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  • R.K Vijayavargiya, J.
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Smart Summary

Concise Analytical Summary of the Opinion — R.K. Vijayavargiya, J.

Factual and Procedural Background

This appeal arises from an award dated 18-9-1973 by the Member, Motor Accidents Claims Tribunal, Dhar, in Claim Case No. 100 of 1970. The claimants (appellants) are the father (Appellant No.1) and the widow (Appellant No.2) of the deceased, Badrinarain. The deceased was a passenger in a bus bearing registration No. M.P.B. 6250, which belonged to Respondent No.2 and was insured with Respondent No.1 (The New India Assurance Company Ltd., Bhopal). The vehicle was being driven at the time by Respondent No.3, Hamidali, an employee of Respondent No.2.

On 25-6-1970 the bus left Vidisha carrying a marriage party and on 26-6-1970, at about 9:30 a.m., it was involved in an accident at Bankanerghat between Manpur and Choral and fell down the side of the ghat. The claimants alleged rash and negligent driving by Respondent No.3, resulting in death of the deceased, and claimed Rs.45,000 as compensation.

The respondents disputed liability. Respondents No.2 and 3 contended that the accident resulted from mechanical failure of the brakes and was inevitable. Respondent No.1 denied liability beyond Rs.2,000, relying on statutory/insurance limitations. The Tribunal found that the accident occurred due to mechanical failure of the brakes, not rash or negligent driving, dismissed the petition, but also held that if negligence had been proved the claimants would be entitled to Rs.9,000; it also held the insurer's liability limited to Rs.2,000. The claimants appealed the Tribunal's award.

Legal Issues Presented

  1. Whether the accident occurred due to rash and negligent driving of Respondent No.3 (the driver) or due to a mechanical failure (brake failure) as found by the Tribunal.
  2. What is the proper quantum of compensation payable to the claimants (in particular Appellant No.2) arising from the death of Badrinarain?
  3. Whether Respondent No.1 (the insurance company) is liable to pay the full compensation awarded or whether its liability is limited (for example, to Rs.2,000) under the insurance policy / Section 95 of the Motor Vehicles Act.

Arguments of the Parties

Appellants' (Claimants') Arguments

  • The accident was caused by rash and negligent driving of Respondent No.3, resulting in the death of Badrinarain.
  • The claimants sought Rs.45,000 as compensation for death; they challenged the Tribunal's dismissal and the quantum fixed by it.
  • Evidence included testimony (P.W.2 Shyamrao) that the bus was travelling at about 30 miles per hour in a ghat section with sharp curves and slopes.

Respondents' Arguments

Respondent Nos. 2 and 3 (Owner and Driver)

  • Denied rash or negligent driving; pleaded that brakes failed (mechanical failure) and the accident was inevitable.
  • Asserted the bus had been thoroughly checked before the journey and that the brakes were in order (though no workshop inspector was examined).
  • Driver (D.W.2 Hamidali) explained that while descending the ghat a truck came on the wrong side, he applied brakes and then discovered brake failure; he gave an account of attempts to save the bus and the subsequent collision and fall.

Respondent No.1 (Insurance Company)

  • Denied liability beyond Rs.2,000, relying on Section 95 of the Motor Vehicles Act and alleged policy limitations (also alleged overloading: policy limit 44 passengers while bus carried 63).
  • The insurer admitted the bus was insured with it on the date of the accident in its written statement but the insurance policy was not produced in evidence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
M.P. State Road Transport Corporation v. Kanhaiyalal, 1978 A.C.J. 190 The opinion states that this Court had awarded Rs.12,000 as compensation for the death of a 12-year-old boy from poor labouring classes. The Court cited this decision as a comparative authority when assessing that the compensation in the present case should not be less than Rs.12,000.
Munibai v. State of M.P. (decided on 7-9-78)

This information was not available in the provided opinion.

 The opinion cites the case among authorities relied upon in support of increasing the quantum of compensation; specific application details are not stated in the text.
Bhima v. Pranaya, 1979 A.C.J. 141

This information was not available in the provided opinion.

 The Court listed this case as one of several precedents considered when reassessing the appropriate quantum; the opinion does not provide further specifics.
Balmukund v. Smt. Mustaq Bai (decided on 17-11-78)

This information was not available in the provided opinion.

