1 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1.S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Ors. 2.S.B. Civil Misc. Appeal No.544/1995 R.S.R.T.C. vs. Bilkis & Ors. 3.S.B. Civil Misc. Appeal No.579/1998 R.S.R.T.C. vs. Nisar Ahmed Shisghar & Ors. 4.S.B. Civil Misc. Appeal No.747/1998 R.S.R.T.C. vs. Jagdish Chand & Ors. 5.S.B. Civil Misc. Appeal No.65/1999 R.S.R.T.C. vs. Kishan Lal & Ors. 6.S.B. Civil Misc. Appeal No.66/1999 R.S.R.T.C. vs. Ramesh Kumar & Ors. 7.S.B. Civil Misc. Appeal No.68/1999 R.S.R.T.C. vs. Kishan Lal & Ors. 8.S.B. Civil Misc. Appeal No.70/1999 R.S.R.T.C. vs. Veer Singh & Ors. 9.S.B. Civil Misc. Appeal No.72/1999 R.S.R.T.C. vs. Satyapal & Ors. 10.S.B. Civil Misc. Appeal No.73/1999 R.S.R.T.C. vs. Ratan Lal & Ors. 2 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals 11.S.B. Civil Misc. Appeal No.74/1999 R.S.R.T.C. vs. Loknath & Ors. 12.S.B. Civil Misc. Appeal No.81/1999 R.S.R.T.C. vs. Veer Singh & Ors. 13.S.B. Civil Misc. Appeal No.273/1999 R.S.R.T.C. vs. Chitra Sharma & Ors. 14.S.B. Civil Misc. Appeal No.320/1999 R.S.R.T.C. vs. Jasvinder Kaur @ Vikki & Ors. 15.S.B. Civil Misc. Appeal No.338/1999 R.S.R.T.C. vs. Pramila Godara & Ors. 16.S.B. Civil Misc. Appeal No.748/1998 R.S.R.T.C. vs. Dr. Moijudin Sidique & Ors. Date : 27.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.BS Bhati ) for the appellant. Mr.AS Rathore ) Mr.SD Vyas ) for the respondents. Mr.Rajesh Panwar ) Mr.J Gehlot ) - - - - - Though all these appeals were listed because of non-service of some of the respondents, but on 22.9.2008, this Court directed to list all connected 3 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals matters together and, therefore, all the connected matters have been listed. Heard learned counsel for the parties finally. In this unfortunate accident which occurred on 4.10.1989, several girl students died and injured for which various claim petitions were submitted which were allowed by the common award dated 5.6.1998 passed by the Motor Accident Claims Tribunal, Bikaner. The Tribunal held that it was a case of equal fault of two drivers of two vehicles – one driver of Bus of appellant RSRTC and another a Mini Bus wherein school girls were going for picnic and the driver of the said Mini Bus was equally responsible for this unfortunate accident. According to learned counsel for the appellant RSRTC, there was no fault of the bus driver of the appellant and the Tribunal committed serious error of law as well as fact by holding the appellant's driver equally responsible for the accident. In the alternative, it was submitted that the contribution towards accident by the driver cannot be to the extent 4 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals of 50%. Learned counsel for the appellant vehemently submitted that the claimants' own witness Seema Gaur clearly stated that the girls were travelling in two separate mini buses and both were running fast by their drivers and in fact, they were competing with each other and in that they overtook one another several times before this accident occurred. According to learned counsel for the appellant, one of the mini bus while overtaking other mini bus, came in wrong side and hit on the right wheel of Roadways Bus and caused accident. According to learned counsel for the appellant, the driver of Roadways Bus could not have imagined that all of sudden with fast speed, one bus will come forward of the other bus so that he could take some precaution. It is also stated that the appellant's witnesses Angrej Singh and Sita Ram clearly stated that the driver of the appellant's bus took the bus in Kutcha side of the road to avoid the accident. In view of the above reason, firstly, there was no fault of the driver of the appellant's bus and secondly, if it was then it cannot be upto 50% and it can be less i.e. 10%, 20% or 25%. However, the emphasis of learned counsel for the appellant is that there was no fault of the appellant's driver. 5 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals Learned counsel for the appellant referred the site map also which was considered by the Tribunal to show that the accident was caused by the driver of the mini bus by hitting on the right wheel of the appellant's bus. Learned counsel for the appellant in addition to the above argument advanced one more important argument and that argument is based on Tribunal's finding recorded in para 27 wherein the Tribunal held that the driver of Matador Fazludin who was indulged in the racing of the vehicle without taking care, gave speed to his vehicle and did not care to see the vehicle coming in front of the Matador and because of that reason, the accident occurred. In view of the above finding, the liability of the appellant has been wrongly fixed. The above argument as well as the argument referred above in this para require consideration because of the reason that the confusion has been created because of the reason that the Tribunal while deciding the issue of negligence of two drivers, considered the conduct of each driver in separate paragraphs holding each of them guilty and if one reads one para only, then he may conclude that one of the 6 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals driver alone is guilty. The conduct of Fazludin was considered in para no.27 and the conduct of driver of Roadways was considered in para no.28. In para no.27, the Tribunal held that it was the fault of Fazludin and in para no.28, the Tribunal held that the driver of the appellant's bus was also guilty. The tribunal very carefully and rightly considered the two matters in different paragraphs so as to avoid confusion and that was the right procedure but it created confusion in the mind of the appellant. In paras no.27 and 28, negligence of the two drivers were determined and ultimately, the tribunal was of the view that both were equally responsible. So far as evidence of Geeta is concerned, that proved that the driver of Matador was driving the vehicle with speed and that was rash and negligent act of said driver. The contention of the appellant that the appellant's driver was not driving the vehicle rashly and negligently, do not find support from any evidence except the witnesses produced who were the employees of the appellant. However, their statements cannot be rejected and ignored only because of this reason that they were the employees of the appellant. 7 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals They were important and relevant witnesses. Their evidence if considered with the investigating documents, site inspection report and first information report etc., then the contention of the appellant's witnesses is that they saw the bus coming in fast speed and they drew their vehicle to Kutcha side. This statement clearly belies the stand of the appellant that all of sudden and without notice of the driver of the appellant, Matador driven by Fazludin hit the bus. The appellant's witnesses contention is that they had sufficient time to take steps to prevent the accident and they took the bus to the kutcha side of the road. If we look in the site report Ex.4 and site map Ex.3, then it is clear that the accident occurred in the middle of the road. The left wheel of the bus was on the road 3 feet from the kutcha side whereas the other wheel was 10 feet away from the kutcha road towards center of the road. This observation of the Tribunal is fully based on the map which was shown by the learned counsel for the appellant himself. In this type of cases, it is very difficult to assess the liability with exact measurement for the purpose of finding contribution of each of the driver. There may be some variations here and there while doing so but looking to 8 S.B. Civil Misc. Appeal No.69/1999 R.S.R.T.C. vs. Milkhi Ram & Anr. And other connected appeals the totality of the facts, particularly, the evidence of the appellant's witnesses and the investigation documents produced and exhibited, it cannot be said that there was fault of the appellant's bus driver less than the fault of the driver of matador. In view of the above, all these appeals of appellant, having no merits, are hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya