Bombay High Court
Indubai Uttamrao Deore And Ors vs The Maharashtra State Road ... on 20 April, 2017
Bench: V.K. Jadhav
1 FA 3007.2009+CA.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3007 OF 2009
WITH
CA/15608/2016 IN FA/3007/2009
The Maharashtra State Road
Transport Corporation/M.S.R.T.C.
Division-Jalna, District-Jalna,
THROUGH Division Controller.
...APPELLANT..
(Orig. Respondent)
VERSUS
1. Indubai W/o. Uttamrao Deore,
Age.38 Years, Occu.House-hold,
R/o. Samta-nagar, Basmath,
District-Hingoli.
2. Vibha D/o Uttam Deore,
Age.12 Years/Minor, U/g
real mother i.e. Indubai
Respondent No. 1.
3. Banti D/o Uttam Deore,
Age. 5/½ Years/Minor,
U/g. Real mother i.e.
Indubai Respondent No.1.
...RESPONDENTS..
(Orig. Petitioners)
...
Advocate for Appellant : Mr A D Wange
Advocate for Respondents 1-3 : Mr U.M.Mhaske Patil h/f
S B Gatol
...
CORAM : V.K. JADHAV, J.
Dated: April 20, 2017
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and Award
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passed by the Member, Motor Accident Claims Tribunal,
Basmathnagar, dated 7.3.2009 in M.A.C.P. No.37/2005,
the original Respondent-MSRTC has preferred this
appeal.
2. Brief facts, giving rise to the present appeal are as
follows :-
a] Deceased Uttam had been to Nanded for his
personal work and after completing his work, he
returned to Basmath by a S.T. Bus bearing registration
No.MH-20/8960. When the said ST Bus reached the
Bus-stand of Basmath and while he was getting down
from the bus, at that time, one Rashid Khan, who was a
porter of the appellant/original respondent was
unloading the goods from the top of the bus, at that
time cloth bundle fell down on the person of the
deceased Uttam. In consequence of which deceased
Uttam sustained multiple injuries. He was immediately
shifted to Rural Hospital, Basmath and therefrom to
Nanded Hospital. However, due to his critical condition,
when he was being shifted to Aurangabad Hospital, he
succumbed to the injuries during transit. The
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claimants, legal representatives of the deceased Uttam
approached the Tribunal by filing MACP No.37/2005 for
grant of compensation under various heads. It has been
contended in the claim petition that, said accident had
taken place on account of the negligence on the part of
driver and conductor of the said S.T.Bus and as such,
appellant-MSRTC is liable to pay the compensation.
Deceased Uttam was in private service on monthly
salary of Rs.3,000/- and the claimants were depending
on his income.
b] Appellant-MSRTC has strongly resisted the claim
petition by filing its written statement. It has been
contended that said porter Rashid Khan was not an
employee of MSRTC and claim petition in the present
form itself is not maintainable. It has also been
contended that no crime is registered against the
driver/conductor of the said bus and there is no
negligence as such on the part of the driver or
conductor of the bus.
c] The claimants have adduced oral and
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documentary evidence in support of their contentions
and appellant-MSRTC has examined the then Traffic
Controller Posted at S.T. Bus stand Basmath. The
learned Member of the Tribunal by its impugned
judgment and Award dated 7.3.2009 partly allowed the
claim petition and thereby directed the respondent
MSRTC to pay Rs.2,38,500/- to the claimants alongwith
interest @ 7% p.a. from the date of petition till its
realization inclusive of No Fault Liability under Motor
Vehicles Act. Hence, this appeal.
3. Learned counsel for appellant-MSRTC submits
that the claim petition as in the present form is not
maintainable. Deceased Uttam had not sustained
injuries, out of the use of the motor vehicle S.T.Bus
bearing registration No.MH-20/8960. Learned counsel
submits that, if at all said accident as alleged had taken
place on account of negligence of one Rashid Khan, who
is not a porter appointed by the MSRTC, appellant-
MSRTC is not liable to pay the compensation. Learned
counsel submits that the claimants have utterly failed to
prove the negligence if any on the part of the
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driver/conductor of the said S.T.Bus in causing death of
deceased Uttam. The Tribunal has erroneously fastened
the liability on the appellant-MSRTC to pay the
compensation. Learned counsel for the appellant,
however, has not made any submissions with regard to
the quantum of the compensation, in the alternate.
