IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT RSRTC & Anr. Vs. Ishwar Singh & Others (S. B. Civil Misc. Appeal No.3855/2006) S.B. Civil Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988. Date of Judgment: January 21, 2009 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Virendra Agrawal, for the appellant. Mr. R.P. Vijay] for respondents. Mr. R.S.Bhati] Mr. C.L. Saini] BY THE COURT: A serious accident occurred in the dead of the night of 18-2- 2002, causing death of twelve persons and injuring three persons. An award dated 19-8-2006 passed by Motor Accident Claims Tribunal Jhunjhunu (`the Tribunal' for short) has brought 15 appeals before this court. 2. In the instant appeal the appellant Corporation has challenged the award whereby compensation has been awarded to the dependants of the driver of the offending jeep. 3. Brief facts of the case are that on 18-2-2002 around fifteen persons were travelling in a Marshal jeep, bearing registration No.HR-20F/ 2370, towards Salasar. Around eight kilometers after Jhunjhunu and about twenty seven kilometers from police station Nawalgarh, around 11.30 at night the said Marshal jeep collided with a bus belonging to the Rajasthan State Road Transport Corporation (`the Corporation' for short). The accident was so severe that out of fifteen passengers, eight passengers died on the spot, and seven passengers were referred to the Hospital. Out of those seven passengers, four passengers died during the course of treatment. Only three passengers survived their injuries. Since twelve passengers had expired, their dependants filed claim petitions before the learned Tribunal. Three injured passengers also filed claim petitions before the Tribunal. All the claim petitions were consolidated and were decided by a common award dated 19-8-2006. According to the learned Tribunal the accident was caused solely due to negligence of the bus driver, Amar Singh. Therefore, the learned Tribunal imposed liability for payment of compensation on the Corporation, and the driver, jointly and severally. The learned Tribunal absolved the driver of the marshal jeep of any negligence. Therefore, it did not impose any liability on the Insurance company of the jeep, namely National Insurance Company for payment of the compensation amount. 4. Mr. Virendra Agrawal, learned counsel for the Corporation, has vehemently argued that there are contradictions between the ocular evidence and documentary evidence produced by the claimants. The witnesses have claimed that the bus was being driven in a rash and negligent manner and it is the bus which collided with the jeep. But, both the site plan (Ex.432) as well as the photographs (Exs.411, 413, 415 and 416), taken after the accident, clearly prove that the driver of the jeep was solely negligent in driving the jeep. The site-plan clearly shows that the bus was on its correct side of the road. The site-plan further reveals that it is the jeep that had deviated from its correct side of the road and had reached the middle of the road. Therefore, the negligence lay solely on the part of jeep driver and not on the part of bus driver. He has further contended that the photographs also reveal that the jeep was being driven in middle of the road when it dashed against the bus. Therefore, the documentary evidence belies the testimony of the witnesses. Moreover, according to the learned counsel for the Corporation, the impugned award is based on conjectures and surmises. The learned Tribunal has presumed that larger vehicle try to bully a smaller vehicle. Therefore, the bus driver must have tried to force the jeep to get off from the road and to go into the “Kachcha” area. This presumption has induced the learned Tribunal to conclude that the negligence lay on the part of the bus driver and not on the part of the jeep driver. Moreover, the learned counsel has questioned the finding of learned Tribunal where the learned Tribunal has dealt with width of the road, the width of the bus and that of the jeep. According to learned counsel, the learned Tribunal has conjured up the fine details of the accident, which were not supported by any evidence. Furthermore, learned Tribunal has failed to syncronise the site-plan and the photographs produced by the claimants. Learned counsel has strenuously argued that as per site-plan as well as photographs it is clearly proved that negligence was solely on the part of jeep driver and not on the part of bus driver. Yet, despite the negligence on the part of jeep driver, learned Tribunal has held the bus driver as being negligent and has absolved the jeep driver of any negligence. He has further contended that since it is a case of contributory negligence, where the jeep driver by his negligence contributed to the occurrence of the accident, to the limit of contribution of jeep driver, the claimants should be disentitled to claim any compensation. Therefore, the award suffers from mis- appreciation of evidence--the evidence which was available on record. 