Rajasthan High Court - Jodhpur
R S R T C Jaipur And Anr vs Smt. Kasturi And Ors on 15 February, 2024
Author: Rajendra Prakash Soni
Bench: Rajendra Prakash Soni
[2023:RJ-JD:45052]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
...
S.B. Civil Misc. Appeal No. 581/2002
1. Rajasthan State Road Transport Corporation, Jaipur through
Chairman, Jaipur (Raj.).
2. Manager, Rajasthan State Road Transport Corporation, Depot
Udaipur, Udaipur. ----Appellants
Versus
1. Smt. Geeta wd/o late Shri Radhey Shyam Menaria
2. Kalu Lal s/o late Shri Radhey Shyam Menaria (Minor) through
his natural guardian (Mother) Smt. Geeta wd/o late Shri Radhey
Shyam Menaria
3. Manohar Lal s/o Hans Raj Menaria
4. Suhagi w/o Mohan Lal Menaria
All residents of Tatarmala, Tehsil Nimbaheda, District
Chittorgarh.
5. Govind Singh s/o Narain Singh, by caste Rajput, r/o
Dhariawad, at present driver, Rajasthan State Road Transport
Corporation, Depot Workshop, Ahmedabad Road, Udaipur.
---- Non Claimant
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 363/2003
1. Rajasthan State Road Transport Corporation (RSRTC),
Parivahan Marg, Jaipur through its Chairman.
2. Manager, Rajasthan State Road Transport Corporation, Depot
Udaipur, Udaipur.
----Appellants
Versus
1. Smt. Kasturi wd/o late Shri Sohan Lal Menaria
2. Amba Lal s/o late Shri Sohan Lal Menaria
3. Jamna Lal s/o late Shri Sohan Lal Menaria
All residents of Tatarmala, Tehsil Nimbaheda, District
Chittorgarh.
[2023:RJ-JD:45052] (2 of 11) [CMA-581/2002]
4. Govind Singh s/o Narain Singh, by caste Rajput, r/o
Dhariawad, at present driver, Rajasthan State Road Transport
Corporation, Depot Workshop, Ahmedabad Road, Udaipur.
---- Non Claimant
----Respondents
For Appellant(s) : Mr. Dinesh Kumar Joshi.
For Respondent(s) : Mr. Deelip Kawadia.
Ms. Rakhi Choudhary.
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
Reportable
15/02/2024
1. The challenge in present appeals is under Section 173 of the
Motor Vehicles Act, 1988 to the common judgment and awards
dated 19.04.2002 in Claim Petition Nos. 218 of 2001 and 219 of
2001 respectively, made by the Motor Accident Claims Tribunal,
Chittorgarh. Being dissatisfied with the award, these appeals are
at the instance of the Rajasthan State Road Transport Corporation
(for short, "The RSRTC"), wherein the bus owned by the appellant
was involved.
2. The version given by the claimants goes like this: On
07.12.1997 at about 11:00 am, on Badwai Majra to Peepli Khera
road in the jurisdiction of police station Dungla District
Chittorgarh, driver of the RSRTC bus Govind Singh was driving bus
No. RJ-27-P-1468 at a very high speed and as a result of his rash
and negligent driving, bus got swerved on wrong side of the road
and rammed into a motorcycle bearing registration No. RPZ-5633
which was being driven by deceased Radhey Shyam.
Another deceased Sohan Lal was pillion rider. The accident caused
[2023:RJ-JD:45052] (3 of 11) [CMA-581/2002]
in fatal injuries to both the motorcyclist namely, Radhey Shyam
and Sohan Lal.
3. The dependents of both deceased filed claim petitions
claiming compensation in various heads from RSRTC and driver of
the bus. The RSRTC and driver of the bus hotly disputed their
rashness and negligence, however, the Claims Tribunal held that
RSRTC bus driver Govind Singh was solely rash and negligent in
causing the accident and awarded compensation to the claimants
under various heads. The awards have given rise to the appeals
by the RSRTC.
4. Learned counsel Mr. Dinesh Kumar Joshi appearing for the
appellant-RSRTC has strongly argued that the Tribunal was not
justified in appreciation of evidence produced by both the parties,
the Tribunal has failed to appreciate the evidence in its correct
perspective and such approach is contrary to the law. The
Tribunal has adopted a very casual approach in determining the
fact of rashness and negligence of driver of the bus and
erroneously concluded that accident took place on account of rash
and negligent driving of the bus driver.
