases ReferredInsurance Co. Ltd. v. Jadavji Keshavji Modi and Ors.
Excerpt:
.....been deputed to drive the said vehicle on that day. 1 has failed to discharge its burden and the accident itself demonstrates the negligence on the part of the non-applicant no. prabhakar air1971mp145 22. in calculating the pecuniary loss to the claimants what will be taken into consideration will be whether there was the prospect of a predominantly happy life and the compensation which is to be awarded is to be a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness please see, smt. the ups and downs of life, its pains and torrows as well as its joys and pleasures all that makes up 'life's fitful fever, have to be taken into consideration in the estimate. the principle to be applied is that the tribunal must be satisfied that the..........no. 1 is the widow and other applicants-appellants are the children of late m.a. gani.3. late m.a. gani was aged about 49 years on the date of accident and was travelling in the bus no. cps-8937 from chhuikhadan to rajnandgaon occupying the seat immediately at the back of the driver. he was an employee of the bhilai steel plant.4. the learned presiding judge of the motor accidents claims tribunal, rajnandgaon dismissed the claim holding that the said accident did not take place due to any rash or negligent act on the part of the driver of the non- applicant no. 1. it was further held that the accident took place due to the bursting of the tyre of the right front wheel when the vehicle was being driven at the speed of 60 kms. per hour. it was held that the accident was.....
Judgment:

S. Awasthy, J.

1. This appeal has been preferred by the unsuccessful claimants in Claim Case No. 4/76 before the Motor Accidents Claims Tribunal, Rajnandgaon, decided on 16-1-1978. The evidence has been recorded in Claim Case No. 4/76 and the main award with reasoning is also passed in that case. Out of that accident, Claim Cases Nos. 2, 3 and 7 of 1976 were filed and disposed of by the said award.

2. The appellants had claimed compensation amounting to Rs. 1,78,000/- on account of an accident which occurred on 23-11-1975 on Khairagarh- Rajnandgaon road by bus No. GPS-8937 belonging to the non-applicant respondent No. 1 and insured with the non-applicant respondent No. 2. Late M.A. Gani and two others died in the said accident. The applicant-appellant No. 1 is the widow and other applicants-appellants are the children of late M.A. Gani.

3. Late M.A. Gani was aged about 49 years on the date of accident and was travelling in the bus No. CPS-8937 from Chhuikhadan to Rajnandgaon occupying the seat immediately at the back of the driver. He was an employee of the Bhilai Steel Plant.

4. The learned Presiding Judge of the Motor Accidents Claims Tribunal, Rajnandgaon dismissed the claim holding that the said accident did not take place due to any rash or negligent act on the part of the driver of the non- applicant No. 1. It was further held that the accident took place due to the bursting of the tyre of the right front wheel when the vehicle was being driven at the speed of 60 kms. per hour. It was held that the accident was inevitable; hence no liability of the non-applicants respondents.

5. It is stated by the claimants that Ramkrishna Patil was driving the said bus and Noor Mohammad was its conductor at the time of the accident. Due to the speed of the bus, after bursting of the tyre, the driver lost control and it went about 100 yards ahead and collided with the Mahua tree at about 4.30 P.M. near village Dalli about 14 1/2 kms. away from Khairagarh towards Rajnandgaon. The driver of the bus was also amongst the deceased persons. It is also stated that the tyre of the front right wheel of the vehicle was an old, worn out one which burst due to the pad road and high speed. The vehicle could not be controlled by the driver thereafter. The negligence of the company was in not fixing a new tyre or such a tyre which should have been used on such road coupled with the speed with which the vehicle was driven.

6. The non-applicant No. 1 had denied the allegations of the applicants- appellants and stated that the speed was not above 50 kms. per hour. The speed was moderate and such that the bus was within the control of the driver. It was also denied that the tree with which the bus collided was about 100 yards away from the place of bursting of the tyre. It was also denied that the tyre was old and worn out. It was stated that the bursting of the tyre was only by an accident for which the non-applicant No. 1 could not be held liable. The bus was being driven cautiously with moderate speed. The driver tried his best to save the lives of all the passengers and in doing so, he lost his own life. It has also been pleaded that there were stone quarries in the vicinity of the road. The bullock-carts and trucks carrying the stones occasionally dropped some stones on the road which could be the cause of bursting of the tyre. Thus, the accident was claimed to be inevitable.

7. The case of the non-applicant No. 2 is that of denial except that the bus was insured with the non-applicant No. 2. It was stated that the liability, if any, is statutory covered under the insurance policy.

8. The learned Judge of the Motor Accidents Claims Tribunal accepted the defence of the non-applicant No. 1 and dismissed the claim.