5. On the other hand, Mr.R.P. Vijay, Mr. R.S.Bhati and Mr. L.L.Saini, learned counsel for the respondents, have vehemently argued that the witnesses have consistently testified that the jeep was being driven on the correct side of the road, and the jeep was being driven within the speed limit. According to these witnesses, it is the bus that was being driven in rash and negligent manner. It is the bus which came to the middle of the road and collided with the jeep. The counsel have argued that according to site-plan the space left on the left side of jeep has been over-written and has been shown as 8 ft. In fact, while the bus had sufficient space to go off the road into the “Kachcha” area, the jeep was on the verge of its left side of the road. The fact that jeep was being driven on correct side of the road, clearly proves the negligence of bus driver. Learned counsel have also argued that it is not a case of contributory negligence and the negligence lay solely on the bus driver. Therefore, the claimants are entitled to claim compensation from the appellant for the death of driver of the jeep. Hence, learned counsel for claimant have supported the impugned award. 6. Heard learned counsel for the parties, examined the material available on the record, and perused the impugned award. 7. In the case of APSRTC Vs. K.Hemalata [2008(4) TAC 769 (SC)] Hon'ble Supreme Court observed as under:- “To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damages and once that condition is fulfilled the damages have to be apportioned according to the portioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of others being careless.” Therefore, in the present case, this court is required to initially examine the extent of negligence committed by the two drivers involved in the accident. 8. It is, indeed, a settled principle of law that “while Man may lie, circumstances do not”. In order to verify the truthfulness of a testimony, the court should sieve the testimony through the documentary evidence. In case the documents belie the testimony, the testimony should not be accepted as being truthful. At times, while the witnesses may not reveal the complete truth, documents, specially photographs in the case of accident, are more revealing about the truth. Therefore, learned Tribunal should have tested the testimony of the witnesses on the touchstone of documents, specially the site-plan and the photographs. 9. According to injured witnesses the jeep was being driven on its correct side of the road, namely on the left side of the road, at a reasonable speed. But, photographs (Ex.415 and 416) belie the claim made by witnesses. These two photographs clearly reveal that the jeep is in the middle of the road; Secondly, that a space of more than 5 ft. or even 8 ft. exists between the edge of the road and left side of the jeep. For, in the photograph (Ex.415) dead-bodies are lying between the edge of the road and the jeep. If the average height of the body is taken to be 5 ft., it clearly shows that the jeep is 5 ft. away from the left edge of the road. The photograph (Ex.416), further reveal that the bus is standing on its correct side and at the edge of the road. The said photograph further reveals that there is a gap between the dead bodies and the jeep. Thus both photographs (Ex.415 and 416) clearly prove that the jeep had deviated to the middle of the road, had crossed the middle of the road, and ramed into the bus which was on its correct side of the road. It is pertinent to note that these two photographs (Ex.415 and 416) were taken at night. Thus, they were presumably taken immediately after the accident as dead bodies are still lying at the scene of the accident. 10. The other two photographs, namely Exs.411 and 413, taken in the day time, also reveal that the accident had occurred in the middle of the road. Photograph (Ex.413) shows the bus standing on the edge of the road and on its correct side of the road. These photographs further corroborate the site-plan (Ex.432). Therefore, the conclusion reached by the learned Tribunal that the jeep driver was not negligent is belied by the photographs mentioned above. 11. While driving at night on a narrow road, drivers are expected to be extraordinarily cautious in driving the vehicles. Both the drivers are under a duty to try to avoid the occurrence of accident. However, the Photographs (Ex.411 and 413) also show that the bus driver had sufficient space to take the bus off the road into “Kachcha” area adjacent to road. In the dead of the night, while the bus driver saw the jeep coming in the middle of the road, considering the fact that sufficient space was available to take the bus off the road, the bus driver should have taken the bus off the road in order to avoid the accident. But, instead of taking the bus off the road, he continued to drive the bus on the road. Therefore, part of the negligence is also attributable to him. Therefore, this court has no hesitation in holding that while the bus driver was negligent to the extent of 25%, the jeep driver was negligent to the extent of 75%. 12. Since learned Tribunal has directed that compensation should be paid by the the appellant Corporation and this court is of the opinion that the bus-driver was negligent only to the extent of 25% and the jeep driver was negligent to the extent of 75%, therefore, the impugned award dated 19-8-2006 is modified to the limited extent that 75% of the amount of compensation so awarded to the claimant- respondent, shall not be paid to them. In case the said amount has already been paid to the claimants by the appellant Corporation, the Corporation shall be free to recover the same from them. 13. For the reasons mentioned above, the appeal is partly allowed. There shall be no order as to costs. ( R.S. CHAUHAN ) J. arn