Sk. Kalu v. Kumar Bohera And Another

1. Miscellaneous Appeal No. 274 of 1993 has been filed by the Insurance Company challenging the award on merit as well as on the ground of limit of its liability whereas Miscellaneous Appeal No. 289 of 1993 has been filed by the claimants claiming higher compensation. Since both the appeals are directed against the same award, both are being disposed of by this common judgment.

2. The claimants are the parents of the deceased, Sk. Satar, who died in a bus accident. As per the claim application, the deceased was waiting for a bus near Sriya Crossing. At that time a bus bearing registration number ORY 504 arrived at the spot and the deceased went near the bus to enquire from the Conductor regarding the destination of the bus and availability of seats for himself and his friend. At that time, the Conductor had opened the door of the bus which proceeded ahead as a result of which the door dashed against the deceased who fell down and was run over by the bus. Subsequently, the deceased died in the hospital on the very same day. The parents of the deceased filed claim application for Rs. 95,000/- as compensation.

3. The owner and the Insurance Company who were arrayed as opposite party Nos. 1 and 2 in the claim petition merely denied the allegations made in the claim petition, without taking any specific stand.

4. Relying upon the evidence on PW-2 who was the deceased at the time of accident, and other materials on record, the Tribunal held that the accident occurred due to negligent driving of the bus driver. It further found that the claimants were entitled to Rs. 50,000/- as compensation and since the bus had been validly insured and the deceased was third party, the Tribunal held that the entire liability should be met by the Insurance Company.

5. The claimants have filed appeal claiming higher compensation whereas the Insurance Company has filed appeal challenging the award. It has been specifically contended by the Insurance Company in appeal that since the deceased was a passenger in the bus and the accident had occurred when he was alighting from the bus the maximum liability of the Insurance Company should be tagged at Rs. 15,000/-.

6. Though the Insurance Company has challenged the finding of the Tribunal regarding the negligence, such contention cannot be accepted. The owner as well as the Insurance Company had contested the case before the Tribunal by filing separate written statements. There is no allegation nor any material on record to indicate that in fact, the owner had colluded with the claimants. In such view of the matter, the Insurance Company cannot challenge about the merit of the case regarding the non-existence of negligence on the part of the bus driver. Even otherwise, the finding of the Tribunal regarding negligence of the bus driver cannot be faulted P.W 2 who was with the deceased at the time of accident has described about the manner in which the accident took place. His evidence has not been successfully challenged in the cross-examination. Moreover, since the bus driver or the Conductor of the bus has not been examined by the owner and the Insurance company to disprove the evidence of P.W 2, the Tribunal has rightly drawn an adverse inference. In such view of the matter. I do not find any reason to differ from the finding of the Tribunal on this aspect.

7. The appeal of the claimants relates to the question of payment of higher compensation. The Insurance Company has also challenged the quantum. The claimants are the parents of the deceased. Taking the normal expectation of life, it can be said that they could have lived for about twenty years more. The deceased who was unmarried was aged about twenty years and was allegedly working as a machine, but the said assertion has been disbelieved by the Tribunal on relevant consideration. The contribution to the parents by the deceased would have become less in course of time after his marriage. Keeping in view the aforesaid considerations and the relevant factors. I do not consider the award of Rs. 50,000/- to be grossly low or grossly high so as to warrant interference in appeal. Accordingly, I hold that the appeal of the claimants claiming higher compensation has no merit. Similarly. I am also not inclined to interfere in the quantum in an appeal at the instance of the Insurance Company.

8. The next important point veers round the question of liability of the Insurance Company. It is contended by the Insurance Company in its appeal that the deceased was a passenger in the bus and the accident occurred while he was getting down from the bus and, as such, the maximum liability of the Insurance Company at the relevant time being Rs. 15,000/-, the Insurance Company should not have been directed to pay the entire compensation amount. In support of such contention the learned counsel for the Insurance Company has relied upon the FIR and the certified copy of the charge sheet as well as some statements in the relevant Case Diary. The statements made in FIR as well as in the Case Diary cannot be utilised as substantive evidence even before the Claims Tribunal for the purpose of finding out about the manner of accident though such statement can be utilised for the purpose of contradicting the witnesses or possibly corroborating them in a claim case. In the present case the FIR was lodged by P.W 3 who had not seen the accident. The statements of other persons in the Case Diary who have not been examined as witnesses in the claim case, cannot be utilised for any purpose whatsoever. Apart from the above aspect, it appears that the Insurance Company had not taken any specific stand in the written statement that the deceased was ti passenger in the bus and as such, the limit of its liability was confined to a particular amount. In the absence of any pleading or issue, it was not open to the Insurance Company to raise such a question during the trial by merely suggesting to the witnesses examined on behalf of the claimants. No witness has been examined on behalf of the Insurance Company to prove that in fact, the deceased was travelling in the bus while the accident took place.

In the absence of any positive plea or evidence on record. I am not in a position to accept the contention of the learned counsel for the Insurance Company on the basis of the Exhibits A, B and C that in fact, the deceased was travelling in the bus at the time of the accident. The finding of the Tribunal that the Insurance Company was liable to pay the entire amount of Rs. 50,000/- as the deceased was a third party is sustained. In view of the aforesaid finding on the factual aspect, it is not necessary to deal with the decisions reported in 1995 ACJ 522 : (AIR 1995 Orissa 19), Oriental Insurance Co. Ltd. v. Martin Kanduna and 1995 ACJ 1059, New India Assurance Co. Ltd. v. Jagdish Prasad, which are not applicable to the present case.

9. In the result. I do not find any merit in any of the appeals, which are hereby dismissed. However, there will be no order as to costs of this Court in any of the appeals.

Appeals dismissed.