1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CIVIL MISC. APPEAL No. 487 of 1997 R.S.R.T.C. V/S SMT. SITA & ORS. Date of Judgment : 27.9.2008 HON'BLE SHRI N P GUPTA,J. Mr. BS BHATI, for the appellant. Mr. GAURAV MARU & Mr. RAJESH PANWAR, Mr. ANIL JOSHI & Mr. SANJEEV JOHARI, for the respondents. This appeal has been filed by the Corporation against the award of the Motor Accident Claims Tribunal, Nagaur dated 5.4.1997, awarding a compensation of Rs.1,71,200/-, along with interest, as compensation, on account of death of Vishnu Kumar. The facts of the case are that according to the claim petition, on 22.6.91 the deceased was riding the pillion of the motorcycle, being driven by defendant No.5 Deva Ram, and the delinquent bus of the Corporation, being driven by defendant No.1, rashly and negligently, hit the motorcycle on the rear side of the motorcycle, as a result of which the deceased was thrown away in a pit at a distance of about 10 feet. The victim sustained fractures of the ribs, and received injuries on the head, and died 2 on the spot. It is pleaded, that basically the defendants No.1 and 2 are responsible for the compensation, however in order to avoid any objection about impleadment, the owner, driver and insurer of motorcycle are also impleaded as party defendants. The defendant No.1, the driver of the bus submitted his reply on 22.2.92, contending that he was driving his vehicle at normal speed, with all safety precautions, on the correct side, rather the deceased and the driver of the motorcycle were driving the vehicle negligently, and on reaching on the edge of the road, they lost balance, and on that account accident occurred, for which the bus driver is not at all responsible. It was also pleaded, that the defendant No.5 does not know driving, and therefore the accident occurred. The corporation also filed its reply on 21.7.93, and in this reply a stand has been taken, to the effect, that defendant No.4 (sic. Defendant no. 5) was driving the motorcycle, and was having a pillion rider, who came towards Jodhpur side, and were going on the Kuccha road towards Hanumanbag at that time, the defendant No.1 had started from Nagaur for Ajmer, and in order to save the motorcyclist, he applied brakes upto a distance of about 25 feet, the speed of bus is pleaded to be 20 kms. p/h. It is then pleaded that the bus came to a halt, while motorcycle passed on, and climbed on a heap of sand, as a result of which it got imbalanced, and the pillion rider fell in the water body, which was dry. Then the bus driver 3 and other passengers took the victim out of the water body, and reached him to Nagaur hospital. Thus, it is pleaded, that there was no accident with the bus, and there is no fault of the defendant No.1. Thus, the stand taken by the two defendants is of total denial about there being any impact between the motorcycle and the bus. The learned trial Court framed number of issues. However, issues No. 1, 2, 5 and 6, collectively comprehended the controversy about the accident and negligence. During trial, the claimants examined A.W.2, 3, 4 and 5 on the aspect of issues No.1, 2, 5 and 6 and A.W.5, while the defendants examined the driver himself as N.A.W. 1 Maandan, produced the Jr. Engineer Devendra Kumar Sharma, N.A.W.2, and the conductor of the bus Mangi Lal Sharma, N.A.W.3. In documentary evidence, apart from other documents, the FIR Ex.11, charge-sheet Ex.12, site plan Ex.13, site inspection note Ex.14, MTO report Ex.17, seizure memo of the bus Ex.16 and seizure memo of the motorcycle Ex.18, have also been produced on record. The learned Tribunal decided all the four issues together, and after cataloging evidence of the relevant witnesses, found that the question required to be gone into is, as to whether the principle of res ipsa loquitur answers the controversy involved in the case or not. Then referred to Ex.5 (formal FIR), lodged by defendant No.5 Deva Ram, the driver of the motorcycle, narrating the happening of accident: Then site plan Ex.13 was relied to show, that there were marks of application of brakes from 4 A to B, and the accident occurred at point A, which is part of the road, and thereafter there is Kuccha foot way. Then Ex.14, the site inspection note has been relied, to the effect, that at point A, the debris of the light of the motorcycle are lying. Then Ex.16 has been relied to believe, that the left side glass of the headlight of the bus is broken, and below that the bumper is bent inside. Then Ex.17 has been relied, to the effect, that bumper of the motorcycle is also found bent. (It may be observed here that in Ex. 17 there is no mention of any bent of bumper of the Motor Cycle). Then Ex.18 has been relied to hold, that there are marks of impact of accident on the vehicle. It was found, that if no impact had taken place between two vehicles, then in any case no marks could be found on the bus, nor on the motorcycle, nor was there any occasion for the bus driver to stop the bus, while admittedly he had stopped the bus, carried the deceased to hospital, and from the various memos, the things, as emerge, satisfy that actually the accident occurred on account of impact between the bus and the motorcycle. Then considering the aspect of negligence, the presence of marks of application of brakes available in the site plan, and the statement of the driver of the bus Maandan, where he admits to have applied the brakes, and alleges the brake pipe to have burst, has been taken to be sufficient, to believe that the place of impact is the main square, where the driver is required to look around, on all the sides, which the driver failed. Thus, it was concluded that the accident was the out come of the negligence of the bus driver. 