- (1.) Both the appeals are connected and arise out of the same accident. FAO No.829 of 1994 is for compensation for death while FAO No.828 of 1994 is for injuries to a pillion rider on a motorcycle. The Tribunal assessed a compensation payable as Rs. 2,40,000/- in case of death and Rs. 40,000/- in case of injury and proceeded to dismiss the petition on a finding that the deceased driver of the motorcycle was himself negligent and provided for no fault liability of Rs. 15,000/- and Rs. 7,500/- respectively for the case of death and injury under Section 140 of the Motor Vehicles Act.
(2.) The cases have been filed on the averment that the bus owned by the respondent-Corporation was overtaking the motorcyclist and hit on the side by the result of which the motorcycle fell down with the pillion rider. This evidence was contested by the evidence given by the driver and ticket checking Inspector. The contention was that the bus had actually stopped when the ticket checking Inspector had got into the bus and when the driver and conductor had actually alighted. When the Inspector was checking passengers, they heard a loud noise of the motorcycle dashing at the rear side of the bus and both the persons riding on the motorcycle had fallen down. While the motorcyclist succumbed to death at the spot, the pillion rider got head injuries for which he had been taken in the hospital. The sketch drawn on the spot and the damage caused to the bus indicated that the accident could not have been caused by the bus overtaking the motorcyclist and dashing him on the side of the bus but the fact that there was a dent on the right rear side of the bus which showed that the accident could have been only in the manner spoken by the respondent witnesses and not in the manner urged in the petitions filed by the respective petitioners. The Tribunal accepted the contention of the witnesses and provided for the award in the manner referred to above.
(3.) I have gone through the evidence of all the witnesses and I am convinced that the accident could not have taken place in the manner spoken by the witnesses of the side of the petitioners, for, there had been no scratch or dent marks on the left side of the bus which should have been definitely there, if the bus and the motorcycle were going in the same direction and if the bus was overtaking the motorcyclist but dashed the motorcycle and resulted in their falling down. PW2 who was an acquaintance to the deceased has spoken about the fact that the accident had taken place while the bus was overtaking but the motorcyclist had dashed on the back side of the bus. I cannot understand as to how the impact could have been on the back side of the bus if the bus was overtaking. On the side of the respondent, Enforcement staff has been examined as RW1 and it was elicited through him that he had not given any statement relating to the manner of accident with any authority in the Corporation. The suggestion to him is that he was not at all present at the spot. RW2 was the driver of the bus and he also spoke about the fact that enforcement staff stopped the vehicle and when the bus was stationary, the motorcyclist had dashed the vehicle from the rear side. RW3 was another member of the enforcement staff and he also spoke about the fact that when they were carrying out inspection within the bus, the accident has taken place. It was also elicited from him that he had not given any statement to the police or any authority. While the evidence tendered by the persons claiming as eyewitnesses on the side of the petitioners could be discarded as not being fruitful, even the evidence on behalf of the respondents cannot obtain the virtue of positive evidence. If the vehicle had stopped quite some time back and the driver and the conductor had got down from the bus, there is no means by which on a broad National Highway a motorcyclist could come and dash against the stationary bus. There was certainly statement from the side of the petitioner that the bus was going at a fast speed and the accident had taken place around about 4 O'clock in the month of July which should have been still very bright. Stationary bus on a highway where it was parked in the mud portion could not have been simply an object against which a running motorcyclist could have dashed. The motorcyclist had died at the spot and another person had suffered head injury by the impact of the bus. Unless both the vehicles have been in motion and it was a case of one vehicle suddenly trying to stop and yet another vehicle coming from behind could not stop immediately but dashed against the rear side, the accident could not have taken place. I would, therefore, reconstruct the episode in the manner that could have been possible by the nature of injuries caused to the persons on the motorcycle and taking an overall picture of the evidence of all the witnesses. A person dashing from the rear side of the bus must take a larger responsibility of the accident and the bus which must have suddenly stopped by breaking must take a minor share of responsibility. I will apportion the cause for the accident as due to the negligence of the deceased motorcyclist and the driver of the bus in the ratio of 60:40. The determination of compensation shall, therefore, be apportioned to cause an abatement to an extent of 60% for the motorcyclist and 40% against the owner of the bus.;