Hp No. 06 of 2046 · High Court of Himachal Pradesh

I have heard Mr.Raman Sethi, learned counsel for the appellant, Mr.Naveen Bhardwaj, learned counsel for respondent No.1, Mr.Vinay Thakur, learned counsel for respondent No.2 and gone through the record. On behalf of the appellant, it has been submitted that there is no negligence on the part of the driver of the (cid:133)4(cid:133) bus. The accident took place due to sudden opening of the rear door by Dalak Raj passenger which hit Jai Parkash and in these circumstances no negligence can be attributed to driver for causing the accident. He has submitted in any case excess compensation has been awarded to respondent No.1 - claimant who is mother of the deceased. Mr.Naveen Bhardwaj, learned counsel for respondent No.1 (cid:150) claimant has supported the impugned award, Mr.Vinay Thakur, learned counsel for respondent No.2 - driver, has submitted that the Tribunal has wrongly held that accident took place due to rash and negligent driving on the part of the respondent No.2 - driver.

PW-1 Tarnika Kazur has stated that her son was 21 ‰ years and was mason. He was earning Rs.3000 per month and was paying Rs.2000 to her for meeting the expenses. He died in the accident. In cross examination, she has stated that she has to more living sons but both of them are unemployed, her husband is also unemployed. PW-2 Sunil Kazur has stated that his younger brother Jai Parkash was a mason and in Bihar he used to earn Rs.130 per day and he was earning Rs.3000 per month. He came to Rampur on 28th February, 1998. He was hit by the bus on a curve, he fell down and sustained injuries and later on died. He has also stated that his father is a labourer and his another brother is unemployed. He has also stated that these days he was working in Bihar. The deceased was bachelor and mason. He lived separately from his parents and is married. In cross examination, he has stated that he saw the accident. The deceased was working as mason for the last two years, the daily wages of mason were earlier Rs.60 which were (cid:133)5(cid:133) increased to Rs.130 per day. The learned counsel for the claimant tendered in evidence copy of Parivar Register Ext.PA, copy of school leaving certificate Ext.PB, copy of F.I.R. Ext.PC and post mortem report Ext.PD.

RW-1 Narain Chand Sharma, Traffic Manager, H.R.T.C., has stated that Rama Nand was driving bus No.HP-06-2046 on

4.3.1998. Bhagat Ram was the conductor of the bus. Dalak Raj, a passenger all of a sudden opened the door for de-boarding from the bus. Two persons who were standing on the parapet were hit by the door and fell down. RW-2 Rama Nand has stated that he was driving bus No.HP-06-2046 on 4.3.1998. One passenger Dalak Raj all of a sudden opened the rear door which hit two persons who were walking on the road and they fell down. RW-3 Pyare Lal has also made similar statement.

The case as projected by the appellant / owner and respondent No.2 driver is that Jai Parkash was walking on the road and at the place of accident Dalak Raj passenger in the bus suddenly opened the rear door of the bus which hit Jai Parkash and in these circumstances negligence cannot be attributed to respondent No.2 driver. It has not been denied that Jai Parkash sustained injuries in the accident and he died on 4.3.1998 on the date of accident. The learned Tribunal has recorded a finding that accident took place due to rash and negligent driving on the part of respondent No.2 driver. This finding has been accepted by the driver as he has not filed any appeal or cross objection against the impugned award. RW-1 has stated that two persons, who were standing on the parapet, were hit (cid:133)6(cid:133) by the rear door of the bus. It appears the driver had not left sufficient space from the edge of the road and for that reason the rear door of the bus hit two persons who were on parapet and this itself is negligence on the part of the driver inasmuch as driver is expected to take all precautions while driving the vehicle.

Like any other common law principle, which is acceptable to our jurisprudence, the rule Reylands v. Fletcher, 1861-73 All ER 1, can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims compensation made respect of motor accidents. (cid:148) Applying the ratio of Kaushnuma Begum(cid:146)s case (supra) in the facts and circumstances of the present case, the appellant / owner cannot escape the liability to pay compensation on account of death of Jai Parkash due to injuries sustained by him in accident on 4.3.1998 involving bus No.HP-06-2046.

The next question is of quantum of compensation. It has come on record that deceased was earning about Rs.130 per day as mason, but he was not employed in an organized sector. The learned Tribunal has taken monthly income of the deceased at Rs.3000. The appellant / owner and respondent No.2 driver in their evidence have not rebutted the evidence of income led by respondent No.1 (cid:150) claimant. In these circumstances, no fault can be found with the finding of learned Tribunal while assessing the monthly income of deceased at Rs.3000. The respondent No.1 (cid:150) claimant is the mother of the deceased and in her statement she has given her age 45 years. The deceased was about 21 years at the time of his death. In New India Assurance Co. versus Prem Chand & others, Latest HLJ 2007 (HP) 1046, a Division Bench of this Court has held that in (cid:133)8(cid:133) normal circumstances when the parents are the claimants, their dependency is to be assessed at 1/3rd of the total income.

No other point was urged. In view of the above discussion, the appeal is partly allowed and the award dated 22.3.2003 passed by learned Motor Accident Claims Tribunal, Rampur Bushehar in MAC No.18 of 1998/02 is modified. Respondent No.1 - claimant is held entitled to Rs.1,96,000 compensation which shall be paid by appellant / owner. On the amount of Rs.1,96,000, respondent No.1 - claimant is further entitled to interest at the rate of 9% per annum from the date of institution of the petition i.e. 4.6.1998 till realization which shall also be paid by appellant / owner to respondent No.1 - claimant. May 29, 2008. (soni) ( Kuldip Singh ) Judge.