5 In this appeal, it is precisely this conclusion of the learned trial Court, which is under challenge, rather, that only is under challenge. Learned counsel for the appellant, assailing the impugned judgment, read to me the statements of N.A.W.1 and 2, and the pleadings of defendants No.1 and 2, and then stressing much on the Ex.17 and 18, it was contended, that a proper reading thereof does make it clear, that as a matter of fact, no impact took place between the motorcycle and the bus, rather it is clearly established, that the motorcyclist was driving uncontrolled, and looking to the bus, he lost balance, with the result, that motorcycle went up the heap of sand, on account of which the deceased was thrown away in the water body, for which the bus driver cannot be held negligent. On the other hand, learned counsel for the claimants supported the impugned judgment, and submitted, that from Ex.13 and 14, apart from the evidence of A.W.2, 3, 4 and 5, it is clearly established, that the accident was a result of impact between the motorcycle and the bus, and that, the bus was being driven negligently. In the alternative, it was submitted, that even if it were to be found, that there was some negligence on the part of the driver of motorcycle, or that the negligence of the bus driver was only to a small extent, as compared to that of the motorcyclist, still since the deceased was a pillion rider, it would be a case of composite negligence, in which event the claimants are entitled to lodge claim for the entire compensation, against anyone of the joint 6 tortfeasors and therefore, the claim has rightly been decreed. I have considered the submissions, and have gone through the record. At the outset it may be observed, that from a comprehensive reading of the record, the impression, that is created is, that none of the parties have bothered to tell truth to the Court, or allow the truth to be brought on record. Rather either side has proceeded in a single track manner, singing its own tunes, altogether bereft of truth. It would suffice to say, that if the accident had occurred in the manner as alleged by the claimant, that the bus came at a fast speed and hit the motorcycle from behind, the result would not have been as appears to have been, viz. no marks of impact of the bus are available on the motorcycle, as only damage found is of the clutch liver, indicator light and back light, which appear to have been damaged on account of motorcycle falling down. So far as the marks available on the bus are concerned, being breakage of glass of headlight, or a dent in the bumper, do not appear to be out come of the alleged accident, inasmuch as, if the impact had been so severe, so as to make the bus receive dent in the bumper, by impact of the motorcycle, in all probabilities, motorcycle would not have been left with that minimal damage, as is noticed in Ex.17 and 18. This is one aspect of the matter. 7 Other equally important aspect of the matter is, that in the site plan Ex.13, and site inspection note Ex.14, at point A, the pieces of glass of the motorcycle have been found, and it is not in dispute, that bus was coming from towards the place mark by figure B, and was going towards the place marked by figure A, and it is also not in dispute on the side of the defendants, that the bus driver applied brakes. Reverting to the pleadings again, in the reply of defendant No.1, it is not the pleading, that he at all applied any brakes, or that he stopped his vehicle, or the like, while in the reply of the corporation, which was filed after practically one and a half years after filing of the reply by the driver, it is pleaded, that the bus driver applied brakes to save the motorcyclist, and the brakes were applied from a distance about 25 feet, and the speed of the bus is pleaded to be 20 kms. p/h, which bus stopped, and the motorcycle simply crossed straightway, and climbed up the heap of sand, as a result of which it lost balance, and the deceased was thrown away in the water body. Thus, if either of these stories were true, there was no occasion for the pieces of the glass of the motorcycle being available at point A. That apart, coming to the statements of N.A.W.1 Maandan, he has deposed that the speed of the bus was 25 to 30 kms, he saw the motorcycle from a distance from 30 to 40 feet, then he blew horn, motorcycle was at a fast speed, and the motorcycle was initially going towards bus stand, then it changed the direction towards east on the kuccha, thereupon he stopped the bus. There was no impact of the bus, the motorcycle went up the heap of sand and the pillion rider was thrown away. Then in cross-examination, 8 he has deposed, that on his applying brakes, the motorcycle passed away, and no impact took place, and that, on account of application of brakes the tyres were dragged upto a distance of 5 to 6 feet, he has also deposed, that on account of applying emergency brakes, the brakes failed, and one pipe was burst. According to Ex.14, the marks of application of brakes are over a distance of 30 steps. It is required to be comprehended, that if the speed of the bus was 20 kms or 20 to 35 kms, the bus would not have traveled the distance of 30 steps after application of brakes, more so when it is deposed, that emergency brakes were also applied. It is also significant to note, that in the Mechanical Examination Report Ex.17, it is not found, that that the brakes of the bus had failed, nor any brake pipe has been found to be damaged. Thus, this also appears to be clearly an exaggeration. Be that as it may. The fact remains is, that the bus clearly appears to be in quite a fast speed. I do not venture to assess the precise speed, but then it does appear to be at a quite fast speed. Then the story of the motorcycle going upto the heap of sand, and on that count, the deceased having been thrown away in the water body, also requires to be examined, inasmuch as, this is not the pleading taken in the written statement of the driver. Then in the reply of the corporation