J.C. Johnson And Anr. vs Raghbir Singh And Ors.
2003 Latest Caselaw 880 Del

JUDGMENT

S.K. Mahajan, J.

1. This order will dispose of the appeal filed by the appellants against the judgment of the Motor Accidents Claims Tribunal whereby the claim application of the appellants claiming compensation for the death of their son in a road accident alleged to have been caused by the rash and negligent driving of the offending vehicle on 18th February, 1987 was dismissed. The claim application of the appellants was dismissed by the Tribunal on the ground that it could not be proved that the accident was caused due to rash and negligent driving of the offending vehicle and consequently the appellants were held not entitled to the grant of any compensation. A few facts relevant for deciding this appeal are :-

On 18th February, 1987 the deceased along with his friend on the pillion was driving a motorcycle and was going from Panchsheel Park, New Delhi to Som Vihar. It was at about 04.30 pm when the motorcycle was on Venketeshwar Road, R.K. Puram that a bus coming from the opposite direction had head on collision with the motorcycle resulting in the deceased receiving severe injuries which proved fatal. Claiming that the accident was caused due to rash and negligent driving of the offending bus, the appellants filed a claim petition before the Motor Accident Claims Tribunal claiming compensation of Rs. 20 lacs for the death of their son. The respondents in the written statement denied that the accident was caused due to rash and negligent driving of the bus. It was stated that the bus had started from Dhaula Kuan at about 5.00 pm and at about 05.20 pm the bus had reached R.K. Puram Sector-IV when the driver had stopped the bus at the bus stand for the passengers to alight and board the bus. It was stated that after taking the passengers from the bus stand as soon as the driver started the bus a motorcycle with two riders came at a shooting speed and on seeing them coming at a fast speed, the driver of the bus stopped the bus by applying the brakes and at that time he saw the motorcyclist trying to overtake another bus which was coming from the opposite direction but due to the fast speed the motorcyclist could not control his motorcycle and both the riders jumped from the motorcycle and after that the motorcycle came and hit the rear portion of the bus. It was submitted that no accident was caused between the motorcycle and the bus and the respondents were, therefore, not liable to pay any compensation to the family of the deceased. On the pleadings of the parties, the Tribunal framed the following issues :-

1. Whether deceased Rahul James Johnson died in an accident dt.18.2.1987 at about 4.30 pm due to rash and negligent driving of bus No. DHP 3394, on the part of its driver, respondent No. 1? OPP

2. Whether petitioners are the only legal heirs of the deceased? OPP

3. Whether petition is bad for the preliminary objections taken in their written statement by the respondents? OPR

4. To what amount of compensation the petitioners are entitled and from whom?

5. Relief.

2. While deciding Issue No.1, the Tribunal held that the site plan shows that the bus was coming in its own direction i.e. on the left side and there was a central dividing line on the road to control the traffic coming from both the directions. According to the Tribunal, the motorcyclist was trying to overtake another bus and in the process he went to his right side crossing the central dividing line and the accident occurred on the side on which the bus was being driven. Relying upon the judgment of the Metropolitan Magistrate whereby the driver of the offending bus was acquitted, the Tribunal held that the reasoning given by the Metropolitan Magistrate appeared to be more probable than the evidence given by the eye witness, namely, the pillion rider of the motorcycle. It was held by the Tribunal that while overtaking the bus, the deceased came in touch with the offending bus owned by the respondent and on account of the accident both the motorcyclists fell down on the road and received injuries. The Tribunal, therefore, held that the accident occurred due to rash and negligent driving on the part of the motorcycle driver and not on account of the rash and negligent driving of the driver of the offending bus. The issue was, accordingly, decided against the appellants. Since it was held that the accident was caused due to rash and negligent driving of the motorcycle, the Tribunal came to a finding that the appellants were not entitled to any compensation.

3. It is contended by learned counsel for the appellants that the only eye witness to the accident, namely, the pillion rider was not cross-examined by the respondents and his statement having gone unrebutted, the Tribunal ought not have relied upon the judgment of the criminal Court to come to a finding that the accident was not caused due to rash and negligent driving of the offending bus or that the same was caused due to the negligence of the deceased.

