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Judgment
Devi Prasad Singh, J.
Present first appeal from order has been filed against the judgment and order passed by IVth Additional District Judge, Faizabad (Motor Accident Claim Tribunal) in Motor Accident Claims No.6 of 1985, thereby rejecting the petitioner''s claim for compensation under Section 110A of the Motor Vehicles Act, 1939. The claim petition was dismissed without awarding any compensation with the finding that the accident on account of which the claimant appellant had claimed compensation can not be termed as an ''accident''.
We have heard the learned Counsel for the appellant Sri M.A. Siddiqui and Sri M.S. Kotwai, learned Counsel for the opp. Party No.3. None appeared for the opposite parties No.1 and 2.
Brief facts borne out from the record are as under
(a) Sri Khursheed Ahmad Khan was travelling in a Bus No.URV 4514 along with passengers on 21st January, 1985 on Akbarpur Tanda road of the then District Faizabad. At about 12.30 a.m. the frontaxle of the bus was broke down, resulting in disbalance of the bus. On account of sudden breaking of the front axle and disbalanced movement of bus in a Zig Zag way and under the fear of accident, Sri Khursheed Ahmad Khan jumped out of the bus to save his life. Unfortunately, his action of jumping out of the bus had itself become a death trap and he collided with a tree, thereby succumbed to injuries at the spot.
(b) The accident took place at about 12.30 noon near village Inaminur 4 Kms. SouthWest from Tanda on AkbarpurTanda road. On behalf of the disment appellant, only one witness appeared, namely P.W.1 Smt. Qamrun Nisa wife of late Sri Khursheed Ahmad Khan, who deposed that she came to know regarding the accident from Akeel Ahmad. The claimant appellant No.1 Smt. Qamrun Nisa is the wife of late Sri Khursheed Ahmad Khan. The claimant appellant Nos.2, 3, 4 and 5 are the sons of late Sri Khurhseed Ahmad Khan, who were minor at the time of the accident. According to pleadings on record at the time of death, deceased was aged about 32 years and he was having monthly income of Rs.750/ per month from the business of wholesale supply of tea leafs in town Tanda of the then District Faizabad.
Sri Mustaq Ahmad Siddiqui, while advancing the appellant''s case submitted that jumping out from the running bus on account of breaking of the front axle amounts to accident arising out of the use of the motor vehicle, and accordingly appellants are entitled for compensation in accordance with law.
On the other hand, Sri M.S. Kotwal, learned Counsel for the Insurance Company (opposite party No.3) has defended the liability of Insurance Company on two counts viz:
(i) Firstly, the incident in which Shri Khursheed Ahmad died; was not an "accident" arising out on account of use of vehicles; and,
(ii) Secondly, in case it is found that it was an accident in view of Section 92(A)(2) of the Motor Vehicles Act, 1939, the Insurance Company shall be responsible to make payment only up to the tune of Rs. 15,000/.
The learned Tribunal had given a finding that the accident cannot be termed as accident and accordingly the claimant shall not be entitled for any compensation under the Motor Vehicles Act, 1939. For convenience the relevant portion of page 11 is reproduced as under:
"The death of the deceased ensured because of his own fault as he hastened to jump out of it on account of his own violation. It happened because of misapprehension and miscalculation of the deceased after breaking of the exle, which was beyond the control of the driver. For breaking of the axle it could be said that it was an act of God."
The learned Tribunal has further concluded that neither the owner nor the driver and nor the Insurance Company are responsible to pay any compensation to the appellants.
After hearing the parties counsel, questions which arise for adjudication by this Court are as follows:
"Whether the incident of 21st January, 1935 in which Shri Khursheed Ahmad died cannot be termed as an accident on account of use of vehicle in question under the facts and circumstances of the case as held by the claim tribunal or it was an accident and accordingly under the Motor Vehicle Act, prevailing at the relevant time, the appellants are entitled for compensation.
