Delhi Transport Corporation vs Shakuntala and Others

Pradeep Nandrajog, J.—Vide FAO No. 361/1997, DTC has challenged the award dated 28.4.1997 passed by the learned Judge, MACT, Tis Hazari, Delhi. Vide Cross Objection No. 323/1999, wife, children and parents of late Rambir Singh have sought enhancement of compensation.

Notwithstanding cross objection filed in FAO No. 361/1997, vide FAO No. 58/1999, pertaining to the sum awarded, the wife, children and parents of late Rambir Singh have sought enhancement of the compensation awarded to them.

3.12.1987 was an unfortunate day in the life of late Rambir Singh. While crossing or pedalling on his cycle on Rohtak Road, late Rambir Singh was found dead on the spot. Postmortem report revealed that he died as a result of a forcible impact with a blunt object. Presumably, it was a motor vehicle.

He died at the spot.

A claim petition was filed by Rambir Singh''s wife, 2 sons, one of whom was a minor, a daughter and his parents.

It was stated in the claim petition that Rambir Singh was employed as a head-constable with Delhi Police and was also managing the agricultural lands belonging to the joint family.

After recording evidence and holding that there was no reason to disbelieve PW-6 and PW-7 who claimed to be the eye-witnesses of the accident and had stated that the deceased was hit by DTC Bus No. DEP-8777, noting that the driver of the bus was not produced as a witness by the respondents, Tribunal has held that the deceased died as a result of being hit by the bus in question. Further, relying upon the testimony of PW-6 and PW-7 it has been held that the bus was being driven at a high speed i.e. rashly.

Since grievance of DTC is that the learned Tribunal has wrongly appreciated the evidence and has ignored the relevant and material evidence as also has overlooked the cross-examination of PW-6 and PW-7, I would be proceeding to discuss the 2 appeals by having a re-look at the evidence.

Suffice would it be to note that if on the evidence two views are possible, the award would have to be upheld on the finding pertaining to the rash driving of the bus by its driver. However, if it is found that material evidence has been ignored or that the evidence on record has not been rationally understood and applied, the issue would have to be decided in favour of DTC and against the claimants.

Since PW-6 and PW-7 claimed to be eye-witnesses to the accident, I begin by appreciating the testimony of said witnesses as also how they responded on being cross-examined.

PW-6, Bhagat Singh, in his examination-in-chief, stated as under:-

On 3.12.87 at about 6.00/6.15 p.m. an accident took place with DTC bus No. DEP-8777 at Tikri Piao. The bus was coming from Tikri Border and going towards Delhi side at a high speed. A cyclist was also going on the same road towards Delhi when the DTC bus hit him from behind with a forceful impact. The bus hit the injured from its left front side. I was present there with my buffaloes which I brought from Tikri Border. The bus driver fled away with his bus from the spot. I left the spot with my catties.

In his examination-in-chief, PW-7 Raghubir stated as under:-

On 3.12.87 I saw an accident near Tikri Piao at about 6.00/6.15 pm with a DTC bus No. DEP-8777 with a cyclist. We were standing on the central verge of the road which divides into two parts. Both cyclist and bus were going to Delhi side. The bus was at a high speed. The bus hit the cyclist from its left front side. After some time the bus fled away and we went to our home.

On cross-examination, PW-6 Bhagat Singh stated that he did not lodge any complaint with the police and that his statement was recorded by the police after 2 or 4 days. He stated that he did not note in writing the number of the bus. He stated that the deceased was a resident of his village.

In his cross-examination, PW-7, Raghubir stated; to quote from his testimony:-

The deceased was my village brother. He was also village brother of Shri Bhagat Singh..........The deceased was also of my community. The deceased was of my family (khandan).

He further deposed that he and Bhagat Singh did not lodge a report with the police. He stated that at the time of the accident he and Bhagat Singh were crossing the road as they were taking their buffaloes to the village.

Analyzing the evidence of PW-6 and PW-7, in para 14 of the award, conclusions arrived at by the learned Judge are as under:-

PW-6 Bhagat Singh and PW-7 Raghuvir were co-villagers of the deceased. The accident had taken place nearby the village where the deceased was residing. The presence of these witnesses nearby the spot cannot be doubted. They have asserted that it was DTC bus number DEP-8777 which had caused the accident. They have further asserted that the DTC bus was being driven at a very high speed and had hit the deceased from behind with its left front side.

The witnesses have been examined at length and have stood the test of cross examination. I, therefore, hold that the deceased died due to rash and negligent driving of the bus No. 8777 by R-2.

PW-5, SI Ranbir Singh who had investigated the accident deposed that on 3.12.1987 he was posted as a Sub Inspector at PS Nangloi. That he received information regarding the accident and reached the spot. He found the deceased lying dead on the spot. No witness was present. He sent the body for postmortem to a hospital and prepared the site-plan Ex.PW-5/1. He further stated that he recorded the statements of Bhagat Singh and Raghubir on 4.12.1987 during investigation. He stated that he seized the cycle of the deceased at the spot.

However, in his cross-examination he stated that he came to know subsequently that the deceased was on a cycle and after sometimes he seized the cycle from the spot. He stated that during investigation he learnt about the involvement of the bus in the accident. He further stated that the mechanical inspection of the bus was got done on 8.12.1987 and that he had challaned the driver of the bus u/s 279 read with Section 304 (A) IPC.

PW-1, Dr. Raj Kumar who conducted the postmortem of the deceased proved the postmortem report as Ex.PW-1/1.

PW-3, Head Constable Jay Ram proved the FIR as Ex. PW-3/1.

FIR Ex.PW-3/1 has been registered at PS Nangloi on 3.12.1987 pursuant to DD Entry No. 17-A at about 7.30 pm. The name of the informant has been disclosed as SI Ranbir Singh i.e. PW-5. The same has been registered by duty constable Sukh Ram. As per the FIR it was recorded pursuant to a DD entry recorded as per telephonic information given by SI Ranbir Singh.

It would be relevant to note that the FIR does not record the number of the offending vehicle.

Ex. PW-1/1, postmortem report of the deceased records that Constable Naresh Kumar had brought the body under the instruction of SI Ranbir Singh. It records that it was alleged that the deceased was found dead on the road due to injuries sustained at a roadside accident.

The FIR and the postmortem report clearly show that no person known to the deceased from the village had accompanied the body to the hospital.

It is in this context that testimony of PW-6 and PW-7 needs to be analyzed.

Both categorically stated that the deceased was of their village. PW-7 stated that the deceased was his village brother and also was of his community.

If the two had witnessed the accident their conduct of quietly walking away to their residence and not informing the police about the accident assumes significance.

Indeed, it is unnatural conduct. It is not a case where an unknown person was hit and the eye-witness being personally unconcerned with the accident just walked away. Normal human conduct, on seeing a person known being hit by a bus and that too grievously is to render immediate aid to the victim.

The evidence on record casts a doubt that they witnessed the accident. Their non presence is clearly suggestive of the 2 being implanted witnesses.

Being residents of the same village in which the deceased resided, the 2 have obviously volunteered to falsely implicate the bus in question.

It would also be relevant to note that the site plan prepared by SI Ranbir Singh proved as Ex. PW-5/1 does not show the spot at which the stated cycle of the deceased was lying.

As noted above, SI Ranbir Singh stated that he seized the cycle at the spot but in cross-examination stated that after sometimes he learnt that the deceased was on a cycle and thereafter he seized the same on the spot.

Had there been a cycle at the spot it was impossible for SI Ranbir Singh not to have noted the same. It was impossible that while preparing the sketch of the site i.e. the site plan, position of the cycle, if available at the spot, was not recorded.

No seizure memo pertaining to the cycle has been proved.

Unfortunately, the learned Tribunal, in recording its opinion in the 2 paragraphs, both numbered as 14, (contents noted in para 17 above) has ignored the afore-noted features of the case pertaining to the testimony of PW-6 and PW-7, as brought out in their cross-examination.

Since PW-6 and PW-7 have stated that they were taking their buffaloes to the village when the accident took place, assuming that they could not have left their buffaloes at the spot to render aid to the victim and even ignoring the logical conduct that 1 out of the 2 could have taken buffaloes to the village and the other could remain at the spot to render aid to the victim, it remains unexplained as to why after reaching their village they did not inform the co-villagers about a village brother being hit by a bus and receiving serious injuries. On reaching the village and handing over custody of the buffaloes to the family members, normal conduct of the said 2 witnesses ought to have been to gather a few villagers and rush back to the spot or at least inform the police about the accident. Their complete silence and disclosure of the number of the bus to the police after 2 days seriously casts a doubt about their presence at the spot and witnessing the accident.

Every death is traumatic to the family, more so where it is an unnatural death. It is painful to lose a loved one and that too by getting injured at a road accident. No doubt, appreciation of evidence at a trial before Motor Accidents Claim Tribunal has to be by not applying the standard of proof beyond reasonable doubt, and principles of res ipsa loquitor can be invoked, but the minimum standard of proof, namely involvement of the vehicle cannot be jettisoned.

There is a tendency to falsely implicate. Some evidence, purity whereof is not in doubt, must come on record and only thereafter, treating the same as the starting point of discussion, other evidence has to be evaluated.

In the instant case, testimony of the 2 so called eye-witnesses is tainted with falsehood. Their conduct belies their presence at the spot. If testimony of PW-6 and PW-7 is to be eschewed, there is no other evidence to establish the involvement of the bus.

A last contention needs to be noted and dealt with.

It was urged that the driver of the bus was not examined by the respondents. Therefore, it was urged that an adverse inference has to be drawn against the driver.

I may note that the conductor of the bus was examined as RW-1 and he denied the involvement of the bus in any accident.

The rule of drawing inference when the driver of the offending vehicle choses not to examine himself has to be applied with care and caution. Where involvement of a motor vehicle is established and the claimants give their version, it would be a relevant factor that the driver of the offending vehicle has chosen not to sustain his version of the accident. Meaning thereby, if the accident involving the motor vehicle is an admitted fact and the only issue between the parties is the manner in which the accident took place, non examination of the driver of the offending vehicle as a respondents witness can be weighed by the Court and can be used as a negative evidence against the respondent. But where the very involvement of the vehicle is in issue, driver of the offending vehicle not stepping into the witness box would not be a piece of negative evidence to be used against the owner and the driver of the vehicle.

The inevitable conclusion is that the involvement of the bus bearing No. DEP-8777 in the accident has not been established by any evidence.

FAO No. 361/1997 is allowed.

Since appeal filed by DTC is being allowed question of enhancing the compensation does not arise.

Cross Objection No. 323/1999 in FAO No. 361/1997 as also FAO No. 58/1999 are dismissed.

Noting that the sum awarded by the Tribunal has been received by the claimants, it would be open to DTC to move an application before the learned Tribunal for restitution.

LCR be remitted. No costs.