JUDGMENT
Arun Kumar Goel, J.
1. All these have arisen out of the same Accident, as such, have been taken up together. It may be noted that vide common award which is subject-matter of FAO No. 244 of 2001, two claim petitions were decided. One was by two daughters and husband of late Smt. Bandna. Other petition was filed by Kumari Neha for the injuries sustained by her. Separate awards have been passed in cases out of which FAO Nos. 86 of 2001 and 225 of 2001 have arisen. Brief reference to facts of each case necessary for disposal of these appeals is being made hereinafter.
2. An important fact that needs to be noted at the very outset in these appeals is, that Accident having taken place was not even dispute at the time of hearing of these appeals, nor it was disputed during the course of proceedings before the learned Tribunal below. Bone of contention before the Tribunal below, as well as this Court, is whether the Accident was on Account of rash and negligent driving on the part of Mohinder Singh, driver of the ill-fated bus bearing registration No. HP-10-0324 or not.
3. Accident took place on 6.9.1998 when the bus was on its way to Rohru at a place called Pakki Dhank near Lambi Dhar, Tehsil Theog, District Shimla. Respondent-claimants in all these cases claimed that it was due to rash and negligent driving on the part of the driver. Whereas appellant as well as respondent driver disputed this position.
4. Another fact that also needs a mention here, is that in his reply filed by the driver his specific stand was that the bus was not roadworthy as its brakes had been defective in the past also. Per him, he had brought this fact to the notice of the authorities. Still he was made to drive the bus. Case of driver is that a vehicle i.e., truck came from opposite side at a high speed. With a view to avert collision, he applied brakes of the bus which did not function. Resultantly the bus and truck collided, when the bus went off the road. His further stand was that the past history of the bus (which was revealed to him (driver) later on) showed that it was not mechanically fit and its brakes used to fail. It is a matter of record that repeated complaints regarding defective brakes of the bus were made and its repair was carried out for such failure.
5. In FAO No. 86 of 2001, Surja Devi is the claimant. She sustained injuries as a result of the Accident in question while travelling in the bus at the relevant point of time. She remained as an in-door patient from 6.9.1998 to 20.10.1998. She has been awarded a sum of Rs. 1,42,800/- with 12% interest p.a. from the date of filing of the claim petition till the date of payment. She sustained 30% permanent disability. In this case Tek Chand (P.W. 4) was her co-passenger. He stated that the cause of Accident was excessive speed of the bus. Per him, a Swaraj Mazda vehicle appeared at the site of the Accident and the bus after colliding with it, went out off road.
6. In FAO No. 225 of 2001, claimant is Sohan Lal. He also sustained injuries and his left leg was fractured. He was treated at Indira Gandhi Medical College, Shimla. There is evidence of P.W. 2 from the office of this claimant that he remained on leave without pay from the date of Accident till the date he made the statement i.e., upto 29.6.2000. Claimant has stated that he is unable to walk and is unable to look after himself including answering the call of nature, etc. Even for his day-today activities he needs assistance. For this purpose he has engaged P.W 4 Madho Ram on a monthly salary of Rs. 1,500/-. His permanent disability was certified to be 15% vide Ext. P-3. Compensation in the sum of Rs. 1,94,376/- with 12% interest per annum from the date of filing of petition till payment was awarded.
7. In FAO No. 244 of 2001, Clam was made on Account of death of Smt. Bandna aged 24 years. According to respondent Nos. 1 to 3 i.e., her two minor daughters and husband, she was earning in all Rs. 2,500/- per month by tailoring job as well as by attending ,to household chores. Compensation has been assessed in this case at Rs. 2,07,0007- plus interest at the rate of 12% per annum from the date of filing of petition till payment.
8. In FAQ No. 330 of 2001, total compensation assessed is Rs. 8,12,400/- with 1-2% interest per annum from the date of filing of petition till payment.
9. Amount, if any, paid under “No fault liability” has been made adjustable out of the payment made in these cases.
10. Mr. Ashok Sharma, learned Counsel appearing on behalf of the appellant in all these cases submitted that there is no evidence worth the name for holding that the Accident in question was on Account of rash and negligent driving on the part of the driver of the bus i.e., Mohinder Singh. Therefore, findings to the contrary are based on no evidence. As such those need to be reversed and consequently appeals allowed and the impugned award set aside. He further submitted that so far assessment of compensation is concerned, it is also excessive and cannot be sustained in the facts and circumstances of these cases. He however clarified that by this submission he is neither giving up nor conceding the plea urged on the question there being no evidence of rash and negligent driving on the part of the driver of the bus.
