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2002 DIGILAW 184 (AP)

C. Kamalamma v. APSRTC, Hyderabad

2002-02-08

G.BIKSHAPATHY

body2002
G. BIKSHAPATHY, J. ( 1 ) THIS civil miscellaneous appeal is filed against the Order dated 16-9-1991 passed by the Motor Accidents claims Tribunal-cum-I Additional District judge, Chittoor in OP No. 321 of 1988. ( 2 ) TO narrate the facts, the deceased- chinna Swamy and another person by name Chinnaraj were proceeding on a bullet Motor Cycle bearing Registration no. TMJ 547 on the left side of the road from Chittoor to Madanapalle on 2-5-1988 and at about 5. 00 p. m. of that day, they came near Bathula Banda Cross Road. At that time, the bus bearing Registration no. AEZ 2997 belonging to the respondent- andhra Pradesh State Road Transport corporation was coming in the opposite direction in a rash and negligent manner being driven by its Driver-RW1 and hit the motor-cycle; on account of which, the deceased as well as the pillion rider fell on the ground and immediately thereafter a lorry consisting of rig, came to the spot and on the way the injured were being shifted to hospital, the deceased breathed last and the pillion rider was taken to Vellore hospital and thereafter shifted to Salem hospital. The dependants of the deceased laid a claim before the Tribunal claiming compensation of Rs. 1,50,000/ -. It was resisted by the respondent stating that the accident did not occur on account of the rash and negligent driving of the bus by its driver and that the accident arose because of the rash and negligent driving of the motor-cycle by the deceased himself; therefore, the respondent is not liable to pay any compensation in that regard. Similarly, a claim was also made by the pillion rider in OP No. 322 of 1988. Both the Original Petitions were tried together. On behalf of the claimants, 5 witnesses were examined and Exs. A1 to A14 were marked. On behalf of the respondent, rw1-the driver of the bus was examined and Exs. B1 and B2 were marked. The learned Tribunal, on consideration of the evidence plaeed before it, computed the compensation in respect of the death of the deceased at Rs. 90,800/ -. However, the learned Tribunal found that the accident did not arise on account of the rash and negligent driving of the RTC bus by its driver and, therefore, dismissed the OP no. The learned Tribunal, on consideration of the evidence plaeed before it, computed the compensation in respect of the death of the deceased at Rs. 90,800/ -. However, the learned Tribunal found that the accident did not arise on account of the rash and negligent driving of the RTC bus by its driver and, therefore, dismissed the OP no. 321 of 1988 filed by the legal representatives of the deceased, by order dated 16-9-1991; against which, the present civil miscellaneous appeal has been filed. ( 3 ) LEARNED Counsel for the appellants- claimants submits that the findings recorded by the Tribunal are wholly erroneous and run counter to the evidence on record. He further submits that the tribunal completely misunderstood the circumstances under which the accident had taken place and thus passed an erroneous order. The learned Counsel would submit that the evidence of PWs. 1 and 5 was not properly considered and, therefore, the order passed by the Tribunal is liable to be set aside and that the claimants are entitled for the compensation as assessed by the tribunal. ( 4 ) ON the other hand, the learned counsel for the respondent-Corporation submits that the Tribunal, on the basis of the evidence available on record, came to the conclusion that the driver of the RTC bus was not responsible for the accident and it is the deceased, Who was driving the motor-cycle, was negligent and that, therefore, the order passed by the Tribunal cannot be said to be illegal or contrary to law. ( 5 ) I have given serious consideration to the respective contentions and pursued the evidence available on record. ( 6 ) THE only issue that arises for consideration in this appeal is whether the finding recorded by the Tribunal that the driver of the RTC bus was not responsible for the accident is correct or not? ( 7 ) PW1, who was the pillion rider and PW5, who was travelling in the bus. which met with accident, are the material witnesses. The other oral evidence is not necessary for deciding the present issue. ( 7 ) PW1, who was the pillion rider and PW5, who was travelling in the bus. which met with accident, are the material witnesses. The other oral evidence is not necessary for deciding the present issue. PW1 categorically deposed that he was a pillion rider, that the deceased was driving the motor-cycle on 2-5-1988 and at that time the RTC bus being driven by its driver was coming in the opposite direction on the extreme right side of the road on which the bus was going, in a rash and negligent manner and hit the motor-cycle. The right side of the bus was smashed and thus the driver was highly negligent in driving the bus. PW5 also stated that he was travelling in the bus on the date of accident, that he was sitting on the single seat, which is on the left side of the driver, that he was watching the situation and that at that time the driver was driving the bus in a rash and negligent manner on the extreme right side of the road and hit the motor-cycle on account of which, the accident had occurred. The Tribunal took into consideration Ex. A4- first Information Report and Ex. B1- statement alleged to have been made by pwi in the hospital and disbelieved the