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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
CIVIL MISC. APPEAL No. 487 of 1997
R.S.R.T.C.
V/S
SMT. SITA & ORS.
Date of Judgment : 27.9.2008
HON'BLE SHRI N P GUPTA,J.
Mr. BS BHATI, for the appellant.
Mr. GAURAV MARU & Mr. RAJESH PANWAR, Mr. ANIL JOSHI & Mr.
SANJEEV JOHARI, for the respondents.
This appeal has been filed by the Corporation
against the award of the Motor Accident Claims Tribunal,
Nagaur dated 5.4.1997, awarding a compensation of
Rs.1,71,200/-, along with interest, as compensation, on
account of death of Vishnu Kumar.
The facts of the case are that according to the
claim petition, on 22.6.91 the deceased was riding the
pillion of the motorcycle, being driven by defendant No.5
Deva Ram, and the delinquent bus of the Corporation, being
driven by defendant No.1, rashly and negligently, hit the
motorcycle on the rear side of the motorcycle, as a result
of which the deceased was thrown away in a pit at a
distance of about 10 feet. The victim sustained fractures
of the ribs, and received injuries on the head, and died
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on the spot.
It is pleaded, that basically the defendants No.1
and 2 are responsible for the compensation, however in
order to avoid any objection about impleadment, the owner,
driver and insurer of motorcycle are also impleaded as
party defendants.
The defendant No.1, the driver of the bus
submitted his reply on 22.2.92, contending that he was
driving his vehicle at normal speed, with all safety
precautions, on the correct side, rather the deceased and
the driver of the motorcycle were driving the vehicle
negligently, and on reaching on the edge of the road, they
lost balance, and on that account accident occurred, for
which the bus driver is not at all responsible. It was
also pleaded, that the defendant No.5 does not know
driving, and therefore the accident occurred. The
corporation also filed its reply on 21.7.93, and in this
reply a stand has been taken, to the effect, that
defendant No.4 (sic. Defendant no. 5) was driving the
motorcycle, and was having a pillion rider, who came
towards Jodhpur side, and were going on the Kuccha road
towards Hanumanbag at that time, the defendant No.1 had
started from Nagaur for Ajmer, and in order to save the
motorcyclist, he applied brakes upto a distance of about
25 feet, the speed of bus is pleaded to be 20 kms. p/h. It
is then pleaded that the bus came to a halt, while
motorcycle passed on, and climbed on a heap of sand, as a
result of which it got imbalanced, and the pillion rider
fell in the water body, which was dry. Then the bus driver
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and other passengers took the victim out of the water
body, and reached him to Nagaur hospital. Thus, it is
pleaded, that there was no accident with the bus, and
there is no fault of the defendant No.1.
Thus, the stand taken by the two defendants is of
total denial about there being any impact between the
motorcycle and the bus. The learned trial Court framed
number of issues. However, issues No. 1, 2, 5 and 6,
collectively comprehended the controversy about the
accident and negligence. During trial, the claimants
examined A.W.2, 3, 4 and 5 on the aspect of issues No.1,
2, 5 and 6 and A.W.5, while the defendants examined the
driver himself as N.A.W. 1 Maandan, produced the Jr.
Engineer Devendra Kumar Sharma, N.A.W.2, and the conductor
of the bus Mangi Lal Sharma, N.A.W.3. In documentary
evidence, apart from other documents, the FIR Ex.11,
charge-sheet Ex.12, site plan Ex.13, site inspection note
Ex.14, MTO report Ex.17, seizure memo of the bus Ex.16 and
seizure memo of the motorcycle Ex.18, have also been
produced on record.
The learned Tribunal decided all the four issues
together, and after cataloging evidence of the relevant
witnesses, found that the question required to be gone
into is, as to whether the principle of res ipsa loquitur
answers the controversy involved in the case or not. Then
referred to Ex.5 (formal FIR), lodged by defendant No.5
Deva Ram, the driver of the motorcycle, narrating the
happening of accident: Then site plan Ex.13 was relied to
show, that there were marks of application of brakes from
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A to B, and the accident occurred at point A, which is
part of the road, and thereafter there is Kuccha foot way.
