Shri Pema Gyaltso and Others vs Shri Suraj Mal and Others

Kailash Gambhir, J.—By way of this appeal appellants seek to challenge the impugned Award dated 1.3.1996 primarily on the ground that the appellants failed to prove rashness and negligence on the part of the driver of the offending vehicle. Before dealing with the said contention of the counsel for the appellants, it would be appropriate to give brief facts of the case which are as under: Mrs. Tenzen Palmo was going on rickshaw on 13.10.86 at 4.00P.M from Railway Station, Delhi to Budh Vihar. A crane bearing registration No. DHL 3361 driven in a rash and negligent manner came from behind and hit the rickshaw at ''T'' point, ISBT. As a result she fell down and was crushed under the wheel of the crane and died on the spot.

Mr. O.P. Mannie, Counsel for the appellants contended that the police had registered a case against the driver of the offending vehicle and this in itself was sufficient to hold that he was rash and negligent in driving the offending vehicle. Counsel for the appellants further urged that even in the postmortem report the reason for the death of the victim disclosed was due to the crush injuries and therefore, this conclusion in the postmortem report in itself was sufficient enough to hold that the victim had died due to the accident in question. Counsel further submitted that the Tribunal has not appreciated the applicability of the principle of res ipsa-loquitur in the facts and circumstance of the case and therefore, no further evidence was required to be adduced so as to prove the factum of negligence on the part of the driver of the offending vehicle. Counsel for the appellants in support of his arguments placed reliance on the following judgments:

Girdharilal Vs. Radhey Shyam and Others,

Basthi Kasim Saheb v. The Mysore State Road Transport Corp. and Ors. : AIR1991SC487 ; and

N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others,

Per contra counsel appearing for the respondent contended that u/s 166 of the Motor Vehicles Act it is imperative on the part of the claimants to prove rash and negligent driving on the part of the driver of the offending vehicle and in the absence of the same no compensation can be awarded in favour of the claimants. Refuting the submissions of the counsel for the appellant, the counsel for the respondent contended that the appellant failed to prove the involvement of the offending vehicle in the accident. Once the involvement of the vehicle itself was in dispute then the rashness and negligence on the part of the driver of the said vehicle became out of question. Counsel for the respondent further contended that procurement of a witness by the appellant and then producing him as a witness to the occurrence of the accident clearly showed that there was no involvement of either the driver, respondent No. 1 herein or the owner of the vehicle in the said accident. The counsel for the respondent also contended that the petitioner himself was riding on the rickshaw and he was the best witness to give the first hand account of the occurrence of the accident, but since he was not produced in the witness box, therefore, adverse inference against the appellants should be drawn. Counsel for the respondent further contended that nobody else but the driver of the alleged offending vehicle himself informed to the police about the said overturning of the rickshaw, whereafter the deceased fell down and came under the rear wheel of the crane. Counsel for the respondent also contended that RW-1 in his deposition duly proved that he was not involved in the said accident. He further proved that he was duly acquitted by the criminal Court and no suggestion was put to the said witness by the appellant to the contrary and therefore, the testimony of RW-1 remained unrebutted. Counsel thus contended that there is no illegality in the findings of the Tribunal in holding that the appellant failed to prove rash and negligent driving on the part of the driver of the offending vehicle.

I have heard learned Counsel for the parties at considerable length and perused the record.

It is a settled legal position that the proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application u/s 166 of the Act. To prove factum of accident alone without proving the rash and negligent driving on the part of the driver shall not entitle the claimants to the grant of compensation in a petition filed u/s 166 of the Motor Vehicles Act. In this regard, while distinguishing Sections 166 and 163-A of the Act in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, the Hon''ble Apex Court observed as under:

Therefore, the victim of an accident or his dependants have an option either to proceed u/s 166 of the Act or u/s 163-A of the Act. Once they approach the Tribunal u/s 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed u/s 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle.

The rash and negligent driving on the part of the driver of the offending vehicle can be proved in many ways. The first and foremost evidence can be of an eye witness, who himself/herself has witnessed the accident and can give a first hand account of the facts resulting into causing the accident. In the absence of an eye witness the help is taken from the criminal records and in that the primary documents are the FIR, statements of witnesses rendered u/s 161 of Criminal Procedure Code, post mortem report, mechanical report of the vehicle involved and more importantly copy of the site plan prepared by the police taking the exact position existing at the site at the time of the occurrence of the accident. Withholding of any such evidence or not proving the criminal records can certainly prove fatal to the interest of the claimants claiming compensation amount. In the facts of the present case the appellant failed to file copy of the FIR or copy of the site plan or any other criminal record. Not only this appellant No. 1, who himself was a witness to the accident did not enter the witness box. The only witness the appellants had produced is one Mr. Jan Singh, but his testimony proved beyond any doubt that he was a procured witness. The Tribunal rightly did not give any weightage to the testimony of the said witness. In para 23 of the claim petition the appellants/claimants have averred that on 13.10.1986 at about 4.00 p.m. the petitioner hired rickshaw from the railway station for going to Budh Vihar and when the rickshaw reached at T point of ISBT a crane bearing registration No. DHL 3361 came from behind at a high speed being driven rashly and negligently by respondent No. 1 and hit the rickshaw. No explanation has comeforth as to why the petitioner who himself had hired the rickshaw did not enter the witness box to give the first hand account of the said accident.

The argument of the counsel that in such cases reliance can be placed on the principle of res ipsa loquitur is without any force. It is no doubt true that in many cases it is difficult to prove the rashness and negligence on the part of the driver by producing an eye witness and in such cases help can be taken whenever possible by applying the principle of res ipsa loquitur. The general purport of the words ''res ipsa loquitur'' is that the accident ''speaks for itself'' or tells its own story. Once the said principle in a given case is applied then it will be for the other side to establish that the accident happened due to some other cause rather than his own negligence. In this regard in Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, the Hon''ble Apex Court explained principle of ''res ipsa loquitur'' as under:

The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident ''speaks for itself'' or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states: ''The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused''. In Halsbury''s Laws of England , 3rd Edn., Vol. 28, at p. 77, the position is stated thus: ''An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant''s negligence, or where the event charged a; negligence ''tells it own story'' of negligence on the part of the defendant, the story so told being clear and unambiguous''. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care.

In the present case the contention of the counsel for the appellant is that once in the cross-examination the driver had admitted registration of an FIR against him, this fact in itself would be sufficient to show that the driver was rash and negligent in driving the vehicle and there was no need of producing any other evidence to prove negligence on the part of the driver, is devoid of any substance. Principle of res ipsa loquitur can be made applicable when the exact occurrence of the accident is explained either with the help of statement of an eye witness or with the help of the site plan prepared by the police. Mere registration of an FIR against a driver would not lead to the conclusion that he was rash and negligent in driving the vehicle. It is admitted position in the present case that the driver of the crane himself had reported the matter to the police after finding the rickshaw lying over turned and the body of the deceased having fallen under the rear wheel of the crane. It is no doubt true that the evidence to be produced before the Claims Tribunal need not be proved beyond reasonable doubt as it is required before a Criminal Court, yet at the same time the negligence on the part of the driver of the offending vehicle has to be proved as a matter of fact by leading sufficient evidence to satisfy the Court that due to rashness and negligence of a driver, the accident had taken place.

In the light of the aforesaid discussion, I do not find any merit in the present appeal and the same is hereby dismissed.