Gopal Krishna Dutta vs Samar Kumar Bhattacharya

R. Dayal, J.—This appeal is directed against the award dated January 30, 1984 made by the Additional District Judge, Nadia, Krishnagar (II) awarding a total amount of Rs. 27,800.00 as compensation out of which the Insurance Company was held responsible to the extent of Rs. 5000.00 in view of Section 95(2) of the Motor Vehicles Act, 1939 and the rest was directed to be paid by the owner of the bus who is the Appellant herein. It was further directed that if the payment was made in a lump sum 25% rebate would be allowed from the total compensation.

Samar Kumar Bhattacharya, a science Demonstrator at Krishnagar, Respondent herein, made a claim u/s 110A of the Motor Vehicles Act, 1939 alleged that on March 31, 1961, while he was travelling in a bus named and styled as "Raghunath" bearing registered No. WGE 1264 towards his college at about 1.20 P.M., the said bus stopped at Bhagbat Press Junction on D.L. Roy Road and there he tried to get down from the bus but while he kept his left leg on the road and he did still hold the handle of the door of the bus, the bus started without giving prior alarm with the result he was dashed by the bus, fell down on the road and the rear wheel of the bus ran over his legs causing him severe bleeding injuries in his head and different parts of his body''. Some fellow passengers and some of his students immediately removed him to Shaktinagar hospital for treatment where he was admitted as an indoor patient till April 12, 1981 and thereafter he got treatment at P.G. Hospital at Calcutta where he was confined for four months. It is further alleged that on account of the accident, he became disabled and unable to move normally as before and had to use wooden crutch to walk and his left leg becraft be shortened. He claimed Rs. 50,000.00 as compensation because of rash and negligent driving on the part of the driver.

The owner of the bus Gopal Krishna Dutta opposed the claim preferred by the Respondent by filing a written objection denying the allegation of rash or negligent driving by the driver and alleging that the injuries were caused due to the negligence on the part of the claimant himself. A specific plea was taken in the written statement and the additional written statement that there was no scheduled stoppage at Bhagbat Press but the claimant wanted to alight from the bus in front of the Bhagbat Press even when the assistant of the bus had requested him not to get down there. It is pleaded that the claimant without paying any heed to the request made by the assistant, get down from the bus when the bus was negotiating the curbe and in the process fell down and sustained injuries, but rear wheel of the bus did not run over his leg.

Case of the Insurance Company is that the claim made by the claimant is excessive and the liability of the Insurer is confined only to Rs. 5,000.00 u/s 95(2)(b)(ii)(4) of the Motor Vehicles Act, 1939.

One of the issues which is relevant for the purpose of this appeal is issue No. 2 framed by the learned Trial Court:

Whether there was an accident by vehicle No. WGE 1264 as alleged in the petition and if so, whether that was due to the rash and negligent driving of the driver of the said vehicle ?

The learned trial Court held that the accident took place on account of the rash and negligent act on the part of the bus driver but neither the driver nor the conductor was examined by the owner and no explanation has been given by the owner for withholding these witnesses. He did not rely on the evidence of the assistant of the bus who was examined O.P.W. 1 by the owner for the reason that it was the. bus driver who was charged with the rash and negligent act and the assistant of the bus was not responsible in any way during the plying of the vehicle on the road. Further, it is observed that from the statement of the F.I.R. as well as from the evidence of the claimant who was examined'' as P.W. 5, it appears that the bus stopped at Bhagbat Press stoppage and there the claimant attempted to get down from the bus and when he was in the process of getting down the bus driver suddenly accelerated it without prior intimation'' and even if it is assumed that there was no scheduled stoppage at Bhagbat Press since the bus stopped for a while, it was the duty of the driver to s''ee whether any passenger was getting down or not and since the driver did not care to come before the Court to clarify the position, the driver was responsible for the accident. Further, the Trial Court observed that if the bus had not stopped there at all, the conductor would not have allowed the claimant to get down from the running bus but even the conductor is absent to clarify his position.

