Kamaljit Singh and Others vs Jatinder Pal and Others

G.C. Garg, J.—This appeal is directed against the order dated 4.12.1991 whereby a petition u/s 110-A of the Motor Vehicles Act (for short ''the Act'') filed by the appellants has been dismissed by the Motor Accidents Claims Tribunal, Ropar.

Hakam Singh, aged 45 years, employed as an Assistant in the Punjab Milkfed at Milk Plant, Mohali, was going from Mohali to Kharar on 30.11.1990 at about 6.00 p.m. on the Chandigarh-Kharar Road. When he was near village Ballo Majra Link Road, a bus bearing registration No. HP 36-0302 owned by Himachal Roadways Transport Corporation while dying to overtake another bus of Punjab Roadways, .struck against the scooter of Hakam Singh. The bus was being driven at a very fast speed in a negligent manner at the time of the accident. As a result, Hakam Singh received multiple injuries and died on the spot. At the time of death the deceased was drawing salary to the tune of Rs. 3249.80 per month besides earning a sum of Rs. 2,000/- from dairy work at Kharar. With the above averments, the appellants being the legal heirs of the deceased filed a petition u/s 110-A of the Act claiming compensation on account of death of Hakam Singh. The claim as made by them was contested by respondent Nos. 1 and 2. On the pleadings of the parties the following issues were framed by the Tribunal:

(1) Whether the accident took place due to rash and negligent driving of bus No. HP 36-0302 by its driver, resulting in the death of Hakam Singh? OPP.

(2) To what amount the claimants are entitled as compensation? OPP.

(3) Relief.

Learned Tribunal after appreciating the evidence led by the parties decided issue No. 1 against the claimants by observing that the claimants had miserably failed to prove that the accident was caused due to the rash and negligent driving of the bus by respondent No. 1. Under issue No. 2, however, the learned Tribunal computed the damages in the sum of Rs. 4,16,000/- after holding the annual dependency of the appellants at Rs. 25,000/- and by applying a multiplier of 16. Consequently, the claim petition was dismissed by order under appeal but the appellants were held entitled to Rs. 25,000 on account of no fault liability.

Challenge in this appeal is to the finding recorded under issue No. 1 only. Learned counsel for the appellants while seriously assailing the finding recorded under issue No. 1 submitted that in order to prove the rash and negligent driving of the bus by respondent No. 1 resulting in the death of Hakam Singh, the appellants had examined two eyewitnesses, namely, Tarlochan Singh as PW 1 and Baldev Singh as PW 4, but their evidence has been wrongly thrown away by the learned Tribunal. On the other hand, learned Counsel for the respondents submitted that the onus to prove issue No. 1 was on the appellants and they have failed to discharge the same. He further submitted that the statement of the driver of the offending bus should be given due weight and should not be brushed aside simply because he is supposed to depose in his own favour.

After hearing learned Counsel for the parties and going through the evidence on the record, I am of the view that this appeal must succeed. As noticed above, in order to prove issue No. 1 the appellants have examined Tarlochan Singh, PW 1 and Baldev Singh, PW 4. Learned Tribunal has not relied upon the testimony of Tarlochan Singh, PW 1, by observing that "in his cross-examination he admitted that no wheel of the bus had run over the body of Hakam Singh deceased. He and the police reached the spot at 7.15 p.m. From the above, it is clear" that Tarlochan Singh, PW 1, was not present at the spot and he was telling only a cooked up story." Similarly, the statement of Baldev Singh, PW 4, has also been disbelieved on the ground that his name was not mentioned by Tarlochan Singh, PW 1, nor the version given by Baldev Singh, PW 4, that he was stationed at the spot and Tarlochan Singh went to the police station to lodge the report was mentioned by Tarlochan Singh, PW 1. Learned Tribunal observed that presence of Baldev Singh, PW 4, at the spot was doubtful. This was so observed because the said witness had admitted in his cross-examination that he did not know in which manner the scooter was taken to the police station. The learned Tribunal solely relied upon the testimony of Jatinder Pal, RW 1, i.e., the driver of the offending bus and came to the conclusion that claimants-appellants had failed to prove that the accident was caused due to rash and negligent driving of the bus by its driver.

