Rajasthan High Court - Jaipur
Rajasthan State Road Transport ... vs Ramavatar Sharma S/O Narayan Tiwari ... on 13 December, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1603/2019
Rajasthan State Road Transport Corporation Through Chief
Manager, Shrimadhopur District Sikar, Having Its Head Office At
Parivahan Marg, Chomu House, Jaipur District Jaipur Through Its
Officer Incharge
----Non-Claimant/Appellant
Versus
1. Ramavatar Sharma S/o Narayan Tiwari (Since Dead Name
Deleted On 13.09.2013),
2. Sawitri Devi W/o Ramavatar Sharma, Aged About 71
Years,
3. Smt. Minaxi Devi W/o Narendra Kumar @ Pintu, Aged
About 36 Years,
All are R/o Tiwadiyon Ka Mohalla, Ward No. 3, Mau, Tehsil
Shrimadhopur, District Sikar (Raj)
----Claimants/Respondents
4. Banwari Lal S/o Badriprasad Swami, R/o Dhani Swamiyon Ki Tan Nangal Nathusar, Tehsil Shrimadhopur, District Sikar (Raj) (Driver Of Vehicle)
----Non-Claimant/Respondent S.B. Civil Miscellaneous Appeal No. 1627/2019 Rajasthan State Road Transport Corporation Through Chief Manager, Shrimadhopur District Sikar, Having Its Head Office At Parivahan Marg, Chomu House, Jaipur District Jaipur Through Its Officer Incharge
----Non-Claimant/Appellant Versus
1. Ramavatar Sharma S/o Narayan Tiwari (Since Dead Name Deleted On 13.09.2013),
2. Sawitri Devi W/o Ramavatar Sharma, Aged About 71 Years, rd No. 3, Mau, Tehsil Shrimadhopur, District Sikar (Raj)
3. Smt. Minaxi Devi W/o Narendra Kumar @ Pintu, Aged About 36 Years, All are R/o Tiwadiyon Ka Mohalla, Ward No. 3, Mau, Tehsil Shrimadhopur, District Sikar (Raj)
----Claimants/Respondents (Downloaded on 15/12/2022 at 12:19:11 AM) (2 of 6) [CMA-1603/2019]
4. Banwari Lal S/o Badriprasad Swami, R/o Dhani Swamiyon Ki Tan Nangal Nathusar, Tehsil Shrimadhopur, District Sikar (Raj) (Driver Of Vehicle)
----Non-Claimant/Respondent S.B. Civil Miscellaneous Appeal No. 1635/2019 Rajasthan State Road Transport Corporation Through Chief Manager, Shrimadhopur District Sikar, Having Its Head Office At Parivahan Marg, Chomu House, Jaipur District Jaipur Through Its Officer Incharge
----Non-Claimant/Appellant Versus
1. Ramavatar Sharma S/o Narayan Tiwari (Since Dead Name Deleted On 13.09.2013),
2. Sawitri Devi W/o Ramavatar Sharma, Aged About 71 Years,
3. Smt. Minaxi Devi W/o Narendra Kumar @ Pintu, Aged About 36 Years, All are R/o Tiwadiyon Ka Mohalla, Ward No. 3, Mau, Tehsil Shrimadhopur, District Sikar (Raj)
----Claimants/Respondents
4. Banwari Lal S/o Badriprasad Swami, R/o Dhani Swamiyon Ki Tan Nangal Nathusar, Tehsil Shrimadhopur, District Sikar (Raj) (Driver Of Vehicle)
----Non-Claimant/Respondent For Petitioner(s) : Mr. Virendra Agrawal For Respondent(s) : Mr. Vikash Kumar Jakhar HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 13/12/2022 Since, all these three appeals preferred by the non-claimant- Rajasthan State Road Transport Corporation (for brevity, "the Corporation"), are directed against the common award dated 05.01.2019 passed by learned Motor Accident Claims Tribunal, Neem Ka Thana, District Sikar (for brevity, "the learned Tribunal") (Downloaded on 15/12/2022 at 12:19:11 AM) (3 of 6) [CMA-1603/2019] deciding three claim petitions arising out of same accident, they have been heard together and are being decided vide this common judgement.
The relevant facts in brief are that in a road accident dated 03.10.2012 involving bus of the Corporation, three persons namely Dhannu (aged 4 years), Narendra Kumar (aged 35 years) & Khushboo (aged 6 years) expired. In the claim petitions preferred on their behalf, the learned Tribunal vide its award dated 26.11.2015, while partly allowing the claim petitions, awarded different amounts of compensation. The award dated 26.11.2015 was subjected to challenge by the Corporation by way of three civil miscellaneous appeals which came to be decided by this Court vide its common order dated 28.03.2016 whereby, while setting aside the award dated 26.11.2015 qua issues no.1 & 3, the matters were remanded back to the learned Tribunal for decision afresh on these issues. Vide its award impugned dated 05.01.2019, while maintaining the findings vide issue no.1, the learned Tribunal has reduced the compensation amount in two of the claim petitions, i.e., pertaining to death of Dhannu and Khushboo and enhanced the compensation in case of death of Narendra Kumar.
