2017 Supreme(P&H) 2867

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Harinder Singh Sidhu
FAO No.156 of 2012 (O&M)
Malti Devi & Ors.
v.
Amrit Lal & Ors.
{Decided on 15/12/2017}

Accident—Waiver of Right – Claimant had given affidavit that she does not want to prosecute criminally against driver of bus – That affidavit does not mean giving up right to pursue for civil liability as well for compensation – Claim petition is maintainable.
Accident – Negligence—Boarding of Bus – If the bus has started moving without all those standing having safely boarded the bus, and a passenger falls down because the bus started moving while he was yet boarding, the negligence would be only of the driver and conductor of the bus.
Accident—Police Report – In deciding the claim petition, the tribunal is concerned only with the evidence adduced before it and not with the finding of any inquiry conducted by police.
Accident – Statement of Witness—Police Report – Merely because the investigating officer had prepared cancellation report would not prove that the statement of a witness in the claim petition, is not believable.
Accident – Income – Incentives – An incentive, though it may increase or decrease, is a part of wages and is to be included in the salary for determining compensation.

Headnote:(A) Motor Vehicles Act, 1988, S.166 – Accident – Claim Petition – A statement giving up his right not to prosecute for criminal negligence cannot amount to an admission that there was also no civil liability to sustain a claim for compensation – A person may well decide not to institute criminal proceedings, but that cannot be held against him in his claim for compensation. (Para 30)

       (B) Motor Vehicles Act, 1988, S.166 – Accident – Waiver of Right – Claimant had given affidavit that she does not want to prosecute criminally against driver of bus by which her husband had died – That affidavit does not mean giving up right to pursue for civil liability as well – Claim petition is maintainable. (Para 29)

       (C) Motor Vehicles Act, 1988, S.166 – Accident – Negligence – Bus started moving while deceased was boarding the bus, without whistle by the conductor – Deceased fell down on the road and was crushed under the rear wheel of the bus – Driver and Conductor of the bus held to be negligent – Held; it was the duty of the Conductor to ensure that the whistle/signal is not given to move the bus before all the passengers have safely boarded the bus

       (D) Motor Vehicles Act, 1988, S.166 – Accident – Negligence – Boarding of Bus – If the bus has started moving without all those standing having safely boarded the bus, and a passenger falls down because the bus started moving while he was yet boarding, the negligence would be only of the driver and conductor of the bus. (Para 22)

       (E) Motor Vehicles Act, 1988, S.166 – Accident – Negligence – Bus started moving when passengers were boarding bus – Deceased fell down and was crushed under the rear wheel of the bus – Deceased was among the passengers waiting to board the bus – It was not the case that deceased was running from some distance to board the bus even though bus had started moving – Negligence would only be of driver and conductor of the bus. (Para 22)

       (F) Motor Vehicles Act, 1988, S.166 – Accident – Negligence – Passenger died while boarding the bus – The fact that despite being in a position to see, the driver of the bus did not notice the deceased boarding the bus points to his negligence. (Para 31)

       (G) Motor Vehicles Act, 1988, S.166 – Accident – Statement of Witness – The police may not record the statement of all those present or note the presence of all those who were present at the spot – The fact that the statement of a person who claims to be present at the spot is not recorded by the police cannot be a ground for disbelieving his presence there, if the evidence is otherwise credible and the presence is properly explained. (Para 23)

       (H) Motor Vehicles Act, 1988, S.166 – Accident—Police Report – In deciding the claim petition, the tribunal is concerned only with the evidence adduced before it and not with the finding of any inquiry conducted by police. (Para 26)

       (I) Motor Vehicles Act, 1988, S.166 – Accident – Statement of Witness—Police Report – Merely because the investigating officer had prepared cancellation report would not prove that the statement of a witness in the claim petition, is not believable. (Para 27)

       (J) Motor Vehicles Act, 1988, S.166 – Accident – Income – Incentives – An incentive, though it may increase or decrease, is a part of wages and is to be included in the salary for determining compensation under the Motor Vehicles Act. (Para 35)

       (K) Motor Vehicles Act, 1988, S.166 – Accident – Just Compensation – Deceased was aged 42 years earning Rs, 18,172/- p.m. – After calculated net amount income after deduction of tax and personal expenses total compensation of Rs. 29,16,928/- awarded with 7.5% interest from date of filing claim petition till realization. (Para 37)