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2004 DIGILAW 1821 (RAJ)

Tej Raj v. Mohan Singh

2004-12-21

DINESH MAHESHWARI

body2004
JUDGMENT 1. - This Civil Misc. Appeal under Section 173 of the Motor Vehicles Act has been preferred by the claimant against the award dated 20-8-1996 passed by the Judge, Motor Accident Claims Tribunal, Pratapgarh in Claim Case No. 60/1992 whereby the claim application for compensation in relation to damage to the property was disallowed. 2. Brief facts relevant for the present purpose are that the claimant submitted a claim application seeking an amount of Rs. 19070/- as compensation against the non-applicants with the averments that on 2-7-1989 at about 5.30 p.m. driver of his bus bearing registration No. RJH- 2961 was driving the bus from Pratapgarh to Chhoti Sadri carrying conductor of the vehicle and so also the passengers. At Jnakhamiya Bridge, because of the cattle, the vehicle was stopped then Mohan Singh driver of the bus bearing registration No. RRB-6958 came driving the bus in a high speed rashly and negligently and hit the applicant's bus RJH-2961 on the rear side which resulted in breaking of the ladder, two glasses and substantial dent on the rear side. The applicant detailed out the expenses incurred by him in the repairs and so also other losses and claimed an amount of Rs. 19070/-. The claim for compensation was submitted against the non-applicants for the non-applicant No. 1 Mohan Singh plying the bus of the non-applicants No. 2 and 3 of Rajasthan State Road Transport Corporation ('RSRTC' for short). The applicant also claimed interest @ 18% per annum. 3. A reply of denial was submitted by the non-applicants No. 2 and 3 R.S.R.T.C. The non-applicants denied the occurrence and denied rash and negligent driving by their driver. It was also submitted that the applicant was maintaining enmity because of the timings of the two buses and therefore exorbitant claim has been filed. The non-applicant No. 1 Mohan Singh has also filed a separate reply with ditto submissions. It was also submitted that the applicant was maintaining enmity because of the timings of the two buses and therefore exorbitant claim has been filed. The non-applicant No. 1 Mohan Singh has also filed a separate reply with ditto submissions. The learned Judge, Motor Accident Claims Tribunal, Pratapgarh framed five issues for determination of the questions involved in the case to the following effect : (i) Whether on 2-7-1989 at 5.30 p.m. the driver of the applicant was carrying bus No. RJH-2961 from Pratapgarh to Chhoti Sadri and halted the bus at Jhakhamia Bridge on account of cattle then Bus No. RRB-6958 was brought by the non-applicant No. 1 driving in high speed rashly and negligently and hit Bus No. RJH-2961 resulting in damage ? (ii) Whether applicant was entitled to the amount of compensation as mentioned in paras 11 and 12 of the application ? (iii) Whether no accident took place from the vehicle of the non-applicants nor any damage was caused and the false application has been submitted due to enmity ? (iv) Whether the power of attorney was not entitled to file the claim ? (v) Relief ? 4. In the oral evidence the claimants Babu Lal PW-1, claiming himself to be the power of attorney and owner of the applicant firm; Banshi Lal PW-2, in support of the bills for glasses Ex. P/7; Mahesh Kumar PW-3, the conductor of the bus of the applicant, and the informant in the FIR Ex. P/1; and Jeet Mal PW-4, witness to the site inspection Ex. P/3. The non-applicants examined Mohan Singh DW-1, the driver of the R.S.R.T.C. Bus. In the documentary evidence, the applicant produced FIR Ex. P/1, the charge-sheet against Mohan Singh and Mohd. Oureshi Ex. P/2, the site inspection report Ex. P/3, the seizure memo of R.S.R.T.C. Bus No. RRB-6958 as Ex. P/4, Supurdginama Ex. P/5, copy of certificate of registration Ex. P/6, bill of glass and rubber channel Ex. P/7, receipt towards repairing work Ex. P/8 and the bill of towing charges as Ex. P/9. 5. The learned Judge proceeded to decide the questions involved in the case by the Award dated 20-8-1996. While considering issue No. 1, the learned Judge was of opinion that in the FIR Ex. P/6, bill of glass and rubber channel Ex. P/7, receipt towards repairing work Ex. P/8 and the bill of towing charges as Ex. P/9. 