Then Ex.14, the site inspection note has been relied, to
the effect, that at point A, the debris of the light of
the motorcycle are lying. Then Ex.16 has been relied to
believe, that the left side glass of the headlight of the
bus is broken, and below that the bumper is bent inside.
Then Ex.17 has been relied, to the effect, that bumper of
the motorcycle is also found bent. (It may be observed
here that in Ex. 17 there is no mention of any bent of
bumper of the Motor Cycle). Then Ex.18 has been relied to
hold, that there are marks of impact of accident on the
vehicle. It was found, that if no impact had taken place
between two vehicles, then in any case no marks could be
found on the bus, nor on the motorcycle, nor was there any
occasion for the bus driver to stop the bus, while
admittedly he had stopped the bus, carried the deceased to
hospital, and from the various memos, the things, as
emerge, satisfy that actually the accident occurred on
account of impact between the bus and the motorcycle. Then
considering the aspect of negligence, the presence of
marks of application of brakes available in the site plan,
and the statement of the driver of the bus Maandan, where
he admits to have applied the brakes, and alleges the
brake pipe to have burst, has been taken to be sufficient,
to believe that the place of impact is the main square,
where the driver is required to look around, on all the
sides, which the driver failed. Thus, it was concluded
that the accident was the out come of the negligence of
the bus driver.
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In this appeal, it is precisely this conclusion
of the learned trial Court, which is under challenge,
rather, that only is under challenge.
Learned counsel for the appellant, assailing the
impugned judgment, read to me the statements of N.A.W.1
and 2, and the pleadings of defendants No.1 and 2, and
then stressing much on the Ex.17 and 18, it was contended,
that a proper reading thereof does make it clear, that as
a matter of fact, no impact took place between the
motorcycle and the bus, rather it is clearly established,
that the motorcyclist was driving uncontrolled, and
looking to the bus, he lost balance, with the result, that
motorcycle went up the heap of sand, on account of which
the deceased was thrown away in the water body, for which
the bus driver cannot be held negligent.
On the other hand, learned counsel for the
claimants supported the impugned judgment, and submitted,
that from Ex.13 and 14, apart from the evidence of A.W.2,
3, 4 and 5, it is clearly established, that the accident
was a result of impact between the motorcycle and the bus,
and that, the bus was being driven negligently. In the
alternative, it was submitted, that even if it were to be
found, that there was some negligence on the part of the
driver of motorcycle, or that the negligence of the bus
driver was only to a small extent, as compared to that of
the motorcyclist, still since the deceased was a pillion
rider, it would be a case of composite negligence, in
which event the claimants are entitled to lodge claim for
the entire compensation, against anyone of the joint
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tortfeasors and therefore, the claim has rightly been
decreed.
I have considered the submissions, and have gone
through the record.
At the outset it may be observed, that from a
comprehensive reading of the record, the impression, that
is created is, that none of the parties have bothered to
tell truth to the Court, or allow the truth to be brought
on record. Rather either side has proceeded in a single
track manner, singing its own tunes, altogether bereft of
truth.
It would suffice to say, that if the accident had
occurred in the manner as alleged by the claimant, that
the bus came at a fast speed and hit the motorcycle from
behind, the result would not have been as appears to have
been, viz. no marks of impact of the bus are available on
the motorcycle, as only damage found is of the clutch
liver, indicator light and back light, which appear to
have been damaged on account of motorcycle falling down.
So far as the marks available on the bus are concerned,
being breakage of glass of headlight, or a dent in the
bumper, do not appear to be out come of the alleged
accident, inasmuch as, if the impact had been so severe,
so as to make the bus receive dent in the bumper, by
impact of the motorcycle, in all probabilities, motorcycle
would not have been left with that minimal damage, as is
noticed in Ex.17 and 18. This is one aspect of the matter.