We have gone through the evidence adduced by the parties and find ourselves unable to agree with the approach adopted by the learned trial Court. It is proved from the evidence on record that there was no scheduled bus stoppage at Bhagbat Press and the claimant made a request to Uday Ch. Ghosh, the helper of the bus, who has been examined by the owner to stop the bus at Bhagbat Press which request was not acceded to by the helper but even then the claimant tried to alight from the bus when the bus had slowed down and in the process the claimant suffered accident which resulted in certain injuries on his person. On behalf of the owner, two witnesses, namely, Uday Ch. Ghosh the helper of the bus and one Ashutosh Saha were examined. Uday Ch. Ghosh has deposed that there is no scheduled bus stoppage near Bhagbat Press but the claimant requested him to stop the bus near Bhagbat Press, whereupon he told the claimant that there was no stoppage there to which the claimant replied that he would be getting down and thereafter when the bus took a turn near Bhagbat Press the claimant attempted to get down from the running bus and fell down. The other witness Ashutosh Saha O.P.W. 2 was a co-passenger of the same bus and he corroborated the statement of Uday Ch. Ghosh, the helper of the bus. On the other hand, three witnesses have entered the witness box oh behalf of the claimant. P.W. 5 is the claimant himself. He has deposed that he used to get down from the bus at the junction of the Bhagbat Press and on the date of the accident also the bus stopped at the said junction and when he was getting down and kept his left leg on the road and did not leave the handle of the bus the driver all of a sudden left the stoppage without giving any prior notice and as a result thereof, the accident took place. In the cross-examination, he could not deny that there is no scheduled bus stoppage at Bhagbat Press. He also did not deny that he had asked the conductor to stop the bus at the relevant place. He has stated that he could not recollect if the conductor had pointed out to him that there was no bus stoppage at that place. Thus there is absolutely no reason to disbelieve the evidence produced by the owner that there was no scheduled bus stoppage at Bhagbat Press and the helper of the bus asked him not to alight from the bus at Bhagbat Press. The other two witnesses produced by the claimant are a student Aloke Nandy, P.W. 2 and a rikshaw puller Md. Abdul Ajiz P.W. 3. The evidence of these witnesses is not of any help to the claimant because none of them was present in the bus. Rather, the evidence of Md. Abdul Ajiz is detrimental to the case of the claimant, as he has stated in his cross-examination that the accident took place at a distance of about 8 to 10 cubits off from the bus stop near Bhagbat Press, meaning thereby that the bus did not stop at Bhagbat Press as is the case of the owner.

It is thus clear that despite a specific plea having been taken by the owner in his written statement and additional written statement that there was no scheduled bus stoppage at Bhagbat Press, the claimant was not in a position to produce any evidence to refute the case of the owner in that regard. As stated earlier, even the claimant could not deny that there was no scheduled bus stoppage at the place. On the other hand, the helper of the bus Uday Ch. Ghosh has categorically stated that there is no scheduled bus stoppage at Bhagbat Press. Thus, it is proved that there was no scheduled bus stoppage at Bhagbat Press. Further, it is proved that the claimant made a request to the helper to stop the bus at Bhagbat Press but the helper declined to accept the request saying that there was no scheduled bus stoppage there. Even then.the claimant tried to get down from the bus when the. bus slowed down and in the process the claimant fell down and suffered injuries. It is no part of the duty of a bus driver to see all the time whether any passenger was trying to alight from the bus when the bus had slowed down or had even stopped on account of traffic on the road. If a passenger tries to get down from the bus at at a place which is not a scheduled bus stoppage merely because the bus had slowed down or had even stopped, it is not the duty of the conductor or the helper of the bus to signal to the driver to stop the bus. Passengers are expected to alight from the bus only at the scheduled bus stoppages and not at any place of their choice. This is so, not only in their own interest but also in the interest of other passengers who would like to reach their destination without avoidable delay and also in the interest of other users of the road, who would be put to unnecessary hazard and inconvenience, if the passengers attempt to alight in the midst of running traffic. The fact that neither the bus driver nor the conductor was examined is of no consequence to the result of the case because the fact that the claimant has charged the act of rush or negligent on the driver is of no relevance. The question for determination is what was the duty of the driver and the conductor in the given situation. Since the place of the accident was not a bus stop, the driver cannot be held to be responsible for accelerating the bus when the claimant was trying to alight from the bus. Since request had been made by the claimant to the helper to stop the bus near the place of. the accident which was not a scheduled bus stop and the helper refused to accept the same, it was the evidence of the helper which was of relevance and not of the conductor who might not even be knowing about the request. For all these reasons, we hold that neither the driver nor the conductor of the bus was responsible for the accident and the bus driver was neither rash nor negligent for any act which resulted in the accident causing injuries to the claimant. Therefore, the claimant is entitled to no more than Rs. 5,000.00 as it is not disputed that the insurance company is liable to pay that such amount u/s 95(2) of the Motor Vehicles Act, 1939.

In the result, we allow the appeal, set aside the award of the learned trial Court and award to the claimant-Respondent only Rs. 5,000.00. In the circumstances, there shall be no order as to costs.

P.K. Samanta, J.

I agree.