Dalip Singh, J. - (1.) This appeal has been filed against the award dated 30.10.1992 passed by the Motor Accidents Claims Tribunal, Sikar (hereinafter referred to as 'the Tribunal') in Claim Petition No. 104 of 1989 filed by the appellants whereby the Tribunal has dismissed the claim petition filed by the appellants for the death of their son Banwari aged 15 years and who was a student of VII class at the time when the accident occurred on 14.9.1989.
(2.) The brief facts of the case are that the deceased was travelling on a bus No. RJV 5952 from Fatehpur to his village. It is also the case of the appellants that he was travelling on the roof of the bus and as a result of the rash and negligent driving of the driver, the deceased fell down from the roof in front of the bus and was run over by the tyre of the bus. The learned Tribunal while deciding issue Nos. 1 and 5 held that there was no rash and negligent driving on the part of the driver of the bus and the deceased had travelled on the roof of the bus at his own peril. In the facts and circumstances of the present case, Tribunal rejected the claim petition on account of the finding arrived at on issue Nos. 1 and 5.
(3.) Learned counsel for the appellants has submitted that it is not in dispute that the deceased was travelling on the roof of the bus and fell down and sustained the injuries on account of being run over by the tyre of the bus. Learned counsel for the appellants has further submitted that the deceased fell down from the roof in front of the bus and was run over by the tyre of the bus, goes to show that in fact it was only on account of abrupt stoppage or reduction of the speed of the bus that the deceased fell down from the roof in front of the moving bus and was run over by it resulting in injuries and his consequential death. To suggest that on account of there being a turn on the road, the speed of the bus was reduced by the driver who was driving the bus carefully, goes contrary to any scientific approach as in the event of the bus not having been driven at sufficient speed, there being a turn there would be no occasion for the deceased who was on the roof of the bus to have fallen from the roof in front of the bus so as to be run over by the tyre of the bus. It is only when the vehicle in question which was running at a sufficient speed came to an abrupt stoppage or using brakes there will be reduction in speed as a result of which the deceased would fall in front of the bus and consequently run over by the tyres of the bus. In this view of the matter, it cannot be said that the driver had taken sufficient precautions and contrarily it goes to show that the driver was driving the bus rashly and negligently. It has also come in the evidence that apart from the deceased other passengers were also travelling on the roof of the bus as has been stated by Murali Dan, AW 5 and Bhagirath, AW 6. In these circumstances, the conductor and driver did not take adequate precautions and due care by not ensuring that there were no persons travelling on the roof of the bus where they should not have been allowed to travel, shows failure on the part of the conductor and the driver to ensure such unauthorised travelling on the roof of the bus which also amount to negligence on their part which had resulted in the said accident. In this view of the matter, the Tribunal has found that the bus was not being driven rashly and negligently deserves to be set aside.;