1 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1.S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. 2.S.B. Civil Misc. Appeal No.2/2004 R.S.R.T.C. vs. Bhanwar Lal & Ors. 3.S.B. Civil Misc. Appeal No.3/2004 R.S.R.T.C. vs. Mangi Devi & Ors. 4.S.B. Civil Misc. Appeal No.4/2004 R.S.R.T.C. vs. Kistur Mal & Anr. 5.S.B. Civil Misc. Appeal No.5/2004 R.S.R.T.C. vs. Ratan Singh & Ors. 6.S.B. Civil Misc. Appeal No.6/2004 R.S.R.T.C. vs. Smt. Puni Devi & Ors. 7.S.B. Civil Misc. Appeal No.7/2004 R.S.R.T.C. vs. Smt. Mohanki & Ors. 8.S.B. Civil Misc. Appeal No.9/2004 R.S.R.T.C. vs. Mangji & Ors. 9.S.B. Civil Misc. Appeal No.10/2004 R.S.R.T.C. vs. Arjun Singh & Ors. 10.S.B. Civil Misc. Appeal No.11/2004 R.S.R.T.C. vs. Jabar Singh & Ors. 2 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals 11.S.B. Civil Misc. Appeal No.12/2004 R.S.R.T.C. vs. Mangal Singh & Ors. 12.S.B. Civil Misc. Appeal No.13/2004 R.S.R.T.C. vs. Bholi Devi & Ors. 13.S.B. Civil Misc. Appeal No.24/2004 R.S.R.T.C. vs. Jabar Singh & Ors. 14.S.B. Civil Misc. Appeal No.25/2004 R.S.R.T.C. vs. Mangal Singh & Ors. 15.S.B. Civil Misc. Appeal No.26/2004 R.S.R.T.C. vs. Smt. Sakudevi & Ors. 16.S.B. Civil Misc. Appeal No.27/2004 R.S.R.T.C. vs. Bhanwar Lal & Ors. 17.S.B. Civil Misc. Appeal No.34/2004 R.S.R.T.C. vs. Ganpat Singh & Ors. 18.S.B. Civil Misc. Appeal No.1940/2004 R.S.R.T.C. vs. Gajesingh & Ors. 19.S.B. Civil Cross Objections No.12/2004 Arjun Singh vs. R.S.R.T.C. & Ors. 20.S.B. Civil Cross Objections No.8/2004 Smt. Mangi Devi. vs. R.S.R.T.C. & Ors. 21.S.B. Civil Cross Objections No.10/2004 Smt. Puni Devi & Ors. vs. R.S.R.T.C. & Ors. 22.S.B. Civil Cross Objections No.9/2004 Mangji & Ors. vs. R.S.R.T.C. & Ors. 3 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals 23.S.B. Civil Cross Objections No.13/2004 Mangal Singh & Ors. vs. R.S.R.T.C. & Ors. 24.S.B. Civil Cross Objections No.14/2004 Mangal Singh vs. R.S.R.T.C. & Ors. 25.S.B. Civil Cross Objections No.17/2004 Bhanwar Lal vs. R.S.R.T.C. & Ors. Date : 17.12.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.AS Rathore, for the appellant RSRTC. Mr.Jagdish Vyas, for the respondent insurance company. Mr.Rajesh Panwar, for the respondents/claimants. - - - - - Heard learned counsel for the parties. The appellant Rajasthan State Road Transport Corporation (RSRTC) has preferred 18 appeals to challenge the common award dated 30.7.2003 by which the Motor Accident Claims Tribunal, Balotra decided 20 claim cases arising out of one accident which occurred on 8.3.1998 in the afternoon at 1:45 PM. The accident occurred near Jasol crossing near one tyre puncture repairing shop. The accident was between one Bus owned 4 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals by the appellant with the jeep in which the victims were travelling. In this unfortunate accident, 15 jeep passengers died and 3 were injured. For this accident, one Madan Lal s/o Pokar Lal lodged F.I.R. without any delay at 2:00 PM i.e. within 15 minutes from the time of accident and in the report Ex.3, he stated that he saw the accident which was caused by the driver of appellant's bus while driving the Bus no.RJ 14P 0924. The driver of the bus – Karna Ram was driving the bus rashly and negligently and he hit the jeep (commander) no.RJ 07C 1495 which was driven by Kistura Ram. The jeep was going on its right side on the road and the bus driver yet collided his bus with the jeep. In the report itself, he mentioned that some of the persons have died on the spot and some are lying injured there. On the basis of the said report, site map Ex.5 with report was prepared wherein the investigating officer found that it was a gross negligence of the bus driver who after hitting the jeep by going towards extreme wrong side, dragged the jeep to about 56 feet towards the eastern side of the road and drew the jeep away from the road. Challan was filed against the appellant's driver in the Court. The Tribunal consolidated all claims and framed 5 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals issues relevant for the purpose of deciding all the claim cases. Before the Tribunal, the claimants produced as many as 17 witnesses including eye witnesses as well as passengers who were travelling in the jeep who all stated that it was rash and negligent driving of the bus driver and because of that, the accident occurred and there was no fault of the driver of the jeep. The appellant did not produce any evidence nor even its driver to rebut the statement of the eye witnesses produced by the claimants. However, the