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Other equally important aspect of the matter is,
that in the site plan Ex.13, and site inspection note
Ex.14, at point A, the pieces of glass of the motorcycle
have been found, and it is not in dispute, that bus was
coming from towards the place mark by figure B, and was
going towards the place marked by figure A, and it is also
not in dispute on the side of the defendants, that the bus
driver applied brakes. Reverting to the pleadings again,
in the reply of defendant No.1, it is not the pleading,
that he at all applied any brakes, or that he stopped his
vehicle, or the like, while in the reply of the
corporation, which was filed after practically one and a
half years after filing of the reply by the driver, it is
pleaded, that the bus driver applied brakes to save the
motorcyclist, and the brakes were applied from a distance
about 25 feet, and the speed of the bus is pleaded to be
20 kms. p/h, which bus stopped, and the motorcycle simply
crossed straightway, and climbed up the heap of sand, as a
result of which it lost balance, and the deceased was
thrown away in the water body. Thus, if either of these
stories were true, there was no occasion for the pieces of
the glass of the motorcycle being available at point A.
That apart, coming to the statements of N.A.W.1 Maandan,
he has deposed that the speed of the bus was 25 to 30 kms,
he saw the motorcycle from a distance from 30 to 40 feet,
then he blew horn, motorcycle was at a fast speed, and the
motorcycle was initially going towards bus stand, then it
changed the direction towards east on the kuccha,
thereupon he stopped the bus. There was no impact of the
bus, the motorcycle went up the heap of sand and the
pillion rider was thrown away. Then in cross-examination,
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he has deposed, that on his applying brakes, the
motorcycle passed away, and no impact took place, and
that, on account of application of brakes the tyres were
dragged upto a distance of 5 to 6 feet, he has also
deposed, that on account of applying emergency brakes, the
brakes failed, and one pipe was burst. According to Ex.14,
the marks of application of brakes are over a distance of
30 steps. It is required to be comprehended, that if the
speed of the bus was 20 kms or 20 to 35 kms, the bus would
not have traveled the distance of 30 steps after
application of brakes, more so when it is deposed, that
emergency brakes were also applied. It is also significant
to note, that in the Mechanical Examination Report Ex.17,
it is not found, that that the brakes of the bus had
failed, nor any brake pipe has been found to be damaged.
Thus, this also appears to be clearly an exaggeration. Be
that as it may. The fact remains is, that the bus clearly
appears to be in quite a fast speed. I do not venture to
assess the precise speed, but then it does appear to be at
a quite fast speed.
Then the story of the motorcycle going upto the
heap of sand, and on that count, the deceased having been
thrown away in the water body, also requires to be
examined, inasmuch as, this is not the pleading taken in
the written statement of the driver. Then in the reply of
the corporation this pleading of course has been taken,
and the case of imbalance of the motorcycle on account of
going upside the heap of sand is also pleaded. Then
significantly, in the site plan Ex.13, or the site
inspection note Ex.14, no such heap of sand is found at or
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around or even between the road, and the water body. This
coupled with the fact, that it has not been suggested in
the cross-examination to the driver of the motorcycle,
being Deva Ram, A.W. 2, that the motorcycle got imbalanced
on account of going upside the heap of sand, rather he was
suggested, that he suddenly swerved the motorcycle towards
the right on kuccha road, and there was a pit, wherein the
motorcycle fell down. On the other hand, the driver of the
bus as N.A.W.1, to repeat, has deposed, that motorcycle
went up the heap of sand, and the pillion rider was thrown
away in the water body. Then in cross-examination he had
denied the suggestion of giving wrong statement to save
himself in the departmental proceedings. Then coming to
the evidence of N.A.W.2, who is said to have inspected the
site, for departmental proceedings purposes, it shows that
he has further exaggerated the things, by deposing to have
found blood spread over the heap of sand, which is
nobody’s case at any stage whatever. He claims to have
prepared various memos and plans, but none has been
produced. Then N.A.W.3 Mangi Lal (wrongly mentioned as
N.A.W.1 in the original statement) is the conductor of the
bus, and he has still different story to depose, viz. that
on Jodhpur road at the octroi post of Nagaur, the driver
suddenly applied the brakes, and thereupon it was found,
that one motorcycle is lying at a distance of 10 feet off
the road, on the conductor side, one person was standing
near the motorcycle, and other had fallen at water body.