Whether the breakage of the axle of the moving bus should be treated as an "Act of God" and accordingly, the accident on account of the breakage of front axle cannot be said to be "an ingredient of accident" or may not be corelated with the accident and it should be ignored as held by Tribunal Court.
In case the incident in question was an accident then what will be liability of the Insurance Company and the actual owner of the vehicle as well as what should be amount of compensation.
There is no dispute and it is admitted as per pleadings on record that late Shri Khursheed Ahmad Khan was travelling in the bus and when the front axle breke down, under the fear of death he suddenly jumped out from the bus and died at the spot on account of injuries. It is also not disputed that front axle of the bus broke down, resulting in disbalanced movement of bus which reflexly prompted late Sri Khursheed Ahmad Khan to jump out of the Bus.
According to K.J. Arryer "Judicial Dictionary" accident means an unexpected accident. Further dictionary defines an accident as under:
"An act is said to be accidental when the act by which it is caused not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances, in which it is done to take reasonable precautions against it.
An act may be done intentionally or even unintentionally. Wrongs which are independent of intention, are done either by
(i) Culpable when due to negligence, or
(ii) Inevitable when the avoidance of it would have required a degree of care, exceeding the standard demanded by the law."
The former is not defence save in those exceptional cases, in which wrongful intent is the exclusive or necessary ground of liability; the latter is commonly a good defence save in cases in which the law insists that a man shall act this peril and must bear the consequences, if accident happens. An accident is an occurrence or an event, which is unforeseen, and starties one when it does not take place. It is the happening of the unexpected, not the happening of the expected.
In Black''s law Dictionary Vol.7, page 15, the accident has been defined as under:
"Accident:
An unintended and unforeseen injurious occurrency, something that does not occur in the usual course of events or that could not be reasonably anticipated.
Equity Practice. An unforeseen and injuries occurrence not attributable to mistake, negligence or misconduct."
In Black''s law Dictionary (supra), definition of accident as given in Insurance Law and Practice written by John Alan Appleman and Joan Appleman has been reproduced as under:
"The word ''accident'' I accident policies, means an event which takes place without one''s foresight or expectation. A result, though unexpected, is not an accident; the means or cause must be accidental. Death resulting from voluntary physical exertions or from intentional acts of the insured is not accidental, nor is disease or death caused by the vicissitudes of climate or atmosphere the result of an accident; but where, in the act which precedes an injury, something unforeseen or unusual occurs which produces the injury, the injury results through accident."
In the Book of Words And Phrases Permanent Edition I, released by west publishing Co., the word "Accident" has been defined as under:
(1) "The term ''accident'' means something unusual, unexpected and undesigned."
(2) "Accidents are unforeseen, unexpected, and unthought of occurrences."
(3) "An ''accident'' is an untoward, fortuitous, expected and unanticipated event."
(4) "An ''accident'' is an occurrence that could not have been foreseen by a prudent person."
In "The Encyclopedia Amaricana, International Edition,"the ''accident'' has been defined as under:
"ACCIDENT, in law, a casualty or unforeseen event, usually characterized by suddenness and external force or violence. The term has no settled legal interpretation. It is applied most frequently to an unfortunate happening that causes death or personal injury or damage to or loss of property. The word sometimes carries an implication of the absence of human fault or negligence. In this sense, an accident is an occurrence that could not have been prevented by the exercise of ordinary care. In many cases, however, the term has been interpreted by the courts to mean simply an event occurring without one''s foresight or expectation and thus to include happenings that involve negligence.
With the spread of compulsory auto liability insurance, some authorities have favored removing the question of negligence entirely from auto liability cases and reserving for criminal investigation the question of grose negligence. A sickness or disease is not considered an accident unless caused or aggravated by an external event occurring suddenly and unexpectedly."
Then, again in the same book, the ''accident'' has been further defined as under
"authorities define an accident as an unplanned event frequently resulting in bodily injury, property damage, or both. The unanticipated nature of accidents, however, does not mean that they occur by chance. Authorities contend that vitually all accidents can be prevented by eliminating unsafe acts and unsafe conditions."