respondent insurance company, insurer of the jeep, produced one witness NAW1 Kunj Bihari. The Tribunal allowed the claim cases after holding that the appellant RSRTC is liable for compensation and awarded compensation in the relevant claim cases as under :- Claim Title Amount Case No. Awarded 52/98 Smt. Saraswati Devi & Ors. vs. RSRTC & Ors. Rs.677200/- 82/98 Bhanwar Lal vs. RSRTC & Ors. Rs.82,000/- 65/98 Mangi Devi vs. RSRTC & Ors. Rs.257500/- 128/98 Kistur Mal vs. Karna Ram & Ors. Rs.31,210/- 66/99 Ratan Singh vs. RSRTC & Ors. Rs.24,600/- 6 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals 119/98 Puni Devi & Ors. vs.RSRTC & Ors. Rs.497000/- 121/98 Mohanki vs. RSRTC & Ors. Rs.303400/- 86/98 Mangji & Ors. vs. RSRTC & Ors. Rs.168000/- 67/99 Arjun Singh vs. RSRTC & Ors. Rs.338950/- 73/98 Jabbar Singh vs. Karna Ram & Ors. Rs.157500/- 88/98 Mangal Singh & Ors. vs.RSRTC & Ors Rs.122250/- 75/98 Bholi Devi & Ors.vs.Karna Ram & Ors Rs.578500/- 72/98 Jabbar Singh vs. Karna Ram & Ors. Rs.107500/- 90/98 Mangal Singh & Ors. vs.RSRTC & Ors Rs.177000/- 92/98 Saku Devi & Ors. vs. RSRTC & Ors Rs.123000/- 84/98 Bhanwar Lal vs. RSRTC & Ors. Rs.157000/- 96/98 Ganpat Singh. vs. RSRTC & Ors Rs.82,000/- 94/98 Gaje Singh & Ors. vs. RSRTC & Ors Rs.132000/- In these appeals, the appellant has challenged the impugned award dated 30.7.2003 on the finding recorded by the Tribunal on the question of negligence and also on the question of quantum. According to learned counsel for the appellant, the Tribunal committed serious error of law in holding the appellant bus driver alone as negligent instead of holding the driver of jeep responsible for the accident because he was having large number of persons in the jeep and the jeep driver was driving the jeep rashly 7 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals and negligently otherwise, he also could have avoided the accident. It is further submitted that the Tribunal has awarded excessive amount in favour of the claimants which is apparent from the face of record itself. The Tribunal has applied the multiplier of even 25, 35 and 42 for assessment of loss to the claimants. It is also submitted that in a case of injury to Arjun Singh (Claim case no.67/99), huge amount of more than Rs.3,38,000/- has been awarded. Learned counsel for the appellant assailed the award of compensation in other cases which I shall be referring while considering individual case. Learned counsel for the insurance company Mr.Jagdish Vyas vehemently submitted that it was a clear case of negligence of bus driver and that fact has been proved by oral as well as documentary evidence and that evidence is unrebutted and in view of this finding, the insurance company is not liable. Learned counsel for the claimants Mr.Rajesh Panwar vehemently submitted that so far as negligence of bus driver is concerned, for that there is sufficient evidence and there is report prepared by an independent 8 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals agency apart from the fact that the FIR was lodged by neighbour within 15 minutes from the time of occurrence of the accident. It is submitted that the number of persons travelling in the jeep have not contributed to the accident and the force with which the jeep was thrown away from the road by the bus clearly shows that the driver had no control over the bus and in fact, caused the death of 15 persons and injured 3 persons and these facts speak loudly against the appellant's driver. Learned counsel for the claimants justified the award of compensation to the claimants as awarded by the Tribunal and also submitted that in some of the cases, low amount of compensation has been awarded which may be enhanced. I considered the submissions of learned counsel for the parties and perused the record as well as the impugned award. It is proved from the evidence available on the record that the accident occurred between the two vehicles – one appellant's bus driven by their own 9 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals driver and another vehicle was jeep and the driver of jeep was Kistura Ram who appeared as witness AW15. Other eye witnesses are AW4 Ratan Singh and AW5 Arjun Singh who saw the accident. There is no rebuttal of evidence from the appellant and if we look into the contents of FIR and site map Ex.5 and site report, then it is clear that it was a case of gross negligence of the appellant's bus driver who has caused accident by driving the bus and that too by taking his bus to the other side of the road. The