IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 87 of 1997 UNION OF INDIA & ORS V/S MST CHENNI DEVI & ORS Mr. VINEET PANDYA for Mr. VK MATHUR, for the appellant / petitioner Mr. SK MAHESHWARI for Mr. SUNIL MEHTA, for the respondent Date of Order : 26.2.2009 HON'BLE SHRI N P GUPTA,J. JUDGMENT This appeal has been filed by the owner defendant, against the award of the Motor Accident Claims Tribunal, Nagour dt. 23.9.1996, awarding a compensation of Rs. 1,61,200/-, on account of death of one Girdhari. The claimants are widow, four children, and one mother. The facts of the case are, that on 13.8.1991 the deceased was traveling in the trolley attached with the tractor, along with some more persons including A.W.3 Kistoor, A.W.4 Bhabhoota Ram, and A.W.6 Raju Ram, and when the tractor reached near Tankla, on Jodhpur-Nagour road, the delinquent bus no. 8489 came from behind and hit the tractor, as a result of which the tractor and trolley overturned, and the deceased came under the bags, being carried in the trolley, and died on the spot. It was alleged, that the bus was being driven rashly and negligently, and at a fast speed. I may observe here that the question of quantum is not under challenge, therefore, I need not go into the facts in that regard. The defendants contested the claim by filing reply, and on the material aspect, the stand taken was, that since the deceased was travelling on the trolley, he died on account of tractor and trolley getting overturned. It was also pleaded that since the tractor fell in a pit, the tractor and trolley overturned, which resulted into death of Girdhari. It was also pleaded, that the bus was being driven at a speed of 40 kms. per hour, and was not being driven negligently, rather it was the tractor driver, who by negligently driving the tractor dashed against the bus, and since one of the tyre of the tractor fell in a pit, the tractor and trolley overturned, and Girdhari died. In additional pleas it is pleaded, that the bus and tractor were being driven in same direction. The bus driver had blown horn, whereupon tractor driver gave side. However, on account of there being a pit ahead of tractor, it again came back on the road, whereupon the tractor and trolley hit against the bus, and overturned, resulting in death of Girdhari. It was also pleaded, that on account of the fault of the tractor driver, the defendant had suffered a loss of Rs. 25,000/-, and thus claimants are not entitled to any 2 compensation. The learned trial court framed three issues. Issue no.1 comprehended the question of negligence, while issue no.2 related to quantum, and issue no. 3 related to relief. The claimants, in order to substantiate issue no. 1, examined A.W.3 Kistoora Ram, A.W. 4 Bhabhoota Ram, and A.W.6 Raju Ram, while the defendants have examined N.A.W. 1 Bagdawat Ram an occupant of the bus, another occupant Ram Ratan being N.A.W. 2, and driver of the bus being Gopal Singh, N.A.W.3. In documentary evidence, the claimants have produced F.I.R. Ex.-1 which was lodged by Bagdawat Ram himself, site plan, site inspection note, post mortem report, and the statement of Bagdawat Ram given in police, as Ex.2, 3, 4, and 5 respectively, while the defendants also produced Ex.D-1, being the police statement of Bagdawat Ram. The learned trial court, decided issue no. 1 in favour of the claimants, and found the accident to be out come of negligence of bus driver. Deciding issue no. 2 the learned Tribunal assessed the total payable compensation at Rs. 1,61,200/-, and has made the award as above. In the present appeal learned counsel for the 3 appellant has only assailed the finding of the learned trial court on issue no.1. Arguing the appeal, it was contended that the claimants have failed to establish as to who was driving the tractor, inasmuch as the evidence in that regard is inconsistent about identity of the tractor driver, and since tractor driver was not holding any driving licence, and it was the tractor driver who drove tractor negligently, which resulted into causing of the accident, as such the appellant cannot be held liable. Learned counsel invited my attention to the pleadings taken in the written statement, wherein it is specifically contended, that the accident occurred on account of negligence of the tractor driver. Learned counsel for the claimants, on the other hand, supported the impugned award. I have gone through the judgment, and entire evidence on record, and other material available on record. It is not in dispute, that both the vehicles were being driven in the same direction, and bus hit the tractor from behind. The question precisely is, as to whether there was any negligence of the bus driver in driving the bus, or as contended before me, that the tractor was being driven 4 negligently, which resulted into accident. So far the pleading taken in the written statement is concerned, all that can be deciphered is, that according to the defendants when the bus driver blew horn the tractor driver gave side, and then on account of there being a pit ahead of tractor, the tractor again reappeared on the road, which resulted into the tractor and trolley hitting against the bus, and they overturned. It is not the stand in the reply, raising any question about identity of the tractor driver, or about the tractor driver not holding driving license, or the like. In that view of the matter, so far the question of negligence of tractor driver is concerned, all that is required to be examined is, correctness of the defence version, that on hearing horn of the bus driver the tractor driver left the road, and on account of there being a pit ahead of tractor it reappeared on road, which resulted into accident, or as the issue comprehends, that the bus driver was driving the bus negligently, and hit against the tractor driver. Coming to the statement of Kistoor, P.W.3, he has deposed that the bus was coming uncontrolled, thereupon he asked the driver to take the tractor on the side, whereupon the tractor was taken on the side, still the bus hit against the tractor, resulting into death of Girdhari, and other persons receiving injuries. In cross examination he 5 has denied the