Lalmani Pandey and ors. Vs. Ugratara Bus Service and ors. - Court Judgment

Excerpt:
- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - the claimants are not satisfied with the award, hence this appeal. however, the evidence clearly and distinctively points out that it was rajkeshar pandey, who was asked to guide the bus at that point of time and not dharampal singh. this set of facts have been clearly mentioned by ravi shankar pandey (pw 3) and ram gopal (pw 4). these statements appear to be legitimate, in case the situation who the buses crossed each other and how the deceased was squeezed in between the two, is rightly considered, analysed and appreciated. rashness and negligence on the part of lalmani sen, driver of ugratara bus service is clearly established and the defence taken by the respondents is completely shorn of credibility and has been set up to dislodge the genuine and justified claim.orderbhawani singh, c.j.1. this appeal is directed against the award of the motor accident claims tribunal, shahdol camp beohari, in claim case no. 7/89, dated 26-8-1991.2. the deceased-rajkeshar pandey (22) was conductor in ugratara bus service, rewa. he died in accident, that took place on 9-3-1989. the claim has been dismissed by the claims tribunal, shahdol, on august 26, 1991, on the ground that it was not proved that the accident had taken place due to rash and negligent act of the driver of bus no. mpl 4001, as alleged.3. on 9-3-1989 the deceased was travelling by bus no. mpl 4001 owned by ugratara bus service, rewa. this bus was owned by dhirendra kumar gupta, driven by lalmani sen and insured with the new india insurance company. it reached a place where bus no. mpg-6939 owned by the m.p. slate road transport corporation was standing. the allegation is that on instruction of the driver of ugratara bus service, the deceased was helping the driver to clear side by the other bus and while doing so, the driver of ugratara bus service drove the bus in such a rash and negligent manner that the deceased came in between two buses and was squeezed to death.4. the defence of the respondents is that the deceased was not conductor of the said bus on that day. he jumped from the bus and died in the accident. the claims tribunal came to the conclusion that it was not proved that the driver of bus no. mpl 4001 drove the bus rashly and negligently, which resulted in death of rajkeshar pandey. therefore, the claimants arc not: entitled to compensation. the claimants are not satisfied with the award, hence this appeal.5. we have heard the learned counsel for the parties and perused the record. smt. a, ruprah, learned counsel for the insurance company, made two submissions - first is that the finding of the claims tribunal that the driver of bus no. mpl 4001 owned by ugratara bus service, rewa was not driving in rash and negligent manner, therefore, the accident or death was not attributable to him, is sustainable on evidence. the second is that, in case this courts comes to the conclusion that the finding is not sustainable and the driver is found rash and negligent in driving the bus and causing death of deceased, in that even, the liability of insurance company does not exceed to rs. 50,000/- under section 95 of the motor vehicles act, 1939. with a view to appreciate the first submission, evidence has been perused with a view to understand whether the accident took place in the manner suggested by the learned counsel for the insurance company or it could take place as alleged by the learned counsel for the appellants. with a view to support this contention, smt. a. ruprah refused to the evidence of lalmani sen (dw 1). it may be true that the driver has tried to say that the deceased was not called upon to guide the bus and he jumped from the bus, but it is extremely difficult to accept this version. it is undeniable that the deceased was conductor of the said bus. it may be that on the date of accident, he was on leave and was not the conductor on that day and dharampal singh was conductor for the day. however, the evidence clearly and distinctively points out that it was rajkeshar pandey, who was asked to guide the bus at that point of time and not dharampal singh. it cannot be accepted that the deceased jumped from the bus, as alleged. he would get down the bus in a normal way and guide the bus towards side of m.p. state road transport corporation's bus, which was opposite to the side of the driver of ugratara bus service, the driver of which did not bother to see that the bus was driven in such a way that it left space in between the two buses. in case, such a care had been taken, reasonable space could have been left in between two buses and the deceased would not have lost his life by being squeezed in between the two buses. this set of facts have been clearly mentioned by ravi shankar pandey (pw 3) and ram gopal (pw 4). these statements appear to be legitimate, in case the situation who the buses crossed each other and how the deceased was squeezed in between the two, is rightly considered, analysed and appreciated. rashness and negligence on the part of lalmani sen, driver of ugratara bus service is clearly established and the defence taken by the respondents is completely shorn of credibility and has been set up to dislodge the genuine and justified claim. the finding recorded by the claims tribunal is thoroughly unsustainable since the claims tribunal has not appreciated the evidence in a proper manner.6. after recording this finding, we proceed to decide the question which relates to the assessment of compensation and liability for payment. the deceased was earning rs. 1,000/- per month. out of it, he was giving rs. 500/-to the family. this way, yearly dependency comes to rs. 6000/-. the deceased was 22 year old at the time of accident. the multiplier applicable in this case is 17. therefore, the compensation comes rs. 6000 x 17 = rs. 1,02,000/- apart from rs. 10,000/- for loss of expectancy of life, rs. 2000/- for funeral expenses, rs. 2500/- for loss to estate and rs. 5000/- for loss of consortium. thus, the total amount of compensation is rs. 1,21,500/-. the enhanced amount would carry interest at the rate of 12% per annum from the date of application till payment. the insurance company has taken the defence of limited liability, but did not take care to prove it. therefore, the liability to pay compensation shall rest on it.7. consequently, the appeal is allowed in terms of aforesaid. the parties shall bear their own costs.

