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2007 DIGILAW 830 (PAT)

Bihar State Road Transport v. Sunita Jha

2007-04-25

REKHA KUMARI

body2007
Judgment 1. This appeal is directed against the order dated 23.1.2004 passed by the 5th Addl. District Judge-cum-Motor Accident Claims Tribunal, Gaya by which he has allowed total compensation to the tune of Rs. 3,82,536/- to the respondents on account of death of one Dharmendra Kumain a motor accident and has directed the appellant to pay Rs. 3,26,000.00 (after deduction of the amount of ad interim compensation) with interest @ 9% per annum with effect from filing of the claim case till taken to the respondents. 2. Learned counsel for both the sides were heard. 3. The case of the claimants/respondents is that they are the heirs of the deceased Dharmendra Kumar. On 4.11.1998 Dharmendra Kumar was coming to Patna on his motorcycle nearing registration No. PUB 9719 and when he reached near Dardha river bridge at about 11 A.M., a bus of the appellant bearing registration No. BR-25-0671 came in a high speed being driven rashly and negligently from the opposite side and dashed Dharmendra Kumar from the front side. Dharmendra Kumar died instantly on the spot. An F.I.R. was lodged by the village Chaukidar Sitaram Prasad under Sections 279, 304A I.PC. against the driver of the bus. It is also said that the deceased was an employee of Punjab National Bank and was draw in a salary of Rs. 4669.24 paise per month and was aged about 26 years at the time of death. 4. The appellant-O.R contested the claim by filing a written statement. Their case, inter alia, is that the driver of the motorcycle himself was responsible for the accident inasmuch as he was not knowing driving having no driving licence and two more persons were sitting with him. The Tribunal after considering the evidence adduced by both the sides came to the finding that the accident took place on account of rash and negligent driving of the driver of the above bus as a result of which Dharmandra Kumar who was on the motorcycle received injuries and died. He further held that Dharmendra Kumar possessed driving licence and though he was driving the motorcycle with two pillion riders he did not contribute to the accident and the deceased was a peon in Punjab National Bank, Bairagi Branch, Gaya and was drawing a net salary of Rs. 2829/- 2829/- per month and was aged about 30 years 8 months. He accordingly passed the impugned order. 5. 2829/- 2829/- per month and was aged about 30 years 8 months. He accordingly passed the impugned order. 5. Learned counsel for the appellant has assailed the order on the ground of contributory negligence and has submitted that it is a case of contributory negligence. The deceased had also contributed in causing the accident, and therefore, the liability of the appellant would be proportionate to the contribution paid by the bus driver and causing the accident. In support of his submission he has relied on the decision of this Court in the case of United India Insurance Company Ltd. vs. Seela Devi & Ors., reported in 1997(1) PLJR 270. 6. On a perusal of the evidence adduced by the parties and the impugned order, it appears that two eye witnesses, viz A.W. 1 and A.W. 2 have been examined on behalf of the respondents and two eye witnesses, O.RW. 1 and O.P.W. 2 have been examined on behalf of the appellant. 7. In the evidence of A.W. 1 is that he was a passenger in the offending bus and was sitting in front seat and that the driver of the bus was driving the bus very rashly and negligently as a result of which the accident took place causing the death. He has further stated that the motorcyclist was in a moderate speed but the bus driver was driving the bus on wrong side and on account of negligence the accident took place. He has also stated that the motorcyclist was at a distance of about 11/2 cubics from the flank when the accident took place. According to A.W. 2 he was also going to Patna on scooter and was behind Dharmendra Kumar and he saw that the above bus which was coming to Patna side dashed Dharmendra Kumar was thrown away and died. He has stated that the driver of the bus was driving the vehicle rashly and negligently and on account of his fault the accident took place. Both the witnesses have stated that after the accident the bus did not stop and speeded away. The above two witnesses thus are competent witnesses and there is nothing in their evidence to disbelieve them. 8. As against the above evidence O.P.W. 1 has stated that he was driving his bus at the speed of 10 K.Ms. Both the witnesses have stated that after the accident the bus did not stop and speeded away. The above two witnesses thus are competent witnesses and there is nothing in their evidence to disbelieve them. 8. As against the above evidence O.P.W. 1 has stated that he was driving his bus at the speed of 10 K.Ms. per hour and the motorcyclist was coming in the wrong side dashed against his bus and that the accident took place on account of negligence of the motorcyclist who was driving the motorcycle rashly. 9. His evidence also is that there were three persons on that motorcycle. O.RW. 2 has stated that on account of fault of the motorcyclist the accident took place. 10. But O.P.W. 1 is the driver of the bus and is also accused in the F.I.R. and it appear as from Ext. 4 that he has been charge-sheeted. Therefore, he is highly interested witness, so much reliance cannot be placed on him. As regards O.P.W. 2 he is also an interested witness being the conductor of the bus. His evidence also does not show that he had actually seen the accident. Therefore, in view of the evidence adduced by the parties it cannot be said that actually there was any negligence on the part of the motorcyclist in causing the accident. It has, of course, come in the evidence that there were two pillion riders but the Tribunal has rightly observed that itself is no ground to hold that there was any negligence on the part of the motorcyclist. The impugned order also shows that Dharmendra Kumar possessed the driving licence (the driving licence though has been marked as exhibit is not available on the record). 11. Therefore, though two motor vehicles involved in the accident there is nothing to show that the motorcyclist had any fault. So, it cannot be said that this is a case of contributory negligence. 12. In the decision relied on by the learned counsel the drivers of both the vehicles died in the said accident and the Fard Beyan has already recited that the accident had occurred on account of fault of both the vehicles whereas, in the present case Fard Beyan shows that only the bus driver was negligent. Nothing has been shown that any harm was caused even to the bus on account of the accident. Nothing has been shown that any harm was caused even to the bus on account of the accident. So, this decision is not applicable in the present case and thus, is of no avail to the appellant. 13. In the result, I do not find any merit in this appeal and it is, accordingly, dismissed.