Delhi High Court
Delhi Transport Corporation vs Shri B.P. Singhal And Ors. on 5 December, 2007
Author: Kailash Gambhir
Bench: Kailash Gambhir
JUDGMENT Kailash Gambhir, J.
1. By way of this appeal, the appellant seeks to challenge the impugned award dated 27.1.1993 on two grounds. Firstly, that there was a contributory negligence on the part of the driver of the three wheeler scooter in which the deceased was traveling. The second contention raised by the appellant is that without there being any evidence on record, the Tribunal has wrongly assessed the income of the appellant at Rs. 3,500/- p.m. For better appreciation of the contentions raised by the parties, it would be appropriate to give brief scenario of the facts as under:
On 4.10.1981 at about 1.10 p.m., the deceased was traveling in a three wheeler scooter bearing registration No. DHR-5301 and was going towards India Gate on Dr. Zakir Hussain Marg. When the said scooter was at the crossing of the Zakir Hussain Road and Cornwallis Road, suddenly the offending DTC bus bearing registration No. DHP-2996, being driven in a very rash and negligent manner by its driver came from Cornwallis Road for going towards Zoo's direction. The bus driver skipped the red light traffic signal at the aforesaid crossing. Suddenly the bus driver lost the control over the vehicle. When the three wheeler scooter saw the bus reaching towards him, he tried to save himself from the collision but the bus hit the three wheeler scooter and smashed into and as a result of this, the deceased Master Ashesh Singhal died.
2. I have heard learned Counsel for the parties and have perused the records.
3. Counsel for the appellant has contended that as per own admission of the driver of the scooter in his cross-examination the scooter had hit against the right middle portion of the bus. The contention of counsel for the appellant is that once the scooter driver himself has categorically admitted the said fact of the scooter being hit at the middle portion of the bus, this circumstance in itself is sufficient enough to prove that the scooter driver himself was negligent in driving the vehicle. Counsel for the appellant has invited my attention to the cross-examination of Mr. Sushil Kumar in support of his argument. Counsel for the appellant contends that DTC alone could not have been held responsible for causing the accident and at best it was a clear cut case of contributory negligence. Counsel for the appellant has also contended that the police had challaned three wheeler scooter for committing offence under Sections 278 and 304-A of the IPC.
4. On the second contention, counsel for the appellant submitted that the Tribunal has assessed the income of the deceased at Rs. 3,500/- in a most whimsical manner as there was no evidence in support of the same placed on record by the respondent to prove the said income. Counsel further contends that it is an admitted case of the parties that deceased being a student, it cannot be said that he was earning any income also. Counsel for the appellant thus contends that tribunal has returned a wrong finding as regards the determination of the income of the deceased is concerned. Counsel for the appellant has also placed reliance on the judgment of the Supreme Court reported in III (2003) ACC 57(SC), The Divisional Controller, KSRTC v. Mahadeva Shetty and Anr., to contend that the compensation to be awarded by the tribunals has to satisfy the criteria of the same being just and fair as envisaged under Section 168 of the Motor Vehicles Act. Just compensation does not mean, it should be by way of a bonanza for the victim of the dependant family members. Counsel further contends that the just compensation has to be assessed on the basis of the material placed by the claimants on record and such a compensation cannot be determined without there being any basis. Counsel for the appellant has referred to Para 14 of the said judgment which is reproduced as under:
14. The main principles of law on compensation for injuries were worked out in the 19th century, where railway accidents were becoming common and all actions were tried by the jury. Though the cases have an antiquated air it is still useful to refer to them. The necessity that damages should be "full" and "adequate" was stressed by the Court by the Queens Bench in Fair v. London and North-Western Rly. Co. The word "compensation" is derived from the Latin word "compensare" meaning "weigh together" or "balance". In Rushton v. National Coal Board it was observed:
[E]very member of this Court is anxious to do all he can to ensure that the damages are adequate for the injury suffered, so far as there can be compensation for an injury, and to help the parties and others to arrive at a fair and just figure....