In the book of Law of Torts by Salmond & Heuston, relying upon various decisions, the word "Accident" has been defined as under:
"An accident in its popular sence is any unexpected injury resulting from any unlookedfor mishap or occurrence. In law a happening is only regarded as an accident if it is one out of the ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence."
The Gujarat High Court in a case Bal Shakri v. Now Manokeshowk Mills Co. Ltd. reported in AIR 1951 page 34, relating to the Workman''s Compensation Act defines the word ''accident'' as under:
"The word ''accident'' generally means some unexpected event happening without design even though there may be negligence on the part of the workman. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed. What the Act realty intends to convey is what might be expressed as an accidental injury. It includes not only such occurrences such as collisions, tripping over floor obstacles, falls of roof, but also less, obvious ones causing injury, e.g. strain which causes rupture, exposure to a draught causing chill, exertion in a stokehold causing apoplexy and shock causing neurasthenia. But the common factor in all these cases is some concrete happening at a definite point of time and incapacity resulting from the happening."
In the case of Union of India and others v. Sunil Kumar Ghosh, reported in AIR 1984 Supreme Court page 1737, while dealing with the controversy relating to payment of compensation under Section 82 A(1) of the Railways Act, the Apex Court defined the ''Accident" as under:
"An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words an event or occurrence the happening of which is ordinarily expected in the normal course by almost every one undertaking a rail journey cannot be called an ''accident''. But the happening of something which is inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident. Now a collision of two trains or derailment of a train or blowing up of a train is something, which no one ordinarily expects in the course of a journey. That is why it falls within the parameters of the definition of accident."
In another case, reported in 1993 Supp. (4) SCC page 100, Regional Director. E.S.I. Corporation and another v. Francis De Costa and another, the Apex Court, while dealing with a controversy under the ''Employees'' State Insurance Act, 1948, defined the accident as under:
"4. Accident has not been defined under the Act. The popular and ordinary sense of the word ''accident'' means the mishap or an untoward happening not expected and designed to have an occurrence is an accident. It must be regarded as an accident, from the point of view of the workman who suffers from it, that its occurrence is unexpected and without design on his part, although either internationally canby the author of the act of otherwise. It may also arise in diverse forms and not capable of precise definition. The common factor is somewhat concrete happening at a definite point of time and an injury or incapacity results from such happening."
The incident in which Shri Khursheed Ahmad Khan died was not because of sole incident of jumping out from vehicle but it is coupled with the breakage of axle also. In case the axle would have not broken, there was no occasion for Late Khursheed Ahmad Khan to jump outside the vehicle. While deciding the dispute as to whether the incident in which Khursheed Ahmad Khan died can be termed as an accident, both the factors i.e. breakage of axle as well as jumping out of vehicle by Shri Khursheed Ahmad Khan should be taken into consideration simultaneously.
Under the Dictionary meaning as well as the judgment of the Apex Court where accident has been defined it can be safely said that on account of unexpected event i.e. on account of the breakage of axle Shri Khursheed Ahmad Khan had jumped out from the bus and succumbed to injuries though it may be a mis calculation on his part. In such situation when the axle was broken and the movement of bus was disbalanced it can not be ruled out that a person of normal prudence may jump out to save his life. The event was not a voluntary act done in the normal course. The breakage of axle was unexpected one resulting in unfortunate incident in which the deceased died.
The Learned Tribunal while considering the present controversy had segregated the incident of breakage of axle from the jumping out of bus by Shri Khursheed Ahmad Khan. The decision taken by the Tribunal on this count was on account of an incorrect approach. Under the facts and circumstances of the case when the breakage of axle as well as jumping out of the bus is considered simultaneously then the collective incident may fairly be termed as an ''accident''. Under the definition referred herein above it can be said that it was an unforeseen act and starties a common man of prudence. It was an unexpected event as person of common prudence will never expect that the axle of moving bus will be broken down. In normal course of life the breaking of axle is ordinarily not expected. Hence fairly it can be said that the incident in which Shri Khursheed Ahmad Khan died, was an ''accident''.
