Mohd. Rahees And Others vs U.P.S.R.T.C.
2012 Latest Caselaw 2902 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.33
 
Case :- FIRST APPEAL FROM ORDER NO.- 2790 of 2012
 
Petitioner :- Mohd. Rahees And Others
 
Respondent :- U.P.S.R.T.C.
 
Petitioner Counsel :- Mukesh Kumar
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Anil Kumar Sharma, J.

This first appeal from order has been preferred by the claimants- appellants challenging the validity and correctness of the award dated 10.4.2012 passed by the Motor Accident Claims Tribunal/Additional District Judge (Court No.5), Farrukhabad in MACP No.285 of 2010 (Mohd. Rahees and others Vs. U.P. State Road Transport Corporation) through its regional Manager.

Briefly stated the facts giving rise to the present appeal are that one Nazisha Begam (since deceased) was going to visit her relation on 1.6.2010 at Kaimganj, district Farrukhabad by bus bearing registration No. UP-76H/9274. It is claimed that when the bus stopped at Ghalib Pullia 30 mts. away from Kaimganj Bus Station, Smt. Nazisha Begam after de-boarding the bus fell down and came under the wheel of the bus suddenly moved at that very moment. Mohd. Rahees, Claimant No.1 jumped down from the bus and stopped it. He started attending his wife, who was profusely bleeding. It is further claimed that the conductor of the bus snatched the tickets from the hands of the husband and boarded the bus and ran away. Smt. Nazisha Begam was thereafter taken to the Community Health Centre, Kaimganj, where she was given emergency treatment and was referred to RMI Hospital, Farrukhabad. Since, her condition was very serious and therefore, she was shifted to Leelamani Hospital, Agra, wherefrom she was discharged, as her condition was hopeless and she succumbed to injuries on second day of discharge.

In the aforesaid circumstances, the claimant-appellant no.1 moved an application to the Station House Officer, Mohammadabad for postmortem and an FIR was also lodged at Police Station Kaimganj, district Farrukhabad by the claimants-appellants against the driver of the bus. In the claim petition the appellants claimed compensation of Rs.7,50,000/- which which was dismissed after contest by the defendant-respondents holding that the vehicle bus No. UP-76H/9274 was not involved in the accident by order dated 10.4.2012.

Aggrieved, the claimants-appellants have approached this Court by filing the present appeal against the impugned order dated 10.4.2012.

The contention of the learned counsel for the appellants is that the claim petition was dismissed by the Tribunal without application of judicial mind to the facts and circumstances of the case in a patently erroneous manner against the evidence on record. As such, the impugned award is illegal and is liable to be set aside by this Court. The order impugned is assailed on the ground that the award dated 10.4.2012 suffers from a manifest error apparent on the face of record as the claim petition has wrongly been dismissed by the Tribunal in a highly arbitrary and illegal manner and wrongly recording a finding that the aforesaid vehicle was not involved in the accident. According to the appellant the judgment is based on surmises and conjectures, as such it is liable to set aside and the claimant is entitled to the compensation as demanded in the claim petition before the Tribunal.

The further ground of challenge is that the deceased lady Smt. Nazisha Begam was of sound health and physique. She was earning about Rs.5,000/- per month by selling bangles and that a sum of Rs. 2 lacs have already been spent on her treatment due to accidental injuries received by her from the aforesaid offending bus and she suffered untimely death. It is further stated that in the circumstances, the claimant has suffered economic loss and expenses on account of treatment and purchasing of medicines etc. and that the deceased being only earning member of the family and all the appellants, who were solely dependent upon the income of the deceased have come on the road, are also entitled to 18% interest per annum apart from the compensation demanded by them. The appellant no.1 Mohd.Rahees son of Mohd. Hameed is husband of deceased, whereas the claimant-appellant Nos. 2,3,4,5 and 6 are minor sons and daughters.

We have heard the learned counsel for the appellant at length and perused the impugned award.

The Tribunal before deciding the case had framed two issues. The issue no.1 relates to determination of facts as to whether on 1.6.2010 the deceased Nazisha Begam was going at Kaimganj with her husband Mohd. Rahees by bus No. UP-76H/9274 and while de-boarding the bus came under the rear wheels of the bus when it was suddenly put in motion by the driver and as a result of which she succumbed to serious injuries.