 The opinion cites this decision alongside other cases in the section addressing compensation; no additional detail about its rule or reasoning is provided in the text.

Court's Reasoning and Analysis

The Court undertook a fact‑based analysis of the evidence adduced before the Tribunal and identified multiple deficiencies in the Tribunal's approach and findings. The reasoning proceeded along the following lines:

  1. Assessment of primary factual dispute (rashness/negligence vs. mechanical failure)
    • The Court accepted that the Tribunal had recorded relevant testimony, including P.W.2 (Shyamrao) who stated the bus was being driven at about 30 miles per hour in a ghat section with sharp curves and slopes. The Tribunal accepted the 30 miles per hour figure but concluded it was not excessive; the Court criticized the Tribunal for ignoring the ghat conditions (sharp curves and slopes) when judging whether that speed was excessive.
    • The Tribunal inferred from the fact that P.W.2 jumped from the moving bus without injury that the bus was being driven slowly; the Court held that no question had been asked about the timing of the jump and the inference was unjustified.
    • The Court also scrutinized the respondents' witnesses: the owner (D.W.1) admitted the driver (Respondent No.3) was primarily a mechanic and only occasionally assigned to drive spare buses; the Court treated the fact that the bus was driven by a non-regular driver as material when considering the required standard of care in a ghat section.
    • The driver (D.W.2) claimed the brakes failed after applying them in the ghat and that a truck on the wrong side collided with the bus; the conductor (D.W.4) corroborated that the driver said the brakes had failed. However, the Court noted that documentary evidence of inspection (notes and report by the mechanic who examined the bus, Narbadrao D.W.3) was not produced.
    • Narbadrao had deposed that brake hose-pipes were torn and brake oil absent; but he admitted the hose could have been torn as a result of the bus falling into the ditch. The Court relied on the absence of contemporaneous inspection documents to conclude that the respondents had not proved sudden brake failure.
  2. Application of legal standards to the facts
    • The Court emphasized that extra care was required when driving in a ghat section. Given the admitted speed (around 25–30 mph) and the presence of sharp curves and slopes, the Court held that the driver should have exercised greater caution.
    • The Court criticized the driver for placing the vehicle in fourth gear while descending the slope at 25–30 mph when a truck was approaching on the wrong side; the judge observed that, to retain control—particularly if the brakes were suspected to be malfunctioning—the driver should have selected a lower gear (the opinion states the driver ought to have put the vehicle in a higher gear for engine braking control, given the convention in the judgment that lowering gear helps retain control when descending).
    • Because the respondents failed to produce the inspection notes and report and because the mechanic admitted the possibility that hose failure might be consequential to the fall, the Court found that the burden of proof as to mechanical failure was not satisfied by the respondents.
    • On these bases the Court concluded that the Tribunal erred in holding the accident resulted from sudden brake failure and that, on the evidence as a whole, the accident occurred due to the rash and negligent driving of Respondent No.3.
  3. Quantum of compensation
    • The Tribunal had accepted that the deceased earned Rs.90 per month at a petrol pump and had found that Rs.25 per month was spent on Appellant No.2, with dependency fixed for 30 years, leading to a Rs.9,000 award. The Court found this assessment inadequate for several reasons: (a) the pecuniary loss to Appellant No.2 was understated at Rs.25 per month; (b) the Tribunal did not award compensation for physical pain and suffering; and (c) the Tribunal did not account for future increase in the deceased's income.
    • Relying on prior decisions (including one cited decision where Rs.12,000 was awarded for the death of a 12-year-old from poor labouring classes), the Court concluded that the compensation should not be less than Rs.12,000 and thus increased the award to that amount.
  4. Liability of the insurance company
    • Respondent No.1 argued its liability was limited to Rs.2,000 (relying on Section 95 of the Motor Vehicles Act and alleged policy terms concerning passenger limit). The Court noted that the actual insurance policy was not produced or proved by the insurer.
    • The Court explained that Section 95 prescribes statutory requirements about the policy but does not prohibit coverage of higher amounts; in the absence of the policy on record and given the insurer's admission that the bus was insured with it, the insurer failed to establish any contractual limitation of liability. Consequently, the Court held the insurer liable for the full amount of compensation awarded.

