Smt. Mushayra Begum and Others vs Mukesh Tiwari and Others

Dr. I.M. Quddusi, J.—Heard on I.A. No. 1/2011, an application for condonation of delay in filing the appeal which is barred by 96 days. Notice of this application has been served, but no objection has also been filed by the respondents. On due consideration of the ground mentioned in the application, were of the opinion that the learned Counsel for the appellants have satisfactorily explained the delay in filing the appeal. Therefore, the delay is condoned. Application is allowed. This appeal has been filed by the claimants against the impugned award dated 1st January, 2011 passed by the IXth Addittional Motor Accident Claims Tribunal (F.T.C.), Raipur (C.G.), in Claim Case No. 80/2010 dismissing their claim petition u/s 166 of the Motor Vehicles Act.

The facts of the case as per the version of the claimants are that on 2nd April, 2009 Abdul Majid (deceased) was going from his village Amlipadar to Raipur by Mini Passenger Bus bearing Regn. No. C.G.-04-E/0368 for his business purpose. On the way near Amanala, the said Mini Bus driven by Shyam Sunder Yadav in a rash and negligent manner struck against a road side tree, as a result of which, Abdul Majid sustained grievous injuries and died on the spot. The driver of the vehicle also lost his life in the said accident. The F.I.R. was lodged alleging rash and negligent driving of the driver and a case against the driver for the offence under Sections 279, 337 and 304-A was registered.

The deceased was aged about 42 years. He was earning Rs. 15,000/- per month by dealing in poultry and agricultural products. The claimants being dependents/legal representatives have filed claim petition u/s 166 of the Motor Vehicles Act, for the award of a total compensation of Rs. 51 lakhs on various heads.

Learned Claims Tribunal has held it is not established that the offending vehicle due to rash and negligent driving of its driver struck against a tree and caused death of passenger Abdul Majid Khan; the claimants have failed to prove their case u/s 166 of the Motor Vehicles Act but, they have succeeded in establishing their case u/s 140 of the Act and therefore, the Tribunal has directed to pay a total sum of Rs. 50,000/- only to the claimants/appellants with interest @ 7-1/2% per annum.

We have heard learned Counsel for the parties and have also gone through the record.

Learned Claims Tribunal has formulated issue No. 1 to the effect that whether the deceased died as a result of rash and negligent driving of the driver of the passenger bus No. C.G.-04-E/0378 and it gave his finding as the same was not proved. The finding is given on the basis of statement of A.W. 2 Santosh Kumar Sahu who had earlier filed a claim petition u/s 163-A of the Motor Vehicles Act. He has stated in his statement under Order XVIII, Rule 4 of C.P.C. that the vehicle in question was being driven by the driver slowly and steadily and due to failure of brakes, the incident happened. He has further stated in his statement that the conductor had stated that he had told the driver to change the brake-shoes but, due to his carelessness the brake-shoes were not changed and that was his negligence.

There is contradictory statements of A.W. 2. On one hand, he has stated that there was rash and negligent driving of the driver. But, on the other hand, he has stated that due to failure of brakes the accident had happened but with carelessness of the driver of the bus as the conductor has advised him to replace the brake-shoes so many times, but he did not do so. In that situation where two contradictory statements have come a finding could not have been given that there was no rash and negligent driving of the driver.

In absence of any technical report it could not have been stated that the accident had taken place due to failure of brakes and in such situation there was apparently negligence of the driver of the vehicle. Even if it is presumed that the accident had happened due to failure of brakes and the driver had not got the brake-shoes of the vehicle changed despite his knowledge that the brake-shoes were weak, the Insurance Company could not have rejected the claim of the. insured solely on the ground that the driver was negligent. In Jitendra Kumar Vs. Oriental Insurance Co. Ltd. and Another, Hon''ble the Supreme Court in Para 10 held that "the fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act or omission of the driver. Insurance Company could not have repudiated the claim of the insured solely on the ground that the driver did not have a valid licence at the time of the incident in question.

Further, the fact remains that the Insurance Company has insured 27 passengers under the policy in question which was passengers carrying commercial vehicle (and premium for 27 passengers was received). Since, it was a passenger carrying commercial vehicle, the risk of the passengers was covered under sub-clause (ii) of Clause (b) of sub-section (1) of Section 147 of the Act, which is reproduced as under :

Requirements of policies and limits of liability.--(1) In order to comply with the requirement of this chapter, a policy of Insurance must be a policy which-

(a) xxx xxx xxx

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-

(i) xxx xxx xxx

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.

Therefore, the Claims Tribunal has committed a manifest error of law in dismissing the claim petition of the appellants u/s 166 of the Act. Hence, in our opinion the matter is liable to be remitted back to the Claims Tribunal for reconsideration.

In the result, the appeal is allowed in part. The impugned award and the findings recorded therein are set aside. The matter is remitted back to the Tribunal to decide the claim petition afresh in the light of the observations made above and the Tribunal shall calculate the amount of compensation in accordance with law.

Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified etc., and thereafter, the Tribunal shall make the award afresh at the earliest. The parties shall appear before the Claims Tribunal on 20th March, 2012. The records of the Tribunal shall be sent back.