Bisban Devi and Others vs Sirbakhsh Singh and Another

P.D. Sharma, J.—This appeal relates to a claim tor compensation instituted by the Applicant-Appellants under the Motor Vehicles, Act.

On the night between 8th and 9th July, 1961, one Bhagwan Das while sleeping in front of his house and at a distance of about 60 feet from the road was run over and crusned to death by motor truck No. PNJ 6430 owned by Sirbakhsh Singh. The death as has been explained by Dr. Jagjit Singh who conducted the postmortem of the dead body was due to shock and internal haemorrhage caused mainly by crush injury of the liver (Exhibit A.W. 6/3). The deceased was survived by his widow, Smt. Bishan Devi and four minor children. The widow personally and on behalf of her minor children filed an application u/s 110-A of the Motor Vehicles Act before the Tribunal constituted under this Act against (1) the owner Sirbakhsh Singh and (2) the Motor Owners Mutual Insurance Co. Ltd., Bel-gaum, with whom the truck stood insured at the time, claiming Rs. 50,000/- as compensation on account of the death of her husband. She alleged that the accident was caused by the gross negligence of the driver of the truck. Bhagwan Das deceased was working as Patwari at the time and was drawing Rs. 109/- per mensem as his salary. He has left no property or other source of income to meet the expenses of the surviving members of his family.

Respondent No. 2 in their written statement pleaded that the truck had been stolen by somebody while it was standing on the road-side and whoever caused this accident drove the truck without the consent of the owner and had no licence and as such they were not liable to pay any compensation to the Applicants. According to them the person who was driving the truck at the relevant time was liable for payment of the compensation and not the owner or the insurer. I need not recapitulate the other grounds urged by this Respondent as those were not pressed before the Tribunal. Respondent No. 1, however, urged that no such accident occurred in which Bhagwan Das might have been killed due to the negligence of his driver.

The Tribunal framed the following issues:

Whether the accident was due to rash and negligent act of the driver of the truck concerned and what is the effect of pleas taken up by the Respondent No. 2 in paras 11 to 13 of the written statements ?

What is the quantum of compensation due, if any, and from whom to whom ?

Relief.

Issue No. 1 was decided against the Applicants. The following issue was left undetermined. The claim application was dismissed but the parties were left to bear their own costs. It is this award of the Tribunal which has been assailed in the present appeal.