this pleading of course has been taken, and the case of imbalance of the motorcycle on account of going upside the heap of sand is also pleaded. Then significantly, in the site plan Ex.13, or the site inspection note Ex.14, no such heap of sand is found at or 9 around or even between the road, and the water body. This coupled with the fact, that it has not been suggested in the cross-examination to the driver of the motorcycle, being Deva Ram, A.W. 2, that the motorcycle got imbalanced on account of going upside the heap of sand, rather he was suggested, that he suddenly swerved the motorcycle towards the right on kuccha road, and there was a pit, wherein the motorcycle fell down. On the other hand, the driver of the bus as N.A.W.1, to repeat, has deposed, that motorcycle went up the heap of sand, and the pillion rider was thrown away in the water body. Then in cross-examination he had denied the suggestion of giving wrong statement to save himself in the departmental proceedings. Then coming to the evidence of N.A.W.2, who is said to have inspected the site, for departmental proceedings purposes, it shows that he has further exaggerated the things, by deposing to have found blood spread over the heap of sand, which is nobody's case at any stage whatever. He claims to have prepared various memos and plans, but none has been produced. Then N.A.W.3 Mangi Lal (wrongly mentioned as N.A.W.1 in the original statement) is the conductor of the bus, and he has still different story to depose, viz. that on Jodhpur road at the octroi post of Nagaur, the driver suddenly applied the brakes, and thereupon it was found, that one motorcycle is lying at a distance of 10 feet off the road, on the conductor side, one person was standing near the motorcycle, and other had fallen at water body. The person in water body was taken to hospital, and after getting admitted there, they went away. In the cross- examination he has stated, that when he asked to the driver as to why did he stop the vehicle, when no accident 10 occurred, thereupon the driver told, that the motorcyclist was crossing the road, and since the motorcycle was on kuccha, in order to avoid any accident, the brakes were applied. He does not say, the existence of any heap of sand being there, or the pillion rider being thrown away, or the like. Rather he wants the Court to believe, that accident had already occurred, when the bus reached there, and it was only to extend humanitarian assistance, that the bus was stopped, which is nobody's case at any stage whatever. With this, from Ex.13 it is clear, that the water body is shown by figure C, which is at some distance towards the east from the point A. In the site plan no blood etc. has been found at point A, rather the blood was found inside the water body, being at point C. Appreciating the pleadings, and the evidence, oral as well as documentary, as recapitulated above, it does transpire, that bus had stopped at point A, i.e. marks of application of brakes are upto point A, broken pieces of plastic glass of motorcycle are also lying at point A, and the victim is found lying in the water body at point C. The motorcycle was going from west to east, while the bus is coming from north to south. Point A is on the extreme eastern edge of the road, and at that place, towards further east, there is a kuccha road, on which the motorcyclist was to go. In these circumstances, if the story, as propounded by the defendants were to be true, there was no 11 occasion for the broken pieces of the plastic and glass being there, and obviously because there is no heap of sand, there was no occasion for the victim being thrown away in the water body at point C. Likewise, if the story as propounded by the claimants were to be believed, about the impact having been in the manner of the bus coming at a very fast speed and hitting the rear side of the motorcycle, resulting into the victim being thrown away, the tyre marks of the bus should have been found towards further south, as it cannot be believed, that the heavy vehicle, being bus, after hitting the motorcycle in such a manner, as to throw away the pillion rider, would immediately stop at that only, and would not travel beyond it. Thus, in my view, it appears, that the bus driver was also coming at a quite fast speed, applied brakes, leaving marks of application of brakes for a distance of 30 feets, and at that time, the motorcyclist, coming from west to east, must also be at a quite fast speed, with the result, that even that slight impact, resulting into some breakage of protruding plastic parts of the motorcycle, threw away the victim in the water body. It cannot be believed, that the motorcyclist had already crossed the bus, and lost balance by going up the heap of sand, nor can it be believed, that the bus was driven with such a speed and caused impact as alleged. It may be noticed here that the place of accident is near the square, where both the drivers were supposed to have been vigilant of the on coming traffic, and it that care had been taken, perhaps the accident would not have occurred. Thus to an extent 12 both the drivers were negligent in driving their respective vehicles; which resulted into causing of the accident, and unfortunate death of the victim. Since the two drivers, were both negligent, qua the deceased, it becomes a composite negligence, and obviously therefore, the claimants are entitled to claim compensation from anyone of the joint tortfeasor. Thus, modifying the finding of the learned trial Court, on issues No. 1, 2, 5 and 6, it is found, that the accident was a result of composite negligence of the bus driver, as well as driver of the motorcycle. Notwithstanding this, the ultimate result of the litigation is not affected, whether adversely to the claimant, or adversely to the defendants. The appeal is, therefore, dismissed. ( N P GUPTA ),J. /tarun/