5. The learned Judge proceeded to decide the questions involved in the case by the Award dated 20-8-1996. While considering issue No. 1, the learned Judge was of opinion that in the FIR Ex. P/1 the time of accident has been stated to be 5.45 PM on 1-7-1989 but in the claim petition and evidence the applicant was stated the date of accident to be 2-7-1989 and this discrepancy has not been explained by the claimant. The learned Judge also referred to discrepancy in the FIR where Mahesh Kumar stated that suddenly the cattle came running for which the driver put the brakes whereas in the statement before the Court as PW-3 he stated that the bus was halted for deboarding the passengers and then the Roadways bus hit on the rear side. The learned Judge also formed the opinion that PW-1 Babu Lal was stated as bus owner in the FIR Ex. P/1 and was only attempting to become an eye-witness in the absence of the driver although neither his statements were recorded in the Police proceedings nor he was cited as a prosecution witness in the challan Ex. P/2. No reason had been assigned for not producing the driver of the bus. On these considerations, the learned Judge came to the conclusion that the accident having been caused by the non-applicant No. 1 cannot be held proved. Consequently, issue No. 1 was decided against the claimant. With the decision of issue No. 1 against the claimant, the learned Judge opined that issues No. 2, 3 and 4 were not required to be decided and accordingly rejected the claim application by award dated 20-8-1996 which has been assailed in this appeal. 6. Learned counsel for the appellant contended that the learned Judge, Motor Accident Claims Tribunal, Pratapgarh erred in rejecting the claim application by reference to a minor and typographical mistake in the pleadings about the date of accident although the same was neither of any substance nor caused any prejudice to the non-applicants. The learned counsel submitted that it was not the case of the non-applicants that the documents prepared by the Police were fabricated or manipulated and from the documentary evidence on record the factum of accident is amply established. The learned counsel submitted that it was not the case of the non-applicants that the documents prepared by the Police were fabricated or manipulated and from the documentary evidence on record the factum of accident is amply established. The learned counsel also submitted that the discrepancies referred by the learned Judge in the judgment are also of no relevance and are outcome of the statement of a truthful witness. The learned counsel submitted that the bus of the applicant having been hit on the rear side by the bus driven by the non-applicant No. 1, the non-applicants were liable towards compensation as claimed in the applicant. Learned counsel for the non-applicants, on the other hand, controverted these submissions and vehemently submitted that the discrepancy about the date of occurrence strikes at the root of the matter and the claim petition was rightly rejected by the Tribunal. The learned. counsel also submitted that the claimant has failed to produce the driver of their bus RJH-2961 and adverse inference ought to be drawn against the claimant. 7. In view of the controversy between the parties, it shall be worthwhile to deal with questions involved in the case with reference to the issues framed by the learned Tribunal.ISSUE NO. 1 8. The learned Judge, Motor Accident Claims Tribunal, Pratapgarh has decided this issue involving the basic question of the factum of accident against the claimant primarily on two specific discrepancies. First, that the date and time of accident has been stated to be 5.45 p.m. on 1-7-1989 in the FIR, Ex. P/1 whereas in the claim application and evidence this date has been stated to be 2-7-1989. Secondly, that in the FIR the bus was said to have been stopped for the sudden on rush of the cattle whereas in the evidence it has been stated that the passengers were being deboarded. 