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Judgment
R.K. Vijayavargiya, J.—This appeal by the claimants is directed against the award dated 18-9-73 passed by the Member, Motor Accidents Claims Tribunal, Dhar, in claim case No. 100 of 1970.
The claimants are the Appellants in this appeal the Appellant No. 1 is the father and No. 2 is the widow of the deceased Badrinarain. There is no dispute that passenger bus No. M.P.B. 6250 belonged to Respondent No. 2 and was insured with the Respondent No. 1, the New India Assurance Company Ltd., Bhopal, at the relevant time. It is also admitted that the said bus was being driven at the time of the accident by Respondent No. 3 Hamidali who was an employee of the Respondent No. 2.
On 25-6-70 the said bus M.P.B. 6250 left Vidisha carrying a marriage party of one Kanhaiyalal goldsmith. It was going to Ojhar. At about 9.30 a.m. on 26-6-70 the said bus was involved in an accident in the Bankanerghat between Manpur and Choral as a result of which it fell down by the side of the ghat. The case of the claimants was that the Respondent No. 3 was driving the vehicle rashly and negligently as a result of which the accident took place and the deceased Badrinarain, who was travelling in the bus, lost his life. The claimants claimed a sum of Rs. 45,000/- as compensation against the Respondents on account of the death of the deceased caused by the rash and negligent act of the Respondent No. 3.
The Respondent resisted the claim. The Respondent Nos. 2 and 3 denied that the accident took place on account of rash and negligent driving of Respondent No. 3. They pleaded that the accident took place on account of mechanical failure of the brakes and it was an inevitable accident. The Respondent No. 1 also denied the claim and stated that the liability of an insurance company is limited to only Rs. 2,000/-.
The Tribunal found that the claimants were the legal representatives of the deceased; that the claim petition was properly presented that Badrinarain was travelling as a passenger in the bus which was being driven by the Respondent No. 3 Hami-dali and it was not proved that the bus overturned on account of rash and negligent driving of the Respondent No. 3 and that the accident occurred on account of mechanical failure of the brakes. The Tribunal dismissed the petition on the ground that the accident did not occur on account of the rash and negligent driving of the Respondent No. 3. However, the Tribunal also found that in case the accident occurred on account of the negligence of the Respondent No. 3, the claimants were entitled to Rs. 9,000/- as compensation from the Respondents; bat the liability of the Respondent No. 1 insurance company was limited to Rs. 2.000/- on the finding that the accident did not occur on account of the rashness and negligence of the Respondent No. 3 the claim petition was dismissed. The claimants have challenged this award in this appeal.
It has first to be considered whether the accident occurred on account of the rash and negligent driving of the Respondent No. 3. The claimants have examined one Shyamrao as P.W. 2 who was a co-passenger in the said bus. Shyamrao stated in his evidence that when the bus was moving in the ghat, it was being driven at a rather excessive speed by the driver Respondent No. 3 and that the speed of the bus was about 30 miles per hour. The bus at that time was passing through the ghats and there were sharp curves and slopes. Without taking into consideration this fact the Tribunal has observed that the speed of 30 miles an hour was not an excessive speed. The Tribunal has also come to the conclusion that the bus was not being driven at an excessive speed on the ground that this witness who jumped from the moving bus did not receive any injury. From this the Tribunal came to the conclusion that the bus was being driven at a slow speed. No question was put to the witness as to when he jumped from the bus. Whether he jumped from the bus at the time when it dashed against the railings or any time prior to it. Merely from the fact that Shyamrao did not receive any injury when he jumped from the bus the Tribunal was not justified in holding that the bus was being driven at a slow speed.
The Respondents examined, the driver Respondent No. 3 Hamidali (D.W. 2), Guru-charansingh (D.W. 1), Narbadrao (D.W. 3) and Jhabbilal (D.W. 4), as their witnesses. Gurucharansingh (D.W. 1) is the owner of the transport company. He deposed that the Respondent No. 3 was in the employment of the transport company as a mechanic but whenever occasion arose the transport company used to assign him the job of driving spare buses and that about 8 or 10 years before he was employed as a driver by the transport company. He further deposed that the bus was thoroughly checked in the workshop before it was put on the road and its brakes were also in order. But no one was examined who actually checked the bus in the workshop. It is also significant that the job of driving the bus was assigned to a person who was not a regular driver.
Hamidali (D.W. 2) deposed that he had obtained a driving licence 22 years ago and that he worked as a driver for 10-12 years but thereafter he became a mechanic and whenever occasion arose he used to act as a driver for the spare buses of the owner; that when he took this bus for carrying the marriage party of Kanhaiyalal it was thoroughly checked and its brakes were also in order. He further stated that when he was driving the bus in the ghat there was a slope and the speed of the bus was 20-25 miles per hour and that he put the bus in fourth gear; that there was a turning ahead and a truck was coming from the opposite direction on the wrong side, that he applied the brakes and the bus became some-what slow and then he came to know that the brakes have failed; that he informed the nearby passengers that the brakes have failed and that he would try to save the bus; that thereafter the truck which was coming on the wrong side dashed against the bus on the rear side and thereafter the bus dashed against the railings and fell down some 100-125 feet below the ghat.
Jhabbilal (D.W. 4) who was the conductor of the bus deposed that though his seat was on the rear side of the bus when the accident occurred he was sitting on the front side and that when the bus was moving in the ghat there was a turn and a truck was coming from the opposite direction on the wrong side and the driver applied the brakes and that the driver had said that the brakes have failed. Narbadrao (D.W. 3) who was the mechanic in the roadways deposed that he examined the damaged bus and found that the hose-pipe of the brakes were torn and that there was no brake oil in them and that the brakes of the bus had failed. He however, admitted in cross-examination that he had prepared a note of inspection of the bus which was however not produced. He also admitted that a report was made by him. This report has also not been produced. In his cross-examination he also admitted that the hosepipe of the brakes could also be torn by the falling down of the bus in the ditch.
