IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 543 of 1996 MANGLA RAM V/S BABU BHARTI & ORS Mr. J GEHLOT for Mr. DK PARIHAR, for the appellant / petitioner Mr. ANIL BACHHAWAT, for the respondent Date of Order : 21.4.2008 HON'BLE SHRI N P GUPTA,J. JUDGMENT -------- This appeal has been filed by the claimant against the award of the Motor Accident Claims Tribunal, Jalore dated 27.1.1996, decreeing the claim for personal injury, for an amount of Rs.37,200/- alongwith interest from the date of claim petition. The brief facts of the case are, that a claim petition was filed by the appellant alleging interalia, that he alongwith his daughter was going on his motorcycle after the examination of the daughter was over, and when they were at a small distance away from Leta, the delinquent bus being driven rashly and negligently hit, as a result of which he and his daughter sustained injuries, for that the claim has been lodged. The claim has been laid for a total amount of Rs.5,52,262/-. The two defendants filed independent replies and contended, that the bus was stationary, and the motorcycle hit from behind, and as such is not entitled to claim any compensation. The learned Tribunal framed three issues. Issue No.1 was about negligence. Issue No.2 was about quantum, and issue No.3 was about relief. The claimant examined himself as A.W.1, and produced two persons being passengers in the bus, being A.W.2 and A.W.3. Then he has examined Dr. Kishan Singh Rathore as A.W.4, and Dr. Vitthalnath Das as A.W.5, and his daughter has been examined as A.W.6. The driver has been examined as N.A.W.1/1, and conductor has been examined as N.A.W.2/2, while Operation Manager of the Corporation Vishudan Changani has been examined as N.A.W.3/2. The claimant produced voluminous documents on record about the police investigations, bills for medical expenditure, bills for payment of fees to doctors, and other related documents. Learned Tribunal deciding issue No.1 found, that from the evidence of both the parties it is not in dispute that the accident occurred, on account of which the claimant received injuries, and regarding the manner in which the accident occurred, it has been found, that it is not established that the driver at all gave side to the 2 claimant, inasmuch as, in the event of giving side, either the driver waves his hand, or puts the side indicator on, which is not shown to have been done, and it is not shown that any other vehicle was coming from the opposite direction, still the driver was moving his bus waiving, inasmuch as, firstly he took it off the road towards the left side, then again brought it on road, which gave an impression to the motorcyclist, that the bus driver is giving side, and therefore, he started overtaking, but then it was his responsibility to ensure, that he is being given side or not. Thus, it has been found, that the accident was out come of contributory negligence. Significantly while deciding issue No.1, it has not been found, as to what is the extent of negligence of the motorcyclist vis-à-vis the negligence of the bus driver. However, while deciding issue No.3, the learned Tribunal has assumed the negligence of the driver of the bus to the extent of 60%, and has found the claimant to be negligent to the extent of 40%. Then deciding issue No.2, the learned Tribunal has found, that from the evidence of the claimant, including his witnesses, it is clear that the claimant cannot use his leg completely, he become dependent, and has to take support of the crutches, or any other person, and has suffered 60% permanent disablement, for which Ex.107 is there. Then assessing the expenditure occurred, the learned Tribunal has found, that the total amount of the bills being Ex.7A to 42, 51 and 52 comes to Rs.9545.99. Then the total of the 3 bills being Ex.41, 43, 48, 50, 56 to 60, 63, 67, 68, 73 to 75 and 91 to 94 has been taken to be Rs.32,445/-, excluding Exs.91, 92, 50 and 57 to 59. These bills have been excluded on the ground of their being of a bigger amount, and no doctor or concerned clerk having been examined to prove them. Still it has been observed, that since the claimant has undertaken treatment in expensive cities, he must have spent something. Then regarding conveyance charges from Jalore to Ahmedabad and to Jodhpur by car, nothing has been awarded, on the ground, that no documentary evidence has been produced. Then regarding loss of income, which was claimed to be Rs.1000/- to 1200/- per month, nothing has been awarded, on the ground, that no satisfactory evidence was produced, as to whether he was earning anything. Thus, an amount of Rs.42,010/- has been assessed as expenditure incurred in medical treatment. Then Rs.10,000/- has been assessed for the mental pain and agony, and another 10,000/- has been awarded for future sufferings. Thus, assessing Rs.62,000/- as total compensation, deducting 40%, the award has been made as above. Assailing the impugned judgment and award, it is contended, that finding of the learned Tribunal on issue No.1 is not sustainable, inasmuch as, there is nothing to show, that there was any negligence on the part of the motorcyclist in causing the accident. Learned counsel took me through the entire evidence available on record, and the 4 pleadings of the parties, while the learned counsel for the respondent supported the findings. In my view, from the reading of the evidence of the parties, oral as well as documentary, it is not established at all, that there was any negligence of the motorcyclist in causing the accident. In this regard, it may be observed, that the stand of the claimant is, that the bus driver had gave him side to overtake, and when he started overtaking, suddenly the bus was taken on the wrong side, and the accident occurred, while the case of the defendants