5. Per contra, counsel for the respondent seriously refutes the contention raised by counsel for the appellant. He contends that the negligence on the part of the driver of the offending vehicle of the appellant was writ large. Counsel further contends that the present case is a case of gross negligence as not only that the bus had hit the three wheeler scooter while the bus was being driven by the driver at a very high speed but he continued driving the bus even after hitting the same. Counsel for the respondent has placed reliance on the deposition of PW-5 who was an eye witness being passenger in the offending vehicle. In his deposition, PW-5 has clearly narrated the exact facts which led to the occurrence of the said accident. In his testimony, the witness has stated that the driver of the offending bus was driving the vehicle at a very high speed without even bothering about the red light and while jumping the red light, he had hit the three wheeler scooter in which the deceased was traveling which was coming from the other side of Oberoi Hotel. The said witness also stated that there was a green signal as far as three wheeler scooter was concerned and the accident had occurred because the bus driver had jumped the red light and was trying to cross the main crossing at a very high speed and at which point of time the said accident occurred in which three wheeler scooter not only turned turtle but was dragged at about a distance of 100 yards. Counsel further contends that the evidence of the said eye witness cannot be doubted and nothing contrary to his deposition could be elicited by the appellant in his cross-examination. Counsel for the respondent has also invited my attention to the relevant paras of the award in which the tribunal has considered the contentions raised by the appellant. Para 9 to 12 of the same are reproduced as under:
9. Issue No. 1 & 3- Both the issues being inter-connected are proposed to be discussed together. On the part of the claimants one witness appearing as PW5 has deposed regarding the manner in which the accident took place, he was traveling in the offending bus driven by the respondent No. 1. He has further deposed that after the accident the deceased and Insured driver of the three wheeler scooter were taken in the same bus to the hospital. According to him the driver of the bus did not stop the bus even after the scooter was hit and was overtured, it was only on the insistence of the passengers traveling in the bus that he was forced to stop the vehicle and bring it back to the place of accident. This witness is definite in his statement regarding the speed of the bus that it was being driven in a very high speed and irrespective of the red traffic light, the driver of the bus respondent No. 1 jumped the red light and hit the three wheeler scooter which was coming from the side of the Oberoi Hotel. In the W.S. filed by the respondents it has been pleaded that the traffic light was clear for the traffic when the bus reached there and according to it the driver of the DTC bus as RW stated that on his side the signal was clear and to quote from his statement "when I was crossing the traffic lights it Zakir Hussain crossing were out of order they had been out of order for the last three days. Thus there is contradiction in the plea" 9. Issue No. 1 & 3- Both the issues being inter-connected are proposed to be discussed together. On the part of the claimants one witness appearing as PW5 has deposed regarding the manner in which the accident took place, he was traveling in the offending bus driven by the respondent No. 1. He has further deposed that after the accident the deceased and Insured driver of the three wheeler scooter were taken in the same bus to the hospital. According to him the driver of the bus did not stop the bus even after the scooter was hit and was overtured, it was only on the insistence of the passengers traveling in the bus that he was forced to stop the vehicle and bring it back to the place of accident. This witness is definite in his statement regarding the speed of the bus that it was being driven in a very high speed and irrespective of the red traffic light, the driver of the bus respondent No. 1 jumped the red light and hit the three wheeler scooter which was coming from the side of the Oberoi Hotel. In the W.S. filed by the respondents it has been pleaded that the traffic light was clear for the traffic when the buding and evidence produced by the respondents. Beside this evidence I find that the three wheeler scooter driver who is respondent also appeared as PW6 and he has deposed that on his side it was a green signal therefore he entered the crossing and after being hit became unconscious. The argument advanced by the learned Counsel for the Delhi Transport Corporation is that the criminal case was registered at the instance of the Delhi Transport Corporation bus driver and it was registered against the three wheeler scooter therefore it should be presumed that it was the fault of the respondent three wheeler scooter driver for causing this accident. He also referred to the statement of the PW6 in the cross examination where he admits that he has license since 1980 an the TSR belonging to his brother. There from it was argued that respondent three wheeler scooter driver was novice in driving the vehicle and caused this accident. But this argument does not carry any weight in my opinion it was held in the case of Suleman v. State of Maharashtra a criminal appeal No. 50 of 1965 dieced on 1.12.67 by the Honourable Supreme Court that a person having learner license driving a jeep without a regular license holder by his side knocking down a pedestrian cannot be said to be novice in driving the vehicle simply because he has a learner license. A person may be proficient in driving yet for sheer indifference he might not have taken the license. In view of this ruling where conviction was set aside for the conviction 304 of the IPC it is clear that this is no ground for holding the argument of the learned Counsel for the respondents that the scooter driver was a novice therefore this accident has taken place. Registration of case by itself against the scooter driver for the offence under the Indian Penal Code is also no reason to hold his fault in causing the accident because:-
1. There is no finding of criminal court as yet.
2. Even if there is such finding, a finding given by the criminal court is not binding in this case.
3. The tribunal has to arrive at independent conclusion regarding driving of the vehicle rashly and negligence in causing the accident and by which of the parties.
4. The FIR was registered by the bus driver for the reasons stated by the PW 8 respondent scooter driver that he became unconscious at the spot and was taken to the hospital and he remains there for one day and was discharged on 5.10.81.
5. Further the driver of the bus himself was the complainant in the FIR in the ordinary course it is expected that he would blame the other vehicle driver involved in the accident to save his own skin.
10. For these reasons merely registration of the case against the scooter driver in the Police Station under Section278 and 304 A of Indian Penal Code will not absolve the bus driver from his liability for rash and negligent driving of the bus.