The second issue whether the claimants were entitled to any compensation, if yes, then up to what extent.

In support of his case the claimant-appellant no.1 examined himself on affidavit and submitted that he was going from Farrukhabad to Kaimganj by the aforesaid bus and that when the bus stopped at the Kaimganj Pullia, he got down from

the bus and thereafter his wife also de-boarded the bus and at that time the driver moved the bus forward rashly and negligently and as a result of which the wife came under the bus crushing her lower half of the body. He had given her medical treatment in which about Rs.2,50,000/- were spent, that at the time of the accident the age of his wife was 30 years having five children who were minors; that she was earning Rs.5,000/- by selling glass bangles in the house.

In his cross examination he stated thus :

"izfri`PNk esa ;kph us dFku fd;k gS fd eSa Q:Z[kkckn esa djhc lk<+s 12-30 cts lh/ks cl vMMs ij igqap x;k FkkA cl rqjUr fey x;h Fkh cl esa esjh tku igpku dk dksbZ ugha Fkk vkSj u gh ?kVukLFky ij esjh tku igpku dk dksbZ vkneh FkkA eq>s Q:Z[kkckn ls dk;exat gh tkuk FkkA vl dk;exat NwVus ds ckn fnYyh tk jgh Fkh rc ;g nq? kZVuk gqbZ FkhA eSaus cl esa nks fVdV fy, Fks nksuksa fVdV :0 72-00 ds FksA dk;exat cl LVs'ku ij cl djhc 10&15 feuV :dh Fkh xkM+h bruh nwj pyh Fkh ftruh vnkyr ls dpgjh dk xsV rHkh nq?kZVuk ?kV x;h FkhA nq?kZVuk ds le; cl dh LihM 40&45 fdeh0 izfr?kaVk dh FkhA ?kVuk ds ckn tc cl :dokbZ rHkh :dh o ?kVuk LFky ls 25&30 dne vkxs :dh FkhA xkM+h ls d.MDVj o Mªkboj us eq>s ns[kk Fkk vkSj pys x;s FksA esjh iRuh dk bykt Q:Z[kkckn esa ds0,e0 f}osnh ds ;gka Hkh gqvk Fkk tgka ij mldk lgh bykt ugha gqvk Fkk rFkk lc lM+ x;k FkkA vkxjk esa iRuh ds nks fnu vkijs'ku gq, Fks rFkk 25&30 cksry [kwu p<+k Fkk rFkk ;g Hkh dgk fd cl ds Mªkboj o d.MDVj dks eSa igys ls ugha tkurk Fkk tc xkM+h :dokbZ rc uke irk iwNk FkkA ekSds ij ifCyd us Mªkboj o d.MDVj ds uke irs iwNs Fks ;g dguk xyr gS fd tks cl eSaus jksMost crk;h mlesa eSa ;k=k ugha dj jgk Fkk rFkk mlls dksbZ nq?kZVuk ?kfVr u gqbZ gksA lkFk gh lkFk izfri`PNk esa Li"V :i ls ;g Hkh dFku fd;k gS fd vHkh eSa ;g ugh r; dj ik;k gWw fd fdl xokg dks is'k d:axkA dk;exat dk gh xokg is'k d:axkA xokg cl ds ckgj dk gksxkA