4. Learned counsel for the appellant, in order to
substantiate his contentions, placed his reliance on a
case Lachoo Ram and Ors. Vs. Himachal Road
Transport Corporation, reported in AIR 2014 SC
(Supp) 1218.
5. Learned counsel for respondents-claimants
submits that, on the basis of the F.I.R., though,
registered against the said porter Rashid Khan, spot
panchnama, inquest panchnama and other police
documents, the claimants have succeeded in proving
that said accident had taken place out of the use of the
S.T.Bus bearing registration No.MH-20/8960. The
claimants have proved that deceased Uttam was getting
down from the S.T. bus at S.T. Stand Basmath. At that
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time, on person by name Rashid Khan was unloading
the goods from the top of the Bus. At that time, one
bale of clothes fell down on the head of the deceased
Uttam and accordingly he sustained injuries and
succumbed to the same on the next day in the hospital.
Learned counsel submits that in terms of the provisions
of section 165 of the Motor Vehicles Act, 1988,
application for compensation arising out of an accident
of the nature specified in sub-section (1) of Section 165
can be filed by the persons as detailed in the provisions
of Section 166 of the Motor Vehicles Act. In terms of the
provisions of Section 165 of the Motor Vehicles Act,
compensation in respect of the accidents involving the
death of, or bodily injury to, persons arising out of the
use of the motor vehicles, or damages to any property of
a third party so arising, or both can be claimed.
Claimants have fully established that death of Uttam
occurred out of the use of the motor vehicle and it was
the duty of the driver/conductor of the said S.T.Bus to
carefully monitor the departure of each and every
passenger from the bus. It is thus apparent on the face
of the record that the driver/conductor of the said bus
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had not taken any care. The claimants have proved the
factum of accident in the manner as detailed above and
as such, the burden shifts on the appellant-MSRTC to
prove that even after taking due care/caution by the
driver/conductor of the said Bus, the accident had
taken place for which appellant-MSRTC is not
responsible. Learned counsel submits that, the
Tribunal has, therefore, rightly awarded just and
reasonable compensation. There is no substance in the
appeal and the appeal is thus liable to be dismissed.
6. Learned counsel in order to substantiate his
contentions placed his reliance on following
judgments :-
1. New India Assurance Co. Ltd., Vs. Lakshmi
reported in ACC 2001 1 117 (High Court of Kerala).
2. Shivaji Dayau Patil and another Vs. Smt. Vatchala
Uttam More reported in 1991 (2) G.L.H. 536.
3. M.Rajamma Vs General Manager, APSRTC, Hyd.
Reported in ACC 2001 1 2.
7. On perusal of the pleadings, evidence and the
judgment and Award passed by the Tribunal, it appears
that the claimants have approached the Tribunal with a
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specific pleadings that on the date of accident, deceased
Uttam was travelling by the S.T.Bus bearing registration
No.MH-20/8960 and, when said S.T.Bus reached at
S.T.Stand and while he was getting down from the bus,
at that time, one porter of the appellant-MSRTC, while
unloading the goods from the top of the bus, one bale of
clothes fallen down on the head of deceased Uttam and
as a result of which, he had sustained severe injuries.
The claimants have proved factum of accident as per
their pleadings on the basis of the police report placed
before the Tribunal. It is thus clear that, while getting
down from the S.T.Bus, deceased Uttam sustained
injuries due to fall of bale clothes on his head from the
Top of the S.T.Bus. The appellant-MSRTC has not come
with any other case but simply denied the happening of
the accident as well as manner in which the accident
allegedly taken place. On the other hand, appellant-
MSRTC has raised a defence that said Rashid Khan was
not a porter appointed by the MSRTC, and, as such,
appellant-MSRTC is not liable for the act of a person
who is not employed by it.
9 FA 3007.2009+CA.odt
8. Section 165 sub-section (1), which is relevant for
the present discussion is reproduced herein below :-
165. Claims Tribunals.- (1) A State Government
may, by notification in the Official Gazette,
constitute one or more Motor Accidents Claims
Tribunals for such area as may be specified in the
notification for the purpose of adjudicating upon
claims for compensation in respect of accidents
involving the death of, or bodily injury to, persons
arising out of the use of motor vehicles, or
damages to any property of a third party so
arising or, both.
Explanation.- For the removal of doubts, it is
hereby declared that the expression "claims for
compensation in respect of accidents involving the
death of or bodily injury to persons arising out of
the use of motor vehicles" includes claims for
compensation under section 140 [and section 163-
A].