On consideration of the evidence adduced in the case I am of the opinion that the accident occurred on account of the rash and negligent driving of the Respondent No. 3. The Respondent No. 3 Hamidali was not a regular driver. He was employed by the Respondent No. 2 as a mechanic. Then when the bus was moving in ghat section where there were sharp curves and slopes, the driver should have been extra careful. Shyamrao (P.W. 2) has stated that the bus was moving at a speed of 30 miles per hour. The Tribunal has accepted this but held that it was not an excessive speed. The Tribunal has lost sight of the fact that the bus was moving in a ghat section where there were sharp curves and slopes. Then according to the driver he put the vehicle in the fourth gear when it was being driven at a speed of 25-30 miles an hour and descending the slope and more particularly when a truck was coming from the opposite direction on the wrong side. This aspect has also not been taken into consideration by the Tribunal. In order to retain control of the vehicle the driver ought to have put the vehicle in higher gear especially if he found that the brakes were not functioning properly. Thirdly it has also not been proved that the brakes suddenly failed. The notes of inspection and the report prepared by Narbadrao who is said to have examined the bus after the accident have not been produced. Narbadrao has also admitted that it was possible that the hose-pipe of the brakes might have torn on account of the falling of the bus in the ditch. In the circumstances I am of opinion that the Tribunal has committed an error in holding that the accident did not take place on account of the rash and negligent driving of the Respondent No. 3 but it occurred on account of the sudden failure of the brakes. On consideration of the evidence adduced in the case 1 am satisfied that the accident occurred on account of the rash and negligent driving of the Respondent No. 3 Hamidali and the deceased died on account of the negligent act of Respondent No. 3 and the Respondents are liable to pay compensation to the claimants.
The next question is about the quantum of compensation. The Tribunal has found that the deceased Badrinarain was employed at Rs. 90/- p.m. in a petrol pump. The claimants case that he was supplementing his income by doing some odd job has not been accepted by the Tribunal. However, the Tribunal has found that the deceased used to pay his salary to his father and that it was being utilised by the father for the maintenance of the deceased and his wife. The Tribunal found that out of the income of the deceased a sum of Rs. 25/- p.m. was spent on Appellant No. 2 and therefore, the Appellant No. 2 suffered a pecuniary loss of Rs. 25/- p.m. on account of the death of the deceased. The period of dependency has been held as 30 years. The Tribunal therefore came to the conclusion that Rs. 9,000/- would be the amount of compensation which the Appellant No. 2 would be entitled to receive from the Respondents. The claimants contended that this amount is too low while on behalf of the Respondents No. 2 and 3 it was contended that no pecuniary loss was caused to the claimants and therefore they were not entitled to any compensation. On consideration of the material placed on record I am of the opinion that the amount assessed by the Tribunal is inadequate. The Tribunal has erred in holding that the pecuniary loss caused to the Appellant No. 2 is only Rs. 25/- p.m. Moreover, the Tribunal has not awarded any compensation on account of physical pain and suffering of the deceased. The Tribunal has also not taken into consideration the future increase in the income of the deceased. This Court has awarded a sum of Rs. 12,000/- as compensation for the death of boys of 12 years of age who came from poor labouring classes Madhya Pradesh State Road Transport Corporation Vs. Kanhaiya Lal and Others, Munibai v. State of M.P. and Anr. Misc. Civ. Appeal No. 193 of 1974; decided on 7-9-78; Bhima and Another Vs. Pranaya and Others, and Balmukund and Ors. v. Smt. Mustaq Bai and Ors. Misc. Civ. Appeal No. 10 of 1974; decided on 17-11-78. In my opinion the compensation in the present case should not be less than Rs. 12,000/-. I am, therefore, of the opinion that Rs. 12,000/- would be the reasonable compensation awardable to the Appellant No. 2 in the present case.
It was submitted on behalf of the Respondent No. 1. insurance company that the liability of the insurance company is limited to only Rs. 2,000/-. Reliance was placed on Section 95 of the Motor Vehicles Act. However, in the present case the insurance policy has not been produced and proved. In the absence of the insurance policy it cannot be said that the liability of the insurance company is limited to Rs. 2,000/- only. It was for the insurance company to have proved the insurance policy. Section 95 of the Motor Vehicles Act only lays down the statutory requirements about the policy and it does not prohibit covering of risk of a higher amount. The Respondent No. 1 admitted in its written statement that the said Bus M.P.B.6250 was insured with it on the date of the accident. It was also alleged in the written statement by the Respondent No. 1 that according to the terms and conditions of the policy the limit of passengers to be carried by the bus was only 44 while it was carrying 63 passengers at the time of the accident and, therefore, the insurance company was not liable for any compensation. It was also stated as if it was a question of law that the liability of an insurance company is only limited to Rs. 2,000/- in respect of each passenger. It was not pleaded that according to the terms and conditions of the policy by which the bus was insured the liability of the insurance company was limited to Rs. 2,000/- per passenger. The policy has not been produced. In the circumstances the insurance company is also liable for the full amount awarded for compensation to the claimants.
As a result of the discussion aforesaid this appeal is allowed with costs. The award of the Tribunal is set aside and it is ordered that the Respondents shall pay to the Appellant No. 2 a sum of Rs. 12,000/- as compensation on account of the death of the deceased Badrinarain. The Appellant No. 2 shall be entitled to receive interest on the amount of compensation at 6% pa. from the date of the application till realisation. Counsel''s fee Rs. 200/- if certified.