KAUSHLIYA BAI Vs. BALMUKAND RAMSINGH

JUDGEMENT

(1.) APPELLANTS -petitioners have filed this civil misc. appeal under Section 110 -D of the Motor Vehicles Act against the award, dated August 27, 1974 of learned Member' Motor Accident Claims Tribunal (District Judge), Ajmer, whereby, their claim for compensation was dismissed.

(2.) BRIEFLY stated the facts as alleged by the appellants were these. Deceased Kailashchandra was the husband of appellant Kaushalyabai. Appellants Kumari Manju Kumari Sarda and Kumari Urmila are daugthers of Kailashchandra and appellant Godawaribai is the mother. On 19 -2 -71, Kailashchandra went to Nasirabad with Ladliprasad, Inspector of Co -operative Societies. They were returning from Nasirabad to Ajmer by bus No. RDR 4991. The owners of the bus are respondents No. 1 to 4 and respondent No. 5 was the driver of the bus and respondent No. 6 the insurer. Kailashchandra boarded the bus from the front door on the left side of the driver's seat. The bus was over -crowded and he had to stand near the door along with many passengers. Ladliprasad also boarded the bus from the back door. When the bus reached near village Makhupura, it had to negotiate a sharp cur e and the bolts of the left door opened. Kailash Chandra was thrown out of the bus and he received grieveous injuries and succumbed to them on 20.2.71. It is further the case of the appellants that the bolts of the door of the bus were not in proper order and, therefore, because of the sharp curve and fast speed of the bus, the door flew open and consequently Kailashchandra fell down. Compensation to the tune of Rs. 1,70,000/ - was claimed. Kailash Chandra was serving in the office of Sub -Registrar, Co -operative Societies as a Lower Division Clerk and was drawing monthly salary of Rs. 297/ - per month. Just before his death, he had been promoted as Upper Division Clerk but had not joined the post. The defence of the respondents was that there was no negligence on the part of bus -owners or the driver. The bolts of the door were in proper working condition and it was pure accident that the door flew open. Deceased Kailashchandra was guilty of negligence and in any case of contributory negligence and accident occurred because of him. It was also asserted that Kailashchandra was not a passenger for reward or hire, he was never issued a ticket. The further defence of respondent No. 6 was that its liability was limited to the amount of compensation provided by the Statute. Various issues were raised on the pleadings of the parties. Learned Member of the Tribunal came to the finding that the accident not occur due to negligence of respondents No. 1 to 5 and thus served: The jerk at the curve is natural phenomenon and when a person takes risk of boarding a over -crowded bus and remaining standing at the gate the possibility of his hand falling on the handle and the door opening, thereby, cannot be over -ruled. Hence the issue stands decided in the way that there was an accident by opening of the door but it could not be substantiated whether it was due to the reason that the bolts were not in proper order. Learned Member further held that Kailashchandra had purchased the ticket. The compensation was determined at Rs. 26,000/ -. The claim petition was dismissed as the finding was that there was no negligence on the part of respondents No, 1 to 5.

(3.) THE first point for determination is whether the presence of the deceased in the bus was lawful. The respondents examined driver Bherulal and Suganchand an employee of the owners of the bus. The driver of the bus stated that no tickets were issued from Nasirabad. He could not say whether Ladliprasad and Kailashchandra were issued tickets. He admitted that the tickets Ex. 2 and 3 were of the said bus. Suganchand also deposed similarly and further produced counter -foils of tickets book No. 45201 to 45400. He stated that this book contained tickets issued from 17.2 71 to 20.2.71. He also admitted that Ex. 2 and 3 are the tickets of the bus No. RDR 4991. According to the witness, these tickets were issued on a later date. He also produced Ex. A/2, Rajasthan Passengers and Goods Taxation register and referred to page 30, where it is mentioned that these tickets were issued on 3.3.71. Ladliprasad was examined on behalf of the appellants and he clearly stated that the tickets Ex. 2 and 3 were issued to him. In these facts, the learned Member believed the testimony of Ladliprasad and I see no reason to take a contrary view. The counter -foiles of tickets Ex. 2 and 3 were not produced by the respondents and their explanation that the counter -foil was destroyed, was rightly disbelieved by learned Member. That apart, Ex. P/2 appears to be suspicious, in as much as such page of it, had not been correctly serially marked. In any case there are no reasons to disbelieve the statement of Ladliprasad that he had paid the fare for himself and Kailashchandra. It is importable that the conductor and the bus -driver would permit Kailashchandra and Ladliprasad to board the bus without payment of hire. I, therefore, see no reason to take a different view than the arrived at by learned Member of the Tribunal.