Friday, May 31, 2013

Justice delayed is ... !! 10 years after FATAL bus accident dependent sare still fighting a case for compensation !!! Bus transport corn says the dead pedestrian came and dashed on the bus and died !!

Notes
  1. Accident happend on 05th June 2003
  2. Pedestrians were fatally knocked down by a State Transport bus
  3. Independent witnesses testify that the driver was careless / reckless
  4. State transport coprn tries to say that the dead pedestrians came and dashed on the but and died
  5. State Transport corp, does NOT lead in evidence to prove it's stand
  6. "....The driver of the offending vehicle who is to be the best witness to state that the victim came and dashed against the bus, was not summoned nor was brought by the corporation to step into the witness box...."
  7. I can't understand as to how that Driver escaped the police net or questioning or even appearing as a witness
  8. State Transport corpn also argues on the number of years multiplication etc
  9. HC dismisses appeal
  10. Shows the patheric state of affairs where dependents of the deceased have to run around courts for 10 years without an compensation from the State Transport corpn!!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 426 OF 2013 WITH CIVIL APPLICATION NO. 1692 OF 2013

Maharashtra State Road Transport     ]
Corporation Limited, Mumbai         ]
(Owner of S.T. Bus No. MH-20-D-6693)]
Through its General Manager         ]
(Orig. Opponent – Represented by     ]
Divisional Controller Bus Stand,     ]
Solapur                     ]
                        .. Appellant
Versus

1]
Popatlal Tarachand Shaha         ]
Age: 70 years, Occ: Nil         ]
R/o. At Post Ropale (Kave),         ]
Tal: Madha, Dist : Solapur         ]
(Ori. Petitioner)             ]

2]
Shri Pramilabai Popatlal Shaha     ]
Age 67 years, Occ : Household,     ]
R/o. At Post Ropale (Kave)         ]
Tal: Madha, Dist : Solapur         ]
(Ori. Petitioner)             ]
                        .. Respondents


Mr. Yashodeep P. Deshmukh for Appellant.

Mr. Vishwanath Patil i/b. Mr. Sameer Khedekar for Respondents.

CORAM : A. H. JOSHI, J.

DATED : 6TH MAY, 2013.

JUDGMENT :

1] Heard.

2] The award of payment of compensation is challenged on two grounds:

(i) that the finding should have been in favour of contributory negligence;

(ii) the multiplier should be 14 in place of 15.

3] It is seen that in the written statement the fact that the deceased was an employee in the government employment in the sales tax department is denied and is urged that it be proved by strict proof. In so far as the aspect of contributory negligence is concerned the written statement contains following averments.

| "8. The facts of the case are as under:-On
| 05.06.2003 one Balaji Kisan Gundre was in charge
| of S.T. Bus No. MH-20-D-5593 as a driver, en-
| route Nanded Kolhapur. S. T. driver was driving
| the S.T. Bus in normal speed, from the left side
| of the road and by observing traffic rules and
| regulations. When the S.T. bus reached at the
| spot of accident, that time the deceased and one
| other person were walking on the road and after
| S.T. Bus was passed practically then the deceased
| was not in a control and he himself has dashed to
| the hind side of the S.T. Bus.
The accident took
| place because of rash and negligent act of the
| deceased S.T driver is not at fault. Applicants
| are not at all dependents of the deceased,
| therefore they are entitled to claim any
| compensation. The claim of the applicants is
| excessive and exorbitant."
(quoted paragraph 8 of
| written statement, papers handed over by the
| learned advocate for the appellants)

4]The claimant had led evidence in support of the plea and proved the fact of employment in the Government and the salary, dependency etc. and also evidence as could be available at their command to prove the rash and negligent driving on the part of the driver of the offending motor vehicle.

5] Considering that the plea as is raised by the appellant, that the deceased was walking as if in the middle of road where the victim had come and collided with the bus. By virtue of the nature of stand and pleading that was chosen by present appellant it had become necessary on its part to prove its defence strictly.

6] Learned Judge has recorded in specific words that the corporation did not lead any evidence. The driver of the offending vehicle who is to be the best witness to state that the victim came and dashed against the bus, was not summoned nor was brought by the corporation to step into the witness box.

7] It is seen from the judgment in paragraph 7 that since the corporation did not lead any evidence, learned member had to hold as follows:

| "7. Though the opponent has contended that,
| deceased Pradipkumar was walking in the middle of
| the road and he lost the control and he himself
| dashed against the S.T. Bus, there is no evidence
| adduced by opponent to substantiate this
| contention.
In such circumstances, it can be
| easily said from oral evidence of petitioner Sou.
| Pramilabai, read together with police papers
| that, S.T. Bus driver was rash and negligent at
| the relevant time of accident and S.T. Bus driver
| was at fault in an accident. Opponent is
| admittedly the owner of S.T. Bus. So, opponent is
| liable to pay compensation in respect of this
| accident." (quoted paragraph 7 of judgment dated
| 15.12.2012 in Motor Accident Claims petition
| No.185/ 2006)

Underlined portion will reveal that no evidence was led by the corporation.

8] In the given situation, the rashness and negligence on the part of the driver of the appellants bus has gone unrebutted.

9] The story is fictional and non palatable, yet the corporation could have tried to prove the facts as pleaded by it by leading evidence.

10] In so far as aspect of dependency and multiplier is concerned, the dependency of fixed to half of the amount of the salary i.e. Rs.4,500/-. In fact the claimants and the victim were staying together and the dependency could have been considered more than Rs.4,500/- i.e. around Rs.6,000/- per month i.e. 2/3 rd of his salary.

11] Even if the multiplier is brought down to 14, the dependency will have to be enhanced.

12] In this background, the amount of award would have to be increased than reduced if the appeal is entertained.

13] In the result the aspect of negligence is liable to be held against the appellant.

14] The appeal is seen to have no merits whatsoever and is liable to be dismissed and is dismissed.

15] In view of dismissal of appeal, civil application for stay does not survive and is disposed of accordingly.

Chandka

(A. H. JOSHI, J.)