9. The learned Counsel appearing for the claimants-appellants relied on the case of Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr. AIR 1977 Supreme Court 1248 and urged that in order to succeed in a defence that the accident was due to the bursting of the tyre which is said to be inevitable, the non-applicant No. 1 will have to prove that necessary precautions were taken and the tyre was in a roadworthy condition, The bursting of tyre occurred inspite of reasonable care and caution taken by the non-applicant No. 1. Such a plea must be raised to demonstrate that the defect was latent and not discoverable by the use of reasonable care. The burden of proving that the accident was due to inevitable circumstances is on the owner of the bus and it is for them to prove that they had taken all reasonable care and that despite such care the defect remained hidden. It is further submitted that the non-applicant No. 1 has failed to discharge such burden; hence liable to pay the compensation. It was also urged that the principle of Res Ipsa Loquitur would apply to the present case and the entire burden to show the condition of the tyre under the given circumstances was on the respondent No. 1 which it failed to discharge.

10. The non-applicant No. 1, in reply, argued that the case relied by the applicants is not helpful to them as the cause of accident was known to them which was the bursting of the tyre and it has proved by evidence on record that the tyre was roadworthy. The speed of 60 kms. per hour is not excessive. The owner had taken all necessary precautions. It was a new bus having good tyres. The principle of Res Ipsa Loquitur is not applicable to the present case under the given circumstances.

11. The learned Presiding Judge of the Claims Tribunal relied on the register (Ex. 1 N.A. 1) produced by non-applicant No. 1 which is a Daily Report Register maintained by Rajnandgaon branch of the non-applicant company from 10-10-1974 onwards till the date of accident. In this register, it is alleged that the complaints lodged by the driver of a bus is recorded if there is any defect in the said bus. Necessary repairs were done after recepit of 10. such report. Since there was no report entered in the register on 23-11-1975 concerning the ill-fated bus, the learned Presiding Judge of the Claims Tribunal held that late Ramkrishna Patil driver had no complaint regarding the tyre being unserviceable. Hence, the statement of Ramakant Pande (AW 1) regarding the alleged grumbling of driver Ramkrishna Patil about the tyre bsing unserviceable cannot be believed. He had further held that the bus was always checked prior to its being put on the road. Hence, the defect, if any, could have been noticed and mended. Further, the non-applicant No. 1 produced a 'Tyre-register' (Ex. 1 N.A. 4) in which the issue of tyres to different buses was entered. According to non-applicant No. 1, a tyre in a bus is changed after its use for 5-6 months. New tyres were always put in the front wheels and old ones were put in the rear wheels.

12. Mohammad Shafi (1 NAW 2) has stated that the tyre in the front wheel was in good condition and it would have run for 3-4 more months had it not burst. On page 8 of the said register, entries dated 22-7-1975 and 29-8-1975 show that 4 new tyres, two tyres on the aforesaid each date, were issued for the ill-fated bus. According to the learned Judge, the tyre which burst was used only for 3 months; hence, it was not an old, rotten or unserviceable tyre. He relied on the statement of Mohd. Shafi (1 NAW 2) who was the allotted driver of the ill-fated bus and disbelieved the statements of Martandsingh (AW 12), Ramakant Pande (AW 1) and Guruvachansingh (AW 9) who were the passengers of the ill-fated bus and who had stated that the tyre was in a rotten condition, He believed the entry in the Tyre-register, and also believed the statement of the Commissioner who had stated that about two furlongs away from the place of the accident towards Rajnandgaon, on both sides of the road, there were stone quarries. The aforesaid facts were held to be sufficient for reaching a finding that the accident was inevitable. We do not agree with the said finding.

13. In the written statement, in para 8, the non-applicant No. 1 has stated:

x x x x

In this pleading, no particulars regarding the condition of tyre of the right front wheel are specifically mentioned. The claimants were not in a position to know that the non-applicant No. 1 would lead evidence to the effect that tyre was replaced in the month of July- and was in a serviceable condition. All the details regarding the registers maintained by the non-applicant company and also regarding the fixing of a new tyre with number, make and other details known to the non-applicant No. 1 should have found place in his pleading. In para 15 of the written statement, the non-applicant No. 1 has mentioned:

x x x x

14. The absence of specific pleading raises a doubt if the alleged registers were regularly being maintained. No reliance can be placed on such registers as no foundation was laid in the pleading. It was argued by the learned Counsel for the appellants that such an entry could easily be interpolated or a new register could be prepared showing some such entries it here in. It was stated that the reason for not pleading those facts was apparently because at the time of the filing of the written statement, such material was not available with the non-applicant No. 1. Even the number of the tyre which is alleged to have bursted was not mentioned in the pleadings. The tyre which was produced in the Court at the time of evidence could also not be said to be the same as it was not confronted to Shri Guruvachansingh, S.O., Dongergarh (AW 9) who had made the enquiry of the accident after receiving the report.

15. We rely on the statement of Guruva chansingh (AW 9) who is an independent witness and who had conducted the enquiry of the said accident. He stated in para 1 of his deposition:

x x x x.

