1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CIVIL MISC. APPEAL No.386/2005 RSRTC V/s SHATRUDHAN TIWARI & ANOTHER & S.B. CIVIL MISC. APPEAL No.359/2005 SHATRUDHAN TIWARI V/s RSRTRAC & Ors. DATE OF JUDGMENT ::::: MAY 26, 2008 PRESENT HON'BLE MR. JUSTICE GUMAN SINGH Shri Virendra Agrawa, for appellant RSRTC. Shri Vishvesh Gupta for respondents BY THE COURT : (Oral) 1. Both the appeals u/s 173 of the Motor Vehicles Act, 1988 have been preferred one by the appellant/claimant and another by RSRTC and appeal filed by Shatrudhan Tiwari, for enhancement of compensation against the order dated November 5, 2004 passed by the learned Judge, Motor Accident Claims Tribunal (Addl. District & Sessions Judge (Fast Track) No.1, Bharatpur (for short 'the “the Tribunal) whereby a sum of Rs.5,63,440/-was awarded as compensation to the dependents of deceased Smt. Kamlesh. While cross appeal – S.B. Civil Misc. Appeal No.386/2005 has been preferred on behalf of the RSRTC on the ground 2 that there has been no negligence of the driver of RSRTC and there has been contributory negligence on the part of the deceased who was traveling in the bus. 2. On 13.9.2003, Smt. Kamlesh W/o of late Shri Naresh Tiwari aged 36 years was traveling in the RSRTC bus RJ 05 P 719 and was going from Deeg to Bharatpur thereby an accident took place when the driver of the bus, tried to save a tractor and lost balance resulting collusion of the bus against a tree by the side of the road causing injuries and death of deceased Smt. Kamlesh. 3. Learned counsel for the claimant submitted that the award passed by the learned Tribunal is on lower side and deserves to be enhanced. It was further submitted that the learned Tribunal failed to consider Rs.209/- house rent received by the deceased while computing the income. Learned counsel relied upon the judgment of the Apex Court passed in Case No.5830 of 2007, National Insurance Company Ltd. V/s Indira Srivastava & Ors decided on 12.12.2007. 4. Learned counsel for the RSRTC submitted that the driver tried to save the vehicle from accident and in the efforts, bus 3 is alleged to have been collided against the tree and as such there is no negligence on the part of the bus driver. He submitted that the deceased alone sustained injures on her head and that was on account of her negligence that her head was injured and as such the compensation deserves to be scaled down. 5. In view of the submissions of the learned counsel and on going through the award as well as the record of the case, it is revealed that the bus struck to the tree after leaving the road and the deceased sustained injuries while she was traveling in the said bus and as such the finding on the point of the negligence cannot be faulted. Likewise, there is no evidence on the point that it was the deceased who was directly hit by any other object outside the bus and as such the submissions pertaining to contributory negligence of the deceased, are not of much consequence. However, the amount of Rs.209/- by way of house rent to the deceased for the benefit of whole of the family, deserves to be taken into account for computation of the claim in view of the decision cited by the learned counsel. Accordingly, the amount is 4 required to be added in the total award Rs.209/- x 12 x 16 – 1/3 = 26,752/-. 6. Accordingly the award is modified to the extent that the amount of compensation of Rs.5,63,440/- is substituted to Rs.5,90,192/- from the date of filing of appeal i.e. 29.1.2005. The amount so increased shall entail interest @ 6% p.a. from the date of appeal to be paid within three months failing which interest @ 9% p.a. shall be payable. 7. The appeals are disposed of accordingly. (Guman Singh), J. chauhan/