Uttrakhand Transport ... vs Nasreen Jahan & Anr
2017 Latest Caselaw 3834 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Decided on: 1st August, 2017

+      MAC.APP. 667/2017 and CM APPL.27290-27291/2017
       UTTRAKHAND TRANSPORT CORPORATION.... Appellant
                   Through: Ms. Garima Prasad, Advocate


                         versus

       NASREEN JAHAN & ANR                        ..... Respondents
                   Through:           Mr. J.P.N. Shahi, Advocate for
                                      R-1 & R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                   JUDGMENT (ORAL)

1. The first and second respondents (collectively, the claimants) instituted accident claim case (MACT No.64/2015), seeking compensation on account of death of their infant child Baby Aalia in a motor vehicular accident that had occurred on 01.04.2015 at about 12 o'clock noon time near New Bus Stand, Ghaziabad, involving bus bearing registration No.UK-07PA-0838 of the appellant.

2. The Tribunal, after inquiry, by judgment dated 26.04.2017, has upheld the case that the accident had occurred due to negligent driving of the bus and awarded compensation in the sum of Rs.6,53,000/- with interest.

3. The Uttrakhand State Transport Corporation, on which the liability has been fastened, it being the owner of the bus and employer of its driver at the relevant point of time, has come up in appeal raising the contention that the second respondent, the father of the deceased child himself was negligent in that he had driven the motorcycle bearing registration No.DL-5SL-1759 without caring for the driving rules and had suddenly come and dashed against the bus from the wrong side.

4. On perusal, it is found that the second claimant (the motorcycle rider) appeared a witness (PW-1) during the inquiry on the strength of his affidavit Ex.PW-1/A and conceded that the bus was taking a turn at the relevant point of time towards Delhi turning from Meerut More, Ghaziabad. This admission, by itself cannot be used to jump to the conclusion that the accident had occurred due to negligent driving of the motorcyclist.

5. The appellant had examined Kulbir Singh (R2W1) describing him as the conductor of the bus. The said witness may have deposed that the bus was moving in slow speed and was on the correct side of the road or that it is the motorcycle which had come and struck against the bus. But, the question persisted as to how the said witness, conductor of the bus, would be in a position to describe the sequence of events leading to the occurrence so as to render the evidence of the motorcyclist unbelievable. The driver of the bus was in the best, and vantage, position to narrate the consequence of events. Noticeably, he would not enter the witness box. This results in adverse inference.

6. In above facts and circumstances, on the principle of preponderance of probabilities, this Court does not find any substance in the contention urged in the appeal so as to displace the findings on facts on issue of negligence recorded by the Tribunal in the impugned judgment.

7. On being asked, the counsel for the appellant was unable to point out any error in the calculation of compensation, the finding in this regard having been returned by the tribunal following the principles laid down by this Court in Chetan Malhotra vs. Lala Ram, MAC.APP.554/2010, decided on 13.05.2016.

8. The appeal is dismissed in limine.

9. Pending applications also stand disposed of.

10. The appellant must satisfy the award forthwith.

11. The statutory amount deposited shall be refunded.

R.K.GAUBA, J.

AUGUST 01, 2017 vk