Rajasthan State Road Transport ... vs Nanuram
2021 Latest Caselaw 9222 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

..

S.B. Civil Misc. Appeal No. 1431/2020

APPELLANT:

Rajasthan State Road Transport Corporation, Jaipur, Depot Manager Depot Pratapgarh (Raj.) (None-Claimant Bus Owner)

----Appellant Versus RESPONDENTS:

1. Nanuram S/o Jagla

2. Smt. Ganga W/o Nanuram Both By Caste Meena, residents of Achalavada Ka Pathar, Thana Suhagpura, District Pratapgarh (Raj.) (Claimants)

3. Mohanlal S/o Rama, B/c Ninama, resident of Hathai Wada, Than Dovara, District Dungarpur at present Rajasthan State Road Transport Corporation, Pratapgarh (Raj.) (Driver)

For Appellant(s) : Mr. Loon Karan Purohit.

For Respondent(s)        :     Mr. Ravi Panwar.



     HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                    Order

Reserved on :: 09/04/2021
Pronounced on ::       19/04/2021

The instant appeal has been preferred under Section 173 of

the Motor Vehicles Act, 1988 on behalf of the appellant-non-

claimant No.1 (RSRTC) against the judgment and award dated

17.12.2019 passed by the learned Judge, Motor Accident Claims

Tribunal, Pratapgarh in Motor Accident Claim Case No. 238/2017

(95/15) titled as "Nanuram & Anr. Vs. Mohanlal & Anr." whereby,

(2 of 12) [CMA-1431/2020]

the learned Tribunal has allowed the claim petition filed on behalf

of the claimants and awarded a sum of Rs.7,86,000/- towards

compensation on account of accidental death of their son

(Bheema).

Briefly put the facts of the case giving rise to this appeal are

that on the fateful day of 17.11.2014 at around 08:40 in the

morning, Bheema along with companion Kailash were going to

drink tea at Basaad Bus Stand on motorcycle then, at the Basaad

Bus Stand, a Rajasthan Roadways Bus bearing registration

number R.J.12 PA 0543 came from Mandsaur side, which was

driven rashly and negligently by its driver, hit the motorcycle and

as a result of this hitting, Bhemma and his companion fell down;

both sustained injuries; due to grievous injuries sustained by

Bheema, he was taken to the District hospital, Pratapgarh from

the site, where he was died during treatment; after the accident,

FIR No. 524/2014 was chalked out and after investigation, Police

has proceeded to file charge-sheet before the concerned Court

against the non-applicant No.1 for the offences punishable under

Sections 279, 337 and 304-A of the Indian Penal Code; that the

said accident was occurred due to negligence of the non-applicant

No.1 as a result of which, Bheema was died and for his sudden

death, the claimants have facing pain and sufferings and they

have been deprived from love and affection of their deceased son.

Therefore, as mentioned in the claim petition, they may be

allowed compensation from the respondents.

In their reply, it was stated on behalf of the respondents that

averments as made in the claim petition are denied for want of

(3 of 12) [CMA-1431/2020]

information; that a false and fabricated case has been prepared

with the help of police officials only to get the compensation; that

there is no role of the non-applicant No.1 in the accident; in the

special submissions, it was stated by the respondents that on the

basis of false, incomplete averments and suspicious and non-

readable documents, the claimants have presented the claim

petition; that on the date and place, no accident was occurred

with vehicle Bus No. R.J. 12 PA 0543; that no role has been played

by the non-applicant No.1 in the accident; that on the contrary,

deceased Bheema himself was responsible for the accident; that

the alleged place of accident is turn and onwards, it is a public

place and highway and there is movement of many vehicles; that

it was also alleged that the deceased Bheema would have come on

motorcycle in the middle of the road, he himself and by avoiding

other vehicles, without wearing any helmet by violating the rules

of traffic, while talking on mobile, in a state of drunkard by

consuming liquor, going on the road and by losing his balance in

hasten, he would have fell down on any hard place, resulted in

injuries and would have died, therefore, he is responsible;

Bheema was not having an effective and valid license to drive the

motorcycle; that the owner of the motorcycle and the insurance

company have not been made parties; that only with an intention

to get compensation, Kailash was alleged to drive the motorcycle

while deceased Bheema was alleged to be a companion; and in

fact, Kailash was not present on the spot; that by manipulating,

the case was present, therefore, claimants' claim is liable to be

dismissed. It was prayed that the claim petition may be rejected.

