Malam Singh v. Gopal Das — 1995 DIGILAW 977 (RAJ)

Honble ARORA, J. – This appeal is directed against the Award dated 13.2.87 passed by the Motor Accident Claims Tribunal, Jodhpur, by which the learned Judge of the Tribunal allowed the appellant the compensation amounting to Rs. 7508/-. Appellant Malam Singh has filed this appeal for enhancement of the amount of the Award while the Rajasthan State Road Transport Corpora- tion (respondent No.2) has filed cross-objection for setting-aside the Award dated 13.2.87. As the appeal and the cross-examination arise out of the same judgment, they are, being disposed of by this common judgment. (2). Claimant Malam Singh, on 19.6.84, filed a claim petition in the Motor Accident Claims Tribunal, Jodhpur for the award of Rs. 2,62,700/-. It is alleged in the claim petition that the claimant was working as part-time mail-carrier in the Post & Telegraph Department and was getting Rs. 157/- per month as part-time allowance. He was, also, earning Rs. 400/- per month from agriculture. On 16.12.1987, at about 12.45 p.m., he was coming from Khara Bera Post Office alongwith the post-bag and was proceeding towards village Kankani to distrib- ute the letters etc. When he reached at the main road, in the meanwhile the bus No. RRB 6348, which was coming from Jodhpur and was proceeding towards Sirohi and was being driven by driver Gopal Das rashly and negligently, came from the wrong side (Right hand side) and hit him and his bicycle went to Kachha road. As the bus was being driven rashly and negligently, therefore, even after applying the brakes the bus covered the distance of about 32 feet and thereafter it could be stopped. The claimant, therefore, claimed a sum of Rs. 2,40,000/- as loss to the income, Rs. 20,000/- as general damages on account of mental agony etc., Rs. 400/- for the damages caused to him, Rs. 522.95 p. as the medical expenses, Rs. 1800/- towards the food, fruits, tonic etc. and Rs. 1727/- towards eleven months pay as he remained on leave during this period. This claim petition, filed by claimant Malam Singh, was contested by the respondents. The claimant, in support of his case, examined himself as PW1 and produced in his evidence PW2 Gordhan Singh the eye witness of the accident, PW 3 Dhokal Ram and PW 4 Dr. 1727/- towards eleven months pay as he remained on leave during this period. This claim petition, filed by claimant Malam Singh, was contested by the respondents. The claimant, in support of his case, examined himself as PW1 and produced in his evidence PW2 Gordhan Singh the eye witness of the accident, PW 3 Dhokal Ram and PW 4 Dr. L.C. Joshi, while the non-applicants, in support of their case, examined DW 1 Gopal Das the Driver of the bus, and DW 2 Vikram Singh the Conductor on the bus. The learned Judge of the Tribunal, after trial, came to the conclusion that the accident took- place on account of the negligence on the part of the driver DW 1 Gopal Das but the claimant, also, contribu- ted to this accident and, therefore, he awarded 50% of the claim amount, i.e., Rs. 5000/- for general damages, Rs. 523/- towards medical expenses, Rs. 200/- for damages caused to the claimant, Rs. 1000/- towards food, fruits, tonic etc., Rs. 785/- as the loss to the pay for eleven months and as such the learned Judge of the Tribunal awarded Rs. 7508/- in all as compensation to the claimant. It is against this award that the appellant has preferred this miscellaneous appeal. (3). It is contended by the learned counsel for the appellant that the appellant never contributed to the accident and it was pure and simple on account of the rash and negligent driving of the bus by the driver that the accident took place and the learned Judge of the Tribunal was, therefore, no justified in awarding 50% of the claim amount as compensation to the appellant. It has, also, been contended by the learned counsel for the appellant that the award of general damages of Rs.10,000/- was on the lower side. It is, also, contended that the learned Judge of the Tribunal has not taken into consideration the loss of Rs. 400/- per month which the appellant has suffered for eleven months on account of his not attending the agricultural operations during this period. It is, also, contended that the learned Judge of the Tribunal has not taken into consideration the loss of Rs. 400/- per month which the appellant has suffered for eleven months on account of his not attending the agricultural operations during this period. The learned counsel for the