The learned Counsel for the Appellants urged that the Tribunal aid not properly appreciate the evidence led by the parties and based his conclusion on surmises and conjectures. He also maintained that Respondent No. 1, owner of the vehicle was under a statutory obligation not to park the truck on the roadside in such a position or condition or circumstances so as to cause or likely to cause danger to other persons. He laid emphasis on the fact that Respondent No. 1 did not specifically say in his written statement that the motor vehicle had been stolen by an unknown person who caused the accident and so no evidence, led by him in that direction, be considered. It was further maintained by him that it was not necessary under the law to testify the identity of the driver in the circumstances of the present case since according to the general principles of law of tort, the owner was liable and the insurers were bound to indemnify him. The parties mainly relied on the oral testimony of the witnesses cited by them before the Tribunal in order to substantiate their pleas. Bachan Singh A.W. 1, in charge of the Bus Stand Bhogpuf stated that on the night between 8th and 9th July 1961, he was sleeping on the roof of the Trade Union office while fihagwan Das deceased, Patwari, was sleeping in front of this office and that on hearing some noise at night he came down and extricated the dead body of the Patwari from underneath the truck. Two other persons were also lying injured at the time. The Patwari died on the spot, He did not see the driver of the truck or name him. Darshan Singh A.W. 2 owns a truck. He was sleeping in his truck on the other side of the road close to the spot where occurrence took place. He is said to have rushed to the spot on hearing an alarm where he saw two constables and other persons standing. Bhagwan Dass was extricated from underneath the truck. The other two persons who had been injured were also pulled out. He further gave out that his driver Manjit Singh carried the dead body of Bhagwan Dass in the offending truck to Jullundur Hospital. He also did not name the person who was driving the truck at the time of the accident. Rattan Chand A.W. 2 identified the dead body of Bhagwan Das at the time of the post-mortem examination. Shiv Charan Dass, Foot Constable A. W. 4 is an important witness. He and Joginder Nath constable A.W. 5 were on patrol duty in the area of village Bhogpur where the accident took place. He deposed that at about 1 A.M. truck No. PNJ 6430 came from Jullundur side on a fast speed and suddenly turned towards the adda of the Union crushing Bhagwan Das to death and injuring the other two persons who were sleeping there. Thereafter the truck struck against the door of the office of the Trade Union. He lodged the first information report with the Assistant Sub-Inspector of Police who came to the spot from Kartar-pur on receiving information about the incident on the telephone. He conceded in his cross-examination that Respondent No. 1 owner of the truck was not present at the time of the accident and that driver Anup Singh was challaned by the Police but acquitted. He appeared as a witness in the criminal case. According to him one Dalip Singh was driver of the truck but he was involved in a murder case and after this Sirbakhsh Singh used to drive the truck. He also admitted having seen Anup Singh driving the truck earlier to the accident. He failed to identify Anup Singh in an identification parade held in the criminal case. He also gave out that Anup Singh to his knowledge did not possess any driving licence. Joginder Nath corroborated the testimony of the previous witness while giving the details of the accident. He admitted in his cross-examination that Anup Singh was driving the truck whom he had seen earlier once or twice but had not seen him actually driving the truck. Anup Singh is stated to have seen this truck being plied in this part of the illaqa (locality) but did not know the name of the driver. He also could not say whether Anup Singh possessed a driving licence, or not. Smt. Bishan Devi A.W. 6 Applicant had nothing to say about the details of the accident. She gave out that her husband was drawing Rs. 109.50 p. as his salary at the time of the accident and that she had four minor children to look after. She tendered in evidence post-mortem report exhibit A.W. 6/8.

In rebuttal Sirbakhsh as R. W. 1 said that Ishar Singh was the driver of this truck and that he drove the truck from Jullundur to his village Jallowal and parked it on the roadside at about 11.30 P.M. The driver slept near the truck. The cleaner went for rest to his house. After some time his driver Ishar Singh and Kehar Singh informed him that the truck had been stolen. The party set out in search of the truck and when they reached Bhogpur at about 1.30 A.M. they learnt that the truck was involved in an accident. He produced Log Book of the truck showing the journeys performed by it before the accident along-with the insurance Policy R.W. 1/1. He admitted that Anup Singh was his brother-in-law but added that he never worked on his truck as a driver or cleaner. He produced his brother-in-law Anup Singh before the police. Anup Singh R.W. 2 emphatically stated that he did not know driving and had not driven the truck on the night. of the occurrence. He is said to have been in village Chamari on the night when the accident took place. Juimal chowkidar of village Jallowal R.W. 3 heard Kehar Singh and Ishar Singh calling loudly Sirbakhsh Singh and on his enquiry learnt that the truck was missing.

The learned Tribunal from the evidence led by the Applicants could not determine the identity of the driver who was driving the truck at the time of the accident. According to him there was no material on the record to judge the negligence of the culprit i particularly when it had not been established that Anup Singh who has not been cited as a Respondent in the claim application was driving the truck at the relevant time. There is no doubt that the evidence on the record is not enough to show that Anup Singh or any other person directly or tacitly authorised by Sirbakhsh Singh was driving the truck at the time of the accident. Anup Singh as is evident from the material on the record did not possess a driving licence. It is difficult to believe that Sirbakhsh Singh could have allowed him to drive his truck without a driving licence. It appears as has been suggested by him that the truck was stolen by some irresponsible person who did not know driving and by his reckless act caused the accident. The owner of the truck cannot be held responsible for the doing of a person on whom he had no control. He was as much wronged by the, miscreant as the unfortunate family off Bhagwon Das deceased. The finding of'' the Tribunal, therefore, is affirmed.

The appeal fails and is dismissed with no order as to costs.