Mohd. Hanif & Anr. vs Himachal Pradesh Road Transport ...
1999 Latest Caselaw 795 Del

ORDER

DR. M.K. Sharma, J.

1. This appeal is filed by the appellants who are the parents of deceased Abdul Kadir, who expired on account of injury sustained by him in a road accident. The appeal is preferred under Section 173 of the Motor Vehicles Act praying for setting aside the order dated 26.8.93 passed by the Judge, Motor Accident Claims Tribunal, Delhi dismissing the claim petition.

2. The appellants herein filed claim petition claiming compensation of Rs. 4,32,000/- against the respondents alleging that the respondent No. 3 was the driver of the offending vehicle and the respondents No.1 & 2 were the owners thereof. It was stated in the claim petition filed by the appel- lants that the son of deceased Abdul Kadir was aged about 23 years and was unmarried. He was working as a turner and his monthly income was Rs.1200/-. It was alleged that on 18.9.88 at about 6.10 a.m. when said Abdul Kadir was going on his bicycle towards Wazirabad Bridge was hit by a bus on the road leading to the Bridge. According to the appellants the said bus belonged to Haryana Roadways bearing the Registration No. HIB-320 which was driven by respondent No. 3 in a rash, reckless and negligent manner. It is stated that Abdul Kadir was hit by the said bus which was driven by respondent No. 3 in a rash, reckless and negligent manner on account of which the deceased suffered fatal injuries. It is stated that the respondents were jointly and severally liable to pay compensation to the appellants.

3. The respondents No.1 & 2 filed a joint written statement before the Claims Tribunal before whom the aforesaid petition was filed. The parties examined their witnesses and thereafter by judgment and order dated 26.8.93 the Tribunal dismissed the petition holding that the appellants were unable to prove that the death of the deceased Abdul Kadir was on account of rash, reckless and negligent driving by respondent No. 2 and therefore they were not entitled to compensation.

4. The Claims Tribunal discussed the oral and documentary evidence ad- duced before him and the critical analysis of the evidence of the parties it was found by him that the evidence adduced by the appellants were nei- ther satisfactory nor reliable. He found that the evidence led by the respondents was far more better quality and of confidence inspiring. On scrutinising the evidence he found that it is proved from the evidence that at the time of the accident the bus was motionless as it had stopped at the crossing and at that time when the bus was motionless, the deceased sudden- ly came at a fast speed and could not control his cycle and the rear por- tion of the cycle struck the front bumper of the bus, as a result of which he fell down and suffered head injuries. Considering the evidence he held that the statements of respondents witnesses are far more convincing and confidence inspiring and found no ground to brush aside their statement. He specifically held that the deceased was himself to be blamed for the acci- dent and the respondent No. 3, the driver was neither rash nor negligent in driving the bus. He held that the claimants failed to prove and establish that the deceased had died on account of injuries sustained by him due to rash and negligent driving by respondent No. 3. He found the said two witnesses not only chance witnesses but also interested witnesses as the testimonies of such a witness has to be of unimpeachable and unassailable quality if court is to place reliance on the same, which according to the Tribunal was not of that quality.

5. In the light of the aforesaid findings arrived at by him he held that the question of determining the compensation payable to the appellants by the respondents became redundant. However, with a view to obviate the contingency that might arise if the findings of the tribunal as recorded are upset in appeal he proceeded to fix the compensation in case the appel- lants succeeded. So computing he held that if the appellants have been entitled to compensation they would be entitled to a compensation of Rs. 69,600/- alongwith interest at 12% per annum from the date of the filing of the petition till realisation and all the respondents would have been liable to pay the amount to the appellants jointly and severally.

6. Mr. Goyal appearing for the appellants submitted that the tribunal did not appreciate the oral and documentary evidence produced by the parties in the right perspective and also failed to discuss the said evidence at length. He also submitted that the evidence produced by the respondents is of partisan in nature. He submitted that on careful reading of the site plan Ex. PW6/1 and the statement of PW. 4 together with the medical report and other documents it is clearly indicated that the bus was driven in a rash, reckless and negligent manner by the driver which caused the fatal injuries on the deceased resulting in his death. He further submitted that evidence on record conclusively prove and establish the reckless and negli- gent driving of the bus which caused the death of Abdul Kadir and, there- fore, the appellants were entitled to be paid the compensation for the death of their son which would be more and what is fixed by the tribunal.

7. Heard the learned counsel for the respondents who submitted that proving of negligence is sine qua non before an order could be passed by the tribunal for awarding compensation and so long such negligence is not proved the person is not liable to make any payment. He submitted that before the respondents 1 & 2 could be made liable it was necessary for the appellants to prove that the respondent No. 3 was acting during the course of his employment in a negligent and careless manner which has not been proved in the instant case and, therefore, the tribunal was justified in rejecting the claim petition.

