1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 667 of 1996 GENDUDI AND ORS V/S RAMLAL AND ORS Mr. KAILASH TRIVEDI, for the appellant / petitioner Mr. ANIL BACHHAWAT, for the respondent Date of Order : 16.11.2009 HON'BLE SHRI N P GUPTA,J. ORDER ----- This appeal has been filed by the claimants, seeking to challenge the award of the Motor Accident Claims Tribunal, Sojat, dated 10.5.1996, decreeing the claim only for the amount, payable under Section 140 of Motor Vehicles Act (on no fault liability basis), and negativing the claim on other counts. The necessary facts are, that the claim petition was filed by the claimants, claiming compensation on account of death of Amra Ram, in a road accident comprising of the facts, that on 2.2.94 at about 2.30 in the noon, the deceased crossed the road near the water hut at Khinawadi for going to the hotel of Mala Ram, and in that process, he crossed the road, and reached near the left footpath, at which time, the delinquent bus came from towards Nimaj, being driven at a fast speed and negligently, and hit the deceased, who received serious injuries. The victim was carried to Nimaj hospital in the same bus, where-from he was referred to Beawar. He was carried to Beawar in taxi, but there the doctors declared him dead. 2 On the basis of these facts, varying amount of compensation has been claimed under various heads. The driver, owner of the bus, the Rajasthan State Road Transport Corporation, with which the bus was on contract, and the insurer, have been impleaded as party. The Corporation filed a reply, pleading that the claim is based on distorted facts, rather the deceased died on account of his own fault. The bus was being driven at normal speed with care and caution, and the deceased, without looking behind, and without indicating side, took a turn, in that situation, the bus driver tried his hard to save him, had blown the horn, but the deceased took a turn to cross the road, and hit against the bus, for which the Corporation is not responsible. The insurer has also taken a stand, about the deceased himself being responsible for the accident, inasmuch as, before crossing the road, he could have looked on both the sides and the road. It was also pleaded, that when the bus was clearly visible, the deceased should not have crossed the road, and thus, he is himself negligent, resulting into accident. In the alternative, plea of contributory negligence was also taken. The driver filed another independent written- statement, and the stand taken is, that he was driving the bus carefully, the deceased carelessly and without looking on either side of the road, suddenly emerged from behind the truck, and tried to cross the road, whereupon horn was blown, but the deceased by his negligence dashed against the bus, for which the driver is not responsible. It was also pleaded, that 3 the bus was being driven at a slow speed, and horn was blown any number of times. In additional pleas, it has been pleaded that he was carrying the bus from Nimaj to Jaitaran, and towards the west there is a Kucha Rasta near the Pyau at Khinawadi, at which place, another truck, going from Jaitaran to Nimaj was standing, and another vehicle was coming from towards Jaitaran, who tried to overtake the stationary bus, for which headlight indicator was given, at that time, the defendant No.1 stopped the bus, to allow passage to the truck coming from opposite direction, and when the truck was passing through the stationary vehicle, that stationary vehicle also started, and immediately from behind them, the deceased, without looking on either side of the road, emerged on the road, to cross it on bicycle, at which time, the driver of the bus had just started the stationary bus, and had blown the horn also, but the deceased hit against the bus. In an attempt to explain the situation, the defendant No.1 has also prepared a site plan on the written-statement. The learned trial Court framed 4 issues, out of which issue No.1 related to the question of negligence of the bus driver in causing the accident. In evidence the claimants examined P.W.1 Gendudi the widow, and produced Mukna Ram, P.W.2 an eye-witness of the incident, while the driver has appeared as N.A.W.1 Ram Lal. The First Information Report and the site plan have been produced as Ex.1 and 2 respectively. Post mortem report is Ex.3 and mechanical examination report has been produced as Ex.5. Then other documents like driving licence, insurance certificate and documents of expenditure have also been produced and exhibited. 4 Since the learned Tribunal, deciding issue No.1 has concluded, that the accident was result of negligence on the part of the deceased himself, has not decided the other issues about quantum of compensation, I need not go into the other aspects of the matter, as both the learned counsel submitted, that if this Court concludes to reverse the finding of learned Tribunal on the question of negligence, then the matter may be, and is required to be, remanded to the learned Tribunal for deciding the quantum. Coming to the question of negligence, at the outset I may observe, that the finding recorded by the learned Tribunal is based on patent misreading of the documents on record. The finding precisely is given in para 11, wherein it has been held, that admittedly the deceased was riding a bicycle, and was crossing the main road of Nimaj Jaitaran. Then Ex.2 has been considered, and it has been found, that highway road on the spot is 24 feet wide, and has footpath on either side. Bus was being driven from Nimaj to Jaitaran and deceased was crossing the road from towards east to west, and was going on the hotel situated in the east, while a look at Ex.2 shows, that the hotel is situated in the west. Then proceeding further, the learned Tribunal has found, that the things found in the site plan disclose, that the bus driver was proceeding on his correct side, i.e. towards west of the road, and the deceased was crossing the road from east to west, and when he reached on the eastern end of the road, he dashed against the bus. At this place again it may be observed, that the accident has occurred on the western edge of the road, and not on the eastern end. Thus, the basic misreading of the site plan, about the east and west, has 5 resulted into the learned Tribunal arriving at a wrong conclusion about negligence on the part of the deceased, in causing the accident. A look at the site plan Ex.2 shows, that the bus was proceeding from south to north, obviously west was the correct side of the bus to move. Admittedly the deceased had been crossing the road from east. As found by learned Tribunal the Tarred portion of the road is 24 feet wide, and in addition, there are footpath on both the sides. In this background, a look at the site plan further shows, that the accident has occurred towards the extreme west, i.e. practically after leaving the road, or at best, on the western edge of the road. It is not shown in the site plan, as to whether there was any other vehicle, either stationary or mobile, on the road, at the time of the accident. In that background, irrespective of the correctness of the story, about other truck being stationary on the eastern edge of the road, and another truck having come from towards north to go to south, to whom side was given by the bus driver, in any case, rather it was the bus driver, who was supposed to be vigilant about the deceased also, more particularly when the deceased had rather completely crossed the road already. In the present case the side lane is emerging on the highway, from the east, and there is a hotel towards the west, in such circumstances, of course, it is for the person emerging from the side lane to be cautious and mindful of the traffic moving on the main road, but the driver moving on the main road is also not supposed to be completely oblivion of the person, who has already emerged from the side lane on the main road, rather they have completely crossed the road. Thus, from a look at the 6 statements of P.W.2, the written-statement of the defendant No.1, and the statement of the driver N.A.W.1, if read collectively, and appreciated closely, in my view, it leaves no manner of doubt, that the accident was result of sole negligence on the part of the driver, in driving the bus. Thus, the finding recorded by the learned Tribunal on issue No.1 is required to be and is hereby reversed. Consequently, the appeal is allowed, impugned award, so far as it dismisses the claim petition, by holding the deceased to be negligent, is set aside, and the matter is remanded back to the learned Tribunal, for determining the compensation payable to the deceased, consequent upon the accident being found to have been the out come of negligent driving the bus by the defendant No.1. The learned Tribunal is directed to decide the matter most expeditiously, as the matter is already very old. It is clarified that consequent upon this remand, the claimant will not be required to refund the amount that may have already been paid to the claimants, as the matter is being remanded for determined further compensation, that may be payable on account of the above findings. ( N P GUPTA ),J. /tarun/