There is another reason for declaring the incident as an accident. Neither it has been pleaded by the Insurance Company nor the owner of the vehicle that the axle used in the vehicle was not suffering from defect, like a welded one or by other infirmities. The record does not show that the owner of the vehicle had taken necessary steps to maintain the bus in perfect running condition. It has been not pleaded that the Axle was in proper condition.
Under Section 2(1)(B), of the Motor Vehicle Act, 1939, the axle weight has been defined. For convenience it is reproduced as under:
"[(1B)] "axle weight" means in relation to an axle of a vehicle the total weight transmitted by the several wheels attached to that axle to the surface whereon the vehicle rests;"
The aforementioned definition of the axle weight shows that the owner of the vehicle should have taken a strict precaution including the maintenance of vehicle so that the axle used in the vehicle may meet out the requirements to carry out the load of passengers and body defined under the Act.
The Government of India in pursuance of power conferred by Subsection (1) of Section 36 of Motor Vehicle Act, 1939, published notification dated 25.9.1982 in its extra ordinary gazette whereby providing the maximum safe laden weight of vehicle and maximum safe laden weight of axle. For convenience notification is reproduced as under:
"In exercise of the powers conferred by subsection (1) of Section 36 of the Motor Vehicles Act, 1939, as amended by clause (a) of Section 7 of the Motor Vehicles (Amendment) Act, 1982, and in supersession of all orders and notifications issued by the State Governments and the Union Territory Administrations in this regard prior to the date of publication of this notification, the Central Government hereby specifies that in relation to the transport vehicles of all makes and models, the maximum safe laden weight of motor vehicles and maximum safe laden weght of each axle of such vehicles shall be as follows, namely:
(1) (a) The maximum safe laden weight and the maximum safe axle weight of each axle in relation to each make and model of a transport vehicle manufactured up to 31.3.1983 shall be 125 per cent of the rating given by manufacturers in respect of maximum safe laden weight and maximum axle weight of each axle.
(b) The maximum safe laden weight and the maximum safe axle in relation to each make and model of a transport vehicle manufactured on or after 1.4.1983 shall be as per the rating of the maximum safe laden weight and maximum axle weight of each axle fixed by the manufacturer.
(2) The maximum safe axle weight determined in para (1) shall be further restricted to the maximum safe axle weight given in the Schedule.
(3) The maximum safe laden weight in respect of all transport vehicles including multiaxled vehicles shall not be more than the sum total of all the maximum safe axile weights put together.
(4) The fixation of safe laden weights as per the principles concerned in clauses (1) to (3) above are for the purposes of registration of a transport vehicle including multiaxle vehicle but shall not authorize the carriage of loading exceeding the laden weights restricted or prohibited by a State Government under a notification issued as per the provision of Section 74 of the Motor Vehicles Act, 1939 relating to imposition of prohibition or restriction in the interests of public safety or convenience, or because of the nature of any road or bridge in the concerned State."
Similarly the transmission of axle load has been provided in the Motor Vehicle Act by a figure (picture) marked as M 26.
There is nothing on record nor it has been pleaded by respondents that they have maintained the vehicle in question as well as the axle in accordance to Government Notification referred hereinabove.
In a Book "Torts" written by Clerk and Lindsell, (Fifteenth Edition) the master''s duty has been defined as under:
"The standard of a master''s duty towards his servant is to see that reasonable care is taken; the scope of that duty extends to the provision of safe fellowservants, safe equipment, safe place of work and access to it, and a safe system of work."
