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Judgment
Mr. R.P. Dholaria, J. (Oral)—This appeal has been preferred by the original claimants against the judgment and award of dismissal of claim petition No.295 of 1996, dated 23.09.2003, passed by the learned Motor Accident Claims Tribunal(Auxiliary), Ahmedabad.
The original claimants, by way of preferring the present appeal has interalia, contended that the learned Tribunal has wrongly dismissed the claim petition relying upon the pleadings but it appears that the learned Tribunal has overlooked the evidence on record and wrongly recorded the finding that the deceased Dipak had alighted from the running bus as such. The learned Tribunal ought to have recorded the findings that the accident occurred because of negligence on the part of the driver of Bus. The appellant has therefore, prayed to allow the appeal and award just compensation so far as the death of victim Dipak is concerned.
The brief facts of the case are that on 12.11.1995, deceased Dipakkumar and one Mr. Pradip were travelling in the bus No.128 so as to go to the railway station. When bus bearing registration No. GR-S-8784 reached near the gate of Railway Station, the deceased Dipakkumar told the driver of the bus that he wanted to alight at the out gate of Railway Station and consequently, the driver of the bus reduced the speed and under his total attention when deceased was alighting from the bus, at that time, driver carelessly and negligently took turn and as a result, the deceased dashed with middle portion of the bus and he fell down. In spite of such impact, the bus driver did not stop the bus and rear wheel of the bus ran over the body of the deceased. The said accident resulted into serious injuries and the deceased succumbed to his injuries in the Civil Hospital, Ahmedabad on the same day. On this short factual aspect, it is the case of the appellants that because of careless and negligent driving of the offending vehicle, accident in question has occurred and necessary complaint came to be registered against the respondent No.1 with Kalupr Police Station vide bearing C.R. No. 1388 of 1995. At the time of accident, deceased Dipak kumar was about 17 years old and he was healthy. The deceased was doing and assisting in the business of the appellant No.1 and thus, earning Rs. 36,000/- per annum. It is the say of the appellants that in view of his bright educational qualification, he would have earned 5 to 6 times more income if had he been alive. According to the appellants, without any fault on his part, his life came to an end prematurely because of the sole negligence and carelessness of the driver of offending bus.
Heard Mr. Kiran C. Mehta, learned advocate for the appellants and Mr. H.S. Munshaw, learned advocate for respondent No. 2.
On the point of the negligence, on going through the averments in the petition, it appears that the appellants have averred that the deceased Dipak kumar had requested the driver of the bus that he wanted to alight from the bus near out gate of Railway Station. At the request of deceased, the driver had slowed down the bus but when the deceased was alighting from the front door of bus, the driver negligently and carelessly took turn and as a result, the bus dashed with the deceased on the middle portion and the deceased came down under the rear wheel of the bus. Against the aforesaid averment in the petition, the Ahmedabad Municipal Corporation as well as the driver of offending bus have filed their joint written statement at Exh.13, wherein they have denied that there is any negligence on the part of the driver of bus. It is pleaded by the respondents that the accident occurred because of deceased Dipak kumar alighting from the running bus without a wating for the bus to reach at the bus stop which was just 100 ft. away.
In order to prove the negligence on the part of the driver, the claimants have examined one eyewitness and driver of the offending bus has also been examined by the opponent. One Pradipkumar, who was eyewitness of the accident has been examined by the claimant at Exh.68, wherein he has deposed that when the bus stop came, one person ahead of deceased Dipakkumar was alighting from the running bus and when deceased was alighting from the bus, the driver increased the speed of the bus and subsequently, Dipakkumar fell down on the road and came under the rear wheel of the bus. In his cross examination, he has admitted that at the place of accident, there was no bus stop and he has also admitted that when the deceased Dipakkumar fell down from the bus, the bus was in motion.
The driver Iqbal Fakirmansuri has been examined by the opponent at Exh.71, wherein he has deposed that one person alighted from the running bus and he came under the rear wheel of the bus. He has also deposed that the bus stand was situated at 100 to 150 ft. away from the place of accident. He has also denied the suggestion that in order to facilitate alighting of passengers, he has reduced the speed of bus near the bus stop. In the cross examination, he has admitted that he could see the passengers from both the mirrors.