respondent No. 2 R.S.R.T.C., on the other hand, has submitted that the accident took-place purely on account of the negligence of the appellant because the driver of the bus tried his best to stop the bus but the appellant dashed against the bus and the injuries were caused to him, as such he is not entitled for any amount of compensation. (4). I have considered the submission made by the learned counsel for the parties. (5). PW 1 Malam Singh—the injured claimant, has stated that on the day of the accident he was going on his bicycle to distribute the letters etc. in village Kankani. The bus came from the opposite side and hit his bicycle. He fell down from the bicycle and became unconscious. The bus dragged him upto the distance of thirty-two feet and thereafter it could be stopped. He was going on the left side of the road but the bus was being plied on the wrong side. He has proved Ex.1 to Ex.9 i.e. the challan papers. He has, also, stated that his bicycle, which was of Rs. 400/-. was completely damaged and he could not attend the duties for eleven months and as such he suffered the loss of pay @ Rs. 157/- per month for eleven months. He, also, could not work in the agricultural field and thus loss of agricultural field and thus loss of agricultural income was caused to him. He spent Rs. 1800/- to Rs. 2000/- on food, fruits etc. He has, also, produced the bills Ex.10 to Ex.17. In the cross- examination, he has stated that the accident took place at a distance of about ten Paundas from the cross and there were bushes on both the sides of the road. (6). PW 2 Gordhan Singh—an eye witness to the accident—has stated that he was going to village Kankani on his bicycle. Malam Singh was going on the bicycle on the left side of the road. He crossed the crossing and was hit by the roadways bus which was being driven rashly and negligently by its driver. (6). PW 2 Gordhan Singh—an eye witness to the accident—has stated that he was going to village Kankani on his bicycle. Malam Singh was going on the bicycle on the left side of the road. He crossed the crossing and was hit by the roadways bus which was being driven rashly and negligently by its driver. After hitting Malam Singh, the bus could not be stopped; it went on the wrong side and covered the distance of 12 to 15 feet. He thereafter took Malam Singh to the hospital. He has denied the suggestion in the cross-examination that Malam Singh was hit on conductors side. He has, also, denied the suggestion that he had not seen the accident. (7). Similar is the statement of PW 3 Dhokal Ram, who had lodged the report and who is, also, an eye witness of the accident. He has stated that Malam Singh was going on his bicycle on the left side of the road and he was hit by the bus which dragged Malam Singh upto the distance of 30 to 32 feet and thereafter the bus could be stopped. In the cross-examination, he has denied the suggestion that Malam Singh was hit on the conductors side. PW 4 Dr.L.C. Joshi has stated that he was working as the Medical Jurist in Bangad Hospital, Pali. Injured Malam Singh was brought to him. He prepared the injury report Ex.1. The injuries received by Malam Singh were on his head etc and the X-ray of the head injuries is Ex.2. According to the doctor, there were fractures of occipital and parietal bones. (8). DW 1 Gopal Das—the driver of the bus has stated that the accident took place on 16.12.93 when he was driving the bus in question from Jodhpur to Sirohi. He left Jodhpur at 12.00 noon and reached at the place of the accident at about 1.00 p.m. He was driving the bus at the moderate speed of 30 to 40 km/h. The claimant came suddenly on the main road from the Kachha road and as there was a short distance between the bus and the claimant, he applied the brakes but the claimant dashed against the bus on the left side of the bus. Thereafter he took him to the hospital. Malam Singh received many injuries. He has, also, admitted that the bus as well as the site were inspected. Thereafter he took him to the hospital. Malam Singh received many injuries. He has, also, admitted that the bus as well as the site were inspected. In the cross- examination he has stated that in order to save Malam Singh he turned the bus on the right hand side. He has, also, admitted that the brakes of right side of the bus were loose. He has, also, denied the suggestion that after application of the brakes the bus could be stopped after covering the distance of about 32 feet on the Kachha road. He has, also, denied that