There is nothing on record nor borne out from the pleadings of the parties that the vehicle owner had taken necessary steps and discharged his duties to keep the axle in proper condition or the axle was of required strength. From the pleading of parties it also does not borne out that the axle was a safe equipment or up to mark efficient to bear the total weight transmitted by wheel provide under Motor Vehicle Act. Burden of proof lies on the owner of vehicle, which has been not discharged. Accordingly the incident in question can safely be termed as an accident and the respondents can not escape from their liability.
Now the second question is as to whether the breakage of axle was an act of ''God'' and it should be ignored while deciding the present controversy as discussed hereinabove. The burden lies on the vehicle owner to keep the axle in proper condition to bear the axle weight or load of vehicle including the passengers so that when the weight is transmitted to the axle it can carry out its function without any problem. Neither the Insurance Company nor the owner has pleaded that the axle used in the bus was of required standard to meet out the axle weight.
In the book the Law of Torts by Ratanlal and Dhirajlal the Act of God has been defined as under:
"All causes of inevitable accident may be divided into two classes:
(i) those which are occasioned by the elementary forces of nature unconnected with the agency of men or other cause;
(ii) those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, nonfeasance or of misfeasance, or in any other causes independent of the agency of natural forces.
The term ''act of God'' is applicable to the former class.
In BhagavadGita, Lord Krishna had said that whatever is happening in this universe are because of God. God is the source of all happenings in this entire universe. For convenience the English translation of certain verses (slok) BhagavadGita from Chapter X and Chapter XI are reproduced as under:
"Chapter X: (32) Of creations I am the beginning, the end and also the middle, O Arjuna; of the sciences (I am) the science of the self; of those who debate I am the dialectic."
"Chapter XI: (19) I behold Thee as one without beginning, middle or end, of infinite power, or numberless arms, with the moon and the sun as Thine eyes, with Thy face as a flaming fire, whose rediance bums up this universe.
(26) All yonder sons of Dhrtarastra together with the hosts of kings and also Bhisma, Drona and Kama along with the chief warriors on our side too,
(27) Are rushing into Thy fearful mouths set with terrible tusks. Some caught between the teeth are seen with their heads crushed to powder.
(29) As moths rush swiftly into a blazing fire to perish there, so do these men rush into. Thy mouths with great speed to their own destruction.
These beings blinded by their own ignorance are rushing to their destruction and the Divine Controller permits it, as they are carrying out the effects of their own deeds. When we will a deed, we will its consequences also. The free activities subject us to their results. As this law of cause and consequence is an expression of the Divine mind, the Divine may be said to execute the law. The writer points out through the conception of world form how the whole cosmes with its vastness, beauty an terror, gods, blessed souls, animals, plants are all there in the plenitude of God''s life. God can not move outside Himself, having all within Himself. We, human beings, who think discursively, are occupied, now with one object and now with another. We think consecutively but the Divine mind knows all as one. There is no past to it nor future.
(30) Devouring all the worlds on every side with Thy flaming mouths, thou lickest them U.P. Thy fiery rays fill this whole universe and scorch it with their fierce radiance, O Visnu;
(31) Tell me who Thou art with form so terrible. Salutation to Thee, O Thou Great Godirad, have mercy. I wish to know Thee (who art) the Printal One, for I know not Thy working.
The disciple seeks for deeper knowledge.
(32) Time am I, worlddestroying,grown mature, engaged here in subduing the world. Even without three (thy action), all the warriors standing arrayed in the opposing annies shall cede to be." In Holy Quran it has been said (to quote from Chapter II part)
"In the creation of the heavens and the earth and in the alteration of night and the day and the vessels that sail in the sea, carrying that which profits people, and in the water that Allah sends down from the clouds and quickens there with the earth after death and scatters therein all kinds of beasts and in the courses of the winds and the clouds pressed into service between the heaven and the earth, are indeed signs for a people who understood."
Thus, whether it is breakage of axle or jumping out of bus or death of Shri Khursheed Ahmad Khan, all are act of ''God''. Question arises as to whether we can blame the ''God'' for such happenings and shirk from our responsibility without discharging our duties under the law of land.
