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2001 DIGILAW 1363 (RAJ)

R. S. R. T. C. v. Smt. Madhu Sharma

2001-08-29

PRAKASH TATIA

body2001
JUDGMENT 1. - Heard learned counsel for the parties and perused the Award dated 29.9.2000 and also perused the statement of witnesses provided by the learned counsel for the respondents. 2. In this case brief facts are that on 5.8.99 deceased Anil Kumar was going on motor cycle from Sojat city to Marwar Junction. It is alleged in the claim petition that Babu Lal non-applicant No. 3/respondent No. 2 who was driving the appellant's bus No. RJ 19P/3052 applied brakes all of a sudden near Rania Bera and the motor cycle of deceased Anil Kumar hit the bus and Anil Kumar fell down and died. The wife (claimant) of deceased has submitted that deceased was aged 45 years' at the time of accident and he was Principal in a school, therefore, the claimants claimed total Rs. 42,46,728/-. A reply was filed by the appellant as well as driver non-applicant No. 3/respondent No. 2. The trial court framed three issues and after recording evidence of both the parties, passed the award of Rs. 7,55,150/-. 3. The claimant Smt. Madhu Sharma herself produced as witness A.W. 1, Laxmi Narain as A.W. 2 and Mahendra Kumar Bhatnagar as A.W. 3 and exhibited as many as 14 documents; whereas appellant examined D.W. 1 Babu Lal who was driver of the bus. 4. Learned counsel for the appellant submitted that this is clear case of negligence of deceased Anil Kumar or atleast this is case of contributory negligence of the deceased himself as the deceased was riding the motor cycle with fast speed and the deceased was responsible for the accident resulting into death, therefore, either no award should have been passed or this is a case of 50% contributory negligence of the deceased. 5. Learned counsel for the appellant submitted that in view of statement of Babu Lal, produced by the appellant, it is clear that there was a bus stand and bus was driven slowly and it is also submitted that there was statement of witness A.W. 2 Laxmi Narain, which makes it clear that after over-taking the motor cycle, accident took place about 30 ft. away from the place of over-taking, there, was sufficient gap between the bus and motorcycle, therefore, the deceased should have taken care of his own vehicle by applying brakes. 6. I perused the statements of all the witnesses. away from the place of over-taking, there, was sufficient gap between the bus and motorcycle, therefore, the deceased should have taken care of his own vehicle by applying brakes. 6. I perused the statements of all the witnesses. A.W. 1 wife of deceased was not present on spot at the time of accident, but A.W. 2 Laxmi Narain was present on the spot. He has stated that he was going from Sojat city to Marwar Junction alongwith Babu Lal via Jadan and the bus of the appellant came at high speed by over-taking the motor cycle and thereafter all of sudden, brakes were applied when the bus was in the middle of road. There was no brake-light also and the motor cycle,met with an accident with the bus and the deceased Anil Kumar fell down. They stated that this was the mistake of driver who was driving the bus but applied the brake all of sudden in the middle of road. The witness A.W. 3 Mahendra Kumar stated that he was driver in the bus of the appellant and the driver of the bus applied brakes immediately all of sudden and there was a sound of impact when the passengers came down. They found that motor cycle met with an accident and A.W. 3 wife of deceased identified the deceased. He stated that this was due to applying brakes all of sudden. He stated in cross-examination that he has not seen the actual accident. The witness D.W. 1 Babu Lal stated that there was bus stop at Rania. Bera and to give time to the passengers of the bus, he stopped the bus, but there was no negligence on his part as the bus was parked in side of the road and not in the middle of the road. 7. It is clear from the statement of witness A.W. 2 Laxmi Narain and A.W. 3 Mahendra Kumar that bus over-took the motor cycle and there appears to be no reason to disbelieve the testimony of these witnesses. There is no evidence in rebuttal to the fact that the bus did not over taken the motor cycle. The submission of learned counsel for the appellant that accident took place after about 30 ft. from the spot of over-taking to the motor cycle by the bus is not relevant at all. There is no evidence in rebuttal to the fact that the bus did not over taken the motor cycle. The submission of learned counsel for the appellant that accident took place after about 30 ft. from the spot of over-taking to the motor cycle by the bus is not relevant at all. What is relevant, is that whether road was moving fast for which Tribunal held that bus when over-took motor cycle, then it must be with speed and it is also clear that statement of witnesses of claimant found support from the statement of Babu Lal with respect to the fact that at that place where the bus was stopped, the passengers were to come down from the bus and when it is stated that at this bus stand, it is not necessary to stop the bus every time to take passengers, then more probable case is that passengers must have shouted to stop the bus, so that they may come down from the bus and this can be done only when bus must be in speed. 8. There is no suggestion of the appellant in cross- examination to the witnesses that there was sufficient distance between the motor cycle and the bus, so that the deceased could have avoided the accident, therefore, when there was no opportunity to the deceased to apply brakes and to prevent the accident, then there cannot be any negligence on the part of deceased. 9. The site inspection report, as relied upon by the court below also supports that vehicle was on the road and the Tribunal (Sic Driver) of the road (Sic-bus) has not taken care for stopping the bus by taking the bus in side and even if bus is taken in side, even then the Tribunal (Sic Driver) had no reason to apply brakes so sudden which may cause the accident, therefor, in view of statement of witnesses and in view of the facts of the case supported by the site inspection report etc., I do not find any illegality in holding the appellant responsible for the entire amount. There is no other point pressed,before this Court. The appeal of the appellant is dismissed.Appeal dismissed. *******