JUDGMENT 1. - The appellant has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') against the Award dated 25-11-1994 passed by the learned Motor Accidents Claims Tribunal, Jodhpur (hereinafter to be referred as 'the Tribunal'). 2. The brief facts materia for the disposal of this appeal may shortly be stated as follows: The accident occurred on 22-2-1991 near the crossing of Rikhatiya Bheruji when the deceased Babulal was knocked down by the Bus of the appellant bearing No. RNP 1382. At that time, deceased Babulal was driving Scooter No. RJ-19/4474 towards the Residency Road. Shri Ibrahim was sitting behind him on the above scooter. It is alleged that when Babulal had taken the scooter ahead of the said bus, the driver of the Bus Abhaisingh hit the scooter, as a result of which Babulal along with Ibrahim fail down. Babulal sustained fatal injuries, as result of which, he died in the Hospital. The FIR of this occurrence was lodged at the Police Station, Shastri Nagar. The Police registered a case under Sections 279 and 337 IPC. The site was inspected and site plan Ex. P.4 and site inspection memo Ex. P. 5 were prepared. 3. The post-mortem of the deceased was performed by the Medical Officer on 1-3-1991. According to the post-mortem report, Babulal died on account of head injuries. After investigation, a charge-sheet was filed against the driver Abhaisingh for the offences under Sections 304A, 279 and 337 IPC. 4. The claimants Shri Narayanram and Smt. Tulsidevi filed a claim petition under Sections 166 and 140 of the Act before the learned Tribunal claiming a sum of Rs. 6 lacs against the appellant and respondent No. 3. The details of the claim are contained in Para 25 of the claim petition. The appellant resisted the claim petition and denied that the accident occurred on account of the negligence of the driver Abhaisingh. The appellant alleged that the deceased in order to overtake the bus negligently proceeded without giving any signal and in the process was hit by the right front wheel of the bus. Hence, there was absolutely no negligence on the part of the driver Abhaisingh. The deceased met with the accident on account of his own negligence for which no liability can be fastened on the appellant. The appellant, therefore, denied the whole claim. 5. Hence, there was absolutely no negligence on the part of the driver Abhaisingh. The deceased met with the accident on account of his own negligence for which no liability can be fastened on the appellant. The appellant, therefore, denied the whole claim. 5. It may be stated here that the learned Tribunal also passed an interim order under Section 140 of the Act awarding interim Award of Rs. 25,000/- in favour of the claimants and against the appellant. 6. On the basis of the pleadings of the parties, the learned Tribunal framed as many as six issues. From the side of the claimants, three witnesses were examined. The non-applicants did not produce any evidence. Certain documents including FIR, post-mortem report, site plan, site inspection memo etc. were also produced. 7. Issue No. 1 is with regard to the rash and negligent act attributed to the driver. The learned Tribunal after appreciating the evidence and the documents available on the record decided this issue entirely in favour of the claimants. Similarly Issues No. 3 and 4 were also held against the appellant. Issue No. 2 is with regard to the quantum of compensation. The learned Tribunal accepted the fact that the deceased was earning Rs. 2,000/- per month. The learned Tribunal determined a sum of Rs. 1,000/- as dependency and after applying the multiplier of 12, determined the amount of compensation at Rs. 1,20,000/-. The learned Tribunal also awarded a sum of Rs. 20,000/- on account of solatium etc. Thus, the learned Tribunal passed the Award of Rs. 1,40,000/- in favour of the claimants. 8. Aggrieved by the above award, the appellant has filed this appeal. 9. I have heard Mr. Sangeet Lodha for the appellant and Mr. H. R. Panwar for the respondents and have carefully gone through the record of the case. 10. The learned counsel for the appellant has very vehemently challenged the findings of the learned Tribunal that the unfortunate accident occurred on account of the negligence of driver Abhaisingh. He specifically referred to the statement of Ibrahim, who was sifting on the Scooter behind Babulal. He has clearly stated that the scooter was not hit from behind by the Bus. According to him, the Bus hit the scooter when the deceased was trying to overtake the Bus and in that process collided with the Bus. He specifically referred to the statement of Ibrahim, who was sifting on the Scooter behind Babulal. He has clearly stated that the scooter was not hit from behind by the Bus. According to him, the Bus hit the scooter when the deceased was trying to overtake the Bus and in that process collided with the Bus. Thus, it is very clear that it was the negligent act of the deceased which resulted in the above accident. It was very unwise on the part of the deceased to have overtaken the bus even without giving any signal. The Driver was not expected to bring the bus to an abrupt halt in such a case where the deceased in the process of overtaking the bus tried to take the scootor ahead and this act was such that the bus driver could not have either anticipated or avoided. Thus, it was a case of scooter hitting the bus. 11. Alternatively, the learned counsel submitted that the driver of the bus can at the most be held liable for contributing the above accident and the Court may in the facts and circumstances of the case determine the percentage of contributory negligence of the driver of the bus and the deceased. 