Vijaya Gurunath vs D.T.C. And Anr.
2002 Latest Caselaw 473 Del

JUDGMENT

R.C. Chopra, J.

1. This appeal challenges an order dated 29.1.1987 passed by learned Motor Accident Claims Tribunal, Delhi by which a petition filed by the appellant under Section 110-A of the Motor Vehicles Act, for grant of compensation was dismised. The facts relevant for disposal of this appeal, briefly stated, are that according to the appellant on 25.12.1977 at about 3.30 p.m. she along with her two children was traveling on a motor-cycle, which was being driven by her husband. They were proceeding from India Gate side towards C-Hexagon on Shahjahan Road. While her husband was trying to take a turn towards right on Pandara Road crossing, suddenly a speeding DTC bus No. DHP-2243, whhich was being driven by respondent No. 2, appeared from their left side and hit the rear portiion of their motor-cycle, as a result of which they were thrown off.

2. The appellant alleged that this accident had taken place on account of negligence of respondent No. 2 and had caused serious injuries on her left knee. She had to undergo treatment at various hospitals including surgery at Bangalore, but still she was not in a position to straighten her leg and was walking with the help of crutches. It was stated that she had suffered permanent damage to her leg and had developed a limp. She claimed a compensation of Rs. 1 lac from the respondents along with costs and interests.

3. The respondents filed a joint written statement in which the accident was admitted, but it was denied that it had taken place on account of any negligence on the part of respondent No. 2. Accordin to the respondents, the DTC bus which was being driven by respondent No. 2 had reached the crossing of C-Hexagon road and Pandara Road and was proceeding on its correct side at a normal speed. When the bus reached the crossing, respondent No. 2 stopped the bus and only upon appearance of given signal, he started his bus. When he had crossed more than half of the crossing, the motor-cycle on which the appellant was sitting came from the left hand side of the road at a very fast and shooting speed and tried to cross the road ahead of the bus in a regligent manner. THe motor-cyclist was carrying not only the appellant, but two children also and as such, on seeing the bus he could not control his motor-cycle and hit it against the front left side of the bus with the result that the motor-cycle fell down and the appellant received injuries. It was also added that since the bus was coming from the right side of the motor-cyclist, the bus driver had the first right of way to proceed on the main road and the motor-cyclist was guilty of violating the traffic rules in trying to go across the crossing before the respondent bus. It was denied that the appelant had suffered permanent disability and it was pleaded that the respondents were not liable to pay any compensation to her.

4. The appellant filed a replication to the written statement denying the pleas raised by the respondents. On the pleadings of the parties, learned Tribunal framed the following issues:-

1. Whether the petitioner suffered injuries in accident on 25.12.77 caused due to rash/negligent act of driving of bus No. DLP-2243 on the part of respondent No. 2?

2.Whether the petition is bad for mis-joinder and non-joinder of parties?

3. Whether the accident was caused due to negligence of the driver of M-Cycle No. DHT-4539?

4. To what amount of compensation, if any, is the petitioner entitled?

5. Relief.

5. In support of her case, the appellant examined P.W.1 Ram Prakash Bhalla, who brought the summoned records from AIIMS, P.W. 2 Dr. P.K. Dave from AIIMS, who deposed about her injuries, P.W. 3 Y.P. Verma, Record Clerk from Safdarjung Hospital, P.W. 4, the appellant herself and her husband K.Gurunath again numbered as P.W. 4, P.W.5 Dr. B. Frankli and Dr. P.P. Kotwal, again numbered as P.W. 5. The certificate of disability was proved on record as P.W. 5/1. The respondents in their defense examined respondent No. 2 as R.W. 1

6. Learned Trial Judge dismissed the petition filed by the appellant mainly on the ground that the petitioner had not succeeded in establishing on record that the incident in question had taken place on account of any rash or negligent driving on the part of respondent No. 2. After discussing the evidence of the appellant, her husband and respondent No. 2, the driver of the bus, learned Motor Accident Claims Tribunal came to the conclusion that the appellant's husband was himself negligent in the matter of driving his motor-cycle and had dashed against the respondent's bus with the result that the appellant suffered injuries. It was catagorically held that no rash or negligent driving on the part of respondent No. 2 had been proved on record.