(4 of 12) [CMA-1431/2020]

On the basis of the pleadings of the parties and after the

arguments of the learned counsel for the parties, the learned

Tribunal has framed as many as five issues which read as under:-

^^1& vk;k fnukad 17-11-2014 dks le; yxHkx lqcg 08-40 cts LFkku clkM cl LVs.M ij jktLFkku jkT; iFk ifjogu fuxe] t;iqj ds okgu la[;k vkj-ts- 12 ih, 0543 dks mlds pkyd foi{kh la[;k 1 us rstxfr] xQyr o ykijokgh ls pykdj yk;k vkSj eksVjlkbZfdy ftl ij Hkhek lokj Fkk] ds VDdj ekj nh] ftlls Hkhek ds "kjhj ij pksVsa vk;h vkSj ifj.kkeLo:i Hkhek dh e`R;q gks x;h\ &&ftEes izkFkhZx.k 2& vk;k oDr nq?kZVuk mDr okgu jktLFkku jkT; iFk ifjogu fuxe] t;iqj ds okgu la[;k vkj-ts- 12 ih, 0543 dks foi{kh la[;k & 1 pyk jgk Fkk tks okgu ds Lokeh foi{kh la[;k & 2 ds fu;kstu esa gksdj dk;Zjr Fkk\ &&ftEes izkFkhZx.k 3& vk;k foi{khx.k }kjk izLrqr tokcnkok esa vafdr fo"ks'k vkifRr;ka Lohdkj fd;s tkus ;ksX; gS] ;fn gka] rks bldk izHkko \ &&ftEes foi{khx.k 4& vk;k izkFkhZx.k izkFkZuk i= esa vafdrkuqlkj {kfriwfrZ jkf"k izkIr djus ds vf/kdkjh gS] ;fn gka rks fdl izdkj\ &&ftEes izkFkhZx.k 5& vuqrks'k\^^

On behalf of the claimants, AW-1 Nanuram, AW-2 Kailash

and AW-3 Rajendra have been produced in evidence and

documents 1 to 17 have been exhibited. On behalf of the non-

                                          (5 of 12)                  [CMA-1431/2020]


applicants,     NAW-1   Mohanlal,         non-applicant          No.1   has   been

examined.

The Tribunal has heard the final arguments and perused the

file. While reiterating the whole incident, learned counsel for the

claimants prayed for allowing compensation on account of

accidental death of Bheema in favour of the claimants and on the

other hand, while narrating the contents of the reply, learned

counsel for the respondents prayed for dismissal of the claim

application.

The learned Tribunal has proceeded to decide issues No.1

and 3 together by observing that both these issues are inter-

connected and, therefore, they are required to be decided

together. In these issues, learned Tribunal has found that Bheema

was died due to the said accident and at the same time, non-

applicant No.1 Mohanlal was found to be responsible for the said

accident. In this manner, issue No.1 was decided in favour of the

claimants and against the non-applicants. Issue No. 3 regarding

negligence of the deceased himself for the said accident was

decided against the non-applicants and in favour of the claimants,

as the non-applicant No.1 has not been able to prove this issue.

Issue No. 2 regarding driving of the bus by the non-applicant No.1

for the benefit of non-applicant No.2, while working under his

control, was found to be proved and the same was decided in

favour of the applicants and against the non-applicants. Issue No.

4 regarding liability to pay the compensation was decided in

favour of the claimants by observing that as the issues No. 1 and

(6 of 12) [CMA-1431/2020]

3 have already been decided in favour of the claimants, therefore,

the claimants are entitled to get the compensation from the non-

applicants severally and jointly. The Tribunal has further

proceeded to determine the age of the deceased, number of

dependents, income of the deceased, loss of income, and after a

long discussion, while referring to the pronouncements delivered

by Hon'ble the Supreme Court in various cases, made the final

award of compensation in the sum of Rs.7,86,000/- in favour of

the claimants.

For ready reference, the entire award made by the Tribunal is

reproduced here as under:-

^^iapkV 25- vr% izkFkhZx.k ukuqjke oxSjk dh vksj ls izLrqr ;g Dyse izkFkZuk i= izkFkhZx.k ds i{k esa ,oa nksuksa foi{khx.k ds fo:} Lohdkj fd;k tkrk gSA izkFkhZx.k ds i{k esa o foi{khx.k la[;k 1 o 2 ds fo:} 7]86][email protected]& (v{kjs lkr yk[k fN;klh gtkj :i;s) dk vfUre iapkV la;qDrr% o i`Fkdr% ikfjr fd;k tkrk gSA mDr jkf"k ij Dyse&;kfpdk izLrqfr fnukad 04-03-2015 ls rk olwyh 06 izfr"kr okf'kZd dh nj ls lk/kkj.k C;kt Hkh izkIr djus ds vf/kdkjh gksaxs] tks izkFkhZ;k la[;k 2 dks mlds cpr [kkrs ds ek/;e ls 60 fnol esa vnk dh tkosaA ;fn varfje izfrdj ds :i esa dksbZ jkf"k vnk dh xbZ gks rks ml jkf"k dks mijksDr of.kZr jkf"k esa lek;ksftr dj de fd;k tkosaA foi{khx.k mDr iapkV dh jkf"k ekuuh; jktLFkku mPp U;k;ky;] tks/kiqj ds ,l-ch-

