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2011 DIGILAW 2337 (RAJ)

Shanti Devi v. Rai Mal

2011-11-03

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the claimants against the award of the learned Motor Accident Claims Tribunal Kekri, District Ajmer dated 23.9.2002 by which the claim petition filed by the claimant-appellants has been dismissed. Learned Tribunal while dismissing the petition held that the claimants failed to prove that the accident took place due to rash and negligent driving by the driver respondent No.1 and deceased himself was negligent. 2. Brief facts giving rise to the filing of this appeal are that claimants filed a claim petition before the learned Motor Accident Claims Tribunal Kekri, District Ajmer seeking claim of Rs.14,75,500/- for the loss of life suffered by them of Gheesalal due to his accidental death in an accident, which took place on 22.7.2001. It was alleged in the claim petition that deceased Gheesalal while going from Kekri to Sarwar on motorcycle, suddenly dashed with the bus of the RSRTC bearing No.RJ-01-P-2015 near Rajpura, which was being driven by the driver of the bus i.e. respondent No.1 in a rash and negligent manner. Resultantly, Gheesalal died. A first information report in this regard was lodged by the conductor of the bus alleging that deceased himself was negligent. Police after investigation, submitted final report (FR) to the competent Court. Claimants filed protest petition thereagainst upon which, the learned Judicial Magistrate Ist Class, Kekri took cognizance against driver of the bus i.e. respondent No.1 for offences u/Ss.279 and 304A IPC. The claim petition was contested by the Rajasthan State Road Transport Corporation, Jaipur respondents No.2 and 3. 3. Shri J.P. Gupta, learned counsel for the appellants has argued that the learned Tribunal erred in law while dismissing the claim petition merely because the final report in the matter was submitted by the police and wrongly held the deceased himself was responsible for the accident. Learned Tribunal also erred in law while not considering the fact that upon a protest petition filed against the final report by the appellants, a cognizance was taken by the learned Magistrate against the driver of the bus of RSRTC respondent No.1 for offences u/Ss.279 and 304A IPC. Learned Tribunal also erred in law while not considering the fact that upon a protest petition filed against the final report by the appellants, a cognizance was taken by the learned Magistrate against the driver of the bus of RSRTC respondent No.1 for offences u/Ss.279 and 304A IPC. It was the further submission of the learned counsel for the appellants that learned Tribunal gravely erred in law while not adhering to the settled principles of law that while deciding a accidental death case, a quality of evidence should be taken into consideration and not quantity of evidence. Therefore, the finding of the learned Tribunal on Issue No.1 is perverse and contrary to the facts and evidence available on record. Learned Tribunal further wrongly held that the claimants produced only one eye-witness. It is contended that in the instant case, principle of res ipsa loquitur is applicable and strict rules of the pleadings and evidence are not applicable herein. Learned Tribunal thus given an erroneous finding on Issues No.2 and 3 contrary to the settled principles of law. Further, the learned Tribunal wrongly disbelieved the site plan submitted by the police on the basis of which the learned Magistrate took cognizance against the driver of the bus i.e. respondent No.1. In support of his above contention, learned counsel for the appellants has placed reliance on the judgment of Supreme Court in Kaushnuma Begum & Ors. vs. New India Assurance Co. Ltd. & Ors. : 2001(1) T.A.C. 649 (SC) wherein, Supreme Court held that claimants are not supposed to prove the negligence of the offending vehicle, where there is no direct evidence regarding the negligence of the offending vehicle. In this case, the principle of res ipsa loquitur applies as the factum of accident has been admitted by the respondents themselves. Learned counsel for the appellants further argued that at the relevant time, the deceased was working as labourer and earning Rs.4,000/-. It was the further contention of the learned counsel for the appellants that deceased was not solely responsible for the accident and at the maximum, it is a case of contributory negligence. 4. Learned counsel for the appellants further argued that at the relevant time, the deceased was working as labourer and earning Rs.4,000/-. It was the further contention of the learned counsel for the appellants that deceased was not solely responsible for the accident and at the maximum, it is a case of contributory negligence. 