There had been no cross-examination of the said witness regarding the above statement nor the Presiding Judge of the Claim Tribunal has discussed this evidence in his award.

16. Sajjan Singh Baghel (AW 11) was a passenger in the bus along with Martandsingh (AW 12). He has stated that the speed of the bus was about 70 to 80 kilometres per hour (that is his estimate). After the tyre bursted, the bus went about 100 yards and collided with the tree. He saw after the accident that it was an old and rotten tyre. Martandsingh (AW 12) had pointed out to him that the tyre was rotten and old. Then he himself saw the tyre. Martand singh (AW 12) has also corroborated him in all these particulars.

17. Ramakant Pande (AW 1), an Advocate, has also supported the above-said two witnesses regarding the speed of the bus at the time of the accident and the condition of the tyre. He has further stated that the driver of the said bus had spoken to him that the tyre of the wheel was bad, yet he had been deputed to drive the said vehicle on that day.

18. Looking to the condition of the tyre and the type of the road on which the ill-fated vehicle was plied, the speed even at 60 kilometres per hour was excessive. The non-applicant No. 1 cannot escape the liability by merely stating that the tyre was not very old or rotten. If the non-applicant No. 1 was relying on a particular plea, he should have taken all precautions to plead all necessary particulars and led such evidence which would have conclusively proved its case. We hold that the non-applicant No. 1 has failed to discharge its burden and the accident itself demonstrates the negligence on the part of the non-applicant No. 1.

19. We, therefore, differ from the finding recorded by the learned Presiding Judge of the Claims Tribunal and hold the non-applicant No. 1 negligent for not putting a serviceable tyre on the right front wheel of the bus No. CPS-8973.

20. Under the Motor Vehicles Act, the amount of compensation is to be what appears to the Tribunal to be just. The word 'just' has a wider ambit than the words used in Sections 1A and 2 of the Fatal Accidents Act. The Tribunal under this Act has, therefore, only to consider what appears to it to be just compensation on the facts and circumstances of the case before it and need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act or under the English Law as held in Gulab Devi v. Government of M. P. and Anr. : AIR1971MP113 The Tribunal may in deciding the 'just compensation' bear in mind and apply general principle or principles laid down in such decisions, as far as they may be applicable and in so far as they may be applicable or promote the interest of justice on the facts and circumstances of each case. The compensation amount should be so assessed as to make provision for the legal representatives to receive or earn such pecuniary benefits as they should have obtained from the deceased if he had lived his normal life.

21. On the question of quantum of compensation precedence may be relied upon to a limited extent but each case has to be decided on its own particular facts and circumstances and there can be no hard and fast rule for determining the quantum of compensation which may be awarded (See Kasturial v. Prabhakar : AIR1971MP145

22. In calculating the pecuniary loss to the claimants what will be taken into consideration will be whether there was the prospect of a predominantly happy life and the compensation which is to be awarded is to be a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness Please see, Smt. Kamla Devi v. Kishan Chand : AIR1970MP168 The loss for which the damages are awarded is pecuniary loss which will be sustained in the future.

23. But it is fallacious to assume that all human life is continuously an enjoyable thing no that shortening of it calls for compensation to be paid to the deceased's estate on a quantitative basis. The ups and downs of life, its pains and torrows as well as its joys and pleasures all that makes up 'life's fitful fever, have to be taken into consideration in the estimate. The principle to be applied is that the Tribunal must be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which victims have been deprived by the negligence of the opposite party Please see Benham v. Gambling 1941 1 All ER 7 (HL).

24. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give the 'datum or basic' figure which will generally be turned into a lump-sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, the widow might have remarried and thus ceased to be dependant and other like matters of speculation and doubt. The basis of the action is the pecuniary loss suffered by the dependants in consequence of the deceased's death.

25. Late M.A. Gani was aged about 49 years at the time of his death as deposed to by Abdul Hamid (AW 1), the elder brother of the deceased. According to him, he was a healthy person. Regarding longevity in his family, this witness has deposed that his father died at the age of 80 and his mother at the age of 49 years in the year 1929. He has also deposed that late M.A. Gani would not have received any pension after his retirement from the service.

26. Shri S.S. Babu (AW 2) deposed that late M.A. Gani was practicing in homoeopathic medicines but according to him he was practicing on 'no profit no loss basis. He himself took medicines from him twice and paid Re. 1/- and 8/- annas respectively. This shows that there was no income from homoeopathy practice. According to this witness, late M.A. Gani was receiving Rs. 814/- as basic pay, Rs. 150/- as dearness allowance and bonus in between Rs. 300/- and Rs. 400/- a month. This witness is also a store-keeper in the Bhilai Steel Plant working with late M.A. Gani in the same department. He had no knowledge about monthly deductions from the salary of late M.A, Gani.