The person in water body was taken to hospital, and after
getting admitted there, they went away. In the cross-
examination he has stated, that when he asked to the
driver as to why did he stop the vehicle, when no accident
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occurred, thereupon the driver told, that the motorcyclist
was crossing the road, and since the motorcycle was on
kuccha, in order to avoid any accident, the brakes were
applied. He does not say, the existence of any heap of
sand being there, or the pillion rider being thrown away,
or the like. Rather he wants the Court to believe, that
accident had already occurred, when the bus reached there,
and it was only to extend humanitarian assistance, that
the bus was stopped, which is nobody’s case at any stage
whatever.
With this, from Ex.13 it is clear, that the water
body is shown by figure C, which is at some distance
towards the east from the point A. In the site plan no
blood etc. has been found at point A, rather the blood was
found inside the water body, being at point C.
Appreciating the pleadings, and the evidence,
oral as well as documentary, as recapitulated above, it
does transpire, that bus had stopped at point A, i.e.
marks of application of brakes are upto point A, broken
pieces of plastic glass of motorcycle are also lying at
point A, and the victim is found lying in the water body
at point C. The motorcycle was going from west to east,
while the bus is coming from north to south. Point A is on
the extreme eastern edge of the road, and at that place,
towards further east, there is a kuccha road, on which the
motorcyclist was to go.
In these circumstances, if the story, as
propounded by the defendants were to be true, there was no
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occasion for the broken pieces of the plastic and glass
being there, and obviously because there is no heap of
sand, there was no occasion for the victim being thrown
away in the water body at point C. Likewise, if the story
as propounded by the claimants were to be believed, about
the impact having been in the manner of the bus coming at
a very fast speed and hitting the rear side of the
motorcycle, resulting into the victim being thrown away,
the tyre marks of the bus should have been found towards
further south, as it cannot be believed, that the heavy
vehicle, being bus, after hitting the motorcycle in such a
manner, as to throw away the pillion rider, would
immediately stop at that only, and would not travel beyond
it.
Thus, in my view, it appears, that the bus driver
was also coming at a quite fast speed, applied brakes,
leaving marks of application of brakes for a distance of
30 feets, and at that time, the motorcyclist, coming from
west to east, must also be at a quite fast speed, with the
result, that even that slight impact, resulting into some
breakage of protruding plastic parts of the motorcycle,
threw away the victim in the water body. It cannot be
believed, that the motorcyclist had already crossed the
bus, and lost balance by going up the heap of sand, nor
can it be believed, that the bus was driven with such a
speed and caused impact as alleged. It may be noticed here
that the place of accident is near the square, where both
the drivers were supposed to have been vigilant of the on
coming traffic, and it that care had been taken, perhaps
the accident would not have occurred. Thus to an extent
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both the drivers were negligent in driving their
respective vehicles; which resulted into causing of the
accident, and unfortunate death of the victim.
Since the two drivers, were both negligent, qua
the deceased, it becomes a composite negligence, and
obviously therefore, the claimants are entitled to claim
compensation from anyone of the joint tortfeasor.
Thus, modifying the finding of the learned trial
Court, on issues No. 1, 2, 5 and 6, it is found, that the
accident was a result of composite negligence of the bus
driver, as well as driver of the motorcycle.
Notwithstanding this, the ultimate result of the
litigation is not affected, whether adversely to the
claimant, or adversely to the defendants. The appeal is,
therefore, dismissed.
( N P GUPTA ),J.
/tarun/