;kph dh vksj ls ijhf{kr lk{kh ,-ih-MCyw-2 jbZl vgen us U;k;ky; esa fnukad 23-11-11 dks mifLFkr gksdj l'kiFk dFku fd;k gS fd og fnukad 1-6-10 dks le;1-30 cts xkfyc iqfyl ds ikl viuh llqjky firkSjk ls vkdj Q:Z[kkckn tkus ds fy, [kM+k Fkk mlh le; cl la[;k ;w0ih0 76&,p-&9274 Q:Z[kkckn dh rjQ ls vk;h iqfy;k ds ikl :dh mlesa ls igys eks0 jghl mrjs fQj mudh iRuh ukft'k csxe mrjh tSls gh ukft'k csxe cl ls mrj jgh Fkha oSls gh cl pkyd us cl dks rsth o ykijokgh ls cl pykdj vkxs c<+k fn;k ftlls ukft'k csxe cl ds fiNys ifg;s ds uhps vk x;h vkSj xaHkhj :i ls ?kk;y gks x;hA cl d.MDVj us eks0 jghl ls fVdVs Nhu yh vkSj cl dks Hkxk ys x;kA ekSds ij ekStwn yksx eks0 jghl ds lkFk ukft'k csxe dks ysdj ljdkjh vLirky dk;exat x;s tgka mldk MkDVjh eqvk;uk gqvk Fkk rFkk mls Q:Z[kkckn ds fy, fjQj dj fn;k x;kA Q:Z[kkckn vkus ij Mk0 ,e0ds0 f}osnh ds vLirky rd eS eks0jghl ds lkFk jgkA ogka bykt gksus ds ckn ukft'k csxe dks vkxjk esa bykt gqvk rFkk mlds ckn ?kj vkdj mudh e`R;q djhc 40 fnu ckn gks x;h FkhA"

The second evidence on behalf of of the appellants, namely,A.P.W.2 Mohd. Raees Ahmad supported the testimony of the appellants and also stated that the bus conductor had snatched the tickets from Mohd. Raees and ran away with bus. He also stated that all the time he was with Mohd. Rahees till the death of his wife. In the cross examination also he gave a contradictory statement and stated thus :

"mDr lk{kh us viuh izfri`PNk esa dFku fd;k gS fd eks0 jbZl esjh xkao ds gSa ;kph ds firk dk uke eks0 tehy gSA eSa ;kph dks cpiu ls tkurk gWw eq>s ;g ;kn ugha fd ?kVuk ds le; ekSle tkMs] xehZ ;k cjlkr dk FkkA eSa viuh llqjky firkSjk ls eksgEenkckn tk jgk Fkk eSa firkSjk ls cl idM+us ds fy, djhc 1 cts pyk FkkA djhc 20&25 feuV esa iqfy;k ds ikl nq?kZVuk LFky ij vk x;k FkkA nq?kZVuk ds le; xkM+h vkdj [kM+h gks x;h FkhA igys eks0 jbZl xkM+h ls mrjs fQj mudh chch mrjhA buds mrjrs gh d.MDVj us vkokt nh fd pyks fQj ;kph dh chch fxj x;h ftlls cl dk ifg;k mlds mij ls fudy x;kA ifCyd dks vkokt nsus ds ckotwn Hkh Mªkboj us xkM+h ugha jksdh vkSj xkM+h Hkxk ys x;kA eSaus cgw dks mBkdj ljdkjh vLirky dk;exat igqapk;kA gekjk eks0 jbZl ds ;gka vkuk tkuk gSA vxj ds0,u0 f}osnh ds ;gka bykt lgh gksrk rks og Bhd gks tkrhA eSa njksxk th dks dksbZ c;ku ugha fn;k FkkA cl ds Mªkboj dk uke xksihpUnz Fkk tks ?kVuk ds le; yksxksa us crk;k Fkk fdlus crk;k Fkk ;g eSa ugha tkurkA nq?kZVuk dk;exat cl vMMs ls 50 ehVj fnYyh ds rjQ gqbZ FkhA cl dk Mªkboj cl dks jksMost vMMs dk;exat ugha ys x;k Fkk lh/ks iqfy;k ij vkdj lokfj;ksa dks mrkjk FkkA lkFk gh lkFk ;g Hkh dFku fd;k fd ;g dguk xyr gS fd ?kVukLFky ij eSa ekStwn u gWw rFkk eSaus dksbZ ?kVuk u ns[kh gksA lkFk gh lkFk ;g Hkh dFku fd;k fd cl dk uEcj vaxzsth esa fy[kk FkkA cl dk uEcj ;w0ih0 76&,p-&9274A"

The only contention of the learned counsel for the appellants is that the driver had not considered the evidence which from the aforesaid appears to be incorrect. The Tribunal in the judgment and order has not only considered the evidence of the appellants but also of the respondents. It has noted the fact that Mohd. Rahees, appellant no.1 had given an incorrect statement and that the bus was standing in Kaimganj Roadways Bus Stop 10 to 15 minutes and had moved thereafter which is contradictory to the statement of APW-2 Raees Ahmad. The court disbelieved the accident committed by bus No.UP-76-9274, as in the cross examination Raees Mohammad had specifically given the number of the bus as UP76-H-9294.