Holding and Implications

Holding: The appeal is allowed. The Tribunal's award is set aside. The Court held that the accident occurred on account of the rash and negligent driving of Respondent No.3 and that the respondents are liable to pay compensation to the claimants. The Court awarded Rs.12,000 as compensation in favour of Appellant No.2.

Direct consequences and orders made by the Court (as recorded in the opinion):

  • The respondents shall pay Appellant No.2 a sum of Rs.12,000 as compensation for the death of Badrinarain.
  • Appellant No.2 is entitled to interest on the compensation at the rate of 6% per annum from the date of the application until realization.
  • Counsel's fee of Rs.200 may be certified.
  • The appeal is allowed with costs and the Tribunal's award is set aside.
  • The insurance company (Respondent No.1) is held liable for the full amount awarded because it did not produce the insurance policy or prove any limitation of liability.

Implications beyond the parties: The opinion applies established principles about assessing negligence in the context of driving in ghat sections, the burden on a party (insurer) to produce and prove its policy terms, and appropriate factors to consider in quantifying compensation (including future prospects and pain and suffering). The judgment does not purport to lay down a novel legal principle; it primarily reverses the Tribunal on its factual conclusions and increases the compensation on the basis of cited precedents and the evidence before the Court.

Show full summary ...

    Shyam Lal And Others v. The New India Assurance Co. Ltd. And Another

    R.K Vijayavargiya, J.:— This appeal by the claimants is directed against the award dated 18-9-73 passed by the Member, Motor Accidents Claims Tribunal, Dhar, in claim case No. 100 of 1970.

    2. The claimants are the appellants in this appeal the appellant No. 1 is the father and No. 2 is the widow of the deceased Badrinarain. There is no dispute that passenger bus No. M.P.B 6250 belonged to respondent No. 2 and was insured with the respondent No. 1, the New India Assurance Company Ltd., Bhopal, at the relevant time. It is also admitted that the said bus was being driven at the time of the accident by respondent No. 3 Hamidali who was an employee of the respondent No. 2. On 25-6-70 the said bus M.P.B 6250 left Vidisha carrying a marriage party of one Kanhaiyalal goldsmith. It was going to Ojhar. At about 9.30 a.m on 26-6-70 the said bus was involved in an accident in the Bankanerghat between Manpur and Choral as a result of which it fell down by the side of the ghat. The case of the claimants was that the respondent No. 3 was driving the vehicle rashly and negligently as a result of which the accident took place and the deceased Badrinarain, who was travelling in the bus, lost his life. The claimants claimed a sum of Rs. 45,000/- as compensation against the respondents on account of the death of the deceased caused by the rash and negligent act of the respondent No. 3.

    3. The respondent resisted the claim. The respondent Nos. 2 and 3 denied that the accident took place on account of rash and negligent driving of respondent No. 3. They pleaded that the accident took place on account of mechanical failure of the brakes and it was an inevitable accident. The respondent No. 1 also denied the claim and stated that the liability of an insurance company is limited to only Rs. 2,000/-.

    4. The Tribunal found that the claimants were the legal representatives of the deceased; that the claim petition was properly presented that Badrinarain was travelling as a passenger in the bus which was being driven by the respondent No. 3 Hamidali and it was not proved that the bus overturned on account of rash and negligent driving of the respondent No. 3 and that the accident occurred on account of mechanical failure of the brakes. The Tribunal dismissed the petition on the ground that the accident did not occur on account of the rash and negligent driving of the respondent No. 3. However, the Tribunal also found that in case the accident occurred on account of the negligence of the respondent No. 3, the claimants were entitled to Rs. 9,000/- as compensation from the respondents; but the liability of the respondent No. 1 insurance company was limited to Rs. 2,000/- on the finding that the accident did not occur on account of the rashness and negligence of the respondent No. 3 the claim petition was dismissed. The claimants have challenged this award in this appeal.