11. Another aspect of the matter is that the conductor of the bus has not been examined as witness by the respondent No. 1 There is solitary statement of the respondent as RW in support of his plea regarding fault of the scooter driver in causing this accident. There were admittedly some passengers in the bus. The driver could have examined any of the passengers in his support, if no passenger was was available, atleast the address and name and particulars of the conductor were definitely available with the driver, he could have produced him, to tell the court whose fault it was in causing the accident. It was held in the case of 1990 (2) 7AC 59 that where the conductor of the bus was not examined he being the best witness of the accident and adverse inference can reasonably be raised on this account.
12. Further even in the normal course if the facts brought on record are appreciated, it can be concluded that it was the fault of the respondent No. 1 exclusively due to which this unfortunate accident took place. Being the heavier vehicles in comparison of the three wheeler scooter. It would deliberately strike against the running Delhi Transport Corporation bus coming from the other side, when according to the respondents case and pleas as a RW the bus had already crossed the traffic light and it was that the three wheeler scooter struck against. It this story is believed it implies that the three wheeler scooter driver deliberately and intentionally struck against the bus. This is not the normal behavior of the driver of any vehicle. There is no such plea on the part of the respondents that the three wheeler scooter Driver was drunk and he lost balance of the vehicle and due to it the accident took place. In the absence of such plea the only conclusion to accept the plea of the respondent is that the three wheeler scooter driver himself struck against running DTC bus which I find myself unable to believe. And more over in this regard there is no suggestion to the PW 6 who is the driver of the three wheeler scooter that it was he who struck scooter against the bus. What is suggested is that he tried to cross ahead of the bus and said accident took place. It has come in the evidence of the eye-witness as well that if the PW 6 that there was green light for the traffic coming from which side the three wheeler scooter was coming it was the fault of the DTC bus driver who jumped the red light. Therefore looked at from any angle it is fault of the bus driver that the accident took place. Hence I hold this issue No. 1 in favor of the claimants and Issue No. 3 against the respondent 1 and 2.
6. Perusal of the aforesaid paragraphs would clearly reveal that the contentions raised by the appellant in the present appeal have been discussed threadbare by the Tribunal. It is no doubt true that in normal circumstances, the complaint should have been lodged against the driver of the bus but in the given facts and circumstances of a particular case non-registration of complaint or FIR cannot have any adverse effect if the claimants are otherwise able to establish the negligence on the part of the driver of the offending vehicle. Once the respondent has successfully established the negligence on the part of the driver of the bus that too before the MACT Tribunal, no adverse inference can be drawn against the respondent for non-registration of any complaint or FIR against the driver of the offending bus. Even otherwise, it is an admitted case that the driver of TSR became unconscious due to the injuries sustained by him and the boy in question had died at the spot itself.
7. In relation to 'negligence' and 'contributory negligence', the Hon'ble Apex Court in Municipal Corporation of Greater Bombay v. Laxman Iyer (2003) 8 SCC 731 has observed as under:
To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the others negligence. Whichever party could have avoided the consequence of the others negligence would be liable for the accident. If a persons negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defense to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or om ission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence , 3rd Edn., para 328.) It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise.
8. On the basis of the above discussion, I am of the view that the contention raised by the appellant on this aspect is meritless.
9. As regards, the other contention of the appellant that the Tribunal has wrongly assessed the income of the deceased at Rs. 3,500/- p.m., the same is also devoid of any force. Admittedly, the deceased was a student of M.Sc.(Physics) of a young age of 21 years at the time of accident. In this regard the Tribunal has placed reliance on the judgments reported in 1989 (1) TAC 334 Kumari v. Shanti Trivedi, 1991 (1) TAC 364 Uman Singh Gurung v. Shri Seva Rama Dutta, 1992 (1) TAC 96 Ayavvur v. Gopi Nathan Nair and 1990 ACJ 687 Rukmani Devi v. Om Prakash. Even under Section 163A of the Motor Vehicles Act, the criteria of notional income of a boy of such an age has been laid down and it cannot be said that simply the boy was a student, so the notional income of such a student should not be taken into consideration. Even otherwise as per the case set up by the respondent, the said student was a partner in M/s. B.P. Singhal & Company and carrying the business of pesticides. Counsel for the respondent has also invited my attention to the deposition of PW-12, who proved the existence of partnership firm M/s. B.P. Singhal in which the said boy Master Ashesh Singhal was one of the partners. PW-3, father of the deceased also entered the witness box and had deposed about the said fact of his son being a partner in the said partnership firm. He also proved that his son was likely to go abroad for higher education for which his passport was also ready. Even under the Minimum Wages Act, the income for a person possessing a graduate degree has been duly laid down and I, therefore, do not find that there is any illegality in the impugned award assessing the income of the deceased at Rs. 3,500/- p.m. that too after taking into consideration, the academic record of the said student and his family status besides his being a partner in the said partnership firm. After assessing the said income of Rs. 3,500/- p.m., the tribunal has taken into consideration the loss of dependancy of the parents only at Rs. 2,000/- p.m.
10. I, therefore, do not find any infirmity or illegality in the award as regards determination of the income of the deceased is concerned. There is no merit in the appeal.
11. Dismissed.