Thus disbelieving the fact that to get down from bus after a distance of 30 yards the couple was sitting inside the bus for 15-20 minutes when it stopped at the Bus Stop Kaimganj. Noticing the contradictory statements as well as the fact that bus No.UP-76-H9274 was not even caught at the site of the accident, as it was improbable that in the crowd gathered after the incident the

conductor could have come back 30 yards and snatched the tickets of the appellants and could have ran away with the bus.

As regards the question snatching of tickets is concerned, the Tribunal came to the conclusion that the appellants were not the bonafide passenger. From the verification the details of the ETM machine which showed that the ticket from Farrukhabad to Kaimganj was of Rs.23/- each and not Rs.36/-.

Relying upon the law laid down in Shamshuddin and others Vs. Atta Anaruddin and others 1(2007) ACC 330 Andhra Pradesh, the Tribunal recorded its finding on first issue thus :

"bl izdkj mijksDr rdksZa ds vk/kkj ij U;k;ky; bl er ij gS fd ;kph okn foUnq la[;k&1 fd D;k fnukad 1-6-2010 dks e`frdk ukft'kk csxe vius ifr eks0 jbZl ds lkFk ;w0ih0 76&,p-&9274 ls dk;exat tk jgh Fkh vkSj cl ds xkfyc iqfy;k dk;exat :dus ij cl ls mrjrs le; cl dks pkyd }kjk vpkud pyk nsus ls e`frdk cl ls fxjdj mlds fiNys ifg;s ls dqpy x;h ftlls mls xEHkhj pksaVs vk;h vkSj ifj.kke Lo:imldh e`R;q gks x;h]dks mDr ?Vuk esa jksMost cl la[;k ;w0ih0 76&,p-&9274 dh lafyIrrk dks lkfcr djus esa vlQy jgk gSA rnkuqlkj foUnq la[;k&1 udkjkRed :i ls ;kph eks0 jbZl ds fo:) fuLrkfjr fd;k tkrk gSA"

Consequently, the first issue has been decided against the appellants holding that the bus No.UP-76-H-9274 was not involved in the accident. Further finding has been recorded by the Tribunal that the application filed by the appellants under Section 163A of the Motor Vehicles Act, 1988 to prove involvement of the said bus, but he has miserably failed to prove. In these circumstances, the claimants have no entitlement of compensation from the respondent U.P. State Road Transport Corporation.

We have considered the arguments of the learned counsel for the appellants and perused the record in detail as well as the order impugned and find that the detailed and cogent reasons have been given by the Tribunal in the judgment for disbelieving the case of the appellants. Moreover, the appellants have failed to prove their case within the four corners under section 163-A of the Motor Vehicles Act. The improbability of the involvement of the bus in question is mutatis-mutandis merely because of the fact that when a passenger de-boards the bus, he will move away from the bus and in no circumstance could go under the rear wheels which is inside the body of the bus. The conductor could also have not known that the appellant no.1 was having two tickets in his hands. According to the statement of the appellant no.1, he was helping his wife on the road, when her body is said to have been crushed by rear wheels of the bus. Admittedly, a massive crowd had gathered and the driver and

conductor could have gone near Nazisha Begam for snatching the tickets and running away with them and taking the bus away. There are a lot of loopholes in the story of the claimants. The link of the chain of sequence does not fit in. Therefore, to our mind, the Tribunal has rightly come to the conclusion that the bus was not involved in the incident and has rightly rejected the claim petition of the claimants by disclosing cogent reasons.

In this view of the matter, the argument advanced on behalf of the counsel for the appellants has no leg to stand.

In view of what has been stated above, we do not find any infirmity in the order dated 10.4.2012 passed by the learned Tribunal. There is no merit in this appeal and it is accordingly dismissed. No order as to costs.

Dt.16.7.2012

Ak/