All religions of the world profess that it is the grace of God on account of which a persons holds office, got particular job or engage in a particular business as a source of livelihood or enjoy or suffer in life in various forms it is the "Karma" and "Prarabdha" which play decisive role in a man''s life. The word "Karma" signified duties which varies from man to man. Article 51 A of the Constitution of India contain certain duties expected to be discharged by every Indian.
The Constitution assigned duties to constitutional functionaries to serve nation whether it is Judge or Members of Judiciary or the Members of Executive or Legislative wing. No one can escape from his responsibility to discharge his duty by saying that a particular incident is an act of God and nothing can be done. Similarly whether it is owner of a vehicle or driver or any person or authority or citizen in general can not shirk from his or her responsibility by saying that a particular incident is an act of God, hence he fail to discharge his duties. Since ages human race is struggling to combat the natural calamities by scientific inventions and to help peoples in the event of sufferings occurs due to natural calamities.
We can consider this aspect of the matter by considering a common incidents used to happen resulting in gross destruction in our country. Suppose on account heavy rain or cyclone, a dam or bridge or tower suffers from destruction, then whether such incident may be ignored by saying that it was an act of God. The defence will not be available in case the destruction or breakage of dam, bridge, tower etc. is because of manufacturing defect, III maintence or otherwise on account of negligent of duty by the authorities concern. Persons responsible shall be liable for prosecution or punishment in accordance to law.
An incident should be interpreted and considered under the facts and circumstances of the each case. In the present case it is to be seen that whether the motor vehicle owner has discharged his duties to keep the bus in proper condition including the axle since there is nothing on record hence the breakage of axle can be safely termed as an accident under the principle of "Res ipsa Loquitur''. The burden was on the respondents to prove that the axle was in proper condition. Since they have not done hence the breakage of axle can not be ignored as an individual incident but it is coupled with the jumping out of the bus by Shri Khursheed Ahmad Khan and under combined consideration of both the incident, it can be said that there was an accident attracting for payment of compensation under the Motor Vehicle Act. It can not be ignored as an act of ''God''.
In the case of Krishna Bus Services Ltd, v. Smt, Massgli and others, reported in (1976) 1 SCC 703 where on account of breaking of tierod of the vehicle bus went out of control of the driver, the Apex Court while affirming the judgment of High Court ruled that the breakage of tierod and consequential accident, shall res ipsa loquitur shifting the burden on other side to prove that the accident occurred on account of no fault on their part.
In the case of Syed Akbar v. State of Karnataka., reported in AIR 1980 Supreme Court 30, their Lordships of Learned Supreme Court while applying the principle of ''res ipsa loquitur'' held as under:
"It is now to be seen, how does "res ipsa loquitur" fit in with the conceptual pattern of the Indian Evidence Act. Under the Act, the general rule is that the burden of proving negligence as cause of the accident, lies on the party who alleges it. But that party can take advantage of presumption which may be available to him, to lighten that burden. Presumptions are of three types:
(i) Permissive presumptions or presumptions of fact.
(ii) Compelling presumptions or presumptions of law (rebuttable).
(iii) Irrebuttable presumption of law or ''cendusive proof.''
Classes, (i) (ii) and (iii) are indicated in clauses (1), (2) and (3) respectively of Section 4, Evidence Act ''Presumptions of fact'' are inferences of certain facts patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action, the usage and habits of society and ordinary course of human affairs. Section 114 is a general section dealing with presumption of this kind. It is not obligatory for the Court to draw a presumption of fact. In respect of such presumption, the Act allows the judge a discretion in each case to decide whether the fact which under Section 114 may be presumed has been proved by virtue of that presumption."
Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing aperringly towards the guilt of the accused. Thirdly, the circumstances shown make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused''s guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt."