9. Having examined the entire oral and documentary evidence on record, this Court is clearly of opinion that the learned Judge of the Tribunal has not only adopted an extremely hypertechnical approach but has totally failed to examine the record of the case and to consider the facts directly available on record. A perusal of the FIR Ex. 9. Having examined the entire oral and documentary evidence on record, this Court is clearly of opinion that the learned Judge of the Tribunal has not only adopted an extremely hypertechnical approach but has totally failed to examine the record of the case and to consider the facts directly available on record. A perusal of the FIR Ex. P/1 makes it evident that Mahesh Kumar, PW-3 lodged this FIR at Police Station, Chhoti Sadri and pointed out the place of occurrence and the fact that the Roadways bus No. RRB-6958 was already running late and in order to go past early, the bus of the claimant was hit at the back which resulted in the injuries to the passengers and loss to the vehicle also and he has also pointed out the names of passengers who receives injuries and also the fact that the driver of the Roadways bus Mohan Singh and conductor Mohd. Qureshi physically assaulted the passengers and the informant. This FIR also states that the bus No. RJH-2961 started at 5.30 p.m. from Pratapgarh and suddenly on account of rush of the cattles, the driver put the brakes when Roadways bus hit on the rear. The FIR was lodged at 7.25 p.m. on 1-7-1989 at Police Station, Chhoti Sadri and it has been recorded at the said Police Station that the place of occurrence was of the jurisdiction of Police Station, Dholapani and, therefore, the report was sent to the Police Station, Dholapani which was registered at Police Station, Dholapani at 12.10 a.m. on 2-7-1989. 10. It is apparent that two dates of 1-7-1989 and 2-7-1989 have come up in the FIR Ex. P/1 for the specific reason that the FIR was lodged at Police Station, Chhoti Sadri at 7.25 p.m. on 1-7-1989 and the same was sent to,Police Station, Dholapani and received there at 12.10 a.m. on 2-7-1989. Moreover, a look at the site inspection report Ex. P/3 makes it further clear that the site was inspected by the Investigating officer on 2-7-1989 only which has been identified by the first informant Mahesh Kumar. The site inspection also refers to the fact that the pieces of glasses were found scattered at the site. Moreover, a look at the site inspection report Ex. P/3 makes it further clear that the site was inspected by the Investigating officer on 2-7-1989 only which has been identified by the first informant Mahesh Kumar. The site inspection also refers to the fact that the pieces of glasses were found scattered at the site. This Court is clearly of opinion that the minor discrepancy in the date of accident as stated in the FIR in 1-7-1989 and as stated in the application i.e. 2-7-1989 is of no consequence nor the claimant could be non-suited on this count. 11. So far the involvement of the bus of the non-applicants is concerned, the oral evidence of the claimant stands directly corroborated by the seizure memo dated 17-7-1989 of Roadways bus No. RRB-6958 Ex. P-4. This seizure memo shows clearly that this bus No. RRB-6958 was found at workshop of the Roadways Depot at Chittorgarh and the recitals of its condition noticed inter alia that there was a bend on the radiator screen, on the left side bumper and the left side light was newly placed not having been painted 1/4th black although the right side light was old and painted 1/4th black. The dents on the front side have been specifically noticed. With this status of bus No. RRB-6958 having been reported by the Police on 17-7-1989 and this bus having been taken on Supurdginama by the non-applicant No. 2 on 19-7-1989 (vide Ex. P/5), the onus was heavy upon the non-applicants to explain the reasons and circumstances for such condition and repairing of the bus particularly when the same was indicative of it having had a hitting on the front side more particularly on the left. The learned Judge of the Tribunal relied upon the discrepancy of the date to be of utmost significance and choose even not to look into the document Ex. P-4. This Court is clearly of opinion that the finding of the learned Judge drawing adverse inference against the claimant contrary to the facts directly available on record cannot be sustained. 12. The learned Judge of the Tribunal relied upon the discrepancy of the date to be of utmost significance and choose even not to look into the document Ex. P-4. This Court is clearly of opinion that the finding of the learned Judge drawing adverse inference against the claimant contrary to the facts directly available on record cannot be sustained. 