    5. It has first to be considered whether the accident occurred on account of the rash and negligent driving of the respondent No. 3. The claimants have examined one Shyamrao as P.W 2 who was a co-passenger in the said bus. Shyamrao stated in his evidence that when the bus was moving in the ghat, it was being driven at a rather excessive speed by the driver respondent No. 3 and that the speed of the bus was about 30 miles per hour. The bus at that time was passing through the ghats and there were sharp curves and slopes. Without taking into consideration this fact the Tribunal has observed that the speed of 30 miles an hour was not an excessive speed. The Tribunal has also come to the conclusion that the bus was not being driven at an excessive speed on the ground that this witness who jumped from the moving bus did not receive any injury. From this the Tribunal came to the conclusion that the bus was being driven at a slow speed. No question was put to the witness as to when he jumped from the bus. Whether he jumped from the bus at the time when it dashed against the railings or any time prior to it. Merely from the fact that Shyamrao did not receive any injury when he jumped from the bus the Tribunal was not justified in holding that the bus was being driven at a slow speed.

    6. The respondents examined, the driver respondent No. 3 Hamidali (D.W 2), Gurucharansingh (D.W 1), Narbadrao (D.W 3) and Jhabbilal (D.W 4), as their witnesses. Gurucharansingh (D.W 1) is the owner of the transport company. He deposed that the respondent No. 3 was in the employment of the transport company as a mechanic but whenever occasion arose the transport company used to assign him the job of driving spare buses and that about 8 or 10 years before he was employed as a driver by the transport company. He further deposed that the bus was thoroughly checked in the workshop before it was put on the road and its brakes were also in order. But no one was examined who actually checked the bus in the workshop. It is also significant that the job of driving the bus was assigned to a person who was not a regular driver.

    7. Hamidali (D.W 2) deposed that he had obtained a driving licence 22 years ago and that he worked as a driver for 10-12 years but thereafter he became a mechanic and whenever occasion arose he used to act as a driver for the spare buses of the owner; that when he took this bus for carrying the marriage party of Kanhaiyalal it was thoroughly checked and its brakes were also in order. He further stated that when he was driving the bus in the ghat there was a slope and the speed of the bus was 20-25 miles per hour and that he put the bus in fourth gear; that there was a turning ahead and a truck was coming from the opposite direction on the wrong side, that he applied the brakes and the bus became some-what slow and then he came to know that the brakes have failed; that he informed the nearby passengers that the brakes have failed and that he would try to save the bus; that thereafter the truck which was coming on the wrong side dashed against the bus on the rear side and thereafter the bus dashed against the railings and fell down some 100-125 feet below the ghat.

    8. Jhabbilal (D.W 4) who was the conductor of the bus deposed that though his seat was on the rear side of the bus when the accident occurred he was sitting on the front side and that when the bus was moving in the ghat there was a turn and a truck was coming from the opposite direction on the wrong side and the driver applied the brakes and that the driver had said that the brakes have failed. Narbadrao (D.W 3) who was the mechanic in the roadways deposed that he examined the damaged bus and found that the hose-pipe of the brakes were torn and that there was no brake oil in them and that the brakes of the bus had failed. He however, admitted in cross-examination that he had prepared a note of inspection of the bus which was however not produced. He also admitted that a report was made by him. This report has also not been produced. In his cross-examination he also admitted that the hosepipe of the brakes could also be torn by the falling down of the bus in the ditch.

    9. On consideration of the evidence adduced in the case I am of the opinion that the accident occurred on account of the rash and negligent driving of the respondent No. 3. The respondent No. 3 Hamidali was not a regular driver. He was employed by the respondent No. 2 as a mechanic. Then when the bus was moving in ghat section where there were sharp curves and slopes, the driver should have been extra careful. Shyamrao (P.W 2) has stated that the bus was moving at a speed of 30 miles per hour. The Tribunal has accepted this but held that it was not an excessive speed. The Tribunal has lost sight of the fact that the bus was moving in a ghat section where there were sharp curves and slopes. Then according to the driver he put the vehicle in the fourth gear when it was being driven at a speed of 25-30 miles an hour and descending the slope and more particularly when a truck was coming from the opposite direction on the wrong side. This aspect has also not been taken into consideration by the Tribunal. In order to retain control of the vehicle the driver ought to have put the vehicle in higher gear especially if he found that the brakes were not functioning properly. Thirdly it has also not been proved that the brakes suddenly failed. The notes of inspection and the report prepared by Narbadrao who is said to have examined the bus after the accident have not been produced. Narbadrao has also admitted that it was possible that the hose-pipe of the brakes might have torn on account of the falling of the bus in the ditch. In the circumstances I am of opinion that the Tribunal has committed an error in holding that the accident did not take place on account of the rash and negligent driving of the respondent No. 3 but it occurred on account of the sudden failure of the brakes. On consideration of the evidence adduced in the case I am satisfied that the accident occurred on account of the rash and negligent driving of the respondent No. 3 Hamidali and the deceased died on account of the negligent act of respondent No. 3 and the respondents are liable to pay compensation to the claimants.