In the case Pushpabai Purshottam Udeshi and others v. M/s. Raniit Ginning & Pressing Co. (P) Ltd, and others, reported in AIR (1977) 2 Supreme Court Cases page 745, it have been observed that:
"The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but can not prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the word res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at page 306 states: "The maxim res ipsa loquitur applies whenever it so improbable that such an accident would jury could find without further evidence that it was so caused." In Halsbury''s Laws of England, 3rd Ed. Vol. 28, at page 77, the position is stated thus; "An exception to the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant''s negligence, or where the event charged as negligence'' tells it own story" of negligence on the part of the defendant, the story so told being clear and unambiguous. "Where the maxim is applied the burden is on the defendant to show either that in fact he was negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. Applying the principles stated above we have to see whether the requirements of the principle have been satisfied.
The applicability''of the principle of "res ipsa loquitur" has been affirmed by the Supreme Court in several other cases. In the cases of Basthi Kasim Saheb (dead) by Lrs. v. Mvsor State Road Transport Corporation and others, reported in (1991) 1 Supreme Court Cases 298, Hardeo Kaur and others v. Rajasthan State Transport Corporation and another, reported in (1992) 2 Supreme Court Cases 567, Sarla Dixit (Smt.) and another v. Balwant Yadav and others. reported in (1996) 3 Supreme Court Cases 179 and Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Company (P) Ltd.. (1977) 2 SCC 745, the Supreme Court applied principle of "res ipsa loquitur" while considering to award compensation.
The contention of Shri M.S. Kotwal that the liability of Insurance Company under Section 92 (a) shall be limited to Rs. 15,000/ seems to be incorrect. Section 92(a) deals with a situation where there is no fault on the part of owner or driver. For convenience Section 92(a) is reproduced as under:
"92(a) Liability to pay compensation in certain cases on the principle of no fault (1)Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under subsection (1) in respect of the death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that subsection in respect of the permanent disablement of any person shall be a fixed sum of seven thousand five hundred rupees.
(3) In any claim of compensation under subsection (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under subsection (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement."
The liability of Insurance Company on limits of the Insurance Company (insurer) has been given under Section 95 of the Motor Vehicle Act, 1965. Subsection 2 of Section 95 for convenience is reproduced as under:
"Subject to the proviso to subsection (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely
(a) Where the vehicle is a goods, vehicle, a limit of [one lakh and fifty thousand rupees] in all, including the liabilities, if any arising under the Workmen''s Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being corried in the vehicle;
(b) Where the vehicle is a vehicle in which passengers are carried for hire or reword or by reason of or in pursuance of a contract of employment:
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;
(c) Save provided in clasuse (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) Irrespective of the class of the vehicle, a limit of rupees [six thousand] in all in respect of damage to any property of a third party."
As discussed hereinabove, the death of Shri Khursheed Ahmad Khan was on account of an accident and the incident of breakage of vehicle can not be ignored by saying that it was an act of God. The claimant are entitled for compensation under the Motor Vehicle Act, 1939. Question remains as to decide the quantum of compensation which the claimants have been entitled. Learned counsel for Insurance Company, Shri Kotv.al, has submitted that in view of provision contained in Section 92(a)(ii) of the Motor Vehicle Act, 1939, liability of insurance company shall only be upto Rs.15,000/. Learned counsel for the appellant had placed reliance on the judgment of Apex Court, reported in (2003) 8 SCC 718, in the case of Maitri Koley and another v. New India Assurance Co. and others, in which the dispute relating to the payment of compensation under old Act applicable to present controversy was considered by Supreme Court. In the said case, accident was taken place on 1.4.1986 and Supreme Court held that the insurance company was liable for payment of compensation of up to one lakh fifty thousand. Para 5 of the said judgment of Supreme Court is reproduced as under:
"......the liability of the Insurance Company could not have been limited to a sum of Rs.50,000/. It was pointed out that the Tribunal and the High Court fell in error in concluding that the liability was restricted to the sum of Rs.50,000/ under Section 95(2) of the Motor Vehicles Act, 1929. We find that in 1982, Section 95(2) had been amended to increase the liability of the Insurance Company to Rs.1,50,000/. Thus, on the date of the accident the liability of the Insurance Company was Rs.1,50,000/. There was thus no justification for restricting the liability of the Insurance Company to only Rs.50,000/."
