JUDGMENT
Nirmal Singh, J.
1. This judgment will dispose of CIMA Nos. 119 and 114 of 1999 arising out of the award passed by Motor Accidents Claim Tribunal (hereinafter to be referred to as “the Tribunal”) dated 30th September, 1999 dismissing the claim petition.
2. The relevant facts for the disposal of these appeals are:
That Sonullah Itoo, the father of the deceased, filed a claim petition under Section 166 of the Motor Vehicles Act (hereinafter to be referred to as “the Act”) for compensation on the ground that his son Gulazar Ahmad Itoo died in a vehicular accident with a vehicle bearing registration No. JK01-C 2989 at Wanpooh Anantnag, leaving behind the petitioner, Mst. Haleema, widow, Subhan Itoo brother, Jameela Akhtar sister as his legal heirs and dependants. The deceased had kept empty gunny bags on the rooftop of the bus. He alighted from the vehicle at Wanpooh for that he went on the roof of the bus for dropping the gunny bags. After dropping the gunny bags he was alighting from the vehicle, the driver of the said vehicle started the bus suddenly as a result of which the deceased lost control and fell down and received injuries and subsequently died in Soura Medical Institute on 26th March, 1998.
After the death of Gulzar Ahmad Itoo one female child namely Fatima was also born. She also filed a claim petition claiming compensation.
It was further pleaded that the accident has occurred due to the rash and negligent driving of Fayaz Ahmad, driver of the offending vehicle, and the vehicle was owned by Mohammad Sharief Mir and Sajad Ahmad Darzi and insurer of the vehicle was National Insurance Company, Srinagar.
3. On notice respondents 1 and 2 appeared and contested the claim and controverted the allegations. They have pleaded that when the deceased was dropping the empty gunny bags, he lost control and fell down on the road. There was no negligence on the part of the driver of the offending vehicle as the vehicle was in a stationary condition. Respondent No. 4 National Insurance Company admitted that the vehicle was insured on the date of the accident, however the other allegations were controverted. It was pleaded that Company is absolved of its liability to indemnify because the driver of the offending vehicle was not having a valid and effective driving licence. The learned Tribunal struck the following issues:
1. Whether the deceased fell down from the roof of the vehicle No. 2989/JK01C due to rash and negligent driving of respondent No. 1 on 25th March, 1988 at Wanpooh? OPP
2. In case issue No. 1 is proved in affirmative to what amount of compensation the petitioners are entitled? OPP
3. Whether the vehicle has been transferred to Sajad Ahmad Darzi prior to the accident, if so, what is its effect? OPD-4
4. Whether the deceased had contributed to the accident, if so how and what is its effect upon the case? OPD-4
5. Whether the driver was driving the vehicle with invalid documents, if so, what is its effect upon the case? OPD-4
6. Relief.
4. After recording the evidence of the parties, the learned Tribunal decided all the issues against the claimants and dismissed the claim petition, aggrieved by which the present appeals have been preferred.
5. Mr. Lone, learned Counsel appearing for the appellants submitted that the learned Tribunal has not appreciated the evidence on record in right perspective. He submitted that from the evidence led by the claimants it has been proved that the accident has occurred due to rash and negligent driving of respondent No. 1. He submitted that it has not been denied by the respondent/driver and owner that deceased has not gone on the roof of the bus to drop the empty gunny bags. The respondent No. 1 drew the bus when deceased was still alighting and he got a jerk and fell down. He submitted that even the conductor was not in the bus when he started the bus but the learned Tribunal has ignored this evidence on surmises and conjectures. On the other hand Counsel for the respondents submitted that the deceased was on the rooftop of the bus and lost his control, as a result of which he fell down. There is no negligence on the part of the respondent No. 1. They further submitted that the deceased himself has contributed for the occurrence.
6. I have heard learned Counsel for the parties, given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the record.
7. The respondents in their reply have not denied that the deceased Gulzar Ahmad Itoo was not travelling in bus No. 2989/JK01C on 25th March, 1998 and has not received injury in the said accident. The case of the owner and the driver is that on the fateful day, that when the deceased was dropping the empty gunny bags from the roof of the vehicle he lost control and fell down on the road. The claimants have examined two witnesses, namely Abdul Riaz Darzi and Mohammad Ashraf Khanday, to prove the accident has occurred due to the negligence of respondent No. 1. PW No. 1, Abdul Riaz Darzi who was also travelling in the same bus has deposed that the deceased had kept gunny bags on the rooftop of the bus. He was alighted at Wanpooh and he went to drop the gunny bags from the roof of the bus, driver started the vehicle and as a result of sudden jerk the deceased Gulzar Ahmad Itoo fell down on the road. The passengers alighted from the bus, found the deceased in an injured condition. PW No. 2, Mohammad Ashraf Khanday who was also travelling in the same bus also deposed to the same effect.
8. PW No. 1 Abdul Riaz Darzi and PW No. 2 Mohammad Ashraf Khanday no doubt were admittedly inside the bus but they have deposed that when the deceased was still on the roof and dropping the empty gunny bags, the driver started the bus as a result of the jerk the deceased Gulzar Ahmad Itoo fell down from the roof top of the bus and fell down. This version given by PW Abdul Riaz Darzi and Mohammad Ashraf Khanday has not been rebutted by the respondents owner and driver of the bus. The conductor and the driver were the best witnesses with the respondents to give the true version of the occurrence but they have not been examined for the reasons best known to them. When the driver and the conductor did not appear in the witness-box to rebut the version given by the claimant’s witnesses, it would be deemed to have been admitted. When the passenger has kept the goods on the roof of the bus and he went to take it, it is the duty of the driver to see whether the passenger has dropped the goods and has alighted. It has come in the evidence of PW-Mohammad Ashraf Khanday that when the deceased went on the roof, the bus was standing. If the bus was standing and the deceased was dropping the goods he has not to loose the control if the bus driver has not started the bus and put it into speed. The man will fell down only from the roof in case the bus has started. So from the evidence on record it is proved that the accident has occurred due to rash and negligent driving of respondent No. 1. Therefore, the finding on issue No. 1 of the learned Tribunal is set aside.