evidence of PW1 on the ground that in ex. B1 he admitted that the deceased was responsible for causing the accident and thus he did not place any reliance on the evidence of PW1. With regard to the evidence of PW5, the Tribunal disbelieved it on the ground that he did not give any police report immediately after the accident had taken place. Admittedly, in the instant case, the evidence adduced by the parties has to be weighed and conclusions have to be reached basing on it. The evidence of PW1-pillion rider - is clear to the effect that the driver of the RTC bus was driving the bus in a rash and negligent manner on the extreme right side of the road and dashed the motor-cycle resulting in serious accident. He also stated that he signed Ex. B1 when he was in the hospital and that he did not know Telugu language and his signature was taken, but the contents of Ex. B1 are not known to him. He also stated that he signed Ex. B1 when he was in the hospital and that he did not know Telugu language and his signature was taken, but the contents of Ex. B1 are not known to him. Then the question remains for consideration is when the witness PW1 himself gave evidence before the Tribunal that he does not know the contents of Ex. B1, can Ex. B1 be relied upon by the Tribunal for deciding the issue. Admittedly, he did not know the Telngu language and it was not the case of the respondent-authorities that the contents of ex. B1 were read and explained to PW1 in tamil. Moreover, Ex. B1 appears to have been obtained by the Depot Manager, but the Depot Manager was not examined to test the veracity of the statement made in ex. BI. Therefore, simply pressing into service Ex. B1, the same cannot be used against PW1 to hold that there was no negligence on the part of the Driver of the bus. In the examination in chief, PW1 categorically deposed that the Driver was driving the bus in a rash and negligent manner and that resulted in the accident. Therefore, discarding of his evidence is absolutely illegal and contrary to law. When ex. Bl was not properly introduced in evidence, the same cannot be relied upon for holding that the deceased was driving the motor-cycle in a rash and negligent manner. ( 8 ) COMING to the evidence of PW5 he had categorically stated that he was travelling in the bus on the date of accident and he had seen the accident. Even though there was a suggestion that he was not travelling in the bus, but yet, the details narrated by him would closely correlated to the accident. He had deposed that the right side of the bumper of the bus was damaged on account of the bus hitting the motor-cycle. Had he not travelled in the bus, he would not have known as to the damage caused to the right side of the bumper of the bus. Further, RW1 was examined on behalf of the respondent- corporation. But, he did not even say that pw5 was not travelling in the bus on the date of accident. Had he not travelled in the bus, he would not have known as to the damage caused to the right side of the bumper of the bus. Further, RW1 was examined on behalf of the respondent- corporation. But, he did not even say that pw5 was not travelling in the bus on the date of accident. If really PW5 was not travelled, nothing could have prevented rw1 from stating that PW5 did not travel, more especially when PW5 was examined prior to the examination of RW1. Ex. B1 statement alleged to have been obtained by the Depot Manager cannot be relied upon as the Depot Manager did not enter into witness box and depose before the Tribunal stating that he has recorded the statement of PW1 after making known the contents of the said statement to him. It is also not known that under what provision of law such a statement is obtained by him. Under those circumstances. I am of the view that discarding of the evidence of PW5 is absolutely illegal and the finding of the tribunal that the driver of the RTC bus was not negligent in driving the bus has to be interfered with. ( 9 ) THE evidence of PWs. 1 and 5 conclusively prove that the driver of the bus was responsible for causing the accident. Ex. B1 or Ex. A4 cannot be taken aid to conclude that the driver of the bus was not responsible for causing the accident. In cases like this, the ocular evidence has to be preferred than the documentary evidence, more especially when PW5 himself was travelling in the bus, which caused the accident to the motor-cycle going to the opposite direction. It may be that the deceased was known to PW5 but that makes no difference in the eye of law when the evidence on record is clinchingly establishing that the driver of the RTC bus was responsible for the accident. Under those circumstances, the finding of the tribunal that the accident had arisen on account of the rash and negligent driving of the motor-cycle by the deceased is absolutely unsustainable in law and the same is set aside and a finding is recorded to the effect that the driver of the RTC bus had driven the bus in a rash and negligent manner and caused the accident. ( 10 ) ACCORDINGLY, the appellants-claimants are entitled for the amount of Rs. 90,800/- as assessed by the Tribunal and the order dismissing OP No. 321 of 1988 is set aside. Consequently, OP No. 321 of 1988 on the file of the Motor Accidents Claims Tribunal- cum-1 Additional District Judge, Chittoor is allowed awarding a sum of Rs. 90,800/- to the appellants-claimants together with interest at 12% per annum from the date of original petition till the date of realisation. There shall be no order as to costs.