12. The learned counsel for the respondent has supported the findings of the learned Tribunal and submitted that in his earlier statement, Ibrahim has clearly stated that the deceased had overtaken the bus and was well ahead of the bus when it was hit by the bus from behind. Hence, there was no negligence on the part of the deceased and the driver of the Bus was squarely liable for contributing the above accident. 13. Now, the first point that requires determination is whether the above accident occurred on account of rash and negligent act of the driver Abhaisingh as held by the learned Tribunal or whether it was a case of contributory negligence of the driver of the Bus and the deceased? 14. P.W. 1 Narayanram is the father of the deceased Babulal. He was not present at the site when the accident occurred. P. W. 2 Ibrahim is the main material witness and on the basis of his testimony, this point can be decided. 14. P.W. 1 Narayanram is the father of the deceased Babulal. He was not present at the site when the accident occurred. P. W. 2 Ibrahim is the main material witness and on the basis of his testimony, this point can be decided. In his examination in chief, P. W. 2 Ibrahim has stated that deceased Babulal was driving the scooter and at Rikhatiya Bheruji Choraya, they over took the bus of the Corporation. The bus then hit the scooter from behind, as a result of which, the scooter fell and both of them sustained serious injuries. Later on, Babulal succumbed to his injuries. However, in his cross-examination, Babulal has stated that at the time of overtaking no vehicle was coming from front side. The front portion of the bus collided with the scooter. The bus hit the dickey of the scooter. He further stated that it is true that the scooter had not crossed the bus. 15. The another witness is P. W. 3 Pokarram, who has stated that the Bus hit the scooter from its front side but in his cross-examination, he has stated that the right portion of the bus really struck the scooter. 16. From the above, it is clear that the bus hit the scooter. I see no reason to disbelieve P. W. 2 Ibrahim when he says that the accident occurred while Babulal was negotiating overtaking of the scooter. It is not correct that the act of overtaking has been completed. According to Ibrahim, the bus hit the scooter when the scooter was trying to overtake the bus. It is admitted fact that Ibrahim and Babulal sustained injuries as an impact of the accident. In these circumstances, in my opinion, it is clearly a case of contributory negligence. Since the occurrence took place on the Nikhtiyan Bheruji Choraya and it was expected of the driver of the Corporation to drive the vehicle cautiously and slowly. If he would have done so, he could have perhaps avoided the accident. The deceased was also indiscreet, irresponsible and rough in deciding to overtake the bus particularly at place where this act was done was a choraya. Hence, the deceased was also guilty of contributory negligence. 17. If he would have done so, he could have perhaps avoided the accident. The deceased was also indiscreet, irresponsible and rough in deciding to overtake the bus particularly at place where this act was done was a choraya. Hence, the deceased was also guilty of contributory negligence. 17. Looking to the facts and circumstances of the case, I hold that the percentage of contributory negligence of the driver of the bus and the deceased Babulal can be determined at the ratio of 70 : 30. 18. I, therefore, hold that the learned Tribunal did not decide Issue No. 1 correctly. As regards the compensation awarded by the learned Tribunal, it can be stated that it is in consonance with the principles laid down in General Manager, Kerala State Road Transport Corporation v. Sushma Thomas (1994) 2 SCC 176 : ( AIR 1994 SC 1631 ) and Smt. Sarala Dikshit v. Balwant Yadav (1996) 3 JT (SC) 252. Looking to the contributory 70% negligence of the driver of the bus, the Award must therefore, be reduced to 70%, which comes to Rs. 84,000/-. The amount of solatium etc. as awarded by the learned Tribunal is maintained. 19. I, therefore, allow this appeal in part to the extent that the Award passed by the learned Tribunal is reduced to 1,04,000/-. There will be no order as to costs. 20. Cross-objection are also dismissed.Appeal partly allowed. *******