jeep was going leaving 5 feet road towards its left and had 19 feet on the right side of the jeep. Therefore, the jeep was travelling on the left side of the road whereas it was dragged to right side of the road and thrown away from the road. The bus went with tyre marks to about 56 feet from the place of accident. In view of the above reason, the Tribunal has not committed any error of fact in holding that it was a case of total negligence of the appellant's driver. In the facts of this case, it cannot be said that travelling of large number of persons in the jeep might have contributed in the accident in any manner. So far as the contention of appellant RSRTC for 10 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals reducing the compensation awarded and the cross objections submitted in the above matters, they are required to be dealt with separately and are dealt with accordingly. S.B. Civil Misc. Appeal No.10/2004 S.B. Civil Cross Objections No.12/2004 This appeal has been preferred by appellant RSRTC to challenge the award of compensation in Claim Case No.67/1999 whereby the appellant submitted that in a case of injury, huge amount of compensation of Rs.3,38,000/- has been awarded whereas the cross objections have been filed on behalf of the claimant Arjun Singh for enhancement of the compensation. In the accident in question, victim Arjun Singh who gave his statement as AW5, suffered injuries in his both legs which virtually damaged his entire legs. He remained hospitalised for 20 days at Jodhpur and thereafter, he remained in hospital at Ahmedabad for 27 months where the speciality orthopedic hospital is there. He placed on record medical prescriptions as well as bills by which he purchased the medicines etc. 11 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals He also placed on record his own photograph to show the gravity of his injuries. The rods were fixed in the legs of the victim which were removed after 5 years by operation. The claimant produced total bills of Rs.89,000/- of medicines which are Exhibits-17 to 20, 38 to 65 and 68 to 135. Looking to his serious ailment of total disablement during the hospital treatment, he must have taken the help of other persons for which the Tribunal awarded compensation of Rs.36,000/- per annum for two persons and awarded Rs.1,000/- per month as their diet. For claimant, the Tribunal awarded Rs.10,000/- for his special diet. For pain and agony, compensation of Rs.10,000/- was awarded by the Tribunal. In addition to the above, for stay of the claimant at Ahmedabad in rented room, Rs.36,000/- for one year has been awarded. Against the claim of Rs.1 lakh for operation after five years of accident for removal of rods, the Tribunal awarded Rs.25,000/-. Against the loss of income, only Rs.25,000/- has been awarded against the claim of Rs.1,60,000/-. It appears from the facts referred above that the claimant remained virtually totally disabled for 27 months and most of time, he lived in a bigger city – 12 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals Ahmedabad which must have cost him heavily. Looking to the injuries of the claimant, he could not have done any work without help of any person and he must have taken help of even outsider and even if his family members attended him for 27 months at Ahmedabad, then award of compensation on this account amounting to Rs.72,000/- for serving of victim cannot be said to be excessive in any manner. For short period, one may adjust anywhere but for full more than 2 years, if the victim lived at Ahmedabad, he must have incurred expenses for his living which includes expenses for other family members and for that amount, award of Rs.36,000/- cannot be said to be excessive. The claimant produced receipt of Rs.87,000/- which he paid as rent for the accommodation for living at Ahmedabad but that was not accepted and only Rs.36,000/- has been awarded to the claimant. The Tribunal also awarded compensation of Rs.36,000/- because of inability of the appellant in doing his work for one year. It may be true that some compensation has not been awarded appropriate to the injuries suffered by the claimant but at the same time, on some counts, other compensation have been awarded to the claimant, which may make the total compensation for claimant to 13 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals Rs.3,38,950/- as just and proper compensation in injury case. The award of compensation looking to the expenses which the claimant suffered and lived in the hospital cannot