Learned counsel for the appellant-Corporation, assailing the findings of the learned Tribunal vide issue no.1, would submit that since all the deceased were traveling on a motorbike, they were also liable for the accident and hence, the learned Tribunal erred in not assessing their contributory negligence. With regard to the enhancement of compensation in case of death of Narendra Kumar, learned counsel submits that amount awarded is on exorbitantly higher side. He, therefore, prays that the appeals be (Downloaded on 15/12/2022 at 12:19:11 AM) (4 of 6) [CMA-1603/2019] allowed and the award passed by the learned Tribunal be quashed and set aside.
Per contra, learned counsel for the respondents/claimants, relying on a co-ordinate Bench judgement of this Court dated 15.04.2013 in case of United India Insurance Company Limited Jodhpur vs. Santosh Devi & Anr.: 2014 (3) TAC 259, would submit that merely the fact that the deceased were riding on a motorbike, does not lead to a conclusion of their contributory negligence in the accident. He submits that from the evidence on record, it is apparent that the incident occurred on account of rash and negligent driving of the Corporation's driver. Learned counsel submits that a just and reasonable compensation has been awarded in case of death of Narendra Kumar which does not warrant any interference by this Court. He, therefore, prays for dismissal of the appeals preferred by the Corporation.
Heard. Considered.
While deciding the issue no.1, the learned Tribunal has recorded a categorical finding as to rash and negligent driving of the Corporation's driver based on the statement of Pappu Singh @ Laxman (AW-5), who was an eye witness to the incident as also the charge-sheet filed under Sections 279 & 304-A IPC against the driver and the material contained therein including the site plan. Merely because the deceased were riding on a motorbike cannot give a presumption of their contributory negligence as has been held by this Court in case of United India Insurance Company Limited Jodhpur (supra) wherein, this Court held as under:-
"21. It is thus clear from what has been held by the Hon'ble Supreme Court that negligence ordinarily means breach of a legal duty to take care, whereas contributory (Downloaded on 15/12/2022 at 12:19:11 AM) (5 of 6) [CMA-1603/2019] negligence means the failure by a person to use reasonable care for the safety of either of himself or his property so that he himself or his property, becomes blameworthy in part as author of his own wrong.
22. Provisions of Section 128 as noticed above are safety measures for the driver and pillion rider and breach of such safety measures which may amount to negligence on part of the driver of the motor cycle, but cannot be termed as contributory negligence, unless the immediate cause of the accident or damage suffered by the driver or pillion rider would be on account of violation of the said provision.
23. Recently this court in Ram Ratan V. Shobha & Ors.: S.B. Civil Misc. Appeal No.665/2009 decided on 01.04.2013 held that merely because a driver had consumed liquor and while going on correct side of the road is struck by an offending vehicle, which is being driven rashly and negligently, merely because the suffering driver had consumed liquor, it cannot ipso facto said that he had contributed to the said accident.
24. So far as the judgment of this Court in Yuvraj (supra) is concerned, in the said judgment also the Court observed as under:-
"Learned counsel for the appellant has relied upon the case of National Insurance Company & Ors. v/s. Kastori Devi & Ors. (1988 ACJ 8), in order to buttress his contention that merely because three riders are riding on a motor cycle, no presumption can be drawn that they have contributed to the occurrence of the accident. Needless to say that there is no such presumption in law, but each case has to be decided on the peculiar facts and circumstances of the case."
25. The Court further on facts upheld the finding of the Tribunal, which held the driver of the motor cycle guilty of 25% contributory negligence, therefore, on principles the said judgment also does not support the case of the appellant.
26. In view of the above, I am of the considered opinion that as the accident has been caused not on account of violation of Section 128 of the Act, the deceased would not be guilty of contributory negligence as the said violation has no casual connection with the damage (Downloaded on 15/12/2022 at 12:19:11 AM) (6 of 6) [CMA-1603/2019] caused to the deceased or pillion riders, which could be termed as contributory negligence on his part. No other point was raised."
Therefore, this Court affirms the findings of the learned Tribunal qua issue no.1.
Contention of learned counsel for the appellant-Corporation that the learned Tribunal erred in awarding exorbitantly high compensation to the claimants on account of death of Shri Narendra Kumar does not merit acceptance. Although, the claimants have pleaded monthly income of the deceased to the tune of Rs.30,000/- stating that he was working as a teacher in a private school and was also rendering private tuition; but, in absence of any document in support thereof, his monthly income has been assessed based on minimum wages. A multiplier of 16 was applied & 1/3rd of the income has been deducted towards personal expenses in view of the law laid down by the Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi: 2017 (2) RAR (SC) 147. Conventional amount has been awarded as per the settled principle of law. This Court finds that the compensation awarded is just and reasonable and is in accordance with the evidence available on record.
Upshot of the aforesaid discussion is that all these three appeals are devoid of merit and are dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J PRAGATI/14-16 (Downloaded on 15/12/2022 at 12:19:11 AM) Powered by TCPDF (www.tcpdf.org)