M.P. STATE ROAD TRANSPORT Vs. CHANDRA

JUDGEMENT

(1.) THE order of this appeal also dispose of Misc. First Appeal No. 102 of 1981.

(2.) ON 24-9-1975 at about 9 P.M. near Collectorate, Bhopal Bus MPC-1403 driven by respondent Kishorilal and owned by the appellant, Madhya Pradesh State Road Transport Corporation, Bhopal and Motor-cycle No. MPD-1967 driven by deceased Holaram carrying him with pillion rider Ainshiram collided against each other. Ainshiram died on the spot while Holaram died in the hospital. Dependents and heirs of the deceased Holaram and Ainshiram filed two separate claim petitions before the Claims Tribunal Bhopal alleging that Kishorilal drove that Bus rashly and negligently and, therefore, Kishorilal and his employer-M.P.S.R T C Bhopal were liable to pay compensation to that on account of death of Holaram and Ainshiram. While contesting the claims and denying their liability the appellant and Kishorilal submitted that not Kishorilal but Holaram was guilty of negligently driving the Motor-cycle which dashed against the Bus when it was brought to a stand still seeing Motor-cycle approaching it from the front in a zig-zag manner. Evidence was led by the parties. The claimants examined two persons i.e. Kishan Chand (PW 4) and Gurnamal (PW 5) as eye witnesses of the incident while Kishorilal examining himself described the incident in his own way. The learned Claims Tribunal found Kishorilal as well as Holaram jointly responsible for the accident and held both of them negligent in the use of the vehicles. Accordingly, Claims Tribunal held Kishorilal and Holaram jointly negligent and apportioned the negligence between them in equal shares. Holaram's annual income was assessed at Rs. 5,400/- at the time of his death and looking to his age as 40 yrs. at the time of death, the multiplier was taken as twelve. Dependency was assessed at Rs. 200/- per month and thus, the compensation was assessed at Rs. 28,800/-. Since Kishorilal was held only jointly negligent with Holaram and since the negligence was apportioned in equal shares, the actual compensation payable was reduced to half the assessed compensations. Appellant and Kishorilal have, therefore, been held liable to pay Rs. 14,400/- to the heirs and dependents of deceased Holaram. M.P. State Road Transport Corporation has filed Misc. Appeal No. 101/81 against the compensation awarded on account of death of Holaram. His heirs have also filed cross-objection claiming enhancement of the compensation and have also challenged the finding regarding the negligence to be contributory.

(3.) THERE is no doubt nor was it contested at any stage that two persons viz , Holaram the driver of the Motor-cycle and Ainshirarn the pillion rider died as a consequence of the collision of the Motor-cycle and the Bus driven by Kishorilal, who at the relevant time was working in the employment of the appellant M.P.S.R.T.Corpporation While in appeals the negligence imputed to Kishorilal has been questioned, in the cross-objsction the negligent driving attributed to Holaram has been challenged. After hearing the learned Counsel for the parties who led us through the entire evidence on record, we are of opinion that the Claims Tribunal cannot be said in error in holding both the drivers' negligent. Kishorilal has deposed that the Motorcycle approached the Bus from opposite direction in a zig-zag manner and that the driver of the Motor-cycle viz., Holaram had lost control over the vehicle. Although Kishan Chand (PW 4) and Gurnamal (PW 5) examined on behalf of the claimants have denied this fact, yet we feel that in this regard Kishori Lal's version is more probable because we find from the post-mortem examination report of Holaram that the gastric contents gave out alcoholic smell. This would show that soon before the accident Holaram had consumed liquor. Basumal (PW 1) is the brother of deceased Holaram. He has clearly deposed that Holaram was addicted to drinking. Apart from this, we also find from the photographs showing the place of accident that the Motor-cycle was on the middle of the road when the accident took place. This makes it clear that Holaram was driving the motor-cycle regardless of all rules and carelessly. We are not prepared to believe the version of the two alleged eye-witnesses to say that Holaram was driving the motor-cycle from his left side of the road and the speed was slow. Instead, in view of the facts so found we agree with the Claims Tribunal that Holaram was negligent in driving the motor-cycle and at the relevant time had practically no control over it. Holaram has been rightly found to be negligent in driving the motor-cycle.