5. He further contended that the appellant took defence that no
eye-witness evidence was produced by the claimants that would
establish the rashness and negligence of the bus driver.
Conversely, bus driver and conductor of the RSRTC testified
themselves during the trial proving that the accident resulted
solely from rash and negligent driving of motorcycle driver i.e.,
deceased Radhey Shyam. There was no justification for the
Tribunal to disbelieve the credibility of their statements and
discarding their evidence simply treating them interested
[2023:RJ-JD:45052] (4 of 11) [CMA-581/2002]
witnesses. He submits that an adverse inference should have
been drawn by the Tribunal against the claimants.
6. In addition to above, the learned counsel has also
emphasized that site plan of place of occurrence was not produced
and proved in evidence by claimants. The Tribunal therefore, erred
in placing excessive and utmost reliance on the same. According
to him, only finding page (Ex-1) of the charge-sheet was produced
in evidence, instead of complete charge-sheet. Other documents
of charge-sheet such as site plan, site description memo,
mechanical inspection report of motorcycle, statements of
witnesses recorded under Section 161 of the Cr.P.C. and so on,
were not tendered in evidence at all. The entire charge-sheet was
crucial for consideration of application of principle of "res-ipsa-
loquitur". According to him, mere some papers of the charge-
sheet cannot be the sole basis for success of claim petition and
even Exhibit-1 to Exhibit-6 were not proved by competent and
scribe witnesses. Therefore, the approach of the Tribunal was
contrary to the law.
7. He lastly submits that findings recorded on the aspect of
rashness and negligence of bus driver warrants reversal,
therefore, judgment of learned Tribunal be set aside, the appeals
be allowed and both claim petitions should be dismissed.
8. Contrary to it, Mr. Deelip Kawadia, learned counsel for the
claimants has not only supported the impugned judgment and
awards but has also argued for enhancement in the award
amount, without filing a cross appeal by stating that the award
amount is rather on the lower side in view of income of deceased,
multiplier applied and deductions made. He further contends that
[2023:RJ-JD:45052] (5 of 11) [CMA-581/2002]
sufficient materials were there on the record in support of the
averments of claimants.
9. It is further pointed out that it was not necessary for the
claimants to strictly prove the factum and manner of accident.
Strict proof of accident caused by a particular vehicle in a specific
manner may not be possible for the claimants to prove. The
claimants were only required to establish their case based on the
principle of preponderance of probability. In the light of aforesaid
contentions, it is argued that the findings of the Tribunal on the
issue of rashness and negligence on the part of bus driver does
not require any interference. Therefore, he prayed for dismissal of
appeals, while requesting a substantial increase in the amount of
both the awards.
10. Heard the submissions made by learned counsel for the
parties at Bar and perused the impugned common judgment/
awards so also scanned through the record of the Tribunal.
11. I have perused the entire judgment. From perusal of the
same, this Court finds that factum of the accident is not disputed.
The only dispute is whether the accident was on account of rash
and negligent driving of the involved bus by its driver Govind
Singh or on account of rash and negligent driving of motorcycle by
the deceased Radhey Shyam.
