M.P.S.R.T. Nigam and Another vs Ramkala and Others

P.D. Mulye, J.—The appellants have filed this appeal u/s 110(d) of the Motor Vehicles Act against an Award dated 31st August, 1979 passed by the Member of the Motor Accident Claims Tribunal, Indore in claim case No. 35/78 whereby he has awarded a total compensation of Rs. 22,500/- (Rupees Twenty two thousand five hundred) plus costs and interest to the claimant-respondent, even though they had put up a claim of Rs. 1,20,300/- (Rupees on Lakh, twenty thousand, three hundred) as compensation.

The facts giving rise to this appeal may be stated in brief; thus Respondent No. 3 Sorambai is the widow of the deceased Ranjit and respondents 1 and 2, who are minor, are their children.

Bus No. MPK-5060 was owned by Appellant No. 1 of which on the relevant day of the accident which took place on 2-2-1978, the appellant No. 2 was its driver, in the employment of Appellant No. 1.

On 2-2-78 the deceased Ranjit was proceeding on a bicycle by the left side of the road near Gram Kadwali on the Bombay Agra Road where at about 4.00 p.m. the appellant No. 2 who came from the opposite direction driving the said bus in a rash and negligent manner, dashed against the deceased, who as a result of the said accident sustained injuries to which he succumbed.

According to the claimant-respondents the deceased at the time of his death was aged about 30 yrs. was an agricultural labourer, and his yearly income was Rs. 4800/-. They therefore, put up a claim for Rs. 1,20,300/- out which Rs. 300/- were claimed for the damage caused to the cycle, on which the deceased was riding.

The Appellant No. 1 in his written statement did not challenge the factum of accident as also the fact that the deceased Ranjit died as a result of the said accident. However, the defence of Appellant No. 1 was that the driver who was coining from Dewas side and proceeding towards Indore was driving the said bus at a moderate and reasonable speed. On the other side of the road a truck was standing stationary with its face towards Dewas. When the bus driver had almost crossed 2/3rd portion of the said truck, all of a sudden the deceased came from behind the truck towards the right side of the road and even though the driver tried to take the bus towards the left side, the deceased also out of fear lost control on his cycle and came under the wheel of the bus ; as a result of which he sustained injuries which resulted in his death. Therefore, according to the Appellant No. 1 no rashness or negligence could be attributed to the appellants, though it may be noted at this stage that Appellant No. 2 namely bus driver did not file any written statement.

The learned Member of the Tribunal after considering the evidence and material on record came to the conclusion that the accident occured because of the rash and negligent driving of the bus by the bus driver as a result of which the bus dashed against the deceased from the front side who was riding on his cycle. He also found that the Appellant has failed to prove that it was the deceased who was riding the cycle at an excessive speed which had no brakes. He also found that the annual income of the deceased was Rs. 2400/- (Rupees Two thousand four hundred) and came to the conclusion that the dependency of the claimants was to the tune of Rs. 125/- per month.

The learned Member also found that the age of the deceased at the time of his death was about 40 years and that normally he would have earned a living upto an age of 60 years.

The learned Member, therefore, thought it just, proper and reasonable to Award a total compensation of Rs. 22,500/- plus interest at the rate of 6 percent per annum from the date of filing of the claim petition i.e. 13-2-1978 plus costs. Out of the aforesaid amount, it was ordered that as claimants-respondents No. 1 and 2 are minors, a sum of Rs. 7500/- (Rupees Seven thousand five hundred) which was awarded to each of them separately be kept in a nationalised bank in fixed deposit till they attain majority and the interest accrued the reon, shall be paid for their expenses, and the rest of the amount be paid to claimant respondent No. 3, namely the widow.

