Madan Singh & Anr. vs D.T.C. & Anr.

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 27th April, 2012
+       FAO 429/2000

        MADAN SINGH & ANR.                       ..... Appellant
                    Through:            Dveep Ahuja, Advocate with
                                        Mr. Shubhankar Jha, Advocate
                   versus

        D.T.C. & ANR.                          ..... Respondents
                            Through:    Mr. J.N.Aggarwal, Advocate
                                        for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellants who are the parents of deceased Mukesh Kumar who died in a motor accident which is alleged to have taken place on 16.04.1996 impugn a judgment dated 24.02.2000 whereby the Claim Petition (Suit No.307/1996) preferred by them was dismissed on the ground that they had failed to produce the evidence on the part of the DTC bus driver (Ram Kishan) Respondent No.2 of bus No.DL-1P-9584.

2. According to the Appellants' version, which was proved by examining PW-1 Braham Jit Singh, while the deceased was crossing Ring Road at the Red Light Junction, Opposite Shantivan for going towards Darya Ganj, he was crushed between the bus No.UP-02-2165 and bus No.UGO-9877, as the stationary bus No.UGO-9877 was hit by the DTC bus No.DL-

1P-9584. PW-1 Braham Jit Singh deposed as under:-

"On 16.4.96 at about 6:30 p.m. I was coming from Shanti Van Chowk towards Daryaganj. There was red light at the crossing and many vehicles was stopped at the red light on the Ring road. I and Mukesh was crossing Shanti Van chowk from the side of Ring Road. We both have crossed the Ring Road from the side of Shanti Van chowk side and was crossing of the other and of the road towards DaryaGanj between the stationary U.P. Roadways buses. In the meantime, a DTC Bus No.DL-1P-9584 came from the side of ITO side at a high speed of 60 k.m. to 65 k.m. per hour rashly and negligently and hit the stationary U.P. Roadways bus bearing no.UGO-9877 from behind as a result the bus bearing no.UGO-9877 hit another bus bearing no.UP- 02-2165 and Mukesh who was passing through stationary buses crushed in between the bus and died at the spot then many people gathered at the spot and I informed the police. After 5 minutes police gypsy arrived at the spot of accident. The police impounded the DTC Bus bearing No.DL-1P-9584 and also arrested the driver Ram Kishan of the DTC Bus. The police persons took away of the deceased Mukesh to JPN hospital. The accident was caused due to the negligence of the DTC Bus and its driver."

3. The Claims Tribunal while dealing with the issue of negligence held that Mukesh Kumar admittedly was crossing the road in between these two buses which had stopped at the Red Light Signal temporarily; these buses could have moved any time on the signal turning green and thus Mukesh Kumar (the deceased) himself put his life in danger.

4. The Claims Tribunal opined that there was negligence on the FAO 429/2000 Page 2 of 5 part of Mukesh Kumar himself, moreover, the Claims Tribunal observed that PW-1 Braham Jit Singh himself had not seen the bus No.DL-1P-9584 hitting bus No.UGO-9877.

5. In my view, the conclusion reached by the Claims Tribunal is perverse. It is a common sight that most of the time the vehicles do not stop before the Stop Line. Sometimes, the Zebra Crossing is not exactly in front of the Stop Line. A person crossing the road in front of a bus can be mindful of the bus which is stationary as also the Traffic Signal. He can never think of a bus coming from behind and hitting a stationary bus in front of which he is passing. Obviously, the bus which hit the deceased was not put into motion by the driver, but the DTC bus No.DL-1P-9584 driven by Respondent No.2 hit the bus No.UGO-9877 while the entire traffic was stationary resulting into the accident.

6. Ram Kishan, driver of the bus No.DL-1P-9584 entered the witness box as RW-1. He admitted the accident but he gave a different version. He deposed that when his bus reached near Shantivan on the Ring Road there was heavy traffic. He stopped his bus for a moment on account of the heavy traffic. A UP Roadways bus No.UGO-9877 was going ahead of him which reversed and hit his bus on the front side. No such suggestion was given to PW-1 in cross-examination. It is too farfetched that a bus going on a ring road in heavy traffic would be suddenly reversed by the driver.

7. It is important to note that PW-1's testimony was not challenged in cross-examination by the Respondent DTC or its driver. Statement of PW-1 was recorded by the Police Officer immediately after the accident and the FIR bearing No.171/1996 was recorded in Police Station Darya Ganj just after an hour of the accident. In the FIR, the manner of accident as deposed by PW-1 before the Claims Tribunal was stated. Respondent No.1 was apprehended at the spot and all the three vehicles i.e. two UP Roadways buses and the DTC bus were also seized by the IO and later released on Superdari. A Challan for the offence under Section 279/304-A IPC was filed against Respondent No.2 which supports the version as given by PW-1 who is also the Complainant of the criminal case. It has to be borne in mind that the negligence is required to be proved in a Petition under Section 166 of the Motor Vehicles Act only on the touchstone of preponderance of probability. (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, and Parmeshwari Devi v. Amir Chand and Ors., (2011) 11 SCC 635).

8. The negligence on the part of Respondent No.2 in driving the bus No.DL-1P-9584 was duly proved. The impugned order, therefore, is liable to be set aside.

9. Since the Claim Petition was dismissed on the ground of non-

proving of negligence, the Claims Tribunal did not go into the aspect of the quantum of compensation payable to the FAO 429/2000 Page 4 of 5 Appellants.

10. A perusal of the record shows that a Salary Certificate Ex.PW-

2/2 purported to have been issued by the deceased's employer was produced by PW-2, the deceased's father. It is appropriate to examine the employer to prove the employment and the salary.

11. In the circumstances, the impugned order is set aside and the case is remanded back to the Claims Tribunal with the direction to record the appropriate evidence for proper proof of the Salary Certificate Ex.PW-2/2.

12. Since this accident took place in the year 1996, it is desirable that the Claim Petition is decided expeditiously and preferably within a period of three months from the next date of hearing before the Claims Tribunal.

13. Parties are directed to appear before the Claims Tribunal on 22.05.2012.

14. The Appeal is allowed in above terms.

15. Copy of the order be sent to the concerned Claims Tribunal for information.

16. Dasti also.

(G.P. MITTAL) JUDGE APRIL 27, 2012/vk FAO 429/2000 Page 5 of 5