12. The Tribunal while relying on the evidence of the claimants
held against the bus driver of RSRTC primarily observing:-
^^--------------- ifjpkyd vkSj MªkbZoj dk c;ku fgrc) gSa
D;ksafd ?kVuk vius vki esa n'kkZrh gS fd tc ,d Vªd vk jgh
Fkh rks Vªd dks vksojVsd jksM+ost cl us fd;kA cl esa 50&60
lokfj;ka Fkh vkSj iqfyl us ckn r¶rh'k xokg xksfoUn flag
[2023:RJ-JD:45052] (6 of 11) [CMA-581/2002]
MªkbZoj ds f[kykQ pktZ'khV is'k dhA vksojVsd djrs le;
f'kodj.k flag ds c;kuksa ds vuqlkj cl dh LihM 50&60
fdyks ehVj izfr ?k.Vk FkhA xokg dk dFku gS fd og dUMDVj
Fkk vkSj vkxs dh rjQ og fVfdV dkV jgk FkkA
uD'kk ekSdk lcls egRoiw.kZ gSa D;ksafd lEHko gSa fd
jksM+ost dk cl pkyd vkSj daMDVj viuh xyrh ugha crk;saxs
vkSj tks uD'kk ekSdk cuk;k x;k gS og Lora=
tkap ,tsalh }kjk cuk;k x;k gS vkSj mlh ds vk/kkj ij fu"d"kZ
iqfyl us fudkyk gSaA xokgku ds c;ku ysdj iqfyl us ;g
lEiw.kZ r¶rh'k vkSj ?kVuk fujh{k.k LFky ds vk/kkj MªkbZoj
xksfoUnflag }kjk jksM+ost cl dks xQyr ,oa ykijokgh ls rst
j¶rkj ls pykdj dkuksM+ ls Hkh.Mj ihiyh [ksM+k ds ikl lkeus
ls cqyV eksVjlkbfdy tks vk jgh Fkh] ds VDdj ekjh ftlls
eksVjlkbZfdy ij cSBs jk/ks';ke o lksguyky dh e`R;q gqbZ gS
vkSj iqfyl us blh vk/kkj ij vkjksi i= is'k fd;k gSA vr%
cl MªkbZoj dh गफलत एवम लापरवाही प्रथमदृष्टया मानी जाती
हैaA"
13. This Court cannot ascertain whether the term "prima facie"
was intentionally or inadvertently used by the Tribunal, as there is
no scope for providing and prima facie findings in the
determination of motor accident claim petitions. The Tribunal is
obliged to make its final determination and decision.
14. Further, I find that no oral evidence was produced by
claimants as to the manner in which the accident occurred. The
disputed fact was that which of the two drivers was driving in rash
and negligent manner. Whereas, the driver and conductor of the
bus namely, Govind Singh (NAW-1) and Shiv Karan Singh (NAW-2)
have deposed in the matter and claimed that:-
"A metador vehicle approached from the front side and its
driver veered to the side to make way. A waiving
[2023:RJ-JD:45052] (7 of 11) [CMA-581/2002]
motorcycle appeared from the front with two riders. He
turned all the four wheels off the road and stopped the bus
completely. However, despite these precautions, the
motorcyclist collided with the bus in front side. The accident
occurred due to the rash and negligent driving of the
motorcyclist." The conductor Shivkaran Singh (NAW-2) also
deposed that, "Our bus was moving at a slow speed, staying
on the right side of the road and had descended the road
upon spotting the motorcycle. The accident occurred due to
the rash and negligent driving of the motorcyclist".
15. Above was the only ocular evidence recorded during the trial
in respect of the manner of driving of both the vehicles.
16. The Tribunal has not accepted the version of both driver and
conductor of the bus treating them to be "interested witnesses"
and relied upon the finding page (Exhibit-1) of the charge-sheet
without there being remaining papers of the charge-sheet on
record. No site plan of the place of occurrence, no crime scene
description memo and no other important documents of the
charge-sheet was produced except below mentioned five
documents:-
Exhibit-1 : Conclusion page of the charge-sheet
Exhibit-2 : Formal FIR
Exhibit-3 : PMR of Radhey Shyam and Sohan Lal
Exhibit-4 : Mechanical inspection report of the bus
Exhibit-5 : Certificate of fitness of bus
17. Now, the question is one of fundamental importance
whether solely based on the aforementioned five documents and
[2023:RJ-JD:45052] (8 of 11) [CMA-581/2002]
without producing any oral evidence in this respect, rash and
negligent driving of bus driver could have been considered proved
by the Tribunal.
18. The approach to be adopted by the Tribunal for determining
the issue of rash and negligent in motor accident claim cases has
been spelled out by Hon'ble the Supreme Court in various
pronouncements.
19. No doubt, the approach of the Courts/Tribunals while dealing
with claim matters has to be sensitive enough to appreciate the
turn of events at the spot or the hardships that the claimants
usually faces in presenting the witnesses and collecting
information of the accident especially when they themselves were
not present at the spot of accident. Further, the Courts/ Tribunals
must be cognizant of the fact that the strict principles of evidence
and standard of proof like in a criminal case are not applicable in
motor accident claim cases. The standard proof in such matters is
one of the preponderance of probabilities rather than principles
beyond a reasonable doubt.
