IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT The Managing Director, Rajasthan State Road Transport Corpn. & Anr. Versus Magh Raj & Ors. S.B. CIVIL MISC. APPEAL NO. 561/1998 Date of Judgment : 12.11.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Anil Bachhawat for the appellants BY THE COURT Heard learned counsel for the appellants. This appeal is directed against the judgment and award dated 16.06.1998 passed by the Motor Accident Claims Tribunal, Bikaner in MACT Case No. 121/1995, by which the learned Tribunal awarded the compensation of Rs.1,07,000/- alongwith interest at the rate of 12% per annum from the date of the presentation of the application to the respondent-claimants. The accident took place on 07.12.1993 when deceased Ashok Kumar was travelling in the bus of Rajasthan State Road Transport Corporation (for short, 'RSRTC'). The deceased was sitting on the roof of Page 1 of 5 the bus. According to the claim petition filed by the respondent-claimants, the bus was driven rashly and negligently by the respondent No.5 Jamal Khan who was driver of the appellant RSRTC. It was further alleged in the claim petition that the bus was going from Jodhpur to Bikaner and while the bus started from Palana for Bikaner, on the side of the road one tractor-trolley was parked and while passing through that the bus became unbalanced and made a tangential hit with the tractor-trolley, due to which deceased Ashok Kumar who was sitting on the roof of the bus alongwith two others fell down and suffered severe injuries. He was carried to the PBM Hospital, Bikaner, from where he was referred for SMS Hospital, Jaipur and while on the way to Jaipur, Ashok Kumar succumbed to the injuries and died. His dependents Mother, father, brother and sister filed claim petition before the MACT, Bikaner. The learned Tribunal in its award held that the accident took place on account of rash and negligent driving of the driver and held the present appellants the Managing Director, RSRTC, Jaipur and the Chief Manager, RSRTC, Bikaner alongwith the respondent No. 5 Jamal Khan liable of the damages jointly and severally. Aggrieved of the said award, the appellants preferred this appeal claiming that the learned Tribunal committed error in deciding all the four issues in favour of the claimants including the issue No. 2 regarding the amount of compensation which was partly allowed in favour of the claimants. The learned counsel for the appellants contended that the learned Tribunal erred while disbelieving the evidence of N.A.W.1 Jamal Page 2 of 5 Khan for the reason that he was the best witness who explained the cause of the accident and he denied the fact of the accident, therefore, the learned Tribunal commited error in appreciating the evidence produced by both the parties. I have perused the statement of A.W.2 Shyam Narayan Joshi alongwith the copy of the police papers which were produced by the claimants in the court. In view of the evidence of A.W.2 Shyam Narayan Joshi alongwith the police papers, the evidence of N.A.W.1 Jamal Khan is totally unbelievable, therefore, the learned Tribunal correctly disbelieved the testimony of N.A.W.1 Jamal Khan. So far as the quantum of compensation is concerned, the learned counsel for the appellants argued that as the deceased was sitting on the roof of the bus on his volition, therefore, the appellants are not responsible to pay any damages. On the contrary, the learned Tribunal while deciding the issue No. 3 held that the fact that the deceased Ashok Kumar was travelling on the roof of the bus without the permission of the driver or the conductor has not been proved, therefore, the learned Tribunal decided the issue No. 3 against the appellants. The learned counsel for the appellants also argued that in such cases where a person chooses to travel on the roof of the bus, there is also contributory negligence on the part of that person, therefore, he argued that 25% contributory negligence of the deceased may also be determined and accordingly the compensation amount of Rs.1,07,000/- may be re- determined. The learned counsel for the appellants relied upon the Page 3 of 5 judgment of Division Bench of this court passed in D.B. Civil Special Appeal No. 53/1996, Rajasthan State Road Transport Corporation Vs. Shashi Kala Vyas & Ors., dated 12.12.2002. I have perused the judgment of the Division Bench passed in the aforementioned appeal. In the above appeal, the Division Bench of this court held that the deceased was asked to come down from the roof of the bus before 'Khatarnak Pulia', whereas in the present case the driver of the bus, N.A.W.1 Jamal Khan, categorically deposed that there was no passenger on the roof of the bus and there were no specific pleadings in the written statement of the appellants that as the deceased was travelling on the roof of the bus on his own volition, therefore, the deceased was responsible for contributory negligence, thus, the facts of the present case are different from that of the case cited by the learned counsel for the appellants. Now coming to the question of quantum of compensation, the deceased was of the age of 19 years at the time of the accident and he was unmarried. The dependents are only father and mother and the dependency of the sister and brother cannot be considered for the purpose of awarding compensation, therefore, the learned Tribunal commited no error in calculating the amount of compensation. In view of the discussion made above, the grounds raised by the learned counsel for the appellants have no force and the findings arrived by the learned Tribunal require to be affirmed regarding the Page 4 of 5 amount of compensation. Learned counsel for the appellants also argued that the rate of interest awarded by the learned Tribunal is excessive looking to the fact that the present rate of interest payable by banks on the deposits is 8-9% per annum. I have considered the argument of the learned counsel for the appellants and I am of the view that the rate of interest as awarded by the learned Tribunal is on higher side and I deem it just and proper to modify the rate of interest to 8% per annum, which is prevalent rate of interest on the bank deposits. In view of the discussion made above, the award passed by the learned Motor Accident Claims Tribunal, Bikaner in MACT Case No. 121/1995 dated 16.06.1998 is affirmed, with the modification that the respondent-claimants are entitled to get the compensation of Rs.1,07,000/- alongwith interest at the rate of 8% per annum from the date of the application till realization of the amount. Accordingly, the appeal filed by the appellants is partly allowed to the extent indicated above. [KAILASH CHANDRA JOSHI],J. Pramod Page 5 of 5