Hardit Singh Hav. No. 1401537 vs State of Haryana and another

J.V. Gupta, J.—This appeal is directed against the award of the Motor Accidents Claims Tribunal, Ambala (hereinafter called the tribunal), dated September 1, 1980, whereby the claim of the appellant for compensation on account of the injuries sustained by him in the accident on October 23, 1979, was rejected.

The appellant was returning to his home on his bicycle from his Unit for lunch around 11.15 A.M. on October 23, 1979. When he reached opposite Police Post Mahesh Nagar on his way to his house in the Moti Das Nagar. Bus No. HRA 2706 (hereinafter referred to as the offending vehicle) belonging to the State of Haryana, respondent No. 7 and driven by Barijinder Singh, respondent No. 2, came from behind and over took him. A barricade of pucka bricks had been erected by the Police on the road side to cardon a dead bullock. The inner right tyre of the offending vehicle passed over one of the bricks of the barricade. As a result, that tyre bursted and the brick underneath it flew off from the road and struck against the face of the claimant. As a consequence, his right eye was completely knocked out and his nasal bone as also a part of the skull around his right eye also got fractured. He also suffered lacerations. He bled profusedy due to the injuries sustained by him. He was stated to be 32 years old on the date of the accident and Rs. 746/- per month was stated to be his salary. Though the amount of damages as calculated in Annexure A Part I, filed along with the claim application was to the tane of Rs. 1,27,456/- yet only Rs. 40,000/- were claimed as compensation due to the inability of the claimant to pay the Court-fee on the amount of Rs. 1,27,456/-. Separate written statements were filed by respondents Nos. 1 and 2. On the pleadings of the parties, the tribunal framed the following issues:--

Whether the claimant Shri Hardit Singh lost his right eye and suffered several injuries as a result of the accident caused by respondent No. 2 by rash and negligent driving, as alleged ? If so, to what effect ?

If issue No. 1 is proved, to what amount of compensation the claimant is entitled and against whom ?

Relief.

Under issue No. 1, it was found that there was no evidence of rash or negligent driving attributed to the driver of the offending vehicle, i.e., respondent No. 2, and that the accident was the result of vis major beyond the control of the respondent Consequently, this issue was decided against the claimant Under issue No. 2, the claimant was held entitled to a sum of Rs. 40,000/- by way of compensation However, in view of the finding on issue No. 1, the claim petition was dismissed. Dissatisfied with the same, he has come up in appeal to this Court

According to the finding of the tribunal, there being no evidence of rash or negligent driving of the offending vehicle by the respondent, the claimant was not entitled to any compensation. The injuries said to have been caused to the claimant were the result of vis major I have gone through the pleadings of the parties and the evidence on the record and am of the considered opinion that the whole approach of the tribunal is wrong and illegal.

In paragraph 25 of the claim petition, the claimant has narrated the circumstances and the manner in which the accident had taken place The reproduction of the said paragraph is necessary and it reads as follows:--

That respondent No 2 was rash and negligent in driving the vehicle. Had he taken care to see that a dead animal was lying on the road which had been cordoned off by the Police, he would have slowed down his bus to avoid the cordoned area and not run over the bricks. This happened because he had no proper control over the vehicle. Secondly, had he cared to see that the tyres of the bus were not in a roadworthy condition and were worn off and rubbed off and could burst during the journey, he would not have taken the bus out of the depot. Moreover, it appears that the tyres were over inflated otherwise there is no earthly reason why the tyre should burst just by passing over the brick. In any case the negligence of respondent No. 2 in driving the vehicle is manifest. In driving a bus full loaded with the tyres of such condition is per se a negligent act for which respondents Nos. 1 and 2 are equally and vicriously liable to pay the compensation Respondent No. 1 is liable for the acts of respondent No. 2 being his employer.

In reply thereto, in the written statements, both the respondents stated that the averments made in that paragraph of the claim petition were wrong and hence denied on the grounds as stated in paragraph 23 of the written statement. The re-production of paragraph 23, which is in pari mataria in both the written statements, is also relevant and reads,--

Paragraph No. 23 of the application is wrong and hence denied There was no rash and negligent driving on the part of the driver of the bus, i.e., respondent No. 2. It is, however, admitted that the right rear inner wheel passed over a brick which had been placed over the road around a dead bullock which was involved in some other accident earlier. It is also admitted that as the wheel of the bus bounced over the brick, the tyre got burst and the brick over which it bounced flew off from the road and struck upon the face of a military personnel as a result of which he sustained injuries on at his face and was, thereafter admitted in the Military Hospital, Ambala. It was, however, an act of God for which the driver of the bus cannot be held rash and negligent. Even the tyres of the bus were in a roadworthy condition.

From these pleadings of the parties, it is an admitted case that the wheel of the offending vehicle bounced over the brick when the tyre got burst and the brick over which it bounced flew off from the road and struck against the face of the claimant as a result of which he sustained injuries on his face and was, therefore, admitted to the Military, Hospital, Ambala Once it is admitted, the negligence on the part of the respondent is obvious. No evidence has been led on behalf of the respondents to prove as to how and under what circumstances the respondent entered the area which was cordoned off by the Police by placing the pucka bricks because of the death of an ox. The very fact that the offending vehicle had entered the cordoned area, is sufficient to prove the negligence of the respondent. Of course, the respondents could lead evidence to prove the circumstances under which the respondent had to take the offending vehicle over the said area Having failed to lead any evidence inasmuch as even the respondent who was driving the offending vehicle did not came to the witness-box, the negligence on his part is apparent and stands fully proved. Apart from that, there is evidence in the statement of Jamait Singh, A.W. 5, who has clearly stated in his cross examination, that the offending vehicle was running at a fast speed. The claimant himself appeared as A.W. 8 in support of his claim. However, the specific allegations made on paragraph 25 of the claim petition, that the tyres of the offending vehicle were not in a roadworthy condition, were worn out, rubbed off and the same bursted during the journey, were not specifically denied. As a matter of fact, it was within the special knowledge of the respondent and thus could rebut these allegations. Besides the fact that no evidence was led to rebut the same, even in the written statement, as stated earlier these pleas were not specifically denied. Under these circumstances, the negligence on the part of respondent No. 2 is self-evident in the facts and circumstances of this case. In a case under the law of torts, the negligence of the offender is to be proved and the fast driving is not the only factor material to prove the rashness negligence on his part though that may be one of the grounds to prove the same. In somewhat similar circumstances it has been held by this Court in Mala Ram v. Mohan Singh (1978) 80 P.L.R. 520, as follows:--

In claims for damages, in accident cases, normally the rule is that it is for the claimant to prove negligence. In some cases, the above principle may cause hardship to the claimant, because it may be that the true cause of the accident lies solely within the knowledge of the respondents, who caused it. This hardship is, however, avoided to a considerable extent by the maxim of res ipsa loquitur. The maxim means that an accident may by its nature be more consistant with its being caused by negligence for which the respondent is responsible than by any other causes, and that in such a case the mere fact of the accident is prima facie evidence of such negligence. In such cases it is sufficient for the claimant to prove accident and therefrom a presumption of negligence arises. The onus then shifts on to the respondent to show that the accident could not be avoided at any cost. There is no evidence that the tyre was being checked at regular intervals in order to find whether it was in a fit condition to be used. It is needless to say that the tyres of the vehicle ought to be in a perfect condition so that the vehicle may not endanger the lives of others travelling 7 on the road.

According to the learned Advocate General, the initial burden was on the appellant to prove the negligence on the part of the respondent and since the best evidence was not produced by him, his claim petition was liable to fail. According to the Learned Counsel, it was an act of vis major and a pure accident and, therefore, the respondents were not liable to pay any compensation to the claimant. As observed earlier, there is no force in this contention. In such cases of accidents, it has been observed by the Supreme Court in Rajasthan State Road Transport Corporation Jaipur v. Narain Shankar 1980 A.C.J. 411 that the principle of res ipsa loquitur was rightly invoked by the tribunal in that case in view of the nature of accident and surrounding circumstances and stressed that the State Corporation should have sympathised with the victims of the accident and generously settled the claims expeditiously instead of indulging in wasteful litigation. It was also observed that what is needed is not callous litigation, but greater attention to the efficiency of service, including insistence on competent, cautious and responsible driving. Again in N.K. Brothers (P) Ltd v. Mharumaj Ammal 1980 A.C.J. 435, Supreme Court observed that the road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. In view of these authoritative pronouncements, I am of the considered opinion that the finding of the tribunal on issue No. 1 is liable to be set aside. The respondents having failed to lead any evidence in rebuttal, taking into consideration the pleadings of the parties and the evidence of the claimant, it is amply proved on the record that the claimant lost his right eye and suffered several injuries as a result of negligent driving of the offending vehicle by the respondent.

As regards the amount of compensation, the Learned Counsel for the respondents contended that the amount was on the higher side and there was no evidence as to how the sum of Rs. 40,000/- was worked out as the compensation to be paid to the claimant. The permanent loss of the right eye of the claimant and the other injuries suffered by him as a result of the accident are not disputed The claimant who appeared as A.W. 8, has given the details of the amount of the damages claimed by him on account of his suffering injuries in the accident in Annexure A to the claim petition. As observed earlier, not an iota of evidence in rebutal was produced on behalf of the respondents. The tribunal after going through the entire evidence on the record it has categorically observed that the claimant would have been entitled to Rs. 40,000/- by way of compensation but for its finding on issue No. 1. The age of the claimant at the time of his death was about 32 years and his salary was Rs. 746/- per month. Captain A.K. Aggarwal, Accounts Officer, who appeared as A.W. 6, clearly stated that due to the permanent disability suffered by him the claimant had lost all chances of his further promotion. Ordinarily he would have retired as a Naib Subedar and would have been entitled to a monthly salary of Rs. 900/ at that time, Statement of Accounts, in respect of the claimant. Exhibit R. 1, was also produced by him In view of this evidence I do not find any infirmity in the finding of the tribunal under issue No 2.

As a result of these findings, this appeal succeeds and is allowed. The award of the tribunal is set aside and the claim application is accepted. The claimant is held entitled to a sum of Rs. 40,000/- by way of compensation. The State of Haryana, respondent No. 1, is allowed three months'' time to deposit this amount with the tribunal; failing which the claimant will be entitled to interest thereon at the rate of nine per cent per annum from the date of this order till payment. No costs.