DULARI KAUL Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a suit for damages in forma paupris. The plaintiffs are the legal representatives o £ one, Badri Nath Kaul, who died on September 10, 1966 as a result of a bus accident at a place called Roshangar Mohalla, Nowhatta, Srinagar. The bus was owned and operated by the Govt. Transport Undertaking, defendant No. 2 a State Govt. concern, through its servants, defendants 3&4, driver and conductor of the bus respectively. The plaintiffs seek to recover from defendants damages to the tune of Rs. 50,000/ - for the death of the deceased occasioned, as they allege, it was due to rashness and negligence on the part of the driver and conductor of the bus in the course of their employment by the State in the Govt. Transport Undertaking.

(2.) THE material facts stated in the plaint "are these: On the fateful day Badri Nath was standing on the roadside in the neighbourhood of the place of occurrence to get a lift upto Amirakadal. A Government Transport bus bearing No. 7620/ J&K came from the Jamma Masjid side on its way to Amirakadal. The bus was incharge of defendants 3 and 4 as its driver and conductor. On seeing a civil bus coming from the opposite side in the street ahead, which is not wide enough to allow two buses proceeding in the opposite directions to pass easily, the driver of the Govt. bus stopped the bus at the point where the deceased was standing to get the lift. He took this opportunity to board the bus. He set his feet on the footboard and held the hand rails by his hands to get inside the bus. The conductor of the bus, defendant No. 4, however, barricaded his way by stretching his leg across the entry door and then pushed him to put him off. Meanwhile the driver, knowing full well that the street ahead was too narrow for the bus to pass the civil bus on the opposite side and that the deceased was standing on the footboard and denied entry into the bus by the conductor, started off and moved forward. The conductor, however kept on pushing the deceased to prevent his entry into the bus and force him to get down from the footboard. Not farther from the place was a telephone pole on the edge of the road. While the bus was passing the pole the deceased standing on the footboard got crushed between the bus and the pole and fell down injured on the road. He was removed to the hospital where he died the same day. An onlooker lodged a report of the occurrence with the police as a result of which the defendant No. 4 was challaned under section 304(A) R.P.C. in the court of Judicial Magistrate (Judge Small Causes) Srinagar. That case, it may be noted, has since been decided by said Magistrate who has convicted and sentenced the conductor but the matter is still pending in appeal before the Session Judge.

(3.) IN reply it is pleaded that the deceased died due to his own negligence and carelessness. It is stated that the deceased had jumped on a running bus and was standing on its footboard without the knowledge of the defendants when he dashed his head against an electric pole situated on a narrow road hardly 15 wide while the bus was moving past the pole. It was denied that the deceased was pushed or prevented by defendant No.