ASIA BEGUM Vs. MOHD AMIN

JUDGEMENT

(1.) THIS appeal is directed against a judgments dated 14 -9 -1993 in file no. 19/Claimof 1991 in the case of Asia Begum & Ors. Vs. Mohd Amin & Ors, delivered by the learned Motor Accident Claims Tribunal, Rajouri whereby the claim petition filed by the appellants -claimants was dismissed. The appellants had approached the Tribunal for getting the relief of compensation relating to the death of Sagger Shah, son of the appellants Asia Begum and Kale Shah and brother of other appellants who is alleged to have died on 29 April 1991 while traveling in Bus No. JK02 -2754 at Fatepur near Dharal Morh in Rajouri District. The case of the appellants as put up before the Tribunal was that the deceased Sagger Shah, on 29 -4 -91 was traveling in the bus in question which was going towards Darhal. When the bus reached near Darhal Morh, the deceased fell down from the vehicle and was crushed under its tyres. The deceased succumbed to the injuries and died. The appellants contention was that the death of the deceased occurred because of rash and negligent act of the driver of the vehicle in question. The respondents in the claim petition refuted the allegations of rashness and negligence and set up a defense that the death occurred due to the own act of the deceased because he was not exercising due care and caution and that he fell down from the door of the bus on his own. On the pleadings of the parties, the following four issues were framed by the Tribunal vide its order dated 4 -8 -1992: -

(2.) THE trial Court decided issue No. 1 against the appellants on the ground that the falling out, of the deceased from the bus through its door could not be considered to be an act of rashness or negligence on the part of the driver of the bus and that this was an act attributable to the deceased alone voluntarily or involuntarily and that the driver of the bus had nothing to do with the same. Statements of witnesses Zamrood Hussain Shah and Masood Hussain, produced on behalf of the appellants are relevant, in so far as appellants are concerned to the merits of issue No. 1. Similarly the statement of Mohd Amin, respondent No.l, who was the driver of the bus is also relevant for this issue. Whereas PWs Zamrood Hussain Shah and Masood Hussain have taken a consistent stand that the deceased fell down from the door of the bus while it was moving and that the bus was full at that time. According to them, the deceased was standing near the back door, door opened and the deceased fell down on the road. According to these witnesses, the conductor was at the relevant time taking money from the passengers. These witnesses do not know as to why, how and under what circumstances the door of the bus opened and the deceased fell down.

(3.) ACCORDING to Mohd Amin respondent -driver, the deceased admittedly was near the door at the relevant time, but he was unnecessarily fiddling with the door by opening and dosing it time and again. Even the driver does not know how the door suddenly gave way resulting in the felling out of the decease and his being crushed.