R.S.R.T.C vs Pawan Kumar
2021 Latest Caselaw 16531 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1864/2019

Rajasthan State Road Transport Corporation through Chief Manager, Rajasthan State Road Transport Corporation, Depot Hanumangarh. (Owner Bus)

----Appellant Versus

1. Pawan Kumar S/o Shri Ishardas

2. Shanti Devi W/o Shri Pawan Kumar

3. Rekha W/o Late Shri Prabhat

4. Rishika D/o Late Shri Prabhat

5. Sneh D/o Late Shri Prabhat

6. Priyanshu S/o Late Shri Prabhat Respondent nos. 4 to 6 minor through Guardian Mother Rekha All by Caste Agarwal, R/o Thalarka, Tehsil Nohar, District Hanumangarh (Rajasthan)

7. Mahavir Prasad S/o Shri Rampal, B/c Jat, R/o Uatarada Bas Tehsil Bhadara, At Present Driver Rajasthan State Road Transport Corporation Depot Hanumangarh (Raj.) (Driver Of Bus)

----Respondents

For Appellant(s) : Mr. Loon Karan Purohit For Respondent(s) : Mr. Rakesh Matoria, Mr. Vikash

HON'BLE MR. JUSTICE RAMESHWAR VYAS Order

Order Reserved on : 22/10/2021 Order Pronounced on : 29/10/2021

The instant appeal under Section 173 of Motor Vehicles

Act, 1988 has been filed by the Rajasthan State Road Transport

Corporation (Afterwards referred to as 'RSRTC') for setting aside

the award dated 1.3.2019 passed by the Motor Accident Claims

(2 of 6) [CMA-1864/2019]

Tribunal, Nohar in Motor Accident Claim Case No.17/2017 titled

Pawan Kumar & Ors. vs. RSRTC & Anr.

Brief facts of the case are as under:-

Deceased Prabhat died in a road accident on 1.2.2016.

He was driver of the Pick-up bearing Registration No. RJ07-G-

6924. He was going from Thaladka to Nohar. Roadways Bus

bearing Registration No. RJ22-PA-1297 driven by Mahaveer

Prasad, rashly and negligently, hit the Pick-up. As a result of

which, Prabhat sustained injuries and died on the spot.

Deceased was aged 28 years and was sole owner of the

Departmental Store and earning Rs.30,000/- per month.

Claimants claimed Rs.2,12,64,000/- with interest @ 18% from the

driver and owner of the Bus, RSRTC.

During trial, Rekha wife of the deceased AW-1,

eyewitness Madan Lal AW-2, Pawan Kumar AW-3 and father of the

deceased Pawan Kumar AW4, were produced on behalf of the

claimants. Driver and conductor of the Bus Mahaveer Prasad NAW-

1 and Balveer NAW-2 were produced for non-claimants in the

Court. Total 18 documents were exhibited by the claimants during

the trial. After conducting inquiry, learned Tribunal awarded a sum

of Rs.11,84,409/- with interest @ 6% per annum.

As per judgment, negating the plea of the non-

claimants regarding contributory negligence of the deceased,

learned Tribunal fastened the whole liability on the appellant/non-

claimants.

The income of the deceased was ascertained taking into

consideration the minimum wages of unskilled labour as

(3 of 6) [CMA-1864/2019]

Rs.5,226/- per month. Multiplier of 17 was applied for calculating

the loss of dependency. Looking to the number of dependents, 1/4

amount was deducted from the annual income towards personal

expenses. Total Rs.65,000/- were awarded in conventional heads.

During the arguments, learned counsel for the

appellant contended that learned Tribunal erred in negating the

contention of non-claimants regarding contributory negligence of

the deceased in the accident. As per the site plan and evidence

available on record, the accident took place in the mid of road. On

the fateful day, on account of poor visibility due to fog, Pick-up

driver failed to see the Bus coming from the opposite side and

collided with the Bus while Pick-up was trying to overtake the

Tractor. Hence, the accident occurred on account of negligence of

the deceased. The driver of the Bus was not responsible for the

accident occurred. Learned Tribunal has seriously erred in

accepting the evidence produced in support of the claimants and

discarding the evidence of the driver and conductor of the Bus.

