Delhi High Court
Uttar Pradesh State Road ... vs Rukhsana @ Khushbu & Ors. on 27 January, 2014
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27th January, 2014
+ MAC.APP. 511/2006
UTTAR PRADESH STATE ROAD TRANSPORT
CORPORATION ..... Appellant
Represented by: Ms.Garima Prasad and
Mr.Shadab Khan, Advocates.
Versus
RUKHSANA @ KHUSHBU & ORS. ..... Respondents
Represented by: None.
AND
+ MAC.APP. 521/2006
UTTAR PRADESH STATE ROAD TRANSPORT
CORPORATION ..... Appellant
Represented by: Ms.Garima Prasad and
Mr.Shadab Khan, Advocates.
Versus
SMT. NANHI & ORS. ..... Respondents
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. These appeals have arisen from the common judgment dated
16.03.2006, whereby the learned Tribunal decided Suit Nos.11/04 and 10/04
respectively.
2. Vide aforesaid impugned award dated 16.03.2006, the learned
Tribunal has granted compensation for a sum of Rs.3,95,800/- for the death
of Kallu in Suit No.10/04 and Rs.2,93,000/- for the death of Smt.Chhutto in
Suit No.11/04. Interest at the rate of 7.5% per annum was also awarded
from the date of petition till the date of award.
3. Since both these appeals have arisen from the same accident occurred
on 13.08.2001, therefore, the same are being decided by this common
judgment.
4. Brief facts of the case are that on 13.08.2001, deceased Kallu
alongwith his wife Smt. Chhutto was going from Aligarh to Loni Ghaziabd,
UP on a motorcycle bearing No.DL-5S-P-7562. When they reached near
Badarpur Police Chowki, offending bus bearing No.UP-42-T-485 driven by
its driver in a rash and negligent manner had hit the Maruti Van bearing
No.UP-13B-7576 and then hit the motorcycle of the deceased and dragged
the same for a distance. The rider of the motorcycle, i.e., Kallu and pillion
rider/his wife, i.e., Smt. Chhutto died in the said accident.
5. Learned counsel appearing on behalf of the appellant/Corporation
submitted that though the accident was a head-on collision, despite that the
learned Tribunal has not assessed the contributory negligence on the part of
the other vehicle involved in the accident.
6. She further submitted that the appellant/Corporation in its written
statement had admitted the involvement of the offending vehicle in the
accident in question, per contra, the negligence imputed on the driver of the
offending vehicle had been disputed.
7. On the issue of contributory negligence, the appellant/Corporation has
examined R1W1, i.e., driver of the offending bus, who deposed that he was
driving the bus; and around 11.30 AM, when the bus reached at the place of
accident, he observed a Maruti Car coming in opposite direction. He had
also observed that a motorcyclist was overtaking the said Maruti Car.
Meanwhile, the rider of the motorcycle fell down. He further deposed that
the accident occurred because of rashness of the motorcyclist, however, he
was not negligent.
8. Admittedly, no eye witness has been examined in this case. R1W1
did not depict the narration of accident with the help of the site plan. It was
incumbent upon the driver of the offending bus to discharge the onus of his
assertion that the accident had occurred because of negligence of the
motorcyclist, i.e., the deceased himself. He had not lodged any counter-
complaint with the police alleging negligence on the part of the motorcyclist.
Rather he admitted that he was facing the trial in a criminal case arising out
of the accident in question.
9. However, in every accident of head-on collision, contributory
negligence cannot be attributed to both the vehicles. It depends upon facts
and circumstances of each case. In the present case, none of the witness had
stated that the accident was caused due to negligence on the part of the
deceased. The criminal case did not suggest so. No complaint was made by
the driver of the offending vehicle against the implication in false case and
even no case had been filed by him. Though, it is true that under Section
166 of the Motor Vehicles Act, 1988, onus of negligence has to be proved in
the present case, the appellant/Corporation has not denied the accident. It is
also not denied that driver of the offending vehicle was facing trial in a
criminal case. It is also not denied that they have not made any efforts for
lodging any criminal complaint against the person who caused the accident.
Therefore, I do not find any substance in the submission made by learned
counsel for the appellant/Corporation.
10. The second issue argued by the learned counsel for the
appellant/Corporation pertains to the age of the deceased Kallu. It is
submitted that the learned Tribunal has wrongly considered the age of
deceased Kallu as 32 years as there was no document to prove the same.
Therefore, the multiplier adopted by the learned Tribunal is erroneous and
deserves to be set aside.
11. Respondent No.1/Smt. Nanhi was examined as PW1 on 19.08.2003 in
MAC. APP. No. 521/2006, wherein she deposed that deceased Kallu had
died on 13.08.2001 and he was aged about 27 years. However, in her
evidence recorded on 13.01.2004, the said PW1 deposed that deceased was
aged about 32 years and deceased Smt. Chhutto was aged 25 years at the
time of the accident.
12. I note, on this issue there is no cross-examination by the
appellant/Corporation. Maximum age of the deceased Kallu has come on
record as 32 years and the learned Tribunal has assessed the age of the
deceased as 32 years on the basis of evidence on record. Thus, no prejudices
have been caused to the appellant. Therefore, I do not find any substance in
the arguments of the counsel for the appellant on this issue also.
13. Keeping in view the above discussion, I do not find any merit in these
appeals. Accordingly, both these appeals are dismissed.
14. Statutory amount be released in favour of the appellant/Corporation.
15. Balance compensation amount, if any, along with upto date interest
accrued thereon be released in favour of the respondents/claimants.
SURESH KAIT, J.
JANUARY 27, 2014
sb/jg
