RADHEY SHYAM AGARWAL Vs. GAYATRI DEVI

JUDGEMENT

(1.) OWNER of stage carriage bus CIL 9025 has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (Act) against the award dated 17. 7. 1995 passed in Motor Accident Claim Case No. 7 of 1993 by the First Additional Motor Accidents Claims Tribunal, Ambikapur.

(2.) FACTS giving rise to this appeal are thus: On fateful day of 13. 12. 1992 the bus No. CIL 9025 owned by appellant, driven by respondent No. 8 and insured by respondent No. 7 was carrying excess passengers than its seating capacity permitted by the conditions of permit 47+1 + 1 + 1 including driver, conductor and khalasi. Deceased Mahendra Prasad Das, aged about 30 years, was one of the passengers travelling in the said bus by standing on the footboard of the gate of the bus which was closed. When it reached near village Raipur, because of rash and negligent driving of the bus, the door of the bus got suddenly opened as a result of which deceased was thrown out of the bus and was dragged to some distance as a result of which he received multiple injuries and died instantaneously.

(3.) THE respondent No. 1, aged 26 years, the widow of the deceased and five minor children of the deceased aged six months to 12 years respectively, the respondent Nos. 2 to 6 filed an application under Section 166 of the Act to claim compensation of Rs. 3,82,000/- with interest thereon for the death of Mahendra Prasad Das caused due to rash and negligent driving of the bus. The appellant and the respondent Nos. 7 and 8 contested the claim. The main defence of the insurer was that the vehicle was overloaded and was carrying passengers more than its seating capacity permitted by the conditions of permit in breach of the conditions of the policy and the permit, therefore, the insurer is not liable to indemnify the insured, the owner of the bus or to pay compensation to the legal representatives of the deceased.