Angrejo & Ors. vs Rajinder Singh & Ors.
2011 Latest Caselaw 4482 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 FAO 59/1995


ANGREJO & ORS.                              ..... Appellants
                           Through:   Mr. Suryakant Singla,
                                      Advocate

                  versus

RAJINDER SINGH & ORS.                        ..... Respondents
                  Through:            Mr. Ramesh Kumar, Advocate
                                      for the respondent No.3

%                          Date of Decision : September 14, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                           JUDGMENT

: REVA KHETRAPAL, J.

1. This appeal is directed against the judgment of the Motor

Accidents Claims Tribunal, Delhi dated 08.11.1994 whereby the

Claim Petition of the appellants bearing Suit No.134/83 under Section

110-A of the Motor Vehicles Act, 1988 was dismissed.

2. The concise facts as set out in the Claim Petition are that on

11.02.1983, a private bus bearing No.DEP-2418 plying under DTC

operation on route No. 835, driven rashly and negligently by the

respondent No.1, hit the three-wheeler scooter (luggage carrier)

owned and driven by one Harke Ram near Taunga Stand at Chara

Mandi, Najafgarh, Delhi, resulting in Harke Ram receiving grievous

injuries to which he succumbed on the following day, that is, on

12.02.1983. Allegedly, the bus was owned by the respondent No.2

and was plying under DTC operation, and was insured with the

respondent No.3-M/s. New India Assurance Co. Ltd. A Claim

Petition for grant of compensation in the sum of ` 2.50 lakhs was

filed by the legal representatives of the deceased Harke Ram, to

which written statement was filed by the respondents No.1 and 2, the

driver and owner of the offending bus denying the factum of accident.

The factum of insurance of the offending bus was, however, admitted

by the respondent No.3. The respondent No.4-Delhi Transport

Corporation also filed a written statement pleading that it was not a

necessary party, as it was a private bus which was plying under an

agreement with the Delhi Transport Corporation, and as per the said

agreement the DTC was not liable for any civil or criminal liability

arising out of the use of the bus in question.

3. On the aforesaid pleadings, the learned Trial Court framed

issues and held that though it stood proved on record that the death of

Harke Ram was caused in a vehicular accident, the

appellants/claimants had failed to establish that the bus in question

had caused the accident. This conclusion was arrived at by the

learned Tribunal on the basis of the testimony of PW2 Shri Chander

Bhan, whose statement considered as a whole including his cross-

examination was held by the Tribunal to be unreliable.

4. The sole contention of Mr. Suryakant Singla, the counsel for

the appellants is that the learned Tribunal erred in rejecting the

testimony of PW2 Chander Bhan, who categorically stated in the

witness box that a private bus having registration No.DEP-2418

plying on route No.835, coming from the Najafgarh side and on its

way to Tilak Nagar, had caused the accident. Mr. Singla contended

that in the First Information Report bearing No. 28/83, registered in

respect of the accident, which is proved on record as Ex.PW5/1, it

was specifically recorded that the deceased Harke Ram, who was the

driver of the three-wheeler scooter No.DBL-6147, had met with an

accident with a private bus plying on route No.835. Admittedly, the

aforesaid bus was operating under the Delhi Transport Corporation on

the said route and thus there was no manner of doubt that the

deceased had died due to the injury sustained by him in the accident

caused by the said bus plying on route No.835. He further contended

that the First Information Report had been recorded at the earliest and

reflected the true picture. Mr. Ramesh Kumar, the learned counsel

for the respondent No.3-Insurance Company, on the other hand,

sought to support the judgment of the learned Tribunal on the ground

that the respondent No.1 had been acquitted in the criminal case

registered against him under Section 304-A IPC by the Court of the

Metropolitan Magistrate who tried him for the said offence.

5. On scrutiny of the records, I am unable to affirm the judgment

of the Tribunal. Merely because the criminal case against the

respondent No.1 resulted in an acquittal for dearth of incriminating

evidence against him, in my view, does not mean that the driver of the

offending bus is not liable for the accident. I find no cogent reason to

reject the testimony of PW2 Chander Bhan who categorically stated

in the witness box that he was an eye witness to the accident, which

was caused due to the rash and negligent driving of the respondent

No.1-driver of the bus. As per him, on 11.02.1983, the deceased

Harke Ram was going from Najafgarh towards Tilak Nagar on a

three-wheeler scooter when a private bus bearing No.DEP-2418,

plying on route No.835 coming from Najafgarh and going towards

Tilak Nagar, hit a taunga on the road which in turn hit the three-

wheeler scooter of the deceased, as a result of which the scooter

turned turtle. The aforesaid testimony of PW2 Chander Bhan

remained unshaken in cross-examination, in the course of which the

witness stated that he had witnessed the accident while standing at the

bus stand of Chara Mandi, Najafgarh, 40 yards away from the scene

of occurrence.

6. It cannot also be lost sight of that it was for the respondents

No.1 and 2 to dislodge the testimony of PW2 Chander Bhan by

adducing cogent evidence to establish that the bus in question was not

plying on the aforesaid route. This the respondents No.1 and 2 failed

to do as neither of the said respondents chose to enter the witness box

to state on oath that the bus owned by the respondent No.2 and driven

by the respondent No.1, was not being plied on route No.835 and had

not met with the accident which resulted in the untimely demise of

Harke Ram. It is not denied by the Delhi Transport Corporation or

even by the respondents No.1 and 2 that the bus in question was

plying on route No.835. In such circumstances, in my view, the

learned Tribunal ought to have drawn adverse inference against the

respondent No.1-driver, who failed to appear in the witness box to

rebut the evidence of the eye-witness to the accident, namely, PW2

Chander Bhan. The learned Tribunal also erred in holding that there

was a discrepancy between the version of the accident given in the

Claim Petition by the claimants themselves and the version given by

PW2 Chander Bhan. According to the Tribunal, whereas in

paragraph 1 of the Claim Petition it is stated that the "scooter was hit

by a rash and fast coming private bus No.DEP-2418 operated under

DTC on route No.835 from back side which was being driven by the

respondent No.1 rashly and negligently" and that after being hit by

the bus the scooter struck a taunga standing nearby, PW2 Chander

Bose in his statement stated that the bus had hit the taunga, which in

turn had hit the three-wheeler scooter, as a result of which the scooter

overturned.

7. In my view, in all accidents including the present one, things

take place in quick succession and in a case where three vehicles are

involved, it is not always possible to determine which vehicle was hit

first. Further, I find that not even a suggestion was put to PW2

Chander Bhan with regard to his version of the manner in which the

accident occurred. Even otherwise, it cannot be forgotten that PW2

Chander Bhan appeared in the witness box more than six years after

the accident took place and for the witness to recollect clearly and in

minute detail the exact manner in which the accident took place,

unless he is a tutored witness, would not be possible.

8. Resultantly, the judgment of the learned Tribunal with regard

to Issue No.2 cannot be upheld and is accordingly set aside. The

appeal is allowed and the matter is remanded back to the Tribunal for

re-determining the remaining issues, including the quantum of

compensation payable to the appellants. Parties are directed to appear

before the learned Tribunal on 10th October, 2011.

9. Records of the Tribunal be sent back forthwith. Parties shall

bear their own costs.

REVA KHETRAPAL (JUDGE) September 14, 2011 km