11. So far as plea of the bus being not driven in a rash and negligent manner is concerned, Mr. Ramesh Verma, supported the learned Counsel for the appellant in these cases.
12. All these pleas have been controverted by Mr. B.S. Ranjan, learned Counsel appearing on behalf of the respondent-claimants in all these appeals. According to him evidence of the witnesses who were travelling in the bus on the fateful day proves that the Accident in question was due to rash and negligent driving on the part of the driver i.e., Mohinder Singh. As such for his such acts, appellant has been rightly held liable. He further submitted that on the basis of the evidence on record in these cases, no exception can be taken to the impugned awards. Thus, he prayed dismissal of these appeals with costs.
13. After having gone through the evidence produced in these cases and examining the pleadings of the parties, in my considered view, no exception can be taken to the awards passed in these cases which need to be upheld.
14. There is positive evidence, both oral and documentary, to suggest that the bus in question at the time of Accident was being driven by respondent No. 2 in a rash and negligent manner. Even if what he had pleaded regarding a truck having appeared from the opposite side to be correct, still looking to the geographical and topographical conditions of the road, it was expected of the driver of the bus that he should have been in a position to control his vehicle. This was only possible if the speed was not excessive. Case as admittedly set up by him before the Jearned Tribunal below was that a truck appeared from the opposite side and with a view to avert the collision, brakes were applied. Those did not work. This resulted in the collision. Impact of collision must be such that as a result of it, bus roll down. These facts, coupled with non-appearance of the driver himself ‘into the witness box, and/or any steps having been initiated by the appellant to establish its case with a view to get a favourable finding that this is not a case of rash and negligent driving negatives the same.
15. In this behalf, if may be observed that a particular speed in a hilly terrain on a road where the bus was being plied may be excessive. However, it may be considered too slow in a plain area, say for example when the vehicle moves beyond Kalka on National Highway. As such speed being excessive is a relevant factor and it will depend upon the location, situation, topographical and geographical conditions where the vehicle is being driven.
16. Non-appearance of the driver, as his own witness as well, as his non-production by the appellant, in my view, is intentional. Reason being that looking to the stand of the driver in his reply, appellant rightly did not produce him in witness box. Still on the basis of the documentary evidence like the F.I.R., and other evidence, findings regarding vehicle being driven in a rash and negligent manner need to be upheld by rejecting the plea to the contrary urged on behalf of the appellant.
17. Driver has specifically pleaded that the vehicle was not roadworthy as he later on came to know. Appellant could have proved in proceedings before the Tribunal below the maintenance record of the vehicle in question. This would have gone a long way to show that the vehicle was being regularly maintained. Even after complaints of failure of brakes were being received, still appropriate and timely action was taken. Bus in question was allowed to be plied after it was found roadworthy. This was the best evidence for the Acceptance of the plea that brakes failed all of a sudden. When specifically questioned, learned Counsel for the appellant stated that maintenance record is maintained by his client of the vehicles from time-to-time. In case it was established’ on the basis of contemporaneous official record that despite having taken due care and caution to remove all patent defects and the bus was being maintained regularly one can understand that failure of brakes was sudden as an act of God or was the result of some latent defect over which the appellant had no control.
18. I have no hesitation in observing that a properly maintained bus when driven with due care and caution as also keeping in view the road conditions where it is being driven, would ordinarily not roll down and get off the road causing Accident leading to passengers being injured and/or losing their lives. In these circumstances, doctrine of res ipsa loquitur is clearly attracted to-the facts of these cases.
19. Now, coming to the plea of Mr. Ashok Sharma on the quantum of compensation. Looking to the facts and circumstances of these cases as well as the evidence produced by the parties during trial, ho exception, can be taken to the compensation assessed in these cases.
20. No other point is urged.
In view of the aforesaid discussion, there is no merit in all these four appeals which are Accordingly dismissed with costs quantified at.the rate of Rs. 1,000/ in each appeal.
21. While dismissing these appeals/it is ordered that the amount awarded to minors will remain invested and maturity of FDRs will be co-terminus with their attaining majority. In case of major claimants, the same will be released to them with up-to-date interest. Learned Counsel for the respondent-claimants stated that he will be filing the Savings Account number of his clients within two weeks. It hardly needs to be clarified that any amount received either under “No Fault Liability” and/or under the orders of this Court will be deducted out of the share of the concerned respondents. In case FDRs have matured, Registry will ensure that before releasing the amounts of such FDRs, those are renewed till 31.2.2003 and thereafter amount is released.