Dtc And Anr vs Swaraj Sikri
2014 Latest Caselaw 4924 Del

$~R-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Decision: September 29, 2014
+     MAC APP. 439-40/2006

      DTC AND ANR.                            ..... Appellant.
                             Through:         Mr.J.N.Aggarwal, Advocate
               versus
      SWARAJ SIKRI                              ..... Respondent
                             Through:         Mr.A.K.Soni, Advocate.

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(Oral)

1.    The present appeal is filed seeking to impugn the award dated
18.01.2006.
2.    The brief facts giving rise to the claim petition are that the claimant
was going in a Maruti Van which was driven by Sh.Yogesh Sekhri. The van
had other occupants also. It was said to be driven at a moderate speed. At
Patel Chest Chowk/Khalsa College a DTC bus said to be driven in a rash
and negligent manner hit the Maruit Van and caused multiple injuries and
fracture to the occupants.
3.    Based on the evidence on record the Tribunal concluded that the DTC
bus driver was driving the bus in a rash and negligent manner and struck the
Maruti Van and caused the injuries to the claimant and other occupants of
the vehicle.
4.    Regarding compensation, the Tribunal noted that the claimant
Smt.Swaraj Sekhri was a woman aged 61 years. She suffered permanent




MAC APP. 439-40/2006                                            Page 1 of 4
 disability to the extent of 50%. The Tribunal awarded a total compensation
of Rs.1,80,000/- as follows:-
       (i)     Compensation on account of permanent         Rs.75,000/-
               disability
               15000 x 5 x 1
       (ii)    Medical expenses incurred (including the     Rs.75,000/-
               bills they might have not preserved)
       (iii)   Future medical treatment                     Rs.20,000/-
       (iv)    Pain & Sufferings                            Rs.10,000/-
               Total Compensation                           Rs.1,80,000/-

5.    Learned counsel appearing for the appellant has impugned the award
submitting that it was a clear case of contributory negligence as the driver of
the Maruti Van was also driving the vehicle at a high speed. Hence, he
submits that at best the liability would have to be joint and equal.
6.    Learned counsel appearing for the respondent has refuted the
contention of the appellant. He has submitted that in the present case, there
were two claim petitions adjudicated upon by a common Award. Against
one the appellant has filed an appeal while in the other claim petition there is
no appeal filed. It is urged that the findings of fact regarding the negligence
of the DTC bus now stands un-assailed in the other claim petition and hence
the appellant cannot succeed in the present claim petition. It is further
pointed out that the disability of the claimant is nearly 100% and the
compensation awarded in any case is on the lower side. Reliance is placed
on an order 10.12.2009 where this court had noted that the claimant has
suffered 50% disability and is on wheel chair.
7.    A perusal of the Award shows that the Tribunal has noted that
appellant No.2, the driver has been charge-sheeted by the police for rash and




MAC APP. 439-40/2006                                               Page 2 of 4
 negligent driving. The claimant Mrs.Swaraj Sekhri has not been cross-
examined and her testimony has gone un-rebutted. PW-1 has been cross-
examined only with respect to the fact that he was driving the vehicle at a
fast speed at the red light which he has denied. The Tribunal also noted that
no passenger of the bus or the conductor has come in the witness box to
support the version of appellant No.2. The accident has taken place in the
early hours. The Tribunal noted that the vision of the driver of the bus was
not obstructed because of which he could have seen the Maruti Van coming.
Hence, the Tribunal concluded that appellant No.2 was guilty of rash and
negligent driving.
8.    PW-1 Mr.Yogesh Sekhri who was driving the Van in his testimony
has said that his speed was only 30 KMPH and the DTC bus was being
driven in a rash and negligent and at a fast speed. The only question posed in
the cross-examination is that PW-1 was going in haste and caused the
accident, which PW-1 has denied. There is no cross-examination of PW-1
on his testimony that the bus was being driven at a fast speed.
9.    Reference may be had to the evidence of Mahavir Singh RW-1 who is
the driver of the DTC bus i.e. appellant No.2. In his testimony he does not
mention that he was driving the bust at a slow speed. Regarding the Maruti
Van he states that it was being driven at a very fast speed. His response to
the cross-examination is vague as he states that he had crossed the light and
had reached the main crossing when he saw the Van coming at a fast speed.
This evidence does not inspire confidence.
10.   There are no reasons given to explain as to why the findings of the
fact recorded by the Tribunals should be disturbed. There is no merit. The
appeal is dismissed.



MAC APP. 439-40/2006                                              Page 3 of 4
 11.   If any amount is still lying deposited in the court, the same may be
released to the claimant with accumulated up to date interest.


                                                        JAYANT NATH, J.

SEPTEMBER 29, 2014 rb