During the arguments, learned counsel for the

appellant does not press the other grounds raised in the appeal.

On the contrary, learned counsel for the respondents

has submitted that accident took place on account of rash and

negligent driving on the part of the driver of roadways Bus. The

deceased was not at fault. Learned Tribunal did not commit any

error in rejecting the evidence produced by the non-claimants.

Accident could have been avoided by the roadways Bus driver. In

the above circumstances, the appeal deserves to be dismissed.

Having considered the rival contentions of learned

counsel for the parties and after perusing the material available on

(4 of 6) [CMA-1864/2019]

record, this Court is of the opinion that learned Tribunal has failed

to consider the evidence produced by the non-claimants in

reasonable and proper manner. The impugned judgment reveals

that more weightage was given to the statement of father and

wife of the deceased, who were not present at the spot at the time

of accident, in comparison to the evidence of driver and conductor

of the Bus, while deciding the issue of rash and negligent driving

of the Bus. Learned Tribunal has also heavily relied upon the

report filed by the Police under Section 173 Cr.P.C., whereby the

charge-sheet against the Bus driver was filed under Sections 279,

337, 338 and 304A IPC.

After perusal of the charge-sheet (Exhibit-3), it reveals

that Police did not furnish any reason in filing charge-sheet against

the Bus driver alone, though, as per site plan this accident took

place in the mid of the road, however, Police failed to give details

regarding the manner in which both the vehicles were collided

with each other.

As per site plan, the Bus was going from East to West,

whereas, Pick-up was coming from West to East. The place of

accident was marked as 'X' in the site plan, which is in the center

of the road. As per statement of the roadways Bus driver, Pick-up

driver while driving the vehicle in rash and negligent manner

overtook the Tractor and came in the wrong side and dashed with

Bus on account of which, driver of Bus lost the control and the Bus

went off the road. In cross-examination, he denied the suggestion

put up by the claimants to rebut his version.

In the same way, conductor of the Bus attributed

negligence to the Pick-up driver.

(5 of 6) [CMA-1864/2019]

Claimants produced two eyewitnesses Madan Lal AW-2

and Pawan Kumar AW-3. They made vague statement that Pick-up

was in correct side and this accident took place on account of rash

and negligent driving of Bus driver. Suggestion was made by non-

claimants to the witnesses to the effect that Pick-up driver while

driving the vehicle in a rash and negligent manner while trying to

overtake Tractor collided with the Bus. Though, suggestion given

by counsel for the non-claimants was denied, however fact

remains that witnesses failed to explain the circumstances under

which this accident took place in the mid of the road. It is true

that in the claim petition, claimants are not required to prove the

negligence beyond any reasonable doubt and issue of rash and

negligent driving is decided on the principle of preponderance of

evidence. In the present case, the evidence adduced by the non-

claimants is more reliable in comparison to evidence produced by

the claimants.

In the considered opinion of this Court, the fact of filing

challan against the roadways Bus driver cannot be accepted to

conclude that only roadways Bus driver was negligent for this

accident when there exists ample circumstances supported by the

oral evidence, which rebuts sole negligence on the part of Bus

driver.

In the facts and circumstances of the present case,

taking into consideration negligence on the part of deceased while

ascertaining claim of compensation, 40% of the liability of the

compensation should be fastened on deceased. Hence, the

amount of compensation is liable to be reduced to the extent of

40%.

(6 of 6) [CMA-1864/2019]

Consequently, the appeal is partly allowed. The award

dated 1.3.2019 is modified to the extent that claimants would be

entitled to get 60% i.e. Rs. 7,10,645/- of the compensation of Rs.

11,84,409/- awarded by the Tribunal. On the modified amount of

compensation i.e. Rs. 7,10,645/- , the claimants would be entitled

to interest @ 6% per annum from the date of claim petition till the

date of actual payment.

The excess amount, if received by the claimants, is

liable to be refunded within a period of two months, failing which,

the appellant will be entitled to get interest @ 6% per annum.

(RAMESHWAR VYAS),J

Anil Makwana/7

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