27. Mohammad Abdul Mujib claimant-appellant No. 2 has been examined as AW 3. He is the eldest son of late M.A. Gani, aged about 21 years. He was aged 19 years at the time of the death of late M.A. Gani. According to this witness, his elder sister, Mst. Abida Begum is married. She is not a claimant in this case. The other sister, Ku. Aysha Begum was aged about 16 years and the younger brother, Mohd. Abdul Qadir was 14 years. According to him, his father was engaged in religious preachings apart from practicing homoeopathy and the service. He had to remain out at least for 40 days in a year from his house and used to take leave for that purpose. He had to bear his own expenses when he used to go out for religious preachings. He was a man of philanthropic nature. He used to help the poor with money.' He is unable to say as to what proportion of his income he used to spend on his family. He is unable to say if his father had any bank account. The witness was earning Rs. 8.50 per day as a temporary recorder.

28. The learned Presiding Judge of the Tribunal has held that the monthly income of late M.A. Gani was Rs. 964/- out of which he would have been spending Rs. 250/- per month on himself and would have been contribut ing Rs. 700/- towards his family and further that he would have worked till the age of 58 years in the factory. The learned Presiding Judge of the Tribunal has deducted on amount of Rs. 30,000/- of two insurance policies and Rs. 18,000/-, the amount of gratuity which became payable to the legal representatives of late M.A. Gan. The deductions so made are not permissible under the law. If any authority is needed, the Full Bench decision of this Court in Kashmiran Mathur and Ors. v. Safdar Rejendra Singh and Anr. : AIR1983MP24 may be referred.

29. Since Mohd. Abdul Mujib was a major son and was earning his own livelihood, he was not dependent on late M.A. Gani. So far as the other two minor children are concerned, claimant No. 3. Ku. Aysha Begum would have depended upon the earnings of M.A. Gani for about 4 years till her marriage and also claimant No. 4, Mohd. Abdul Qadir for 4 years till attaining his majority.

30. We hold that late M.A. Gani would have been contributory Rs. 700/- per month to the family. Out of the said amount, Rs. 200/- per month would be required for Mohd. Abdul Qadir who was prosecuting his studies and Rs. 200/- per month for Ku. Aysha Begum who was to be married. The remaining amount of Rs. 300/- must be deemed to be the share of the widow, Smt. Sabira Begum. She is aged about 45 years and we expect that late M.A. Gani would have attained the age of 65 years had he not died in the accident and would have given that much income in the house during his life time. The claimant Smt. Sabira Begum would have been 60 years of age when late M.A. Gani would have reached the age of 65 years and thus he would have contributed the amount of Rs. 300/- per month to Smt. Sabira Begum for about 15 years. This amount comes to Rs. 54,000/- payable to Smt. Sabira Begum, Rs. 9,600/- to Ku. Aysha Begum and Rs. 9,600/- to Mohd. Abdul Qadir. Since lump-sum payment is being made, there must be made some deduction because of the accelerated benefit to the dependants. We feel that an award of Rs. 9,000/- each to claimants, Ku. Aysha Begum and Mohd. Abdul Qadir and Rs. 45,000/- to Smt. Sabira Begum would be adequate compensation under the circumstances of the case. The learned Motor Accidents Claims Tribunal has, however, assessed the total compensation at Rs. 60,000/- which we revise and hold that an amount of Rs. 63,000/- in the proportion as mentioned above be payable to the claimants-appellants 1, 3 and; 4. Interest at the rate of 6 per cent per annum from the date of this order till realisation of the amount shall be payable to the claimants by the respondents The appeal is accordingly allowed, with costs.

31. The expression 'any one accident' appearing in Section 95(2) of the Motor Vehicles Act (No. 4 of 1939) is susceptible of two equally reasonable meanings or interpretations. If a collision occurs between a car and a truck resulting in injuries to five persons, it is as much plausible to say that five persons were injured in one accident as it is to say that each of the five persons met with an accident. The accident would mean accident to each of them. Since each met with an accident, though during the course of the same transaction, the liability of the Insurance company would extend to the maximum sum in respect of the injuries sustained by each of the five persons. A consideration of preponderating importance in a matter of this nature is not whether there was anyone transaction which resulted in injuries to many but whether more than one person was injured, giving rise to more than one claim or cause of action, even if the injuries were caused in the course of one single transaction. If more than one person is injured during the course of the same transaction, each one of the persons has met with an accident. Reliance may be placed on the case of Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi and Ors. : [1982]1SCR860

32. Out of the amount of compensation so assessed, Rs. 50,000/- shall be payable by the respondent No. 2 and the balance of Rs. 13,000/- by the respondent No. 1. The costs of this appeal and that of the lower court shall be payable by the respondents in proportion to the amount awarded against them. Counsel's fee as per schedule, if certified.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //