Bhagwan Singh vs Heera Singh and Others

Arun Bhansali, J.—This appeal u/s 173 of the Motor Vehicles Act, 1988 (''the Act'') has been filed by the claimant against the judgment dated 22.02.2000 passed by the Judge, Motor Accident Claims Tribunal, Jodhpur (''the Tribunal''), whereby, his application for claim (''the application'') has been rejected. The brief facts of the case are that on 08.03.1992 the appellant was travelling by bus belonging to Rajasthan State Road Transport Corporation, Jodhpur (''the Corporation''), which was being driven by Nijamuddin-driver from Jodhpur to his village Bawari. It is claimed that at around 6:30 PM when the bus reached near Krishi Farm on Nagaur road, then Vehicle No. HR-01-2197, which was owned by Mahendra Singh and was being driven by Heera Lal rashly and negligently, which resulted in an accident. It was further claimed that the bus was also being driven rashly and negligently and the accident occurred on account of rash and negligence of both the drivers. The claimant was aged 22 years and was employed as Rifleman with the Indian Army. In the accident he suffered fracture of the right hand, which resulted in weakness in the hand and was not in a position to do anything; in the Army he was required to undertake very heavy work, which he was not able to do and, therefore, prayed for compensation to the tune of Rs. 80,000/-.

The driver and owner of the truck No. HR-01-2197 could not be served and on account of default in complying with the directions for service on the said non-claimants, the claim was dismissed against them and the same continued against the driver of the bus and the Corporation.

The application was contested by the Corporation and it was, inter alia, contented that the accident occurred on account of rash and negligent driving by the driver of the truck and there was no contribution of the bus driver. The bus was being driven cautiously at a slow speed and, when the truck did not stop, the same was stopped by the Police by blockade and when the driver of the truck was medically examined, it was found that he was drunk and, therefore, it was only the driver of the truck, who was responsible for the accident. Ultimately, it was prayed that application be rejected.

On the pleadings of the parties, the Tribunal framed two issues. The claimant Bhagwan Singh himself was examined as PW-1, Dhala Ram as PW-2 and Mangla Ram as PW-3 and exhibited certain documents. On behalf of the Corporation, driver Nijamuddin DW-1 was examined.

After hearing the parties, the Tribunal came to the conclusion that the bus was being driven on left (correct side) of the road; it did not find evidence of Dhala Ram PW-2 and Mangla Ram PW-3 reliable and ultimately came to the conclusion that accident occurred on account of rash and negligent driving of the truck driver, which resulted in injuries to the claimant and it is not proved that the bus driver was rash and negligent. Consequently, as the application already stood dismissed against the owner and driver of the truck, the application against the driver of the bus and the Corporation was rejected.

It is submitted by learned counsel for the appellant that the finding recorded by the Tribunal regarding lack of rash and negligent driving by the bus driver is ex facie baseless. It was submitted that the statement of driver DW-1 Nijamuddin is contrary to the pleadings, while in the reply to the application, it was claimed that the driver saw truck coming towards him with high speed and being driven rashly and, therefore, he drove down the bus on kacha road, still the truck came and scratched the bus from the side and left, which did not result in any loss to the Corporation vehicle but as the hand of the passenger was outside the window, he suffered injury. The injury occurred on account of the side glass of the truck. However, in the statement before the Tribunal, the bus driver Nijamuddin stated that when he saw the truck coming from the opposite direction, he standard the bus on one side and the truck passed by in high speed scratching the bus and striking on the hand of a passenger; there was no reason to disbelieve the statements of two eye witnesses PW-2 Dhala Ram and PW-3 Mangla Ram; the conductor who lodged the FIR was not examined and the site map prepared by the police itself is not a substantive piece of evidence. It was also submitted that at best it is a case of composite negligence and, therefore, the respondent Corporation and driver of the bus could not be exonerated from the liability.

On the other hand, the counsel for the respondent Corporation vehemently opposed the submissions made by counsel for the appellant. It was submitted that though initially the claimant tried to allege negligence on the truck driver alone and incidentally made averments about the bus driver as well in the application. As the claim stood rejected against the truck driver and the owner of the truck on account of his failure to serve them, the entire blame during the course of evidence has been shifted to the bus driver, which clearly goes to show that the appellant has taken a somersault. It was submitted that the Tribunal has rightly discarded the evidence of PW-2 Dhala Ram and PW-3 Mangla Ram as non-reliable; the site map Exhibit-9 alongwith FIR were exhibited by the appellant himself and, as such, now he cannot be heard to disown the said documents. A bare look at the site map clearly reveals the status as it existed and, therefore, it could not be alleged that the driver of the bus was negligent. Ultimately, it was prayed that the appeal be dismissed.

I have considered the rival submission and gone through the award and the record of the Tribunal.

The appellant claimant initially in the application though impleaded the driver and owner of both the truck and the bus made the following averments regarding the accident:-

Thereafter as noticed above, in view of failure of the appellant in serving notices of the application on owner and driver of the truck, application against them was rejected by the Tribunal and, when evidence was led by the appellant in examination in chief, it was stated that "at the time of accident the driver of the bus was driving the bus rashly and negligently and the speed of the bus at that time was 65-70 kms. per hour." In cross-examination he stated that he did not know whether the truck was being driven rashly and negligently. He admitted that the application was prepared under his instructions, which he signed after reading the same. When the claimant was confronted with the averments relating to the negligence of the truck driver in the application, he admitted the same. Other two witnesses PW-2 Dhala Ram and PW-3 Mangla Ram, who claimed to be the co-passengers in the said bus also specifically made statements alleging rash and negligent driving by the bus driver only. The said conduct of the appellant and his witnesses in laying the blame exclusively on the driver of the bus, contrary to his own pleadings, clearly indicates the purport and intention of the appellant in confining his allegations and seeking to hold the driver of the bus and the Corporation liable for payment of compensation. Once this purport and intention is apparent, then the evidence, documentary and oral, has to be examined from that context only as to whether the appellant has succeeded in proving rash and negligent driving by the driver of the bus only.

The statements of PW-2 Dhala Ram and PW-3 Mangla Ram, who are residents of the same village, of which, appellant Bhagwan Singh is the resident and Dhala Ram and Mangla Ram are both brothers, both the said witnesses failed to produce any proof regarding their travel in the said bus. While Dhala Ram PW-2 in his statement stated that the bus started from Rai Ka Bagh Bus Stand, Jodhpur at around 4:00 PM, Mangla Ram PW-3 stated that the bus started at around 6-7 PM from Rai Ka Bagh Bus Stand. It was further stated by him that the bus started after darkness. While both the said witnesses have given omnibus statements regarding the bus driver driving the bus rashly and negligently and that the driver was repeatedly told to drive the bus slowly, the said aspect has not been supported by PW-1 appellant himself.

In view of the apparent contradictions in the statements of PW-2 Dhala Ram and PW-3 Mangla Ram regarding the time when the bus started from the Rai Ka Bagh Bus Stand and non corroboration by the appellant regarding the fact that the driver of the bus was allegedly told to drive the bus slowly, the same does not inspire confidence and consequently their evidence was rightly rejected by the Tribunal as non-reliable.

A bare look at the site map Exhibit-9 clearly indicates that the bus was half on the road and half off the road on the extreme left side of the road and the map also clearly indicates as tyre marks of the bus just behind the said bus, which clearly shows that the bus was at the extreme left side of the road. So far as relying on the said site map Exhibit-9 is concerned, the same was produced by the appellant-claimant himself during the course of his examination-in-chief and in cross-examination, he clearly stated that and

Having himself produced and proved the site map Exhibit-9 and admitting the same to be correct, now the appellant cannot be heard to dispute and resile from the same.

In view of the said Exhibit-9, it is clearly evident that the bus was being driven on the correct side of the road and, therefore, it cannot be said that the same was being driven rashly and negligently by the driver of the bus. Further, the very fact that the truck came from opposite direction and went right up to extreme right side of the road at the time of crossing the bus, it is apparent that it was only the driver of the truck, who can be said to be rash and negligent, which resulted in the appellant suffering injury, though as such, there was no damage to the bus as the truck simply scratched pass the bus.

The sole testimony of claimant about rash driving of the bus by the driver also has no basis or corroboration as the tyre marks of the bus indicated in Exhibit-9 as Had the bus been at high speed the tyre marks would have been longer and prominent and not simple.

So far as the argument relating to the composite negligence of both the bus and truck drivers is concerned, apparently there is no material available on record to hold the bus driver guilty of any rash and negligent driving and consequently it cannot be said that the present is a case of composite negligence. In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed. No costs.