Kamlesh & Ors. vs Dharamveer & Anr.
2010 Latest Caselaw 2733 Del

 *                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                      F.A.O. No.171 of 1988

%                                                                               24.05.2010

         KAMLESH & ORS.                                          ...... Appellants
                                       Through: Ms. Neha Gupta, Advocate.

                                            Versus

         DHARAMVEER & ANR.                                        ......Respondents
                                       Through: Mr. J.N. Aggarwal, Advocate for DTC.

                                                               Reserved on: 13th April, 2010
                                                              Pronounced on: May 24, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?      Yes.

2.       To be referred to the reporter or not?                                     Yes.

3.       Whether judgment should be reported in Digest?                             Yes.

                                      JUDGMENT

1. By this appeal, the appellants have assailed the judgment of learned Tribunal

dated 1st June, 1988 whereby the claim petition of the appellants was dismissed holding

that it was deceased himself who was driving the scooter (two-wheeler) rashly and

negligently and there was no negligence on the part of the bus driver.

2. Brief facts relevant for the purpose of deciding this appeal are that on 8th January,

1985 at about 10:15 p.m. Sh. Satish Salwan was on his two-wheeler scooter with

Sh. Avtar Singh as a pillion rider. They were coming from Padam Singh Road and when

they reached at the crossing of Shastri Park, an accident took place with DTC bus bearing

No.DEP-8216 coming from Pusa Road. As a result of this accident, driver and scooter

fell at a distance of 5-6 yards and the pillion rider also fell. Driver Sh. Satish Salwan died

of the injuries while pillion rider did not receive fatal injuries. The contention of the

claimants was that the DTC bus came at a fast speed from the side of Pusa Road and left

portion of the bus hit front side of the scooter resulting into the accident whereas the stand

of the bus driver and bus owner was that the bus was coming on the main Pusa Road at

slow speed on the correct side of the road when suddenly a scooterist emerge from Padam

Singh Road, a side road opening on the main road, and came before the bus. The bus

driver tried to save the scooterist by swerving his bus towards right side and stopped the

bus then and there but the scooterist was busy in talking with pillion rider and did not care

for the flow of traffic and hit against front left portion of the bus.

3. The learned Tribunal after considering the evidence led before it made following

observation about accident and negligence:-

"In this regard, I find that petitioners have only examined, Avtar Singh, who was allegedly sitting as a pillion rider on the scooter of the deceased. In his statement, he has stated that the left portion of the bus struck against their scooter on the front side. This shows that it was the scooter driver, who dashed against the bus because in case, the bus would have struck against the scooter, then the accident would have been caused by the front portion of the bus and not the left portion. Similarly, the right portion of the scooter would have come in contact with the bus in case the bus would have dashed against the scooter. This witness, Avtar Singh, has categorically admitted that the front portion of the scooter was hit, which is not possible in case the bus would have dashed against the scooter. I, further find that the bus was coming on the main road and the scooter had come from the side road. The witness, Avtar Singh, has categorically stated that the bus was coming on the main road and they had come from the side road.

"It is a well settled law that when a person comes from the side road and has to enter on the main road, then it is his duty to stop the vehicle at the crossing to see that the crossing is free to go on the main road." The witness, Avtar Singh, has stated in the cross- examination that when they came on the main road, the bus may be at a distance of 15 yards. This mean that deceased and Avtar Singh have seen the bus at a distance of 15 yards when they came on the main road. It was the duty of the scooter driver to stop there and to allow the bus to pass, because it was coming on the main road. The scooter driver instead of allowing the bus to pass, tried to overtake it from the crossing and in the process, dashed against the left portion of the bus. I, therefore, find that it was

scooter driver himself who was negligent in causing the accident himself. I further find that witness, Avtar Singh, has admitted in the cross-examination that the bus had stopped at a distance of 10- 15 feets after the impact. In case, the bus would have come at the fast speed, then it could not come to a halt after 10-15 feets after the accident. This shows that the bus was not coming at a fast speed at the time of the accident. The petitioners have stated in the petition that deceased was dragged by the bus. However, there is not an iota of evidence on the record to prove that after the impact deceased was dragged by the bus. On the contrary, Avtar Singh witness has stated that Satish Salwan deceased fell down at a distance of 5-6yards and was taken to hospital by the police. There is nothing in his statement that he was dragged by the bus. I, further find that Dharmbir, who was driving the DTC bus has also appeared in the witness-box and has stated that it was the scooterist who entered from the side road all of a sudden and dashed against the bus. The petitioners have not examined the I.O. in the case. They have also not proved the site-plan. They have also not examined any other independent witness to prove rash and negligence on the part of bus driver."

4. It is argued by counsel for the appellants that the Tribunal ignored the evidence of

PW-4, Sh. Avtar Singh, who stated that the bus driver did not give horn which was

obligatory on the part of the driver when coming near a crossing. It is further submitted

that the bus driver in his evidence admitted that sound of his horn was less. Thus, due to

fault of the driver of not giving horn the deceased emerged on the main road thinking that

no bus was coming. It is submitted that the bus driver had ran away from the site

although there was no fear that crowd would gather and would use physical force and,

therefore, there was a presumption that bus driver was negligent. It is further stated that

conductor of the bus was not produced in the witness box and an adverse inference should

have been drawn by the Tribunal in this case.

5. I consider that these arguments have no weight. Learned Tribunal has considered

the entire evidence in proper prospective. It is obligatory on every driver of the vehicle,

who emerges on the main road from a side lane or from an internal road, not only to slow

down at the opening on the main road, but to stop the vehicle and look on his left side if

any vehicle was coming on the main road. The first right is of the driver of the vehicle

coming on the main road to pass a vehicle emerging from the side lane or internal lanes

on the main road has an obligation to stop and wait and merge with traffic on the main

road only when road is clear. Whether horn is given or not given, does not determine the

negligence of the vehicle coming on the main road. It is not disputed in this case that

Pusa Road on which bus was coming was the main road and many lanes and small roads

open on Pusa Road from both sides. It is the duty and obligation of vehicles emerging on

Pusa Road to weight for the vehicles coming on Pusa Road. This obligation was on the

deceased also, who was driving the scooter. The Tribunal rightly held that the deceased

was negligent since he did not care before emerging on the main road if any vehicle was

coming on the road or not.

I find no force in the appeal. The appeal is hereby dismissed.

SHIV NARAYAN DHINGRA J.

MAY 24, 2010 'AA'