The parties to the proceedings have also produced the documentary evidence in the nature of FIR, which came to be lodged soon after the accident before the Kalupur Police Station as well as panchnama of scene of accident. FIR is lodged by one Pradipkumar soon after the accident. After the accident, the Investigating Agency has carried out the panchnama of scene of accident, wherein the place of accident was shown on the Sarangpur road going towards Gita Mandir bus stand, whereby on the side of the road, a bus stop No.39 was situated and it is clearly and categorically mentioned that the place of accident is on the opposite side of Bus Stop No.39. The rear wheel of the bus appears to have been shown about 100 ft. away from the aforesaid bus stand.
It is clearly revealing from the panchnama which came to be drawn by the Investigating Agency that the accident happened in front of Bus Stop No.39 and rear wheel was far away about 100 ft. from the bus stop. Therefore, finding recorded by the learned Tribunal that the deceased was alighting from the running bus and at the place of accident no bus stop of AMTS was situated is not true.
In view of the aforesaid documentary evidence available on record, which suggest that one another person alighted from the bus while the bus was coming near to aforesaid Bus Stop No.39 and behind him, the deceased had also alighted from the bus, at that time, the driver of the bus suddenly increased the speed and in the result, the deceased fell down. The bus ran over the deceased and the accident occurred which clearly shows negligence on the part of the driver of AMTS.
It is noticed that the view taken by the learned Tribunal is hyper technical and has lost sight of the case. The provisions of Motor Vehicle Act, 1988 are welfare legislation and should be construed liberally in favour of the claimant whenever there is evidence on record. The evidence in the present case clearly suggest that the deceased had alighted from the bus and at that time, the driver of the bus suddenly increased the speed and in the result, the deceased fell down. The bus ran over the deceased and the accident occurred. The panchnama of scene of accident also suggest that the bus was in front of bus stop no.39. Therefore, in this view of the matter and as discussed above, the finding recorded by the learned Tribunal is required to be reversed as such. Hence, this Court finds that the accident occurred because of negligence on the part of the driver.
So far as compensation is concerned, the age of the deceased was about 1516 years at the time of accident as he was studying in 12th standard and he was not earning as such, as he was prosecuting his studies. Therefore, resorting to the provision of Note 6 below the second schedule appended with the Motor Vehicles Act, 1988, the notional income for non-earning persons comes to Rs. 15,000/- per annum. Thus, as the deceased was not earning, his income per annum is required to be considered at Rs. 15,000/- per annum. No documentary evidence is produced on record as regards the age of the deceased. However, he was prosecuting his studies, his age may be believed to be below 15 years and his income to be Rs. 15,000/- per annum.
On perusal of structured formula in the second schedule appended to the Motor Vehicles Act, 1988, no amount of compensation is provided for slab of Rs. 15,000/- p.a. However, the slab is provided for the income of Rs. 12,000/- as well as Rs. 18,000/- p.a. The income of Rs. 15,000/- p.a. is the mean figure of the aforesaid figure. If we may take the compensation provided for the victim upto the age of 15 years, then the income would be Rs. 12,000/- and the compensation is provided of Rs. 2,40,000/- and for the person whose income is Rs. 18,000/- p.a., the amount of compensation provided is of Rs. 3,60,000/-. If we may sum up the total, it would come to Rs. 6,00,000/- and if we divide it by 2, it would come to Rs. 3,00,000/-. Therefore, as per the structured formula, the amount of compensation would come to Rs. 3,00,000/-. The said amount is required to be deducted by ⅓rd in consideration of personal and living expenses if the deceased would have incurred if he would have been alive. So, the amount would come to Rs. 2,00,000/- (Rs. 3,00,000/- Rs. 1,00,000/-). Over and above the amount of compensation, general damages in case of death are also admissible to the extent of Rs. 2000/- for funeral expenses and Rs. 2500/- towards loss of estate. In all, the claimants are entitled to the amount of compensation of Rs. 2,04,500/- with running interest at the rate of 9% per annum from the date of application till realization.
For the reasons recorded above, the present appeal succeeds. The appellants are entitled to receive Rs. 2,04,500/- with running interest at the rate of 9% from the date of application till realization. The amount of compensation with interest from the date of application till realisation to be deposited by the respondent Ahmedabad Municipal Transport Service with the learned Tribunal within a period of three months from today and on such deposit, same shall be disbursed to the appellants in equal proportion to the extent of 50% by account payee cheque on proper identification and verification and 50% amount shall be invested for a period of 5 years and the claimants shall be entitled to receive periodical interest if they desire so. Present appeal is allowed to the aforesaid extent. No order as to costs. The Registry is directed to send back the R and P to the learned Tribunal, if any, forthwith.