suggestion, about tractor being not taken on side. He has denied the suggestion about the driver having blown any horn, asking to give side. He has also denied the suggestion about the tractor having given side but on account of there being pit ahead, it reappeared on the road, and thereby having overturned. Significantly the suggestion is, as if the tractor overturned only in the process of reappearing on the road, without being hit by the bus. Then, so far A.W.4 Bhabhoota Ram is concerned, he has deposed, that the tractor was moving on its correct side, still the bus hit, and caused the accident. In cross examination he has denied the suggestion, about the speed of the bus being 20 kms. per hour. He has denied the suggestion about the bus driver having asked for side by blowing horn. However, he has accepted that the tractor driver did give side. Then, he has denied the suggestion, that the tractor having reappeared on the road on account of there being pit, and hit, and has maintained, that there were no pits. He has maintained, that when the bus and tractor were close to each other, bus driver suddenly sweared the bus towards left, which resulted into accident. He has also stated, that the total width of the space available at the spot was 30 ft. Puna Ram, A.W.5 is the attesting witness of the site inspection note. Then, Raju Ram, A.W.6 has also testified in line with A.W.3 and A.W.4. In cross examination he has denied the suggestion, about tractor reappearing on the road on account of there being 6 any pit ahead, and in that process getting imbalanced, at which time the bus was crossing; Obviously meaning thereby, that the bus did not hit tractor. So far as the evidence of the defence is concerned, Bagdawat Ram, N.A.W. 1 has stated, that his bus was moving at a speed of 25-30, because the bus was empty, and was creating much noise. Then, he has stated that the bus gave horn, then the tractor driver took the tractor off the road, and as soon as the bus reached near the tractor, the tractor suddenly reappeared on the road, without giving any signal, and that the left tyre of the tractor was in a pit, while right one on the road. The bus was just to cross, but before it could cross the rear side of the tractor hit the left head light of the bus, and the tractor overturned. In cross examination he has admitted, that he lodged the report in the police station, which is Ex.D-2, and bears his signatures. Then, he was confronted with his police statement also being Ex.D-5, portions A to B, and E to F which he chose to disown. He has also denied the suggestion about giving false statement to save the driver, who happens to be his co-employee. At this place a look at the first information report lodged by Bagdawat Ram clearly shows, that therein it is nowhere alleged, that the tractor gave side, left the road, and reappeared, rather all that is alleged is, that the bus reached near Tankla at 1 in the noon, at which time tractor was going ahead of the bus, 7 which was hit from behind by the bus, resulting into tractor and trolley being over turned, and one person having died. Then, the driver Gopal Singh, N.A.W.3 has deposed that he saw the tractor at a distance of 100-150 yards ahead of him. He blew horn. Thereupon tractor trolley left the road, but when the bus reached near the tractor, it reappeared on the road, he applied the brakes, but the bus hit from the rear side. He has stated that the speed of bus was about 20-25 kms., and that the tractor driver did not give any signal before reappearing on the road. He has admitted that information about this accident was given by one of the co-passengers in the police station, and that criminal prosecution is pending against him in the Court at Nagour. N.A.W. 2 Ram Ratan has also deposed in line with the other two witnesses. So far the speed of the bus is concerned, the evidence is contrary to the pleadings taken in the written statement, wherein the speed of the bus was pleaded to be 40 kms. per hour. Then, a look at the site inspection note and the site plan shows, that after hitting tractor the bus had stopped after travelling a distance of about 50 paces. Obviously it travelled such a long distance even after application of brakes, as claimed by driver N.A.W.3. This clearly shows the excessive speed of the bus. Then, so far as the story of tractor leaving the 8 road, and reappearing on account of there being a pit ahead is concerned, in the site inspection there is no pit available there. It is a different story, that the stand of the defendant during trial in this regard is vacillating, inasmuch as sometimes it is intended to be contended, that it was on account of one tyre of the tractor falling in the pit that the tractor over turned, while at some place it is intended to be contended, that in order to save from the pit the tractor was brought back on the road without giving signal, in which process the accident occurred. In either case, absence of pit at the place belies the story of the defence. In the site plan the width of dammar road is shown to be 12ft. While according to A.W.4 the total width of the space available there is 30 ft., which does clearly show, that there was sufficient space available for the bus to have a safe passage, still it has hit against the tractor. This clearly shows negligence on the part of bus driver. The other aspect of the matter, which though not specifically raised, and may not be required to be gone into, but is, that for the sake of argument even if it were to be assumed, that there was some negligence on the part of tractor driver also, still the deceased was passenger in the tractor-trolley, and therefore, it cannot be said to be a case of even contributory negligence, rather it could be a case of only composite negligence, in which event the claimants are entitled to claim entire compensation from 9 any of the joint tort-feasor, and therefore, the bus driver and owner being the defendants, cannot escape from their liability. Thus, I do not find any error in the finding of the learned trial court on issue no.1. The appeal thus, has no force, and is dismissed. Parties to bear their own costs. ( N P GUPTA ),J. /Sushil/ 10