Malam Singh became unconscious and received head injuries. He has, also, denied that the accident took place on account of his rash and negligent driving of the bus. (9). DW 2 Vikaram Singh-the Conductor on the bus-has stated that on 16.12.83 he was the Conductor on the bus which was going from Jodhpur to Sirohi. The accident took place on that day. The bicycle rider came suddenly on the road and the driver tried his best to save him but the bicycle rider dashed against the bus. The bus was being driven at the speed to 50 to 55 km/h. In the cross- examination he has denied the suggestion that the bicycle rider was going on the left side of the road and the bus hit against him. He has, however, admitted that the bus could be stopped on the Kachha road after covering the distance of 8 to 10 feet. He has, however, denied the suggestion that it covered the distance of about 32 feet. (10). From the evidence of these witnesses, it has, therefore, been established that the accident took place on 16.12.83 on the main road. The appellant had, also, come on the main road and covered some distance after the crossing. He was going on the left side of the road and the bus hit the appellant. Though the brakes of the bus were applied but it came on the Kachha road dragging the appellant. According to the witnesses of the appellant, the bus could be stopped after covering the distance of 32 feet while according to DW 2 Vikram Singh the bus could be stopped after covering the distance of 10 to 12 feet while according to DW 1 Gopal Das, the bus was already stopped but still the appellant dashed against the bus. According to the witnesses of the appellant, the bus could be stopped after covering the distance of 32 feet while according to DW 2 Vikram Singh the bus could be stopped after covering the distance of 10 to 12 feet while according to DW 1 Gopal Das, the bus was already stopped but still the appellant dashed against the bus. From the evidence of these witnesses as well as from the evidence of DW 2 Vikram Singh, it is established that after the application of the brakes the bus could not be stopped and it covered the distance of about 32 feet and came on the Kachha road, which is, also, clear from Ex. P.6 the site plan. The facts and circumstances of the case and the evidence produced by the claimant, therefore, clearly show that it was only on account of rash and negligent driving of the bus by its driver DW 1 Gopal Das that the accident took place and the appellant never contributed to the accident. There was, therefore, no question of any contributory negligence on the part of the appellant and the accident was the result of pure and simple the rash and negligent act of the driver of the bus. The learned Judge of the Tribunal was, therefore, not justified in awarding only 50% of the claim amount of the compensation. As the appellant has not contributed to the accident in any way, he is, therefore, entitled for the full amount of compensation, i.e., Rs. 14,493/-. (11). So far as the question of enhancement of the amount of compensation is concerned, the appellant remained in the hospital for a short period of less than one month. Looking to the nature of the injuries sustained by the appellant and the mental agony suffered by him, the amount of compensation awarded by the learned Judge of the Tribunal cannot be aside to be, in any way, on the lower side. No case for enhancement of the compensation is made-out. (12). So far as the cross-objections filed by the R.S.R.T.C. (respondent No.2) are concerned, they do not stand on merit because the accident took place on account of rash and negligent driving of the bus by its driver DW1 Gopal Das and the fact of accident has not been disputed by the learned counsel for the respondents. (12). So far as the cross-objections filed by the R.S.R.T.C. (respondent No.2) are concerned, they do not stand on merit because the accident took place on account of rash and negligent driving of the bus by its driver DW1 Gopal Das and the fact of accident has not been disputed by the learned counsel for the respondents. The learned trial Court was, therefore, justified in awarding the compensation to the appellant. (13). In the result, the appeal, filed by the appellant, is partly allowed. The amount of compensation is enhanced from Rs. 7508/- to Rs. 14,493/-. The cross-objections, filed by the respondent No.2, are dismissed. The enhanced compensational will carry interest @ 12% per annum from the date of the accident till it is paid.