State of Haryana through General Manager & Anr. v. Om Pati & Ors.

CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Addl. A.G. Haryana, for the appellants. AUGUSTINE GEORGE MASIH, J. (ORAL). By this Order, I propose to dispose of two appeals, i.e., FAO No. 4990 of 2010 State of Haryana and another Versus Om Pati and others and FAO No. 4991 of 2010 State of Haryana and another Versus Rajwanti and others. They are being taken up together in the light of the fact that they arise from the same accident, which had taken place and even clubbed together and disposed of by the Motor Accident Claims Tribunal, Panipat, (in short ‘the Tribunal), vide common Award, dated 03.06.2010, which is impugned herein by the appellants. Deceased Raj Pal and Om Parkash alongwith other persons had gone to Haridwar for taking holy bath in Ganga river. They boarded a bus bearing No. HR-67-4953, which was in the ownership of appellants. The same was being driven by Karam Singh/respondent No. 4. It is case of the claimants that on 06.08.2009 at about 09:15 AM, when they had boarded a bus, they had taken tickets and were sitting in the bus. The bus was having capacity of 47 passengers and was full at the time of booking itself when the FAO No. 4990 of 2010 (O/M) -2- bus started from Haridwar to Panipat. On the way, 22 passengers were further picked up. Out of these, many were ladies and the conductor of the bus directed the two deceased alongwith some others to move on to the roof of the bus, so that the ladies could be accommodated inside the bus and they could be provided with the seats. Raj Pal and Om Parkash did not agree to that and protested against the same. Faced with the situation and apprehending that they would be dropped on the road itself, they had no option but to sit on the roof of the bus. While, they were travelling on the roof of the bus, a branch of the tree hit two of them and they fell from the bus on the road, which led to the death of two deceased. On consideration of the evidence, which had been led by the parties, the Tribunal returned a finding that the accident had taken place because of rash and negligent driving of the driver of the bus, namely, Karam Singh/respondent No. 4 and it was not fault of two deceased. Compensation was also assessed by the Tribunal, which Award is under challenge in the present appeals. Counsel for the appellants contends that even if the finding as recorded by the Tribunal is accepted, but still it would be a case of contributory negligence on the part of two deceased. They were well aware of the fact that it is risky to sit on the roof of the bus. After fully being aware of the risks involved in travelling on the roof of the bus, they had voluntarily moved on to the roof of the bus, which otherwise was not permissible in law and, therefore, finding recorded by the Tribunal that it was the sole negligence of the driver, namely Karam Singh/respondent No. 4, is not sustainable. His further contention is that the finding with regard to the assessment of income of two deceased is without any basis. The reasons, which have been given by the Tribunal, basing the assessment of income on the minimum wages fixed FAO No. 4990 of 2010 (O/M) -3- by the State Government in respect of labourers, cannot be sustained as the said principle would not be applicable to the case in hand. I have heard counsel for the appellants and have gone through the records of the case. This is a case where it is not in dispute that two deceased had, as a matter of fact, bought tickets and were sitting in the bus, when subsequently on way, lady passengers were picked up and the two deceased were directed by the Conductor to shift on to the roof of the vehicle. This has been proved on record on the basis of statements of eye witnesses. In a situation like the one, in which the deceased were involved, wherein on the way they had only two options either to move on to the roof of the bus or to get down from the bus, which would have led them to be on the road, they were thus forced to move on to the roof of the bus. It cannot be lost sight of the fact that driver of the bus and conductor of the bus were well aware that the same is neither permissible under the rules or law nor would it be without any risk of they losing their lives, if an accident takes place. The claimants have been able to prove that the two deceased were forced to move on to the roof of the bus. That being so, when this act of travelling on roof of the bus is neither as per rules nor as per instructions of the Department, it cannot be said that it is a case of contributory negligence on the part of the two deceased. The finding returned by the Tribunal in this regard basing the same on the documentary as well as eye witnesses account, cannot be faulted with and I am in full agreement with the same. As regards, contention of counsel for the appellants with regard to taking into consideration the minimum wages fixed by the State Government in respect of a labourer for quantifying the income of the deceased at Rs. 3,900/- per month, I am unable to persuade myself that the same would not be FAO No. 4990 of 2010 (O/M) -4- just and equitable computation of income of the deceased. Nothing has been brought on record, which would suggest otherwise. However, quantum of income as assessed by the Tribunal, is fully justified for the reason that a labourer whether in city or in village does earn an amount of Rs. 3,900/- per month. In any case, amount of compensation as has been assessed by the Tribunal, is fully based on the settled principles of law, which does not call for any interference by this Court. Finding no merit in these two appeals, the same stand dismissed. A photocopy of this Order be placed on the connected file of the case. August 25, 2010. sjks. (AUGUSTINE GEORGE MASIH) JUDGE