2...............
3...............
4...............
9. In a case New India Assurance Co. Ltd., Vs.
Lakshmi (supra) relied upon by the learned counsel for
the respondents, in paragraph No.2 of the judgment, the
Kerala High Court has observed that, jurisdiction under
section 165 of the Act is attracted if there is an accident
involving death of or bodily injury to a person arising
out of use of the motor vehicle. The word "use" is used
10 FA 3007.2009+CA.odt
in the section in wider sence. It covers all the
employment of the motor vehicles, so that whenever the
vehicle is put into action or service, there is "user" of the
vehicle within the provisions of section 165 of the Act,
whether the vehicle was being driven, or repaired or
simply parked or kept stationary or left unattended. In
that sense, the vehicle is used, whenever the vehicle is
driven out for some purpose or it is kept stationary, it is
sufficient to attract the provisions of Section 165 of the
Act.
10. In the instant case, as soon as said S.T.Bus
arrived at S.T.Bus stand, Basmath, naturally, the
passengers started getting down from the S.T.Bus.
Deceased Uttam when started getting down from the
S.T.Bus, one person by name Rashid Khan dropped
cloth bundle from the top of the S.T.Bus on his head.
11. In the light of the provisions of Section 165 of the
Motor Vehicles Act and the observations made by the
Kerala High Court as detailed above, I do not find any
substance in the submissions made on behalf of the
11 FA 3007.2009+CA.odt
appellant-MSRTC that claim petition in the present form
is not maintainable and the claims Tribunal has no
jurisdiction to entertain the claim petition and decide
the same.
12. So far as negligence on the part of the
driver/conductor of the said S.T.Bus is concerned, it is
needless to say that S.T.Bus remained under the
control/domain of the driver/conductor as long as said
S.T.Bus is not taken in the S.T.Depot and handed over
to the person in-charge of S.T.Depot. It is also the
responsibility of the driver/conductor of the bus to
monitor loading and unloading of the goods from the top
of the S.T.Bus when passengers either boarding the
S.T.Bus or alighting from the S.T.Bus. In the instant
case, the claimants have succeeded in proving the
factum of the incident in the manner as pleaded in the
claim petition. However, the appellant-MSRTC has not
discharged the burden to prove that said accident had
not taken place on account of the rash and negligent act
on the part of the driver/conductor of the said S.T.Bus.
The appellant-MSRTC has examined one Traffic
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Controller of S.T.Stand Basmath. According to him, no
such incident had taken place on that day at S.T.Stand
Basmath and the police did not make inquiry with him.
According to him, on that day, he was working as a
Traffic Controller and he did not know anything about
the accident. Even he has further shown his ignorance
about registration of the crime against said porter
Rashidkhan. After the accident, deceased Uttam was
immediately shifted to Hospital. So far as traffic
controller posted at S.T.Bus stand is concerned, he has
many other duties. The appellant-MSRTC has avoided
to examine the driver/conductor of the said S.T.Bus,
who had an opportunity to witness the accident.
13. Learned counsel for the respondent MSRTC has
placed his reliance on a case Lachoo Ram and Ors. Vs.
Himachal Road Transport Corporation (supra). In the
facts of the said case, the Supreme Court has not
accepted plea raised by the claimants that the accident
was on account of rash and negligent driving by the bus
driver and in the light of those observations, the
Supreme Court held that simply the involvement of the
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bus in the accident cannot make respondent liable to
pay the compensation unless it can be held on the basis
of the material on the record that the accident was
caused by rash and negligent act of the driver of the
respondent no.2.
In the instant case, facts are altogether different
and the observations made by the Supreme Court in the
case cited above, cannot be made applicable to this
case.
14. In view of the above, I do not find any fault in the
findings recorded by the Tribunal to issue no.1 in the
affirmative.
15. So far as quantum of compensation is concerned,
the learned counsel for the appellant-MSRTC has not
made any submissions on this point. On the other
hand, it appears that the Tribunal has awarded just and
reasonable compensation considering the age, income of
the deceased and dependency of the claimants on his
income. I do not find any substance in the appeal and
the same is thus liable to be dismissed. Hence,
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following order.
O R D E R
1. First Appeal is hereby dismissed with costs.
2. In case, amount is deposited by the
appellant-MSRTC before this Court,
respondents-claimants are permitted to
withdraw the same alongwith interest
accrued thereon.
3. In view of dismissal of first appeal, pending
civil application/s stand disposed of.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