be said to be excessive nor it can be said to be low in any manner. Consequently, this appeal no.10/2004 of the appellant RSRTC as well cross objection no.12/2004 of the claimant Arjun Singh are hereby dismissed. S.B. Civil Misc. Appeal No.2/2004 This appeal has been preferred by appellant RSRTC to challenge the award of compensation in Claim Case No.82/1998. In claim case no.82/1998, the claimant Bhanwar Lal claimed compensation due to the death of his daughter Badami who was of the age of 3 years only. She was the only child of claimant. A lumpsum of Rs.75,000/- has been awarded to the claimant. Rs.5,000/- on account of mental agony and Rs.2,000/- for funeral expenses has been awarded to the claimant. The accident occurred in the year 1998 and it is an admitted case that deceased Badami was not earning 14 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals person and she was of the age of 3 years only. The award of lumpsum amount of Rs.75,000/- to the father of the victim cannot be said to be excessive in any manner and, therefore, I do not find any reason to reduce the said amount. Consequently, there is no merit in the appeal and the same is hereby dismissed. S.B. Civil Misc. Appeal No.3/2004 S.B. Civil Cross Objections No.8/2004 This appeal has been preferred by appellant RSRTC to challenge the award of compensation in Claim Case No.65/1998 whereas the cross objections have been filed on behalf of the claimant Mangi Devi for enhancement of the compensation. In claim Case No.65/1998, Smt. Mangi Devi, mother of Chuna Ram, sought claim due to death of his son in the accident referred above. Deceased Chuna Ram was a student of Class XI. The Tribunal held that the age of the deceased was 16 years but did not accept the income of deceased Chuna Ram to be Rs.20,000/- per annum and held that Chuna Ram if was doing some work in vacations, then also, he could not have income of 15 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals Rs.20,000/- per annum. The Tribunal awarded lumpsum compensation of Rs.2,50,000/- on account of death of Chuna Ram because of the reason that the claimant, mother of deceased, herself was widow. Since the victim was of the age of 16 years and he was a student of school in Jodhpur, then his earning capacity cannot be ignored. His notional income should have been accepted to be Rs.2,000/- per month amounting to Rs.24,000/- per annum, out of which 1/3rd could have been deducted, then loss to the claimant on account of loss of earning per annum comes to Rs.16,000/-. Looking to the age of the deceased, the multiplier of 17 will be appropriate multiplier, then that comes to Rs.16,000/- x 17 = Rs.2,72,000/-. Therefore, the award of Rs.2,50,000/- is increased to Rs.2,72,000/-. For mental agony, the Tribunal awarded Rs.5,000/- which appears to be low and deserves to be increased to Rs.10,000/-. Rest of the award is kept as it is. In view of the above, the total increase in the award will be Rs.27,000/- (Rs.22,000/- + 5,000/-). In view of the above, there is no merit in the appeal and the same is hereby dismissed and the cross objections are partly allowed as mentioned above. 16 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals S.B. Civil Misc. Appeal No.4/2004 This appeal has been preferred by appellant RSRTC to challenge the award of compensation in Claim Case No.128/1998. This claim case was filed by injured Kistur Mal. In the accident, he suffered injuries on left eye, left cheek, left shoulder and on both the hands and other parts of the body. He remained hospitalised in Mathura Das Hospital, Jodhpur. According to the claimant, because of the accident, his left eye became narrower and he suffered fracture on the bone below the eye. His jaws also broke down and from left eye to lip, 25 stitches were given to him and because of which, his face became disfigured. He produced medical bills and prescriptions Ex.17 to Ex.30 and injury report Ex.31. He claimed that he was earning Rs.3,000/- per month as he was driver. As per the injury report, the victim suffered total six (6) injuries with one grievous injury. The Tribunal awarded Rs.1,000/- for each simple injury and Rs.5,000/- for grievous injury i.e. Rs.10,000/- total for suffering injuries. Since the claimant produced 17 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals bills of Rs.1,610/-, therefore, that amount has been awarded. He was given Rs.600/- as charges for ambulance and was awarded Rs.3,000/- for keeping one person with him during treatment period. For special diet for