Chander Monan vs Ranjeet Singh
2003 Latest Caselaw 1339 Del

JUDGMENT

S.K. Mahajan, J.

1. This appeal is directed against the judgment of the Motor Accident Claims Tribunal whereby the application of the appellant for compensation for the injuries received by him in a road accident alleged to have been caused by the rash and negligent driving of the DTC bus, was dismissed. The case set up by the appellant in the application was that he was sitting in the private bus going to Yumuna Vihar and when the bus was standing at the Bhajan Pura bus stand to drop and pick up the passengers, the offending bus came at a fast speed from the back side and while overtaking the bus in which the appellant was sitting, hit the same as a result of which the appellant fell down in the bus and received injuries. Because of the injuries, the appellant was stated to have been removed to the hospital where he remained confined to bed for three days and even thereafter he was treated regularly for the injuries received by him in the said accident. Because of injuries received by him in the accident, alleged to have been caused by the rash and negligent driving of the DTC bus, the appellant filed application before the Tribunal claiming compensation against the owner and driver of the bus.

2. In the written statement, the respondents denied that the DTC bus in question was involved in the accident. The stand of the DTC in the written statement was that the appellant was seated on the right side back seat of the private bus and when the DTC bus was reaching Khajuri Khas, the private bus in which the appellant was sitting came in a rash and negligent manner from behind and in an attempt to overtake the DTC bus from the left side, it did not leave any space in between the buses as a result of which the appellant's elbow was crushed and injuries received by him were entirely due to his own fault. On the pleadings of the parties, the Tribunal framed the following issues:-

(i) Whether the petitioner received injuries on account of rash and negligent driving of DTC bus No. DL-1P-9277 by respondent no.1?

(ii) Whether the petitioner is entitled to any compensation. If so, to what amount and from whom?

(iii) Relief.

4. In support of his case that the accident was caused due to the rash and negligent driving of the DTC bus, the appellant besides appearing himself as a witness also produced one Mr. R.D. Joshi PW-2 who was allegedly traveling with him in the private bus. PW-2, R.D. Joshi has not specifically stated in his statement that the private bus was hit by the DTC bus from behind, however, he did state that the DTC bus came at fast speed from the back side and was trying to overtake the bus in which the appellant was sitting and in the process the appellant fell down in the bus and complained pain in his right arm where he received injuries. He stated that he got the appellant admitted in the GTB hospital. The appellant in his own statement deposed that while he was sitting on the back seat of the private bus, the offending bus came from behind in a rash and negligent manner and hit the private bus from back side and as a result the appellant received, injuries on his right elbow. The driver of the offending DTC bus has appeared as a witness on behalf of the respondents and stated that when his bus reached near Khajuri Khas a private bus came from behind and while trying to overtake the DTC bus from left side, he did not leave any space between the two buses as a result of which the elbow of the appellant was crushed in between the two buses and the injuries sustained by the appellant were entirely because of his own fault and DTC was not at fault.

5. On this evidence being produced, the Tribunal held that the fact that PW2 R.D. Joshi in his statement has not stated that private bus was hit by the DTC bus from behind and no other passenger except the appellant received injuries, show that the accident was not caused due to the rash and negligent driving of the DTC bus. It was held by the Tribunal that if the DTC bus had struck suddenly from behind it was natural that some more passengers ought to have received injuries in the accident. The Tribunal was also of the view that the appellant had received injuries on his elbow of the right hand which, he himself had kept outside the bus and it is the appellant who is to be blamed for his having received injuries in the alleged accident. The application of the appellant was consequently dismissed by the Tribunal.

6. Immediately after the accident a complaint was lodged with the Police and an FIR was registered against the driver of the DTC bus. As per the FIR, the private bus was standing at the bus stand when the DTC bus coming from behind hit the bus from behind which resulted in the appellant receiving injuries. As per the FIR, the accident appeared to have been caused by the rash and negligent driving of the DTC bus. The site plan prepared by the police after the accident shows that the private bus was standing at the extreme left of the road and the DTC bus had hit the private bus at the right hand rear corner and after causing the accident had stopped in front of the private bus. Respondents except for producing the driver of the bus did not produce any other witness including the conductor of the said bus. The conductor admittedly was available for making a statement and was employed with the respondent. In my opinion, it was obligatory on the party of the respondent to produce the conductor to show as to whether the accident was caused by the DTC bus or the private bus. Because of the non-production conductor as a witness before the Tribunal, in my opinion, the Court ought to have drawn an adverse inference against the respondent. Moreover the position of the vehicle in the site plan shows that the accident was caused not by the private bus but it was the DTC bus which came from behind and hit the private bus which resulted in the appellant receiving injuries. DTC bus has been shown to be standing much ahead of the private bus in the site plan. If the private bus was overtaking the DTC bus, there was no reason for the DTC bus to have been shown ahead of the private bus in the site plan prepared soon after the accident. On the basis of the statement of the witnesses, the site plan and the injuries received by the appellant, I am of the opinion that the accident was caused entirely due to the rash and negligent driving of the offending DTC bus and not by the private bus. Issue no.1 is, accordingly, decided in favor of the appellant.

7. Since the Tribunal has not decided any other issue and the application was dismissed only on the ground that the appellant was not able to prove that the accident was caused due to the rash and negligent driving of the DTC bus, I allow this appeal, set aside the impugned judgment and hold that the accident was caused entirely due to the rash and negligent driving of the offending DTC bus and remand the case to the Tribunal for deciding issues 2 and 3 in the light of the judgment passed by this Court.

8. The parties are directed to appear before the Tribunal on 22.1.2004.

9. The Trial court file be sent back immediately.