Rajasthan High Court - Jodhpur
Smt.Parmeshwari And Ors vs R.S.R.T.C.And Anr on 5 November, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
(1 of 8) [CMA-3634/2011]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 3634/2011
1. Smt. Parmeshwari w/o. Baju Ram, aged about 45 years,
r/o. Jaitasar, Teshil Ratangarh, District Churu (Raj.)
2. Lichhaman Ram s/o. Baju Ram, aged about 26 years, r/o.
Jaitasar, Teshil Ratangarh, District Churu (Raj.)
3. Jyana d/o. Baju Ram w/o. Shankar Lal, aged about 24
years, r/o. Gorisar, Teshil Ratangarh, District Churu (Raj.)
4. Shrawan Kumar s/o. Baju Ram, aged about 21 years, r/o.
Jaitasar, Teshil Ratangarh, District Churu (Raj.)
5. Patasi d/o. Baju Ram w/o. Rakesh, aged about 19 years,
r/o. Gorisar, Teshil Ratangarh, District Churu (Raj.)
----Appellants
Versus
1. Rajasthan State Road Transport Corporation, Transport
Marg, Jaipur (Raj.) through its Chairman.
2. Jagdish Prasad s/o. Prabhu Singh, r/o. Dhani Bandha Tan
Papurana, Tehsil Khetari, District Jhunjhunu (Raj.)
----Respondents
For Appellant(s) : Mr. A.R. Godara.
For Respondent(s) : Mr. Dinesh Kumar Joshi.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 05/11/2020 This appeal is directed against the judgment and award dated 25.06.2010 passed by the Motor Accident Claims Tribunal, Ratangarh, District - Churu ('the Tribunal'), whereby the application for compensation filed by the appellants has been rejected by the Tribunal.
The application for compensation was filed by wife, mother and four children of one Bajuram, inter alia, with the averments (Downloaded on 06/11/2020 at 08:59:42 PM) (2 of 8) [CMA-3634/2011] that on 06.02.2001, the deceased alongwith his brother Megharam had gone to Sikar. While returning back in the Bus No. RJ-14-P-6789, which was being driven by non-applicant No.2 - Jagdish Prasad and was traveling from Fatehpur to Ratangarh on State Highway No.11, when the bus reached near Kalyansar, the deceased Bajuram while spitting from the window (f[kMdh) on account of rash and negligent driving by the driver of the bus, fell out of the window/bus. The bus was stopped and as the deceased had suffered grievous injuries, he was taken to hospital, wherein he succumbed to the injuries. It was claimed that the deceased was aged 40 years and was earning Rs.4,000/- per month and compensation of Rs. 41,91,000/- was claimed.
The application was contested by the Corporation, inter alia, with the submissions that the mental state of the deceased was not normal and, therefore, his brother had gone with him, the deceased jumped out of the window, who was not stopped by his brother and that the accident did not occur on account of any negligence of the driver of the bus. Reliance was placed on the police report.
The Tribunal framed five issues. On behalf of the claimants, two witnesses - wife of the deceased and one occupant of the bus were examined and on behalf of the Corporation, the Driver- Jagdish Prasad and one more witness was examined.
After hearing the parties, the Tribunal came to the conclusion that the witness AW-2 Bhagwanaram, occupant of the bus did not indicate as to what led to the jerk in the bus, which resulted in, the deceased falling off the bus whereas in the claim application, it (Downloaded on 06/11/2020 at 08:59:42 PM) (3 of 8) [CMA-3634/2011] was indicated that the driver gave a cut to the bus, which resulted in the deceased falling off the bus.
The Tribunal also found the claim regarding the deceased falling of the bus as improbable and relying on the final report given by the police, came to the conclusion that as the deceased was mentally ill, he jumped out of the bus and, therefore, it cannot be said that the accident occurred on account of rash and negligent driving by the driver of the bus.
In view of the fact that the issue pertaining to rash and negligent driving was held against the claimants, rest of the issues except issue No.2 relating to vicarious liability of the Corporation were not decided and the application for compensation was rejected.
It is submitted by learned counsel for the appellants that the Tribunal was not justified in rejecting the application based on its finding on issue No.1.
It is submitted that the finding is perverse, inasmuch as, the Tribunal without there being any material on record pertaining to the mental illness of the deceased, has come to the conclusion that the deceased on account of his alleged mental illness jumped out of the bus.
Further submissions have been made that the entire finding is based on conjecture and merely because the brother of the deceased did not appear in the witness-box, cannot be reason enough for recording the finding against the claimants.
It was also submitted that the Tribunal has misread the documents and has not taken comprehensive view of the case and on that count also, the judgment impugned with finding on issue (Downloaded on 06/11/2020 at 08:59:42 PM) (4 of 8) [CMA-3634/2011] No.1, deserves to be set aside and the matter deserves to be remanded back to the Tribunal for deciding other issues.
Learned counsel for the Corporation vehemently opposed the submissions. It was submitted that the brother of the deceased himself gave an affidavit produced as Exhibit-A/1 indicating the mental illness and had indicated that he did not want to take any action against the driver and conductor of the bus and, therefore, in view of the document (Exhibit-A/1), the claimants have no case and the Tribunal was therefore, justified to reject the claim application.
Submissions were made that the entire story regarding the deceased falling off the bus on account of rash and negligent driving, has no basis, in fact is improbable and, therefore, also the application was rightly rejected by the Tribunal and the appeal also deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the record of the Tribunal.
It was the case of the claimants that the deceased Bajuram while traveling in the bus, fell of the bus on account of rash and negligent driving by its driver.