I have appraised the statements of the two eyewitnesses. Tarlochan Singh, PW 1, clearly stated that on the fateful day, when he was about 2''/2 furlongs short of village Daon, a bus of Punjab Roadways came at a high speed and another bus of Himachal Roadways was trying to overtake the said bus and in that effort struck against the scooter of Hakam Singh. The witness gave the registration No. of the Himachal Roadways bus as HP 36-0302. Hakam Singh received multiple injuries and died at the spot. He stated that the occurrence was witnessed by him as also by Baldev Singh, PW 4. He further stated that he stationed Baldev Singh, PW 4, near the dead body and proceeded to Kharar to lodge the report. He along with the police came back near the dead body when photographs of scooter, bus and dead body were taken. However, in cross-examination, this witness stated that none of the wheels of the bus had run over the body of Hakam Singh yet he denied the suggestion that the bus was standing on the left side of the road and that the deceased along with the scooter struck against the standing bus and fell down, as a result thereof died on the spot. From this part of his statement, it is crystal clear that he witnessed the accident and thereafter went to the police station to lodge the report. It is not understood how the learned Tribunal came to the conclusion that this witness was not present at the spot and was only telling a cooked up story. Baldev Singh, PW 4, also supports the version of Tarlochan Singh, PW 1. His name was specifically taken by the latter. Not only this, Tarlochan Singh, PW 1, specifically stated that he stationed Baldev Singh at the spot and himself proceeded to lodge the report. Baldev Singh, PW 4, stated that a Himachal Pradesh Roadways bus struck against the scooter and dragged it to some extent. The scooter driver fell down, received injuries and as a result died on the spot. He further stated that Tarlochan Singh, PW 1, was also present there and that he was stationed there by Tarlochan Singh who went to the police station to lodge the report. He also stated that his statement was recorded by the police. From the only fact that he could not tell .as to how the scooter was taken to the police station, it could not be concluded that Baldev Singh, PW 4, was not present at the spot. Thus, the reasoning given by the Tribunal for discarding the testimony of the aforesaid two witnesses is contrary to the record. As against this evidence, the statement of Jatinder Pal, RW 1, is that Hakam Singh was trying to cross the road in order to go to the link road but after reaching the turning point, he changed his mind and came back on the main road and as a result hit the bus and died. In other words, the case as narrated by the driver is that the scooter hit the bus which had come to a grinding halt and that it was the driver of the scooter himself, who was negligent. No reliance can be placed on the testimony of the driver of the bus. If the bus had come to a grinding halt, it would obviously be on the extreme left of the road while one goes from Kharar to Chandigarh whereas the scooter would be on the extreme left when one goes from Chandigarh to Kharar. This witness has nowhere stated that he was not in the process of overtaking a Punjab Roadways bus whereas this has been categorically stated by the two eyewitnesses. Once a bus is in the process of overtaking another bus, it is bound to come in the middle of the road and more so, towards the right side of the road and it is in that situation it can safely be said that it hit the scooter which was coming from the opposite direction. Nothing has been brought on the record by the respondents that the accident took place on the left side of the road when one comes from Kharar to Chandigarh. This perhaps could not be shown as the bus was not in that position. If the accident had taken, place either in the middle of the road or the right side of the road when one comes from Kharar to Chandigarh, it has necessarily to be concluded that the driver of the bus was negligent in driving the bus and the accident took place on account of his negligence. The mere fact that the wheel of the bus did not run over the body of the deceased is not sufficient to conclude that the scooter hit the bus when the bus had come to a grinding halt. Even if that be so, if the bus had come in the middle of the road or more towards its right in the process of overtaking another bus, it has again to be concluded that it was the negligence of the driver of the bus in causing the accident. In the situation noticed above, it has to be concluded that the accident in which Hakam Singh died was caused due to rash and negligent driving of the. bus by its driver. This being the position, the finding on issue No. 1 as recorded by the Tribunal cannot be sustained and is hereby reversed accordingly.

As a result, the appeal is allowed and the appellants are held entitled to a sum of Rs. 4,16,000/- on account of damages as assessed by the Tribunal inclusive of Rs. 25,000/-, whether by now paid or not, on account of no fault liability. The appellants shall also be entitled to interest at the rate of 12 per cent from the date of claim petition till the date of payment in addition to the aforesaid amount. Respondent Nos. 1 to 3 in this appeal shall be jointly and severally liable to pay the aforesaid amount along with interest. No order as to costs.