Sardul Singh and Others vs Kalloobai

R.C. Shrivastava, J.—At about 4 p.m. on 29.11.1974, a passenger bus (registration No. MPH-2715), belonging to the Appellant No. 1, met with an accident on the outer side of the open compound of a petrol pump-cum service station in Kampoo locality of this town. At that time, the Appellant No. 3, who was a bus-driver in the employ of the Appellant No. 1, was sitting on the driver''s seat in the vehicle and controlling the steering wheel. As a result of the accident, a boy named Gulsher, aged about 13 years, was crushed to instantaneous death on the spot. His mother, i.e., the Respondent, claimed compensation u/s 110-A of the Motor Vehicles Act, 1939. Besides the Appellants 1 and 3, the Appellant No. 2 was also joined as a non-applicant on the allegation that the bus was owned not only by the Appellant No. 2 but by him also. The Claims Tribunal made an award of Rs. 5,000/- only in favour of the Respondent against the Appellants 1 and 3 by order dated 4.3.1977, repelling the Respondent''s allegation that the Appellant No. 2 was a co-owner of the bus. Being aggrieved thereby, the Petitioners have filed this appeal u/s 110-D of the Act.

The circumstances under which the accident took place were as follows. At the service station, the bus in question (No. MPH-2715) had been taken on a raised service platform for servicing. After its servicing, it had to be glided backwards on its four wheels in order to bring it down on the ground. So, the Respondent No. 3 sat on the driver''s seat and took control of the steering wheel and, at his instance, some persons pushed the vehicle backwards from front. Thereupon, the vehicle glided backwards and came on the ground and went on gliding backwards and its rear portion dashed against another bus (No. MPH-6262) within the boundary of the service station. The ignition of the bus (No. MPH-2715) had not been switched on. The boy Gulsher, who was passing from there, was sandwiched in between the two buses and was crushed to death on the spot.

The first contention of the learned Counsel for the Appellants is that the bus did not fall within the meaning of the term ''motor vehicle'' u/s 2(18) of the Act as it was not being mechanically propelled at the relevant time I do not agree. The mere fact that, at that time it was plying on being pushed by manpower and its ignition had not been switched on was entirely insufficient to take it out of the definition of the term ''motor vehicle'', because it was not the defence case that the engine fitted in it was not in working order and could not start on switching on the ignition. Evidence was adduced on behalf of the Appellants to prove that battery was not fitted in the bus. That had not been pleaded and, therefore, that piece of evidence cannot be looked into. In any case, it was proved by Balmukund (A.W. 1) that, during day time, the bus could be mechanically propelled even without battery as it was a diesel bus. It is not disputed that, at the relevant time, the bus was on four duly fitted wheels, although, in the rear, two additional wheels were wanting does not go to prove that it could not be mechanically driven on four wheels. It actually glided down the service-platform on four wheels. Therefrom, it can reasonably be inferred that it could be, mechanically propelled even on four wheels. Thus, it is clear that it was a mechanically propelled vehicle adopted for use upon roads and fell within the definition of the term ''motor vehicle''. As observed by a Division Bench of this Court in the case of V.G. Sumant Vs. Shailendra Kumar and Others, a distinction was to be drawn between a motor vehicle which is in a fit condition for mechanical propulsion and a vehicle which is not in that condition. It is clear therefrom that a vehicle which, being fit is capable of mechanical propulsion and for use as such but, for the time being, left stationary is included within the definition of the term ''motor vehicle'' in Section 2(18) ibid. Thus, the first contention of the learned Counsel for the Appellants has no force.

The next contention of the learned Counsel for the Appellants is that the spot where the accident occurred not being a public place, the claim was not maintainable. He has relied upon decisions in Randall v. Motor Insurance Bureau 1969 A.C.J. 193 (England) and Life Insurance Corporation of India Vs. Karthyani and Others, decided by the High Court of Orissa. Those decisions are beside the point. They did not lay down that an application u/s 110-A of the Motor Vehicles Act, 1939, would not be maintainable unless the accident took place on a public place. There is no provision to the effect that an application for award of compensation u/s 110-A of the Act would not be maintainable unless the accident took place on a public place. The said contention of the learned Counsel for the Appellants is also, thus, without substance.

The next contention of the learned Counsel for the Appellants is that there was no negligence on the part of the Appellant No. 3, i.e., the driver, and, in any case, the case was one of contributory negligence on his part and on the part of the driver of the other bus against which the bus in question dashed. This contention is also without substance. The Appellants'' contention that the other bus was in motion in reverse direction was negatived by the Claims Tribunal holding that the other bus was stationary. The finding is based on cogent reasons. I see no reason to take a contrary view. As the other bus was at a stand-still, there is no question of any negligence on the part of driver of that bus. The entire responsibility was of the Respondent No. 3. The Claims Tribunal, for cogent reasons held that, when the bus in question was gliding in reverse direction, nobody was giving any signal of safety. The Respondent No. 3 failed not only to take signals of safety when the bus was being glided in the reverse direction but he further failed to control the steering and the gliding by applying brakes. That is to say, he failed to take reasonable care and precaution in the circumstances. The conclusion that the accident was caused due to his negligence is inevitable. Thus, the third contention of the learned Counsel for the Appellants also fails.

The last contention of the learned Counsel for the Appellants is that the driver, owner and insurer of the other bus against which the bus in question dashed were necessary parties to the case. That contention is also devoid of substance. No relief was claimed against them and, obviously, they were not necessary parties to the case.

The quantum of compensation has, rightly, not been challenged, there being no cause for reduction thereof in the circumstances of the case.

In the result, the appeal fails and is dismissed with costs. The Appellants shall pay the Respondent''s costs. Counsel''s fee shall be upto Rs. 200/- only, if pre-certified.