Judgment:
ORDER

Bhawani Singh, C.J.

1. This appeal is directed against the award of the Motor Accident Claims Tribunal, Shahdol Camp Beohari, in Claim Case No. 7/89, dated 26-8-1991.

2. The deceased-Rajkeshar Pandey (22) was conductor in Ugratara Bus Service, Rewa. He died in accident, that took place on 9-3-1989. The claim has been dismissed by the Claims Tribunal, Shahdol, on August 26, 1991, on the ground that it was not proved that the accident had taken place due to rash and negligent act of the driver of Bus No. MPL 4001, as alleged.

3. On 9-3-1989 the deceased was travelling by Bus No. MPL 4001 owned by Ugratara Bus Service, Rewa. This bus was owned by Dhirendra Kumar Gupta, driven by Lalmani Sen and insured with the New India Insurance Company. It reached a place where Bus No. MPG-6939 owned by the M.P. Slate Road Transport Corporation was standing. The allegation is that on instruction of the driver of Ugratara Bus Service, the deceased was helping the driver to clear side by the other bus and while doing so, the driver of Ugratara Bus Service drove the bus in such a rash and negligent manner that the deceased came in between two buses and was squeezed to death.

4. The defence of the respondents is that the deceased was not conductor of the said bus on that day. He jumped from the bus and died in the accident. The Claims Tribunal came to the conclusion that it was not proved that the driver of Bus No. MPL 4001 drove the bus rashly and negligently, which resulted in death of Rajkeshar Pandey. Therefore, the claimants arc not: entitled to compensation. The claimants are not satisfied with the award, hence this appeal.

5. We have heard the learned counsel for the parties and perused the record. Smt. A, Ruprah, learned counsel for the Insurance Company, made two submissions - first is that the finding of the Claims Tribunal that the driver of Bus No. MPL 4001 owned by Ugratara Bus Service, Rewa was not driving in rash and negligent manner, therefore, the accident or death was not attributable to him, is sustainable on evidence. The second is that, in case this Courts comes to the conclusion that the finding is not sustainable and the driver is found rash and negligent in driving the bus and causing death of deceased, in that even, the liability of Insurance Company does not exceed to Rs. 50,000/- under Section 95 of the Motor Vehicles Act, 1939. With a view to appreciate the first submission, evidence has been perused with a view to understand whether the accident took place in the manner suggested by the learned counsel for the Insurance Company or it could take place as alleged by the learned counsel for the appellants. With a view to support this contention, Smt. A. Ruprah refused to the evidence of Lalmani Sen (DW 1). It may be true that the driver has tried to say that the deceased was not called upon to guide the bus and he jumped from the bus, but it is extremely difficult to accept this version. It is undeniable that the deceased was conductor of the said bus. It may be that on the date of accident, he was on leave and was not the conductor on that day and Dharampal Singh was Conductor for the day. However, the evidence clearly and distinctively points out that it was Rajkeshar Pandey, who was asked to guide the bus at that point of time and not Dharampal Singh. It cannot be accepted that the deceased jumped from the bus, as alleged. He would get down the bus in a normal way and guide the bus towards side of M.P. State Road Transport Corporation's bus, which was opposite to the side of the driver of Ugratara Bus Service, the driver of which did not bother to see that the bus was driven in such a way that it left space in between the two buses. In case, such a care had been taken, reasonable space could have been left in between two buses and the deceased would not have lost his life by being squeezed in between the two buses. This set of facts have been clearly mentioned by Ravi Shankar Pandey (PW 3) and Ram Gopal (PW 4). These statements appear to be legitimate, in case the situation who the buses crossed each other and how the deceased was squeezed in between the two, is rightly considered, analysed and appreciated. Rashness and negligence on the part of Lalmani Sen, driver of Ugratara Bus Service is clearly established and the defence taken by the respondents is completely shorn of credibility and has been set up to dislodge the genuine and justified claim. The finding recorded by the Claims Tribunal is thoroughly unsustainable since the Claims Tribunal has not appreciated the evidence in a proper manner.

6. After recording this finding, we proceed to decide the question which relates to the assessment of compensation and liability for payment. The deceased was earning Rs. 1,000/- per month. Out of it, he was giving Rs. 500/-to the family. This way, yearly dependency comes to Rs. 6000/-. The deceased was 22 year old at the time of accident. The multiplier applicable in this case is 17. Therefore, the compensation comes Rs. 6000 X 17 = Rs. 1,02,000/- apart from Rs. 10,000/- for loss of expectancy of life, Rs. 2000/- for funeral expenses, Rs. 2500/- for loss to estate and Rs. 5000/- for loss of consortium. Thus, the total amount of compensation is Rs. 1,21,500/-. The enhanced amount would carry interest at the rate of 12% per annum from the date of application till payment. The Insurance Company has taken the defence of limited liability, but did not take care to prove it. Therefore, the liability to pay compensation shall rest on it.

7. Consequently, the appeal is allowed in terms of aforesaid. The parties shall bear their own costs.