12. So far the other discrepancy of the reason for putting on the brakes by the driver of the bus of the claimant is concerned, it is no doubt true that in the FIR PW-3 Mahesh Kumar stated that the driver put the brakes because of sudden on rush of the cattle and in the statement he stated that near Jhakhamia Bridge the bus stopped for deboarding the passengers. However, in the next line in the same statement Mahesh Kumar PW-3 added that the vehicle was standing still as the cattle came up. It appears that here again the learned Judge of the Tribunal has simply omitted to read the aspect of cattle coming up as stated by PW-3 in his statement before the Court. Although deboarding of the passengers had not been stated in the FIR but this omission cannot be conclusive to hold that the accident never took place. For want of explanation, the conduct of the bus driver and the reasons for putting the brakes could be taken into consideration while considering his contribution to the occurrence but the factum of occurrence cannot be denied. 13. In issue No. 1 the other aspect to be considered is as to whether the non-applicant No. 1 was rash and negligent in driving. Having examined the entire record, this Court finds a fact significant indicative of rashness on the part of non-applicant No. 1. It has been specifically established by the claimant that their bus was being driven from Pratapgarh to Chhoti Sadri leaving Pratapgarh at 5.30 p.m. and the Roadways bus leaves Pratapgarh at 5.00 p m. It has been suggested in the cross-examination of PW-1 that there was a enmity for the clashing timings of the two buses which he was denied. It has been specifically established by the claimant that their bus was being driven from Pratapgarh to Chhoti Sadri leaving Pratapgarh at 5.30 p.m. and the Roadways bus leaves Pratapgarh at 5.00 p m. It has been suggested in the cross-examination of PW-1 that there was a enmity for the clashing timings of the two buses which he was denied. Adherence to the time schedule as admitted by both the parties would result in the Roadways bus i.e. the bus of the non-applicants leading and not following the bus of the claimant as the Roadways bus was to leave at 5.00 p.m. and the claimant was to start at 5.30 p.m. from Pratapgarh. Mohan Singh non-applicant No. 1, the driver of the Roadways bus has admitted that he started from Pratapgarh at 5 O'clock but he was ten minutes late for the trouble in the vehicle. Thereafter, he has never explained that he reached his destination before the bus of the claimant nor stated that he crossed Jakhamia Bridge before the claimant or that he never overtook them. This statement of Mohan Singh makes it apparent that for whatever reason it was, he was running late to the extent that he lagged behind the bus of the claimant although according to the time schedule he ought to have been leading. Then a look at the site inspection report makes it apparent that the vehicles were approaching a narrow bridge and there were speed brakers on the road. An attempt to overtake the bus of the claimant and resultant hit to the rear have clearly occurred for this reason. Rash and negligent driving by the non-applicant No. 1 and an attempt to overtake the bus of the claimant are amply established on record. Issue No. 1 ought to have been decided in favour of the claimant. The findings by the learned Judge of the Tribunal are, therefore, reversed and issue No. 1 is decided in favour of the claimant on the factum of accident and rash and negligent driving by the non-applicant No. 1. 14. However, at this juncture itself it shall be worthwhile to refer to the conduct of the driver of the bus of the claimant also as discernible from record. The driver of damaged bus has not been produced in evidence. 14. However, at this juncture itself it shall be worthwhile to refer to the conduct of the driver of the bus of the claimant also as discernible from record. The driver of damaged bus has not been produced in evidence. Mahesh Kumar PW-3 has stated in the FIR that the driver put on the brakes on account of cattle running up but has stated in his statements that the passengers were being deboarded and cattle came up. In view of the timings of the two buses as admitted by both the parties, it appears that the driver of the claimant's bus was also driving at an equally high speed and it only seems to be a case of the rivals trying to overtake each other on the same route to catch hold of more passengers. Even if the story of sudden putting on brakes is accepted, it is apparent that in a speeding vehicle, the brakes must have been put suddenly and this sudden deceleration seems to have contributed equally to this accident. Speed driving by the non-applicant No. 1 is not ruled out and on the contrary it seems that he was also trying to catch hold with the time and omitted due care and caution to keep safe distance from the vehicle he was following. Therefore, in the over all facts and circumstances of the case, this Court finds the driver of the claimant to have contributed 50% to the occurrence and 50% liability definitely falls upon the non-applicants. The question of damage and entitlement for compensation would be considered in issue No. 2. 