7. I have heared learned counsel for the appellant and learned counsel for the respondents and have gone through the records of te case.

8. A perusal of the testimonies of the appellant, who appeared as P.W. 4 and her husband K. Gurunath, who was also numbered as P.W. 4, shows that at the time of the incident, the appellant's husband was carrying their two children also on his motor-cycle, who were not very young and as such, on account of their weight and presence on the motor-cycle, he was not in a position to control his motor-cycle properly. The evidence on record further shows that at the time of the accident in question, the bus driven by respondent No. 2 was coming from the right hand side of the motor-cycle and as per traffic rules, driver of the bus had a preferential right to move ahead and it was incumbent upon the driver of the motor-cycle to wait and give way to the bus before venturing to go across the crossing. The testimony of P.W. 4 that he had crossed almost half of the crossing when he saw the DTC bus coming from his left hand side at a great speed cannot be believed as the route on which the respondent's bus was going was such that the bus could have come from his right side only and not from his left hand side. Moreover he himself stated that on seeing the bus, and with a view to avoid collision, he accelerated the speed of motor-cycle which shows that he was not in complete control of his motor-cycle, may be on account of presence of so many persons on the motor-cycle or on account of its high speed. P.W. 4 Gurumnath admitted that the accident took place almost in the center of the road and he had seen the bus from a distance of 15-20 yards, but he had not applied the brakes as it could cause a major accident. It also suggests that he himself was at a high speed and as such, it was not possible for him to stop his motor-cucle with a view to avoid impact with the bus.

9. The appellant had come to the Court claiming compensation and was supposed to prove her allegations, but still neither any public withness was produced nor any site plan or report of the mechanical inspection in respect of the bus or the motor-cycle were proved on record. In the absence of the site plan, there remains total confusion as to from which side motor-cycle was coming and from which side the bus had come, the benefit of which cannot be given to the petitioner, who was under an obligation to establish by preponderance of probability that the accident in question had taken place on account of default of respondent No. 2. The oral statement of P.W. 4 as against the oral statement of R.W.1 stands on the same footing in the absence of anything else on record to support or corroborate the statement of P.W.4. The testimony of R.W.1 cannot be brushed aside simply for the reason that the appellant had suffered injuries or that the respondent No. 2 was driving a heavier vehicle. It cannot accepted as a rule that in every accident fault always lies at the door of the driver of a heavier vehicle and the driver of the lighter vehicle can never be at fault.

10. In case the appellant had examined the Mechanical Inspector and proved the mechanical inspection report of the two vehicles, some corroboration to her case could have come on record, but that has also not been done. In the absence of this evidence, the Trial Court had rightly refused to believe her case that the accident in question had taken place on account of the negligence of respondent No. 2. It has to be clarified here itself that the absence of proof of site plan or the report of the Mechanical Inspector is not always fatal to a case, but in a case like the present one where the oral testimony of the claimant is countered by the oral testimony of the respondent driver and the evidence on record does not clarify the situation and circumstances under which the accident has taken place, the benefit of confusion cannot be given to a claimant for the reason that the burden of proof remains on the claimant only and not on the respondent. It is also interesting to note that respondent No. 2, who made a statement in detail about the circumstances under which the accident had taken place had clearly averred that the accident was on account of negligence of the husband of the appellant. He was not effectively cross-examined to show that the statement made by him was false and was merely given suggestions which he denied. As such, there is nothing on record to discard the testimony of R.W.1.

11. Under the circumstances, this Court of the considered view that learned Motor Accident Claims Tribunal had properly appreciated the evidence on record and rightly concluded that the accident in question had taken place on account of negligence of the appellant's husband only and not on account of any rash and negligent driving on the part of respondent No. 2. This Court finds no good grounds for taking a different view.

12. In view of decision of issues No. 1 and 3 against the appellant, there is no need to look into the nature of her injuries or the claim of compensation. The appellant who was a pillion rider on the motor-cycle being driven by her husband is a victim of rash and negligent of her husband only.

13. There is thus, no merit in the appeal. The appeal stands dismised accordingly.