Sunita vs Rajasthan State Road Transport ...

3. Briefly stated, on 28th October, 2011 at around 7 A.M., Sitaram (husband of appellant No.1 and father of appellant Nos.2 and 3, minor children) was riding a motorcycle, bearing registration number RJ­25 SA 6923, along with a pillion rider, one Rajulal Khateek, when the motorcycle collided with a bus coming from the opposite direction bearing registration number RJ­26/P.A. 0042, owned by respondent No.1 and rashly and negligently driven by respondent No.2. The accident resulted in the death of Sitaram and severe injuries to the pillion rider, Rajulal Khateek. Thereafter, the appellants and the parents of the deceased Sitaram filed two separate petitions before the Tribunal seeking compensation for the death of Sitaram, who was a senior teacher in a Government school, from the 3 respondents, to the tune of Rs.2,62,02,408/­ and Rs.1,13,42,984/­, respectively.

6. The Tribunal also examined the deposition of Bhagchand Khateek (A.D.2), a witness to the incident who deposed that he had gone to his brother’s house at Shivad village, one day prior to the date of the accident. At the time of the accident, he had gone to relieve himself and was walking on the left side of the road when he saw the motorcycle with number RJ 25 SA 6923, which was also on the left side of the road, being hit by the offending bus bearing registration No. RJ­26/P.A. 0042, being driven at a high speed coming on to the wrong side of the road, resulting in the instant death of the rider of the motorcycle. He further deposed that the name of the driver of the 5 offending bus was Banwari (respondent No.2). In his cross­ examination, Bhagchand revealed that he did not see Banwari (respondent No.2) after the accident and further, that there was a pillion rider on the motorcycle who was a man, but he couldn’t identify the man’s age.

7. The respondents challenged the evidence of Bhagchand (A.D.2) on the ground that his name was not mentioned in the list of witnesses set out in the charge­ sheet (Exh.2) and could not have been near the spot when the accident occurred. For, he was a resident of Pakhala village, which was 3 (three) Kilometres away from the alleged accident spot. Despite these objections, the Tribunal accepted the veracity of Bhagchand’s deposition. It held that not all the eye­witnesses to the incident needed to be named in the charge­sheet and that the respondents had failed to ask Bhagchand any question during the cross examination so as to cast any doubt on the veracity of his statement. Further, the respondents had also failed to ask Bhagchand about giving any statement to the police. Bhagchand had deposed that on the day of incident, he was at his brother’s 6 house in Shivad village, which did not preclude him from being an eye­witness to the incident.

8. The Tribunal then noted that respondent No.2 driver of the offending bus, Banwari Lal, had not been examined as a witness by the respondents. Additionally, it found that the site map of the accident (Exh.3) showed that the accident had occurred at a turning in the road, and yet the offending vehicle was driven at a high speed. This aspect was read with the unchallenged evidence of the witness Bhagchand Khateek (A.D.2), who inter alia deposed that at the time of the accident, the offending bus was being driven recklessly at a high speed and also that the respondents had failed to ask the said witness Bhagchand any question about the purported negligence of the rider of the motorcycle, Sitaram. Further, the respondents had failed to show that they had challenged the filing of the charge­sheet (Exh.2) against respondent No.2 driver of the offending vehicle. Finally, the Tribunal adverted to the post­mortem report (Exh.4) wherein it was recorded that the deceased had died due to 7 shock arising from various fractures on his body. The Tribunal also took into account the notice under Section 134 of the Act (Exh.7), wherein respondent No.2 had not made any statement that the accident had occurred due to the negligence of the motorcycle rider. On a combined reading of the aforesaid evidence, the Tribunal held that there was no negligence on the part of the deceased Sitaram, while riding the motorcycle and that he was fatally hit by the bus being driven recklessly and at a high speed by respondent No.2.

9. The Tribunal also examined the notice under Section 133 of the Act (Exh.6) in which the Assistant Transport Inspector, Tonk Bus Depot, stated that respondent No.2 was the driver of the offending bus bearing registration number RJ­26/P.A. 0042. It then examined the notice under Section 134 of the Act (Exh.7), wherein respondent No.2 stated that the offending bus bearing registration number RJ­26/P.A. 0042 was being operated by him on the date and place of the accident. The Tribunal thus concluded that respondent No.2 was under the employment of 8 respondent No.1 at the time of the accident and was driving the offending bus which caused the accident.

