Rajasthan State Road Transport ... vs Kala
2021 Latest Caselaw 9794 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

S.B. Civil Review Petition No. 1/2021

Rajasthan State Road Transport Corporation Jaipur through its Chairman, Parivahan Marg, Jaipur (Raj.)

----Petitioner Versus

1. Kala S/o Hira

2. Smt. Rama W/o Kala resident of Jamar (Muntghala), Tehsil Abu Road, District Sirohi (Raj.)

3. Kishan Lal S/o Narayan Kasana, R/o Ramgarh, District Dosa at present Depot Manager, Rajasthan State Road Transport Corporation, Reodar, District Sirohi.

                                                                   ----Respondents


For Petitioner(s)           :     Mr. Dinesh Kumar Joshi
For Respondent(s)           :     Mr. B.K. Bhatnagar



           HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                       Order

16/06/2021

The instant review petition has been preferred by the

Rajasthan State Road Transport Corporation, Jaipur (afterwards

referred to as 'RSRTC') - petitioner (respondent No. 2 in the

appeal) seeking recalling of the judgment dated 01.10.2020

passed by this Court in S.B. Civil Misc. Appeal No. 27/2005,

whereby, this Court while partly allowing the appeal has enhanced

the amount of compensation, to be paid by the RSRTC without any

deduction towards contributory negligence.

The case of the review petitioner is that the learned Tribunal

while allowing the claim petition under Section 166 of the Motor

Vehicles Act had held the RSRTC liable for payment of

compensation to the extent of 70% only on account of finding of

contributory negligence on the part of deceased in the accident.

(2 of 4) [CRW-1/2021]

The said finding regarding contributory negligence has not been

reversed/dealt with in the judgment dated 01.10.2020. However,

inadvertantly by error or mistake the enhanced amount of

compensation was ordered to be paid by the RSRTC.

In the present review petition, the challenge is made to only

that part of the judgment impugned, which fastened 100% liability

for payment of compensation on the RSRTC.

The above factual position is not disputed by learned counsel

for the non-petitioner.

I have considered the contentions made by learned counsel

for the parties and perused the record.

From the perusal of record, it is revealed that while allowing

the claim petition though the learned Tribunal has assessed the

loss in terms of money to the tune of Rs. 2,18,400/- yet deducted

30% of the above amount on account of contributory negligence

on the part of the deceased and awarded a sum of Rs. 1,62,000/-

only to be paid by the RSRTC.

This Court while partly allowing the appeal enhanced the

compensation amount by Rs. 3,87,520/-, however, the finding of

the learned Tribunal that the RSRTC is liable to pay the

compensation only to the extent of 70% has escaped from the

notice of this Court.

From perusal of the record, it is also revealed that the

conclusion arrived at by the learned Tribunal regarding

contributory negligence of the deceased in the accident has not

been dealt with by this Court while deciding the appeal, though

the said issue has been raised in the appeal but not argued during

the hearing of the appeal.

(3 of 4) [CRW-1/2021]

In the considered opinion of this Court without setting aside

the finding arrived at by the learned Tribunal on the issue of

contributory negligence on the part of the deceased, the RSRTC

cannot be made liable to pay the whole compensation amount in

the appeal.

In the above circumstances, the judgment impugned is liable

to be recalled to the extent that it does not deal with the issue

regarding deduction of money from the amount of compensation

assessed, towards contributory negligence. With the consent of

learned counsel for the parties arguments have been heard on the

point of contributory negligence.

It is revealed from the record that no eye witness of the

accident was produced on behalf of the claimants, however, RSRTC

produced the driver of the offending vehicle Kishan Lal to

controvert the claimants' case. Kishan Lal totally denied the

accident itself. However, the said version of Kishan Lal was not

found reliable by the learned Tribunal. In the considered opinion of

this Court, Kishan Lal was the best witness, who could narrate the

correct circumstances, in which, accident took place, but he chose

not to disclose the true version of the incident. In these

circumstances, this Court is of the view that the learned Tribunal

was not correct in attributing the contributory negligence to the

deceased on the basis of site plan only. It is true that as per the

site plan deceased was not on the left side of the road and the

accident took place 10 ft. away from the side-end of the road but

in the opinion of this Court, it is the duty of the Driver to drive the

heavy vehicle carefully and save the cycle rider. As stated earlier

the Bus driver was the only person who could explain the correct

(4 of 4) [CRW-1/2021]

circumstances, under which, accident took place. It is not the case

of the RSRTC that the deceased came suddenly on the road.

In the above factual position this Court is not in agreement

with the conclusion arrived at by the learned Tribunal regarding

contributory negligence of the deceased in the accident. Hence,

the finding of learned Tribunal regarding contributory negligence

of the deceased is set aside and the RSRTC is held liable to pay

100% of the amount of loss assessed in terms of money by this

Court as Rs. 3,87,520/- instead of Rs. 1,62,000/- as awarded by

the learned Tribunal to the claimants. The enhanced amount of

compensation i.e. Rs. 2,25,520/- shall be deposited by the RSRTC

within a period of one month from the date of this judgment with

interest @ 6% per annum from the date of filing claim petition i.e.

10.07.2003 till the date of actual payment.

The review petition is disposed of accordingly.

(RAMESHWAR VYAS),J

AK Chouhan/-

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