The aforementioned judgment of the Apex Court deems to be not applicable in the present case as it relates to an accident caused by vehicle and it does not relate to a death of a passenger traveling in the bus itself. For awarding of compensation we have to bank on the provision contained in Subsection 2 of Section 95 of the Motor Vehicle Act.
Another two judgment, have been brought to notice of this Court reported in (2001) 2 SCC 9 in the case of Kaushnuma Begum (Smt) and others v. New India Assurance Co. Ltd, and others and (2002) 6 SCC 306 in the case of Jyoti Kaul and others v. State of M.P. and another. In both the cases their lordship of Supreme Court was proceeded to award compensation alongwith interest @ 9 percent after considering the age, income and other factors of the deceased by disallowing the defence of insurance company under the pretext of "no fine liability" envisages by Section 140 of the Motor Vehicle Act, 1988 in the case of Jyoti Kaul (supra) Supreme Court while awarding compensation considered various factors of the deceased like age of deceased age of dependants the longevity of life, the chance of promotion expected increments retrial benefits which could have been available to deceased.
In the present case it was pleaded by the claimant appellants that the monthly income of the deceased was Rs.750 per month was engaged in a business of whole sale supply of tealeaf. The deceased was 32 years of age and it can not be ruled out that by passage of time his monthly income would have been enhanced to higher level. The age as well as the regular monthly income of the deceased seems to be not seriously disputed in the Trial Court. In case we treat the regular monthly income of the deceased as Rs.750/ per month then the annual income will be Rs.9000/. The longevity of the life of deceased in case is considered to be 60 years that he would have survived for 26 more years. In the old Moter Vehicle Act there is no schedule containing the multiplier.
However, keeping in view the age of deceased, longevity of life, the number of dependents, business etc on safer side multiplier of 17 may be used. As assessed out of Rs.9,000/ annual income, one third income is being deducted as expenses etc, then the annual income will come to Rs.6000/. On applying the multiplier of 17 the total amount will come to Rs.1,02,000/. Rs. 8,000/ is granted in lump sum in lieu of expanses incurred in funeral, loss of Consortium, loss of estate and other expenses. The total amount which the claimant appellants shall be entitled come to Rs.1,10,000/,
In the year 1993 when the appeal was filed except appellants no.1 and 2, the appellant Nos. 3, 4 and 5 were minors. Keeping in view the passage of time the appellant No.3 and 4 must have attained the age of majority. Only the appellant No.5 is minor even today.
In view of the discussion hereinabove compensation to the tune of Rs.1,10,000/ (One lakh ten thousand) is avarded to the appellants. An amount of Rs.30,000/ (thirty thousand) to be paid to the appellant No.1 Smt. Qamrun Nisan along with the interest @ 9 percent. The appellant No.2, 3, 4 and 5 shall be paid compensation of Rs.20,000/ (twenty thousand) each along with interest @ 9 percent. An amount of Rs.20,000/ (twenty thousand) along with interest payable to appellant No.5 shall be kept in fixed deposit till the appellant No.5 attains majority.
The Insurance Company shall be liable to pay to the extent of Rs.15,000/ (fifteen thousand) along with interest @ 9 percent, Rest of the amount shall be paid by owner of the vehicle Vijay Maurya. The interest shall be paid w.e.f. the date of submission of application in the Tribunal.
The judgment and order of the Tribunal dated 27.2.1993 in Motor Accident Claim Petition No.6 of 1985 is hereby set aside the appeal as well as the original claim of the appellant is decreed in the manner stated hereinabove.
(Appeal allowed)