PROPRIETOR, KUMARAN TRAVELS vs J.SINGARAVELU

THIS is an appeal by the First opposite party.

THE facts of the case are summarily as follows:- THE second complainant/second respondent herein organized a tour of some inhabitants of Pudupet to Thirupathi on a fare of Rs. 120/- per head. In this connection he engaged the service of the first opposite party who is a bus operator and hired his bus for the 8th and 9th of October, 1993 at the rate of Rs. 1,250/- per day as daily rent plus Rs. 1,500/-towards diesel and oil charges. He paid an advance amount of Rs. 500/- on 13.4.93 and the balance was paid on 8.10.93 to the bus driver at 3 a.m. as per Clause 10 of the contract. THE bus was not one properly maintained and the driver was also driving it negligently with the effect that the bus capsized near Chandragiri and almost all the passengers sustained injuries. THE second complainant spent Rs. 296/- towards food expenses, Rs. 2,956.25 towards bus fare and Rs. 5,000/- towards taxi fare, Rs. 2,000/- towards medical charges. He sustained mental agony for which he claimed Rs. 5,000/- as compensation in addition to the amount actually spent on account of the accident from the first opposite party and Rs. 2,000/- from the second opposite party-third respondent herein for not acting upon the complaint. The opposite party''s averments were as follows : Only the advance amount of Rs. 500/- was paid and the balance of Rs. 3,150/- still remains to be paid and there is no deficiency in service.

The District Forum found that the bus actually capsized, that an FIR was lodged and that people sustained injuries and some of them grievous injuries. However it ordered only the refund of the money paid and an amount of Rs. 4,275/- by way of compensation at the rate of Rs. 75/- per passenger. It dismissed the other claims of the second complainant. It is against that order dated 19.9.95 that the present appeal is preferred.

THREE grounds were urged by the learned Counsel for the appellant. The first one is that an accident is an act of God and therefore, the bus owner cannot be held liable for the inconvenience caused to the passengers. This contention is hard to accept. Firstly it is to be noted that the bus capsized not on account of a difficult situation of the traffic on the road arising suddenly, but on its own when the way was free. This raises the presumption that either the bus was in a very poor condition or that the bus driver drove it in a negligent manner. Secondly, the FIR filed is under Section 337 IPC which strengthens the presumption of negligence. No doubt it was open to the bus owner to establish that the accident occurred inspite of the good condition of the vehicle and the sober driving of the bus operator. But he has not produced any fitness certificate. For reasons better known to him he abstained from examining his driver to explain the circumstance in which the bus capsized. Then the presumption turns into certitude. Therefore, the conclusion arrived at by the District Forum that the accident is due to the negligence of the bus driver is unassailable. The second ground urged is that the second complainant paid only Rs. 500/- by way of advance for which he has issued a receipt and that the balance was not paid. No doubt there is no receipt for the payment of balance money. But no bus operator would allow the bus to ply unless a substantial amount has been paid. Secondly, the District Forum found that in Clause 10 of the contract it is specifically mentioned that the balance amount has to be paid before the bus is taken on tour. Therefore, the natural course of events leads us to conclude in favour of the payment of the total amount. It was still open to the bus operator to examine the bus driver to whom the amount was stated to have been paid to rebut the plea of the Second complainant. The appellant preferred not to do so. Under the circumstances we cannot say that the finding of the District Forum is vitiated.

THE third ground urged is that the compensation at the rate of Rs. 75/- per head for 57 passengers is too high. THE claim of the second complainant is Rs. 8,685/-. It is to be noted that the accident occurred on the onward journey and that the pilgrims could not achieve their purpose of going to the holy place, that many of them sustained injuries and some of them even grievous injuries as it could be seen from the FIR. Such being the case an average compensation of Rs. 75/- per head is in no manner on the high side and we cannot accept the plea of the learned Counsel for the appellant to reduce the amount of compensation. In the result, the appeal is dismissed with cost of Rs. 100/- Appeal dismissed with costs.