20. The Courts/Tribunals have to be mindful that the approach of
the Courts/Tribunals while examining merit of claim cases should
be only to analyze material placed on record by the parties to
ascertain whether the claimants' version is more likely than not
true. The Courts/Tribunals should also draw appropriate inferences
from the failure of the parties to produce sufficient material and
evidence. The legal effect of such failure must be taken into
account by the Courts/Tribunals.
[2023:RJ-JD:45052] (9 of 11) [CMA-581/2002]
21. In the present case, the Tribunal does not appear to have
assessed and evaluated the evidence available on record from the
aforesaid perspective which was required to be adopted.
22. The circumstance that the conclusion page (Exhibit-1) of the
charge sheet revealed that it was the bus driver Govind Singh
alone who was negligent, may have a relevant factor but certainly
that was not the only conclusive factor. The depositions of the bus
driver Govind Singh and conductor Shiv Karan Singh were also
available on record which was equally important factor in respect
of manner of driving of both the drivers. Civil cases are to be
determined on the basis of the evidence produced in that specific
case only. The question also arises as to whether the findings of a
police investigation can serve as the sole basis for decision in a
civil case like the present one.
23. While on one hand, the learned Tribunal held bus driver
Govind Singh responsible for the accident, on the other hand, he
was absolved from the responsibility of paying compensation on
the grounds that he was working under employment of the
RSRTC.
It sounds very unnatural. The law is well settled that so long
as driver commits torts in the course of his employment, both
employer and driver are joint tortfeasors. In case of joint
tortfeasors or vicarious liability, the liability of joint tortfeasors is
joint and several. Each is liable for the whole damage and
judgment obtained against all of them jointly may be executed in
full against any of them.
[2023:RJ-JD:45052] (10 of 11) [CMA-581/2002]
24. Based on such factors, the learned Tribunal committed a
grave error in appreciation of oral and documentary evidence
produced by both the parties and made a mistake and illegality in
disbelieving the statements of bus driver and conductor merely on
the ground of "interestedness".
25. The Tribunal was not justified in appreciation of evidence and
findings arrived at since the Tribunal has placed excessive reliance
on the site plan and the conclusion paper of the charge sheet.
What is more, the site plan was not on record. The Tribunal has
held that the charge sheet has been concluded on the basis of site
plan memo of place of occurrence. Though, no witness had
explained the contents of the site plan or conclusion of charge
sheet.
26. In the above circumstances, the Tribunal should not have
been placed such excessive reliance on site plan and conclusion of
the police investigation. The Tribunal, without good reasons, has
disbelieved the evidence of driver and conductor of the bus. The
question was whether on the touch stone of preponderance of
probabilities, the version of claimants were more probable than
the version of the bus driver as well as conductor and this
question was required to be answered based upon justified
grounds.
27. The Tribunal had erred in not taking note of all the factors
mentioned above. These facts ought to have been considered by
the Tribunal while deciding the issue of rashness and negligence in
the right perspective. For all the aforesaid reasons, the findings
[2023:RJ-JD:45052] (11 of 11) [CMA-581/2002]
recorded by the Tribunal on the issue of rash and negligence is
required to be set aside and are hereby set aside.
28. In view of the discussions made hereinabove, this Court is of
the view that the findings recorded by the Tribunal on the issue of
rashness and negligence of the bus driver are vitiated by a very
casual approach in appreciation of evidence and, therefore, calls
for fresh consideration in the light of the discussions noticed
above. Therefore, I deem it appropriate to remand the matters to
the Tribunal.
29. Accordingly, both the appeals are partly allowed. The
common judgment and award dated 19.04.2002 passed by the
Motor Accident Claims Tribunal, Chittorgarh is hereby set aside.
Both the matters are remitted back to the Motor Accident Claims
Tribunal, Chittorgarh to decide the claim petitions on the basis of
the material available on record and in the light of the
observations made hereinabove within 3 months from today
positively. The appeals are disposed of in the aforesaid terms.
30. There shall be no orders as to costs. The record of the
Tribunal below shall be sent back forthwith.
(RAJENDRA PRAKASH SONI),J
Mohan/-
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