15. Before taking up other issues, it shall be relevant to point out that the learned Judge of the Tribunal has chosen not to decide issues No. 2, 3 and 4 at all in view of the finding on issue No. 1. However, as aforesaid, the finding on issue No. 1 stands reversed. The evidence on record is sufficient and the occurrence is of the year 1989, therefore, this Court considers it proper to decide other issues in this appeal itself.ISSUES NO. 3 16. So far the issue No. 3 is concerned, the same has been framed on the averment-of the non-applicants that the false application has been filed due to enmity and no accident took place. It has been found that the occurrence has been established on record. 3 16. So far the issue No. 3 is concerned, the same has been framed on the averment-of the non-applicants that the false application has been filed due to enmity and no accident took place. It has been found that the occurrence has been established on record. So far the alleged enmity is concerned, the non-applicants have failed to establish the same by any cogent or convincing evidence. There could arise no question of claim application of the present nature to be submitted for the alleged enmity alone and the entitlement for compensation cannot be denied for the only reason of the possibility of the rivalry of the private bus operator with the State Road Transport Corporation plying on the same route with clashing timings. The factum of accident and damage to the bus of the claimant has been established. Issue No. 3, therefore, stands decided against the non-applicants.ISSUE NO. 4 17. So far the entitlement of the power of attorney is concerned, nothing has been pointed out for which the power of attorney could not have maintained the claim application. Issue No. 4 also stands decided against the non-applicants.ISSUE NO. 2 18. Now coming to the question of quantification of the compensation, this Court finds that the amount of compensation as claimed in para 11 in the application of Rs. 19070/- has not been established by the documentary evidence on record. The claimant has produced only three documents and in the over all facts and circumstances of the case, this Court is clearly of opinion that no amount beyond the amount available from Ex. P/7, P/8 and P/9 deserve to be allowed. The bill Ex. P/7 is towards purchase of two wind screens and six side glasses. Any loss of the side glasses has not been established on record and, therefore, the amount of Rs. 1050/- towards side glasses is disallowed and, therefore, from this bill of Rs. 3000/- only Rs. 1950/- is admissible. Receipt Ex. P/8 represents comprehensively the entire payment towards pipes for the ladder and the material and labour for repairing of the rear side and the amount of this receipt is admissible in toto. Bill Ex. P/9 is towards towing charges of the bus from Jhakhamia Bridge to Pratapgarh of Rs. 500/- and the same also deserves to be admitted. Receipt Ex. P/8 represents comprehensively the entire payment towards pipes for the ladder and the material and labour for repairing of the rear side and the amount of this receipt is admissible in toto. Bill Ex. P/9 is towards towing charges of the bus from Jhakhamia Bridge to Pratapgarh of Rs. 500/- and the same also deserves to be admitted. Therefore, the damage to the bus on account of accident has been established by the claimant to Rs. 9450/- (1950+7000+500). Deducting 50% of the same for contributory negligence of the claimant's driver, the claimant is entitled for a sum of Rs. 4725/- from the non-applicants. 19. As a result of the aforesaid, this appeal is partly allowed, the award dated 20-8-1996 is reversed and the claim petition is partly allowed, the appellant (claimant) would be entitled to an amount of Rs. 4725/- from the respondents. The appellant (claimant) would also be entitled for interest @ 6% per annum from the date of claim petition i.e. 6-11-1989 till payment. In the circumstances of the case, the parties are left to bear their own costs of both the Courts.Appeal partly allowed. *******