As noticed, the Tribunal on account of its coming to the conclusion that the deceased was mentally ill and that he himself jumped out of the bus, held that the driver was not driving the bus rashly and negligently.
The material eye-witness in the case AW-2, who was occupant of the bus at the time of incident, though clearly stated that the accident occurred on account of rash driving by the driver of the bus, which resulted in jerk and the deceased Bajuram fell of (Downloaded on 06/11/2020 at 08:59:42 PM) (5 of 8) [CMA-3634/2011] the bus. The Tribunal by merely observing that the witness did not indicate that as to how the jerk in the bus happened, discarded his evidence. Further as the claimants had indicated that the jerk happened on account of a cut by the driver and the witness did not indicate the said reason, his evidence could not be believed. The scrutiny of the evidence of a third party witness, based on the averments contained in the petition, who at the stage of filing of the claim application may not be present, as it is not the case that the occupant AW-2 Bhagwanaram was in any manner related to the deceased/claimants, is not proper. The statement of a third party witness cannot be discarded merely based on difference between the pleadings and the proof produced.
Further reliance has been placed by the Tribunal on the final report given by the police for arriving at the conclusion that the deceased jumped out of the bus.
The so called affidavit produced (Exhibit-A/1) said to have been executed by Megharam indicating the mental state of the deceased is dated 06.02.2001, the date of accident. Though the document has been titled as ''kiFk i=', the same appears to be a statement not addressed to anyone indicating the facts as claimed and essentially indicating that the driver and the conductor were not guilty. The said document also bears signatures of the conductor as well as the booking clerk. In what circumstances the said document, the so called affidavit has been given, have not been indicated, which cannot be even termed as an affidavit.
This is also an admitted fact that on the same day i.e. on 06.02.2001, FIR was lodged with the Police Station, Ratangarh. If the so called Affidavit (Exhibit-A/1) was given and the brother was (Downloaded on 06/11/2020 at 08:59:42 PM) (6 of 8) [CMA-3634/2011] of the view that the accident did not occur on account of rash and negligent driving by the driver, there was no reason to lodge the FIR on the same day. It is not the case that the FIR was lodged by way of an after thought i.e. after some days. The police gave FR on 26.02.2001 by indicating that the said police station had no jurisdiction and the same was forwarded to Police Station, Sadar, Fatehpur, where the same was re-lodged on 17.07.2001. The FR given by the police on 12.09.2001, which after indicating the facts as alleged in the FIR, came to the following conclusion:-
"c;kukr xokgku fy;s x;s rks ik;k fd e`rd ctqjke tks fnekx ls ikxy Fkk o fMyDl cl dh f[kM+dh ls vpkud fxj x;k vr% ekeyk ,DlhMsUV ,Dlekr dk ik;k tkrk gSA"
A perusal of the above conclusion arrived at by the police indicates that it was concluded that though the deceased was mentally disturbed, he suddenly 'fell' from the window ( f[kMdh) and, therefore, the matter was of sudden accident.
The police, nowhere came to the conclusion that the deceased had 'jumped' out of the bus, however, the Tribunal in its finding has recorded that the police came to the conclusion that the deceased had jumped out of the bus, which is apparently incorrect.
The further finding by the Tribunal regarding the improbability of the accident happening on account of position of the seat of the deceased, is essentially based on surmises as there was no material available on record to come to the said conclusion.
Apparently, there is no material available on record except for a scrap of paper (Exhibit-A/1), wherein allegedly the brother of (Downloaded on 06/11/2020 at 08:59:42 PM) (7 of 8) [CMA-3634/2011] the deceased indicated the mental state of the deceased. The wife of the deceased was extensively cross-examined regarding the mental state of the deceased, however, she withstood the cross- examination and maintained that he was not mentally disturbed.
In view of the above, the finding arrived at by the Tribunal that on account of mental illness, the deceased had jumped out of the window of the bus, cannot be sustained. Consequently, the finding in this regard is set aside.
So far as the issue as to whether the accident occurred on account of rash and negligent driving by the driver of the bus is concerned, the statement of AW-2, an occupant of the bus, wherein he has specifically indicated the circumstances, in which the deceased fell out of the bus and in his cross-examination, nothing could be indicated, which could shake the testimony of said witness and, therefore, as the deceased had fell out of the bus on account of jerk suffered by the bus, the finding recording by the Tribunal on issue No.1 is reversed and, it is held that the accident occurred on account of rash and negligent driving by the driver of the bus.
As the rest of the issues i.e. issue Nos. 3, 4 and 5 have not been decided by the Tribunal, the matter is required to be remanded back to the Tribunal for deciding the same in accordance with law based on the evidence already available on record.
Consequently, the appeal filed by the appellants is allowed. The judgment and award dated 25.06.2010 is set aside. The matter is remanded back to the Tribunal to decide the issues (Downloaded on 06/11/2020 at 08:59:42 PM) (8 of 8) [CMA-3634/2011] No. 3, 4 and 5 in accordance with law based on the evidence already available on record.
As the accident pertains to the year 2001, it is required of the Tribunal to decide the same, after hearing the parties, most expeditiously preferably within a period of three months from the date a copy of this judgment alongwith record is received by the Tribunal.
The parties shall remain present before the Tribunal on 11.12.2020 and it would not be required of the Tribunal to issue fresh notices to the parties.
The record of the case be sent back to the Tribunal immediately.
No order as to costs.
(ARUN BHANSALI),J 28-PKS/-
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