4. I have perused the trial Court record and have also heard learned counsel for the parties. The pillion rider had appeared as PW-1 before the Tribunal and stated that on the fateful day he was going from Panchsheel Park to Som Vihar on the motorcycle being driven by the deceased and he was sitting on the pillion of the motorcycle; that when they reached R.K. Puram, a DTC bus bearing registration No. DHP 3394 came on a very fast speed to their side and hit the motorcycle; that there was head on collision due to which both of them fell down on the road and were taken to Safdarjung Hospital where the deceased died because of the injuries received by him. He stated that there was not much traffic at that time on the road and the accident took place due to the rash and negligent driving of the bus driver. This witness was not cross-examined at all by the respondents.

5. The driver of the offending vehicle in his statement has stated that at about 5.20 pm when he reached R.K. Puram Sector-IV, he saw a motorcycle coming from the opposite direction at a shooting speed; that the bus was on its correct side and it had just started after taking passengers from the bus stand; that he stopped the bus seeing the high speed of the motorcycle; that the motorcyclists jumped from the motorcycle and motorcycle came in touch with the right portion of the bus. He stated that his bus was standing at that time and no accident took place with this bus on the said date and that the motorcyclist received accidental injuries due to his own fault and negligence and they had not come in touch with the bus. No other witness was produced by the respondent in support of its case.

6. The site plan Ex.PW-2/4 has been produced at the instance of the appellants. A perusal of the site plan shows that the accident had taken place on the right side of the yellow dividing line which shows that the motorcyclist had gone on the other side of the dividing yellow line. However, merely because the motorcyclist had crossed the dividing line, can that be a ground to hold that the motorcyclist was negligent in the driving of his motorcycle and was solely responsible for the accident. A perusal of the site plan shows that the bus had stopped at a distance of about 35 feet from the place where the accident had taken place. It clearly belies the statement of the driver of the bus that the bus was not moving but was standing at the time of the accident. Had the bus been standing, there was no occasion for it to stop at a distance of about 35 feet from the place of the accident. The fact that the bus had stopped at a distance of 35 feet from the place of accident clearly shows that the bus was also moving at a fast speed. While it may be true that the motorcyclist was driving at a fast speed and had gone on the right side of the dividing line but the same will not absolve the driver of the bus to be careful on the road. The driver cannot take the plea that because the motorcycle had come on the right side of the dividing line, therefore, he had a right to continue to drive his vehicle at a fast speed. Moment the driver of the offending vehicle had seen the motorcycle coming from opposite direction and had crossed the dividing line, it was his duty to move his vehicle to the left to avoid the accident. The offending vehicle being a heavy vehicle, the driver of that vehicle was required to be more cautious on the road. The stand taken by the driver of the bus is not that he had tried to avoid the accident but no accident had taken place and that his bus was standing at that time. The fact that the bus was at the middle of the road and was almost touching the yellow line at the time of the accident shows that it could not be standing. Moreover the respondent did not produce the conductor of the bus nor any passenger sitting in the bus was produced to testify that the bus at the time of the accident was standing and was not being driven at a fast speed. Apart from the driver of the bus, the conductor and the passengers in the bus were the only eye witnesses to the accident and they having not been produced, adverse inference has to be drawn against the respondent. The statement of the driver of the bus, therefore, in my opinion, cannot be believed.

7. The Tribunal has also erred in relying upon the judgment of the criminal Court whereby the driver had been acquitted. The onus of proof in a criminal case is much more than the onus in a civil case. While in criminal Court it had to be proved beyond doubt that the accident had taken place because of the rash and negligent driving of the bus, it may not be so while trying a civil case for compensation. It is no doubt true that the motorcyclist was also negligent in driving his vehicle but the bus driver was equally negligent in driving the offending bus and, in my opinion, the accident had taken place because of contributory negligence of drivers of both the vehicles. The Tribunal, therefore, ought to have held that the driver of the offending bus was equally negligent in causing the accident and ought to have apportioned the blame equally upon both the drivers.

8. Since it is held that the driver of the offending vehicle was equally negligent in driving the bus and the accident was caused because of the contributory negligence of the drivers of both the vehicles, the appellants will be entitled to proportionate compensation for the death of their son in the said accident caused by the contributory negligence of the offending vehicle.

9. As the Tribunal has not decided the issue of compensation, I allow this appeal and remand the case to the Tribunal to decide the compensation payable to the appellants because of the death of their son and after assessing the compensation, the Tribunal should direct 50% of such compensation to be paid to the appellants by the respondent.

10. With these observations, the appeal stand disposed of leaving the parties to bear their own costs.

11. The parties are directed to appear before the Tribunal on 23rd September, 2003.