NATIONAL INSURANCE CO LTD Vs. ASHA LATA ROUT

JUDGEMENT

(1.) The insurer is the appellant challenging the award of the Second Motor Accidents Claims Tribunal granting compensation to the tune of Rs. 75,000/ - on the ground that the deceased being a passenger of the vehicle in question, the liability of the insurer is only Rs. 15,000 as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939.

(2.) THE claimants' case before the Tribunal was that on the date of the accident on 6.8.1987, deceased Maheswar Rout was travelling in the bus bearing registration No. OBC 595 and when the bus dashed against the level crossing and became immobile, seeing an approaching train, the deceased got down and had run away to a distance of fifty feet when the train collided with the bus and the bus overturned and capsized and fell on the deceased as a result of which the deceased died. The claimants had also stated that the deceased was a helper under the Orissa State Electricity Board and was drawing Rs. 1,300/ - per month and at the relevant time the age of superannuation of the employee in question was 60 years. The Tribunal on consideration of the materials placed before it came to the conclusion that the driver of the vehicle was grossly negligent and rash. Further, the Tribunal came to the conclusion that the deceased had already got down from the bus and had covered some distance whereupon the train having collided with the bus, the bus got capsized and the deceased came under the bus and ultimately died. So far as the quantum of compensation is concerned, the Tribunal having found that the monthly dependency was Rs. 500/ - and applying a multiplier of 15 arrived at a compensation to the tune of Rs. 90,000/ - and from that again deducting Rs. 15,000/ - as lump sum payment is being made, passed an award to the extent of Rs. 75,000/ -. It is against this award the insurer has filed this appeal and claimants have also filed cross -objection.

(3.) SO far as the first contention of Mr. Sinha is concerned, though such a stand is taken, yet no evidence has been led to establish that the deceased had got down from the bus in question. On the other hand, relying upon the evidence led by the claimants and on scrutiny of the same, the Tribunal has come to the finding that the deceased had already got down from the bus and, therefore, was no longer a passenger of the bus. Mr. Sinha in the course of his arguments wanted to draw my attention to the F.I.R. which is alleged to have been lodged by the level crossing gatekeeper, but the said gatekeeper has not been examined and, therefore, the F.I.R. is of no assistance and cannot be looked into for any purpose whatsoever. That apart, the gatekeeper might not have noticed the fact as to whether any of the passengers had got down from the bus or not. When on positive evidence led by the claimants, the Tribunal has recorded a finding that the deceased had got down from the bus and thereafter the train collided with the bus and the bus capsized and fell on the deceased and there being absence of any contrary evidence, it is difficult for me to interfere with the said conclusion of the Tribunal. In fact, there is not an iota of material on record to take a different view from the view taken by the Tribunal on this score. Mr. Sinha's first contention, therefore, must be rejected.