8. The law in respect of such a claim is well-settled. The liability of the owner of a vehicle to compensate the victim in an accident due to the negligent driving of his servant is based on a Law of Tort. Regarding the negligence of the servant, the owner is made liable on the basis of vicar- ious liability. However, before the master could be made liable it is always necessary to prove that the servant was acting during the course of his employment and that he was negligent. In the case of a motor accident the owner is liable only in case of negligence of the servant in the course of duty and on proving of his vicarious liability and, therefore, proving of negligence is necessary before the owner or the Insurance Company could be held to be liable for the payment of compensation in a Motor Accident Claims case. In this connection reference may be made to the decision of the Supreme Court in Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and another . In the light of the aforesaid settled position of law it is necessary to examine whether in the present case the appellants have been able to prove and establish that the accident which resulted in the death of the deceased took place due to reckless and negligent driving of respondent No. 3, the driver of the bus. In order to establish the said facts, the appellants heavily relied upon the testimonies of the two eye witnesses namely, PW. 4 & PW. 5 to prove that the accident had taken place on account of rash and negligent driving of the offending bus. The appellants also put stress on the post mortem examination report of the deceased as also the other documents placed on record to which reference shall be made a little later. Initially I would like to examine the credibility of the evidence of PW. 4 & PW. 5 who are stated to be eye witnesses in respect of the manner in which the accident occurred. PW. 4 & PW. 5 have stated in a part of their deposition that the respondent No. 3 is responsible for causing the accident resulting injuries to the deceased Abdul Kadir. They have stated that the offending bus had come at a very fast speed and when the deceased had crossed almost 3/4th of the crossing at the Wazirabad Bridge the bus hit the rear wheel of his cycle as a result of which he fell down and sustained injuries. Both of them denied the suggestions by the respondents that at the time of the accident the bus was standing stationary at the said crossing. PW.4 stated that the injured was taken to hospital by the people present there and that his statement was also recorded by police. PW. 5, however, states that when he was taking passengers in his three wheeler through the road, the acci- dent occurred and he did not stop. PW. 4 stated that he did no know the name of the deceased but his father was known to him, because he is the Imam of his Masjid. He stated that although he knew the Imam he did not inform him about the death of his son. He was at the spot for 10/20 minutes and police arrived after about 20 minutes. The Investigating Officer, however, said that he went to the hospital and after coming back from there inspected the spot and recorded statement of witnesses. The Investigating Officer, however, also stated that he did not find PW4 at the spot. Even in the said F.I.R. the name of the said witness is not mentioned in the said F.I.R. The police has stated that no eye witness has been found on the spot. If the said witnesses were eye witnesses, the Investigating Officer who reached the spot immediately thereof would have found the eye witness present at the spot and their names would have definitely found place in the F.I.R. The evidence of PW. 4 is, therefore, not reconcilable with that of the evidence of PW. 6, the Investigating Officer. PW. 4 at one stage has deposed that at the time of the accident the traffic light of the bus was green and the witness was standing as the light for him was read. There- fore, if his statement is to be believed, as per the traffic signal the bus was going straight on the road and at that stage the deceased could not have crossed the road in violation of the traffic signal. This witness at one stage has denied the suggestion that the accident was on account of the fault of the bus driver. PW. 4 & PW. 5, therefore, are chance witnesses and also interested witnesses and, therefore, the evidence is to be scrutinised with due circumspection. PW. 5 claimed himself to be a three wheeler driv- er. He has stated that there was no traffic light at the place of the accident. This is belied by the statement of PW. 4 himself and also from the site plan. The said witnesses, therefore, are found to be not credit worthy at all and the tribunal was justified in rejecting their testimonies as unreliable. The Tribunal while arriving at the conclusion relied upon the testimony of RW. 4 and RW. 5 and has given cogent reasons for placing such reliance. Both the witnesses have stated that at the time of the accident the bus was motionless as it had stopped at the crossing and at that time the deceased cyclist coming at a fast speed hit against the front bumper of the bus. I find no reason to disbelieve the said evidence of RW4 and RW5 while also was found to be convincing by the Tribunal.

9. Counsel for the appellants also submitted that the Post Mortem Report of the deceased would categorically indicate that the bus was being driven in a rash and negligent manner which could be deduced from the nature of injuries sustained by the deceased as is disclosed from the Post Mortem Report. I have considered the said post mortem report also alongwith the other documentary evidence on record as also the oral testimony of the witnesses examined in the case. The evidence on record pointedly indicate and establish that there was a traffic signal right near to the place of occurrence. If the light in the said traffic signal was green at the point of time of the accident then the bus was definitely moving when it hit the cyclist. That again would indicate that the deceased was trying to cross the road when the light was green and the traffic was moving in that direc- tion including the bus in question. If on the other hand, as stated by most of the witnesses that the light was red then the bus was motionless and at that point of time the deceased tried to cross the road in a hurry so as to reach the other end of the road before the light becomes green and in that hurry to cross the road he hit the front bumper of the bus driving fast and as a result of the aforesaid impact fell down on the road and sustained the injuries. When a cycle is driven fast and it hit a particular object with speed the natural consequence would be that the cyclist would fall down with an impact and consequent injuries would definitely be as that of those sustained by the deceased in the present case. Whichever way the evidence is looked into it is apparent that if the signal was green, the deceased was responsible who was driving his cycle in a rash and negligent manner. The driver of the bus cannot be blamed as he was moving alongwith other vehicles to cross the crossings after the lights were green. If the lights were red for the bus it was definitely motionless during which the deceased in order to cross the road in hurry drove fast his cycle and then hit the bus consequent to which he fell down with an impact for his rash and negli- gent driving as a result of which he suffered those injuries. Thus on the consideration of the entire evidence on record I am satisfied that the deceased himself was to be blamed for the accident in question and the respondent No. 3 was neither rash nor negligent in driving the bus. The findings of the tribunal and conclusions arrived at by the Tribunal is, therefore, legal and valid and are upheld.

10. In the result, I do not find any merit in this appeal and the appeal stands dismissed.