9. The next question which is to be decided is as to how much compensation the claimants are entitled to.
10. In the claim petition the claimants have given the age of the deceased as 26 years and this fact has also been proved by Sonullah, Mohammad Ashraf Khanday, Mst. Haleema the widow of the deceased has given her age as 24 years. The respondents have not challenged the age of the deceased. Therefore it is established that the deceased was 26 years at the time of the accident.
11. The claimant has pleaded that deceased was doing the business in rice, walnut, pulses and was also helping his father in the cultivation of the land but no documentary evidence has been produced on record that the deceased was doing business in rice, walnut and pulses. Therefore, he is taken to be labourer. The accident has occurred in the year 1998. At that time the labourer, as admitted at the hearing, was earning Rs. 60 to Rs. 70 per day. Therefore, the income of the deceased is taken as Rs. 60 per day. Out of this Rs. 60 the deceased must have been spending 1/3rd upon himself. The deceased is a casual labourer. It is common knowledge that a casual labourer will not get the work for the whole month. Therefore, I am of the view that deceased must have been getting work atleast for 25 days. The dependency of the deceased comes to Rs. 1,000 per month. The deceased was aged about 26 years. The father of the deceased has given his age as 50 years. Mst. Haleema, widow of the deceased, has given her age as 24 years, Subhan, brother of the deceased, has given his age 17 years and Mst. Jameela, sister of the deceased, has given her age as 15 years. Ms. Fatima has born after the death of her deceased father. Therefore, the suitable multiplier in this case will be 16. After multiplier 1,000 x 12 x 16, the claimants are entitled to Rs. 1,92,000.
12. Mr. Kawoosa, learned Counsel for the Insurance Company, has submitted that the driver was not holding an effective and valid driving licence in terms of Section 3 of the Act. He submitted that a person only can drive a public service vehicle if he has been authorised in this behalf by the Licensing Authority in terms of Rule 41A of the Motor Vehicles Rules, 1991 “for short the Rules”. He contended that the driving licence was not having the PS V endorsement. Therefore, the driver was not having a valid and effective driving licence. The insured has violated the terms and conditions of the insurance policy. Therefore, Insurance Company is not liable to pay the compensation.
13. On the other hand Mr. Bhat, learned Counsel appearing for the owner, submitted that the driver was having valid and effective licence and was competent to drive the public service vehicle under the Rules. He submitted that when the appellant employed the driver he had checked the licence of the driver and as per the licence he was authorized to drive light motor vehicles, medium goods as well as heavy passenger vehicles. He submitted that the heavy motor vehicle will include heavy goods vehicle, heavy passenger vehicles. He submitted that even if there is no PS V endorsement, even then the driver was authorised to drive the public service vehicle.
14. Now the sole issue which is to be considered in these appeals is whether the driver of the offending vehicle was holding valid and effective driving licence. Before considering rival contentions, it will be appropriate to peruse the driving licence. On the perusal of the driving licence it is found that the licensing authority has authorized the licensee to drive light motor vehicle, medium motor vehicle for load vehicles and heavy motor vehicles.
15. Transport vehicle has been defined in Sub-section (47) of Section 2 which reads as under:
‘transport vehicle’ means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
Public Service Vehicle” has been defined in Sub-section (35) of Section 2 of the Act, which reads as under:
‘Public Service Vehicle’ means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.
16. In the instant case, driver was issued licence for driving heavy motor vehicle. Heavy motor vehicle will, include heavy goods vehicle, heavy passenger motor vehicles, as defined under Sub-sections (6) and (17) of Section 2 of the Act which reads as under:
(16) ‘heavy goods vehicle’ means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of which, exceeds 12,000 kilograms.
(17) ‘heavy motor vehicle’ means any public service vehicle or private service or educational institution bus or omnibus gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms.
17. As the driver was having a valid and effective driving licence, the insured has not violated any terms and conditions of the insurance policy.
18. This Court in CIMA No. 169 of 2001, decided on 25th October, 2005 has held that heavy motor vehicle will include heavy goods vehicles, heavy passenger motor vehicles as defined in Sub-sections (16) and (17) of the Act. Therefore, in view of the above discussion the insured has not violated any of the terms and conditions of the insurance policy, as such the compensation awarded is to be satisfied by the Insurance Company.
19. For the reasons mentioned above these appeals are accepted and Rs. 1,92,000 is awarded along with interest @ 9% per annum from the date of filing of the claim petitions till its realisation. Out of the awarded amount, 2/3 rd will go to the Mst. Haleema, the widow and Ms. Fatima, the minor daughter of the deceased, in equal shares and the remaining amount will be paid to other legal heirs namely; Sonullah Itoo, father, Subhan Itoo, Jameela Akhtar, sister, of the deceased in equal shares. The share of the minors be deposited in a fixed deposit initially for a period of five years and the share of minor Ms. Fatima will remain in a fixed deposit till she attains the majority. However her natural guardian will be entitled to withdraw the interest for her education, welfare and up-keep. The claimants are entitled to the costs assessed at Rs. 5,000.