himself and for the person who remained with him, Rs.1,000/- each was awarded. His income was assessed to be Rs.3,000/- and for three (3) months loss, he has been awarded compensation of Rs.9,000/-. For pain and sufferings, he has been awarded Rs.5,000/-. Therefore, in total, Rs.31,210/- has been awarded. Looking to the injuries and the amount awarded, I do not find that the Tribunal has awarded excessive claim to the claimant. In view of the above, there is no merit in the appeal and the same is hereby dismissed. S.B. Civil Misc. Appeal No.5/2004 This appeal has been preferred by appellant RSRTC to challenge the award of compensation in Claim Case No.66/1999. This claim case was filed by injured Ratan Singh who gave his statement as AW4. As per the injury report 18 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals Ex.12, in the accident, he suffered total six (6) injuries with one grievous injury. The Tribunal awarded Rs.1,000/- for each simple injury and Rs.5,000/- for grievous injury i.e. Rs.10,000/- total for suffering injuries. Since the claimant produced bills of Rs.1,000/-, therefore, that amount has been awarded. He did not produce any receipt for travelling for his treatment, but Rs.600/- has been allowed to him on this account. For special diet for himself and for the person who remained with him, Rs.1,000/- each was awarded. He has been awarded compensation of one month's wages i.e. Rs.3,000/-. Therefore, in total, Rs.24,600/- has been awarded. Looking to the injuries and the amount awarded, I do not find that the Tribunal has awarded excessive claim to the claimant. In view of the above, there is no merit in the appeal and the same is hereby dismissed. S.B. Civil Misc. Appeal No.6/2004 S.B. Civil Cross Objections No.10/2004 This appeal has been preferred by appellant RSRTC 19 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals to challenge the award of compensation in Claim Case No.119/1998 whereas the cross objections have been filed on behalf of the claimants for enhancement of the compensation. This claim case has been submitted by Smt. Puni Devi w/o deceased Toga Ram and Pukhraj, Sangeeta and Manju who are son and daughters of deceased Toga Ram. Toga Ram died in the accident and as per the facts pleaded by the claimants, the deceased was running his hair cutting shop and was earning Rs.150/- to Rs.200/- per day. He was also doing agriculture operations, however, the Tribunal assessed the income of deceased Rs.100/- per day in view of the fact that except the claimants' statement, there was no other evidence. The Tribunal also held that the deceased could have earned Rs.100/- for 24-25 days in a month and after deducting 1/3rd amount, the Tribunal assessed the income of deceased for the purpose of calculating loss of earning suffered by the claimants as Rs.19,200/- per annum and applied multiplier of 25 for the deceased who was of the age of 40 years and awarded compensation of Rs.4,80,000/-. The Tribunal committed error by applying multiplier of 25 which is apparent on the face of the 20 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals record. For a person who died at the age of 40 years, the multiplier of 15 is appropriate. In view of the above, the loss to the claimants comes to Rs.19,200 x 15 = Rs.2,88,000/-. Therefore, on this count, in place of Rs.4,80,000/-, the award is reduced to Rs.2,88,000/-. The award of compensation to the wife of deceased is increased from Rs.15,000/- to Rs.20,000/-. Rest of the award is maintained. In view of the above, this appeal is partly allowed and the cross objections filed by the claimants are hereby dismissed. S.B. Civil Misc. Appeal No.7/2004 This appeal has been preferred by appellant RSRTC to challenge the award of compensation in Claim Case No.121/1998. This claim case was filed by claimant Smt.Mohanki who gave her statement as AW9. Her son Sujaram of the age of 20 years died in the accident. According to the claimant, the deceased was a skilled labour and was earning Rs.150/- per day. According to the claimant, her house was running on the income of the deceased and 21 S.B. Civil Misc. Appeal No.8/2004 R.S.R.T.C. vs. Saraswati Devi & Ors. And other connected appeals after his death, there is no earning member in the family. The Tribunal assessed the income of deceased Rs.2,000/- per month and deducted 1/3rd out of it and held that the deceased must have been giving Rs.1,300/- per month to his dependents and thereby, the dependent/ claimant suffered loss of Rs.15,600/- per annum. Since the claimant