is, that it was a stationary bus, and the motorcyclist hit from behind. It is not the case of the defendant, either in the pleadings, or in the cross-examination suggested to the claimant, or his witnesses, as to how the process of overtaking was going on, and as to how any error was committed on the side of the claimant, in causing the accident. In that view of the matter, the matter is required to be examined, as to whether the motorcyclist hit the stationary bus, or the accident occurred in the manner, as claimed by the claimant viz., that the bus left the road on the left side, and when the motorcyclist tried to overtake, the bus suddenly reappeared and went on the wrong side, and as a result of which the accident occurred. In this regard, it is significant to note, that in the entire cross-examination 5 of the claimant not a word has been suggested to him that the bus was a stationary bus, and he hit the stationary bus from behind, rather it was suggested, that at the time of accident the horn of the motorcycle was not functional, and as to what was the position at the time of accident. Though the evidence has been led on the side of the defendant about the bus being stationary, but the evidence of two witnesses N.A.W.1 and N.A.W.2 is contradictory in this regard, as to whether the bus was stationary for issuing tickets, or a moving bus was got stopped for allowing the passengers to alight. Be that as it may. The fact remains, that it is not established that the bus was stationary. Then coming to Ex.3, the site plan and Ex.4 the site inspection note, these documents make it clear, that the width of the road is 12 feet, the bus is shown to be standing on the north end, the road going from west to east, while the motorcycle is shown to be lying at point 'B', which is in the extreme south of the road. It is also shown, that there are no marks of any application of brake by the motorcyclist. It is also significant to note, that it has not been shown in the site plan, as to what is the condition of the tyre marks towards the west of the bus, which might have shown, as to whether the bus is found at the place stopped after the accident, or is the place where accident occurred. It does not stand to reason, that if the bus is at point 'A', the motorcycle will go away to point 'B' after the impact, rather it clearly appears, that 6 the accident occurred somewhere before, and both the vehicles were in motion, and on account of the bus having suddenly come back on the road, probably occupying total width of the road, motorcyclist was hit, and was thrown away rather spined away towards the south, and consequently, the motorcycle is lying at point 'B'. It is required to be grasped, that the bus is supposed to carry a rear viewer mirror, which is supposed to show to the driver the traffic condition immediately behind him, and if any vehicle is overtaking, the necessary care was required to be taken by him, either to stop the overtaker or to provide appropriate passage to him; while this is not shown to have been done either. Thus, taking the totality of circumstances, in my view, it cannot be said, that the motorcyclist was in any manner contributory in causing the accident. Thus, the finding of the learned Tribunal on issue No.1 is accordingly modified. Then coming to the issue No.2 regarding quantum; out of the amount claimed for medical expenditure, the main controversy is regarding the bills Ex.91, 92, 50, and 57 to 59. In this regard, it would suffice to say, that the learned Tribunal has proceeded on the basis, that they have not been proved by producing the doctor or some person from the clinic. It is significant to note, that from a look at these documents, it is clear, that at no stage, these 7 documents have been denied by the defendants, and unless they have been denied, it was none of the part of the responsibility of claimant to prove them, in the manner, as expected by the learned Tribunal. It is also not in dispute, that the claimant did undertake the necessary treatment. In these circumstances, in my view, the learned Tribunal was not justified in excluding these documents, total amount covered by these documents is Rs.23,100/-, and therefore, the claimant is legitimately entitled to have this amount awarded. So far conveyance charges is concerned, of course there is no documentary evidence on record produced by the claimant, but then it is not in dispute, that the claimant went twice to Ahmedabad, which is shown to be at a distance of 360 Kms., and conveyance charges are said to be incurred @ Rs.2 per kms., which cannot be said to be excessive. Likewise, it is also clear, that the claimant had to travel time and again to Jodhpur, which also he traveled by car, and the distance to Jodhpur is shown to have been 130 kms. Comprehending the overall situation, in my view, a minimum amount of Rs.5000/- was required to be awarded for the conveyance charges. Then the sum of Rs.4000/- is also required to be awarded for loss of income suffered by the deceased, during the period up to September 1992, from the date of accident. True it is that there is no tangible evidence produced on the side of the claimant in this 8 regard, about his earning Rs.1000/- to 1200/- per month, but then, his evidence has not substantially been controverted, either by cross-examination, or by leading any evidence in rebuttal, and therefore, I am inclined to award this sum of Rs.4000/- as well. Consequently, the appeal is partly allowed, and the deduction made by learned Tribunal to the extent of 40%, by way of contributory negligence is set aside, and in the amount of Rs.62,000/-, as assessed by the learned Tribunal, the amount of Rs.32100/-, as arrived at above, is also added. Rest of the conditions of the award, are maintained. ( N P GUPTA ),J. /tarun/ 9