flfoy jhV ua- [email protected] vkbZlhvkbZlhvkbZ yksEckMZ tujy ba";ksjsal dEiuh fyfeVsM cuke jktLFkku jkT; vkfn esa ikfjr vkns'k ds vuqlj.k esa bl vf/kdj.k ds cSad vksfj;aVy

(7 of 12) [CMA-1431/2020]

cSad vkWQ dkelZ] "kk[kk izrkix< [kkrk la[;k 16081132000079 esa usQ~V vFkok vkj-Vh-th-,l- ds ek/;e ls lh/ks gh tek djok;saxs vkSj bldh lwpuk mDr fu.kZ; esa fu/kkZfjr izk:i ,oa vof/k esa bl vf/kdj.k dks izsf'kr djsaxsA foi{khx.k }kjk tek djk;h xbZ jkf"k dh cSad ,MokbZl Hkh {kfriwfrZ jkf"k tek djk;s tkus ds laca/k esa bl vf/kdj.k dks lwfpr djrs gq, i`Fkd ls lacaf/kr i{kdkj dks Hkh izsf'kr djsaxs ,oa lkFk gh vk;dj dVkSfr ;fn dh tkrh gS rks bl ckcr~ QkeZ ia- 16 , vk;dj vf/kfu;e Hkh izsf'kr djsaxsA mDr izfrdj jkf"k vf/kdj.k ds [kkrs esa tek gksus ij jkf"k dk forj.k fuEu izdkj fd;k tkosaxk &

dz- uke izkFkhZx.k vk;q e`rd ls cpr [kkrk esa fe;knh [kkrsa fe;knh la- laca/k ns; udn esa ns; jkf"k [kkrsa esa jkf"k tek jkf"k dh vof/k 1- Ukkuqjke 50 o'kZ firk 50,000/- 1,00,000/- ikap o'kZ 2- xaxkckbZ 45 o'k ekrk 2,86,000/- 3,00,000/- lkr o'kZ

26. izkFkhZx.k mDr lkof/kd tek jkf"k ij =sekfld C;kt Hkh izkIr djus ds vf/kdkjh gksaxsA mDr C;kt izkFkhZx.k ds cpr [kkrs ds ek/;e ls ns; gksxkA "ks'k Dyse ckcr~ dksbZ nLrkost ;k ekSf[kd lk{; ugha gksus ls vU; enksa esa dksbZ jkf"k fnyk;k tkuk mfpr ugha gSA^^

Heard learned counsel for the parties.

Learned counsel Mr. Purohit appearing on behalf of the

appellants - (RSRTC) stated that respondent No.3 Mohanlal,

driver of the bus was not responsible for the accident; and in

fact, the deceased Bheema himself was in a drunken state and

while talking on mobile, driving the motorcycle at the centre

(8 of 12) [CMA-1431/2020]

point of the road and accident took place for the fault of the

deceased himself. It is also submitted that the so called witness

- Kailash was not present on the spot. Lastly, he prayed that

impugned award and judgment passed by learned Tribunal is not

sustainable in law; and the income of the deceased Bheema was

also not proved, therefore, the award ought to have been passed

by considering minimum wages prescribed for unskilled labour,

therefore, the judgment and award dated 17.12.2019 passed by

learned Judge, Motor Accident Claims Tribunal Pratapgarh,

Rajasthan in M.A.C. Case No.238/17 (95/15) titled as "Nanuram

& Anr. Vs. Mohanlal & Anr." may kindly be quashed and set aside.

Per contra, learned counsel appearing on behalf of the

respondent-claimants stated that, in reply to the notice given

under Section 133 of Motor Vehicle Act Ex.10, it is admitted by

the appellant-non-claimant (RSRTC) that at the time of the

accident, the offending vehicle, i.e., Bus No. RJ 12 PA 0543 was

driven by respondent No.3, Mohanlal and his statement was

recorded as NAW-1; he himself admitted this fact that charge-

sheet was filed against him by the police after investigation for

the offences of rash and negligent driving; although he stated

that the F.I.R. was lodged wrongly against him. He further stated

that there is catena of judgment in which, it was held that for

the determination of negligence of vehicle, if memos. prepared

by the Police during investigation are supported by oral evidence

then, the same could be considered as a ground for the

determination of negligence/responsibility. In the present case,

(9 of 12) [CMA-1431/2020]

AW-2 Kailash was present along with the deceased Bheema and

being an eye witness, he had categorically stated that the

motorcycle was driven by the deceased Bheema; on the place of

the accident, a roadways bus, which was driven rashly and

negligently by its driver, hit the motorcycle and as a result of

that hitting Kailash himself and Bheema fall down and both

sustained injuries and due to grievous injuries, Bheema was

taken to the District Hospital, Pratapgarh and during treatment,

he had died. He further stated that the deceased Bheema was 18

years in age at the time of the accident which is proved by the

oral evidence and postmortem report.