4. Shri Jitendra Kumar Sharma, learned counsel appearing for respondent No.1, Shri Virendra Agrawal and Shri Akshat Choudhary, learned counsel appearing for respondents No.2 & 3 have opposed the appeal and argued that award of the learned Tribunal is just and reasonable and that the Tribunal was fully justified in taking the plea that it was the deceased, who himself was negligent and not driver of the bus and negligence of the driver was not proved. It was argued that deceased himself was driving the motorcycle in a rash and negligent manner in a very high speed. 5. Upon hearing learned counsel for the parties and perusing the award as well as the record, I find that NAW-1 Rai Mal, driver of the roadways bus has accepted that accident took place about a km. away from the speed breaker and that at the time of accident, he had completely taken the bus on the kachcha side of the road. Accident took place due to the mistake of the motorcycle rider. NAW-2 Sukhdev, who was passenger in the bus has stated that he was sitting in the front side of the bus. It was raining. Deceased was holding the handles of motorcycle by one hand and covering his eyes by another hand. Motorcycle hit the bus from the front side coming from opposite direction. In cross-examination, he however stated that accident took place after speed breaker was crossed by the bus, as a result of which, bus went to the right side of the road. NAW3 Jagdish Meena, another passenger has also made a similar statement. NAW4 Kailash Chand yet another passenger has given the similar statement. NAW5 Gopal Lal conductor of the bus has also stated that the motorcycle rider was coming from the front side and that he was having one hand on his face to cover the eyes. It was raining. The speed of the bus was lower down due to speed breaker and raining. 6. NAW5 Gopal Lal conductor of the bus has also stated that the motorcycle rider was coming from the front side and that he was having one hand on his face to cover the eyes. It was raining. The speed of the bus was lower down due to speed breaker and raining. 6. When all these statements are analysed in the light of the site plan, it is evident that motorcycle has been found lying at Place-B, which indicates that the motorcycle rider was driving it on the correct side whereas, the bus has not been found on the kachcha side of the road as claimed by NAW1 Rai Mal. The dead body of the deceased was found from Place-X, which is outer side of the road from the place motorcycle was found. Though the passengers have stated that it was raining and that deceased was riding the motorcycle by one hand but at the at the same time, they have also stated that it was raining and that the bus was slightly turned on the right side after the speed breaker, which appeared to have contributed to event of accident. In the circumstances therefore it cannot be said that it was the deceased alone, who was solely responsible for the negligence and the bus driver was not at all negligent. 7. Having regard to the fact that this appeal has remained pending before this Court for more than eight years, it is not considered appropriate to remand the matter for quantification of the income of the deceased. 8. Contention of the learned counsel for the appellants that deceased at the relevant time was working as labourer and earning Rs.4,000/- per month cannot be accepted because in the year 2000 the wages for unskilled labour was Rs.150/- per day only. 9. In the result, the appeal is partly allowed. The income of the deceased is thus assessed at Rs.2,000/- per month. However, at best, it to be a case of contributory negligence in the proportion of 50 : 50 being fastened on both, the driver of the bus owned by the RSRTC and deceased rider of the motorcycle. The multiplier of 13 is applied for the age of 50 years. Rs.20,000/- is considered towards consortium and Rs.5,000/- towards funeral expenses. However, at best, it to be a case of contributory negligence in the proportion of 50 : 50 being fastened on both, the driver of the bus owned by the RSRTC and deceased rider of the motorcycle. The multiplier of 13 is applied for the age of 50 years. Rs.20,000/- is considered towards consortium and Rs.5,000/- towards funeral expenses. After 1/4th deduction towards the self expenses of the deceased, monthly contribution to the family by the deceased is assessed at Rs.1500/-. Thus, 1500x12x13= 2,34,000/- + 20,000/- + 5,000 = 2,59,000/- and after minicing 50% of the amount, the net amount payable by respondent-No.1 Shri Rai Mal driver of the bus of RSRTC and RSRTC respondents No.2 & 3 comes to Rs.1,29,500/-. Respondents No.1, 2 & 3 shall pay to the claimant-appellants amount of Rs.1,29,500/-. The amount of Rs.50,000/- paid to the appellants towards 'no fault liability' shall be deducted from the total amount of compensation of Rs.1,29,500/- therefore net amount after this deduction, which is payable to the appellants, comes to Rs.79,500/-, which the appellants are entitled to receive from respondents No.1 to 3 together with interest thereon @7.5% from the date of filing of the claim petition. Record be remitted back to the Tribunal forthwith.