MAKBOOL AHMED Vs. BHURA LAL

JUDGEMENT

(1.) Since both these appeals under S.110-D of the Motor Vehicles Act 1939 ('the Act' hereinafter) arise out of one and the same award of the Claims Tribunal, Bhilwara dated Oct.16,1979, they were heard together and are decided by a single judgment. By the award aforesaid, the Tribunal directed the owner, driver, conductor and the insurer of the bus to pay a sum of Rs.32,220/-to the claimants. The liability of the insurer for the payment of compensation was restricted to the statutory one of Rs.5000/-. The claimants are the parents and widow of the deceased-victim Mustaq Ahmed. They presented a joint application under S.110-A of the Act before the Tribunal claiming a sum of Rs.80,000/- as compensation. The case set-up by them is that the deceased Mustaq Ahmed used to live with them in the town of Pur situate not far from the city of Bhilwara. There was a regular city-bus- service plying between Pur and Bhilwara. Mustaq Ahmed was a student of First Year Commerce in the Government College, Bhilwara and used to come from Pur to Bhilwara in the city bus to attend the college. Around 9.15 A.M. on Feb.19, 1977, Mustaq Ahmed came to the bus stand at Pur to board the city bus to go to Bhilwara to attend the college. On that day, the bus RJE 1107 was detailed in the city bus service. As soon as Mustaq Ahmed placed his one foot on the foot-board of the bus while the bus was standing at the bus stand, Pur, the conductor of the bus blew the whistle and gave a signal to the driver to start it. The driver set the bus in motion. Mustaq Ahmed could not keep the balance and fell down from the foot board of the bus and was run over and crushed by its rear wheel. The bus even then did not stop and proceeded further. The body of Mustaq Ahmed was dragged a few feet by the bus and thereafter it was stopped by the driver. Mustaq Ahmed received multiple injuries, resulting in the complete crushing of his hip and waist bones. He was immediately taken to the Government Hospital. Bhilwara, where despite treatment he did not survive and passed away next day on Feb.20, 1977. It was alleged that the accident had taken place and Mustaq Ahmed died on account of the rash and negligent driving of the bus by its driver. Mustaq Ahmed was a young boy of 18 years with perfect health and sound physique. He was a brilliant student and had secured first division in his Secondary and Higher Secondary Examinations. He was good in extra-curricular activities also and had won certificates of merit in debates and sports. He was expected to be a good-earning member of the family and was expected to remain alive up to the age of ninety years. He would have contributed at least Rs.80,000/- during his life-time to his parents and widow. It was further alleged that Bhuralal was the owner, Ladulal was the driver and Bhanwarlal was the conductor of bus RJE 1107 on the day the accident had taken place. It was insured with United India Fire and General Insurance Company Ltd. The application of claim was resisted by the owner, driver, conductor and the insurer of the bus. The owner, driver and conductor of the bus. in their written statement, admitted the accident but denied that it took place due to the rash and negligent driving of the bus by its driver Ladulal. It was alleged that when the bus was in motion, Mustaq Ahmed came running to board the bus with books in his one hand. Without the knowledge of the driver and conductor, he tried to enter the bus through the main gate, but could not keep balance and fell down and met the accident. Mustaq Ahmed, thus, died on account of his own rash and negligent act. The bus was then in slow motion. The quantum of compensation was challenged denying the material allegations of the deceased being good at studies and sports. It was further alleged that in case the claim was to be allowed, it was the insurer who was liable to pay the entire amount of compensation. The insurance company, in its written statement, raised the same pleas as regards the facts and the amount of compensation. It was further alleged that the deceased could not be taken to be a passenger of the bus. Even if he is taken to be a passenger, his status was that of a gratuitous passenger. As such, the liability of the insurance company could be only up to the extent of Rs.5000/-. The Tribunal raised the necessary issues and recorded the evidence of the parties. Both the parties adduced evidence oral as well as documentary. On the conclusion of trial, the Tribunal recorded its findings as under :-

(2.) I have heard the learned counsel for the parties and perused the record carefully.

(3.) In assailing the award, Mr. Parekh learned counsel appearing for the owner, driver and conductor of the bus raised the following contentions :-