    10. The next question is about the quantum of compensation. The Tribunal has found that the deceased Badrinarain was employed at Rs. 90/- p.m in a petrol pump. The claimants case that he was supplementing his income by doing some odd job has not been accepted by the Tribunal. However, the Tribunal has found that the deceased used to pay his salary to his father and that it was being utilised by the father for the maintenance of the deceased and his wife. The Tribunal found that out of the income of the deceased a sum of Rs. 25/- p.m was spent on appellant No. 2 and therefore, the appellant No. 2 suffered a pecuniary loss of Rs. 25/- p.m on account of the death of the deceased. The period of dependency has been held as 30 years. The Tribunal therefore came to the conclusion that Rs. 9,000/- would be the amount of compensation which the appellant No. 2 would be entitled to receive from the respondents. The claimants contended that this amount is too low while on behalf of the respondents No. 2 and 3 it was contended that no pecuniary loss was caused to the claimants and therefore they were not entitled to any compensation. On consideration of the material placed on record I am of the opinion that the amount assessed by the Tribunal is inadequate. The Tribunal has erred in holding that the pecuniary loss caused to the appellant No. 2 is only Rs. 25/- p.m Moreover, the Tribunal has not awarded any compensation on account of physical pain and suffering of the deceased. The Tribunal has also not taken into consideration the future increase in the income of the deceased. This Court has awarded a sum of Rs. 12,000/- as compensation for the death of boys of 12 years of age who came from poor labouring classes. M.P State Road Transport Corporation v. Kanhaiyalal 1978 A.C.J 190; Munibai v. State of M.P decided on 7-9-78; Bhima v. Pranaya 1979 A.C.J 141 and Balmukund v. Smt. Mustaq Bai decided on 17-11-78. In my opinion the compensation in the present case should not be less than Rs. 12,000/-. I am, therefore, of the opinion that Rs. 12,000/- would be the reasonable compensation awardable to the appellant No. 2 in the present case. It was submitted on behalf of the respondent No. 1, insurance company that the liability of the insurance company is limited to only Rs. 2,000/-. Reliance was placed on section 95 of the Motor Vehicles Act. However, in the present case the insurance policy has not been produced and proved. In the absence of the insurance policy it cannot be said that the liability of the insurance company is limited to Rs. 2,000/- only. It was for the insurance company to have proved the insurance policy. Section 95 of the Motor Vehicles Act only lays down the statutory requirements about the policy and it does not prohibit covering of risk of a higher amount. The respondent No. 1 admitted in its written statement that the said Bus M.P.B 6250 was insured with it on the date of the accident. It was also alleged in the written statement by the respondent No. 1 that according to the terms and conditions of the policy the limit of passengers to be carried by the bus was only 44 while it was carrying 63 passengers at the time of the accident and, therefore, the insurance company was not liable for any compensation. It was also stated as if it was a question of law that the liability of an insurance company is only limited to Rs. 2,000/- in respect of each passenger. It was not pleaded that according to the terms and conditions of the policy by which the bus was insured the liability of the insurance company was limited to Rs. 2,000/- per passenger. The policy has not been produced. In the circumstances the insurance company is also liable for the full amount awarded for compensation to the claimants.

    11. As a result of the discussion aforesaid this appeal is allowed with costs. The award of the Tribunal is set aside and it is ordered that the respondents shall pay to the appellant No. 2 a sum of Rs. 12,000/- as compensation on account of the death of the deceased Badrinarain. The appellant No. 2 shall be entitled to receive interest on the amount of compensation at 6% p.a from the date of the application till realisation. Counsel's fee Rs. 200/- if certified.

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    Shyam Lal And Others v. The New India Assurance Co. Ltd. And Another
    (Dec 16, 1978)