10. On the basis of the aforesaid findings and observations, the Tribunal partly allowed the two claim petitions. After deducting income tax payable on the income received by Sitaram, the Tribunal awarded compensation of Rs.48,33,235 (Rupees Forty Eight Lakh Thirty Three Thousand Two Hundred and Thirty Five only) jointly and severally to the appellants and the parents of Sitaram, along with interest. The Tribunal observed that there was evidence on record to show that Sunita (appellant No.1) wife of the deceased was having estranged relations with her husband and thus ordered that the compensation be divided in such a way that the appellants herein would receive Rs.38,33,235 (Rupees Thirty Eight Lakh Thirty Three Thousand Two Hundred and Thirty Five only) and the remaining amount of Rs.10,00,000 (Rupees Ten Lakh only) would be given to the parents of the deceased. 9

11. The appellants, aggrieved by the deduction of income tax from the calculated income of the deceased, filed S.B. Civil Miscellaneous Appeal No.581 of 2017 while the respondents filed two appeals viz. S.B. Civil Miscellaneous Appeal No.521 of 2017 and S.B. Civil Miscellaneous Appeal No.522 of 2017, before the High Court of Rajasthan, Jaipur Bench. Vide a common judgment dated 25 th July, 2018, the High Court set aside the Tribunal’s judgment in entirety, on the grounds that non­examination of the pillion rider, Rajulal Khateek, was fatal to the case of the appellants, that the witness Bhagchand (A.D. 2) was unreliable and his evidence could not be reckoned and that the site map of the accident (Exh.3) showed that the deceased Sitaram was riding his motorcycle on the wrong side of the road at the time when the accident occurred, thus, proving that it was Sitaram, and not respondent No.2 (bus driver), who was guilty of negligence. The High Court thus allowed the two appeals filed by the respondents and set aside the Tribunal’s judgment, and consequently dismissed the appeal filed by the appellants.

22. Reverting to the factual matrix, the actual occurrence of the accident between the motorcycle driven by Sitaram bearing registration number RJ 25 SA 6923 coming from one side and a bus belonging to respondent No.1 (the Rajasthan State Road Transport Corporation) bearing registration number RJ­26/P.A. 0042 coming from the opposite direction, is duly proved. The Tribunal has relied upon the uncontroverted evidence of witnesses A.D.1 and A.D. 3, and the documents presented by them, especially FIR No. 247/2011 (Exh. 1) and charge­sheet (Exh.2) against one Banwari Lal Bairwa (respondent No.2), charging him with offences under Sections 279, 337 and 304A of the IPC and Sections 134/187 of the Act, to establish that on 28.10.2011 at around 7 A.M., Sitaram, along with pillion rider Rajulal Khateek, was riding on a motorcycle bearing number RJ 25 SA 6923 from village Bapuee to Chaut ka Barwad for Daug, to his sister, when, near Mahapura tri­ section, bus number RJ­26/P.A. 0042 belonging to respondent No.1 (the Rajasthan State Road Transport 26 Corporation) coming from the opposite direction hit the motorcycle from the front, resulting in the death of Sitaram.

26. Accordingly, we have no hesitation in upholding the finding recorded by the Tribunal that there was an accident on 28­10­2011 at around 7AM between the motorcycle driven by Sitaram bearing registration number RJ 25 SA 6923 and a bus belonging to respondent No.1. (the 29 Rajasthan State Road Transport Corporation) bearing registration number RJ­26/P.A. 0042 coming from the opposite direction and being driven rashly and negligently by respondent No.2, which resulted in the death of Sitaram.

36. Resultantly, this appeal must succeed. We hold that the impugned judgment and order of the High Court deserves to be set aside and instead, the Award passed by the Tribunal dated 14th December, 2016 be restored. 12 (2017) 16 SCC 680 39

37. Appeal is allowed in the above terms. No order as to costs.

................................J (A.M. Khanwilkar) ................................J (Ajay Rastogi) New Delhi.

February 14, 2019.