Vijay Kumar Kulhar vs Rajasthan State Road Transport Corp

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2009 [Arising out of SLP(C) Nos.3889-3890 of 2008]

Vijay Kumar Kulhar ....Appellant

VERSUS

Rajasthan State Road Transport Corporation ....Respondent

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. Appellant, feeling aggrieved and dissatisfied

with the judgment pronounced by Division Bench of High

Court of Judicature for Rajasthan, at Jaipur Bench in

D.B. Civil Special Appeal (Civil) No. 195 of 2006

decided on 5.7.2007, arising out of the Award passed by

learned Single Judge on 21.8.2006 in Misc. Appeal No.

104 of 1995, which in turn arose from the Award dated

5.12.1994 passed by Motor Accident Claims Tribunal C.A. @ S.L.P.(C)Nos.3889-3890/08 2

(hereinafter referred to as `Tribunal'), is before us

challenging the same on variety of grounds.

3. We have accordingly heard learned counsel for

the parties. Perused the record.

4. Basic and material facts for deciding the said

appeals are mentioned herein below:

5. On 22.8.1983, the bus belonging to Rajasthan

State Road Transport Corporation (for short, 'RSRTC')

was plying between Ramgarh to Jhunjhunu. At the

relevant point of time, it was being driven by PW-5

Ghosh Mohammad. When the said bus reached near the

crusher machine, after Jhunjhunu Bus Stand, a truck

bearing registration No. RJP 4120 loaded with stones

overtook the bus from right hand side and hit it, with

the result driver of the bus lost its control and it

dashed against the stone bridge.

6. Since the bus was damaged in the said

accident, RSRTC filed a claim petition against the

appellant for awarding compensation to the tune of Rs.

43,078.80 before the Tribunal.

7. On notices being issued by the Tribunal,

appellant herein, driver and owner of the truck appeared C.A. @ S.L.P.(C)Nos.3889-3890/08 3

and filed written statement denying the allegations made

in the claim petition filed by RSRTC. According to him,

the bus had dashed against the bridge not because of

his fault but on account of rash and negligent driving

of the bus by its driver PW 5 Ghosh Mohammad.

8. On the strength of pleadings of the parties,

the Tribunal framed six issues. On appreciation of

the evidence available on record, the Tribunal came to

the conclusion that both drivers, Ghosh Mohammad and

present appellant Vijay Kumar were responsible for the

accident. Thus, Claims Tribunal proceeded to dismiss

the claim petition.

9. Being aggrieved and dissatisfied with the said

award of the Tribunal, claimant RSRTC filed Misc. Appeal

under Section 173 of the Motor Vehicles Act in the High

Court of Judicature at Rajasthan.

10. Learned Single Judge, after appreciating oral and

documentary evidence available on record, recorded a

finding that accident had taken place on account of

rash and negligent driving of the truck by the appellant

herein, therefore, appellant would be liable to pay the

amount of compensation.

C.A. @ S.L.P.(C)Nos.3889-3890/08 4

11. Looking to the facts and circumstances of the case,

the amount claimed by RSRTC to the tune of Rs. 43078.80

was reduced to Rs. 40,000/- together with interest at

the rate of six per cent per annum from the date of

filing of the appeal till its payment.

12. Against the said award passed by the learned

Single Judge, appellant preferred Special Appeal (C)

before the Division Bench of the High Court. High Court

considered the appeal on the question of its

maintainability in the light of provisions contained in

Section 100-A of the Code of Civil Procedure and also

on the strength of the judgment of this Court in the

case of Kamal Kumar Datta and another vs. Ruby General

Hospital Limited and others reported in (2006) 7 SCC 613

and came to the conclusion that such intra court appeal

filed by the appellant after 1st July, 2002 would not be

maintainable and dismissed the same. Merit of the

matter was not at all considered by the Division Bench.

13. In these appeals, the appellant has challenged not

only the order passed by the learned Single Judge

awarding compensation of Rs. 40,000/- to respondent but C.A. @ S.L.P.(C)Nos.3889-3890/08 5

also the order passed by Division Bench in the Special

Appeal (c).

14. Mr. Ravindra Bana, learned counsel appearing for

the appellant contended the following grounds :

One - that Division Bench committed an error in dismissing the Special Appeal (C) holding therein that the same would not be maintainable;

Two - Learned Single Judge has gravely erred in awarding compensation to respondent even though it was not established that accident was caused solely due to rash and negligent driving of the appellant.

15. Mr. S. K. Bhattacharya, learned counsel appearing

for the respondent submitted that against the well

reasoned award passed by the learned Single Judge as

also the judgment of Division Bench holding that appeal

was not maintainable, no interference is called for and

appeals deserve to be dismissed.

16. It is pertinent to mention that as far as ground

no.1 is concerned, learned counsel for the appellant has

not argued the same. Thus, we are not required to

answer the same.

17. P.W.5 Ghosh Mohammad driver of RSRTC Bus had lodged

a report in the Police Station, Jhunjhunu in respect of C.A. @ S.L.P.(C)Nos.3889-3890/08 6

the accident, registered as FIR No. 33/83 for the

offence under Section 279 IPC against the present

appellant. Exh. 26 is the said report. No doubt, it

is true that appellant has been acquitted of the said

offence but nothing turns on his acquittal.

18. After the receipt of the report, police had

prepared a spot map Exh.1 wherein it has been noticed

that left side of the truck had hit the right side of

the bus, as a result whereof, the bus was found in

hanging position on the left side of the bridge.

19. The mechanical examination report of the truck is

marked as Exh. 37 in which it has been noticed that the

mudguard on the left side of the truck was dented and

there were marks of peeling off and dents on the left

side gate of the truck.

20. Exh. 38 is the mechanical examination report of

the bus according to which front portion of the bus was

damaged and was lying on the floor, the steering control

was also lying broken and there were damages on the

right side of the bus.

21. From the aforesaid evidence, it is clearly made out

that left side of the truck collided with right side of C.A. @ S.L.P.(C)Nos.3889-3890/08 7

the bus and then it reached the main road. P.W.1

Mahinder Kumar Sharma conductor of the bus and P.W.5,

driver of the bus have deposed in one voice that the bus

was going at a moderate speed whereas the truck came at

a high speed and dashed violently to the rear right side

of the bus as a result of which the bus dashed against

the bridge and broke the wall and was lying in a

hanging position.

22. After carefully going through the FIR, the

inspection reports of both the vehicles and the oral

evidence available on record, it is clearly made out

that it was truck driven by the appellant which had come

in a rash and negligent manner from behind and while

attempting to overtake the bus had dashed against it

causing damage.

23. Once it is held that the accident was caused on

account of rash and negligent driving of the truck by

the appellant, then obviously the appellant would be

liable to pay the amount of compensation, which has been

assessed by learned Single Judge at Rs. 40,000/-.

24. In the light of the foregoing discussion, we are of

the opinion that appeals have no merits and are C.A. @ S.L.P.(C)Nos.3889-3890/08 8

accordingly hereby dismissed but with no orders as to

cost.

.....................

J. [S.B. SINHA]

.....................

J. [DEEPAK VERMA]

New Delhi.

July 27, 2009.