So far as income of the deceased Bheema is concerned,

the same has been proved by the AW-3 Rajendra Anjana, who

had categorically stated that Nanuram and his son Bheema

(deceased) worked for him in his field and Rs.5,000/- per month

were paid by him to the deceased Bheema, this evidence

remains uncontroverted, therefore, in the humble opinion of this

Court, the income of the deceased has rightly been assessed by

the learned Tribunal in this regard. He further stated that

deduction of 1/2 was made wrongly in the present case because

both the claimants, i.e., mother and father of the deceased were

dependent on the deceased, therefore, deduction of 1/3 is

applicable in the present case.

(10 of 12) [CMA-1431/2020]

Having regard to totality of facts and circumstances of this

case and arguments of both the sides, in my opinion, so far as,

the issue No.1 is concerned, it was stated by AW-2, Kailash (eye

witness) that the roadways bus was driven rashly and

negligently by its driver and bus hits the motorcycle of the

deceased Bheema and as a result, Bheema and Kailash fell down

and injuries were sustained to both of them; since the injuries of

Bheema were grievous in nature, therefore, he died during

treatment. It is also an admitted position that the F.I.R.

No.524/2014 was chalked out against Mohanlal, the driver of the

Bus No. RJ 12 PA 0543. As per evidence available on record, it is

also proved that after investigation, charge-sheet was filed

against Mohanlal and this fact was also admitted by Mohanlal

during his statement recorded as NAW-1. It is also relevant that

no independent evidence of rash and negligent driving of the

motorcycle driven by Bheema was proved by the Insurance

Company or Mohanlal. Although, it is not proved that at the

time of accident, Bheema was in a drunken position; apart from

that, on this basis, he cannot be held liable for contributory

negligence towards the accident in light of judgment rendered by

Hon'ble the Apex Court in a batch of appeals, led by Civil Appeal

No. 4945-46/2013 arising out of SLP (C) No. 20557-58/2007

titled as Jiju Kuruvila & Ors. Vs. Kanjujamma Mohan & Ors.

(vide Head Note D, para 20.6), decided on 02.07.2013,

reported in (2013) 9 SCC 166.

(11 of 12) [CMA-1431/2020]

Therefore, in the opinion of this Court, issue Nos.1 and 2

have rightly been decided by learned Tribunal against the

respondents (RSRTC) and in favour of the claimants.

So far as the quantum of compensation is concerned,

although, it has been argued by learned counsel appearing on

behalf of respondent-claimants that deduction of 1/2 has

wrongly been made by the learned Tribunal but upon perusal of

the record of the case, it is an admitted position that at the time

of accident, the deceased Bheema was a bachelor & 18 years in

age, whereas the claimants, i.e., the father and mother of the

deceased were 50 and 45 years old respectively. Therefore, it

cannot be held that claimants were dependent on the deceased.

It is also pertinent to mention here that no cross-appeal and

cross-objection were filed by the claimants in this regard and the

age and income of the deceased Bheema were also proved by

the claimants on the basis of statement of AW-1 Nanuram and

AW-3 Rajendra Anjana. The future prospects was also considered

and claim was passed by the Tribunal concerned, as per the

guidelines issued by Hon'ble the Apex Court in the case of

National Insurance Co. Ltd. Vs. Pranay Sethi (SLP No.

25590/2014, decided on 31.10.2017) and Sarla Verma &

Ors. Vs. Delhi Transport Corp. & Anr. (Civil Appeal

No.3483/2008, decided on 15.04.2009).

(12 of 12) [CMA-1431/2020]

In view of the foregoing observations, no ground for

interference is made out in the present appeal, therefore, the

appeal is dismissed and judgment and award passed by learned

Judge, Motor Accident Claims Tribunal, Pratapgarh in Motor

Accident Claims Case No.238/17 (95/15) titled as "Nanuram &

Anr. Vs. Mohanlal & Ors." is affirmed with no order as to costs.

(DEVENDRA KACHHAWAHA),J 7-Mohan/-

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