The learned Counsel for the appellants after taking me through evidence submitted that there is only one eye witness PW-3 Nathulal, but his evidence is not in conformity with the averments made in the claim petition. He, therefore, submitted that there is variance between the pleadings and proof. The learned Counsel further submitted that the Appellant No. 2-the bus driver Babulal had been examined as DW-1 who has explained as to how the accident occured and from his testimony it is also apparent that the accident occured because of the contributory negligence of the deceased Ranjit. He, therefore, submitted that to that extent the deceased should also be held liable for contributory negligence. He also submitted that the compensation awarded is, therefore, high and in support of his submissions the learned Counsel for the appellants placed reliance on the decisions reported in Rehana Rahimbhai Kasambbai Vs. The Transport Manager, Ahemedabad Municipal Transport Service and Others,

On the other hand the learned Counsel for the claimants-respondents submitted that the Appellant No. 2 Babulal, who was driving the said bus at the time of the accident, has not filed any written statement and, therefore, in absence of any written statement filed by him, disclosing his defence, his testimony as a witness can not be implicitly relied upon in absence of any pleadings to the effect as to how the accident occurred. He, further, submitted that the eye witness is a rustic villager and it can not be said that in fact and in reality there is a variance between the pleading and proof as the said witness has said that his attention was drawn only after he heard the noise on account of the said accident and at this stage he found that the cycle on which the deceased was riding has taken a turn and it is in that condition and state of affairs his evidence has to be considered because this situation of the change of the front side of the cycle after the accident has also been admitted by DW-1 Babulal. He, therefore, submitted that there is no variance between pleading and proof as urged on behalf of the appellants. He also submitted that the deceased can not be held liable for the contributory negligence in absence of any written statement having been filed by the driver who was a bus driver to explain how the accident occurred.

After hearing the learned Counsel and after going through the record I have reached conclusion that there is no merit in this appeal for the reasons stated hereinafter. The learned Counsel for the appellants did not dispute the factum of accident as also the death of Ranjit as a result of the said accident. It is, therefore, not necessary to reconsider the evidence on that point. So far as the submissions of the learned Counsel for the appellants that the accident occured because of the contributory negligence of the deceased also can not be accepted. Admittedly the accident took place on the Dewas-Indore road which is quite a broad road. According to the appellant himself the accident occured during the day time when there was sufficient light. It is also in the evidence of the driver of the bus that he saw the truck was parked on the other side of the road far at a distance. He has further stated that on seeing the said truck he was driving at a moderate speed but that having crossed the truck''s 2/3rd portion all of a sudden the deceased came from behind the truck can not be accepted for the simple reason that if the bus was driven carefully and cautiously at a moderate speed, the accident could not have occurred; especially when according to the bus driver he turned the bus towards the left side of the road and that out of fear the deceased also could not control himself. In fact if this was the case of the bus driver he ought to have filed the written statement to that effect. Therefore, the contention of the learned Counsel for the appellants that the deceased also contributed to the accident, can not be accepted.

As regards the contention of the learned Counsel for the appellants that there is variance between the pleading and proof, on carefully going through the evidence I find that it is not so. It is no doubt true that there is some variations in describing how the accident was seen by the eye witness Nathulal who categorically admitted that it is only after hearing the noise of the accident his attention was attracted and that he saw that the front side of the cycle has changed its direction, which is also the submission of the bus driver. Therefore, if the said witness on seeing the position of the cycle felt that the deceased was coming from Dewas towards Indore, does not necessarily mean that there is a variance between the pleading and proof. It is quite likely that as a result of the impact of the bus with the cycle, the cycle must have taken a somersault alongwith deceased and that is why the said witness must have formed an impression that bus as well as the cyclist were proceeded in the same direction when the accident occurred; whereas according to the claimants case the bus driver dashed against the deceased from the front side. Therefore, to my mind if the evidence is considered in proper perspective there is nothing to disbelief the contention of the learned Counsel for the respondents that the accident occured from the front side and not from back side. Therefore, it is clear that the driver of the bus was not very cautious at that time in driving the bus on account of which the accident occured which resulted in fatal injury. Therefore, I am not pursuaded to agree with the submissions of the learned Counsel for the appellants that the respondents have failed to prove how the accident occured or that they have changed the stand.

So far as the quantum of compensation is concerned, I am of opinion that considering the age of the deceased, his income as also the dependancy of the claimant, the compensation awarded can not be said to be excessive. Consequently no interference with the quantum of compensation is also called for.

In the result I see no merit in this appeal, which is dismissed with no order as to costs.

The Award is maintained.