Punjab-Haryana High Court
Gurcharan Singh And Another vs Ludhiana Transport Co. Private Limited ... on 4 May, 2010
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Alok Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
LPA No.952 of 2001 (O&M)
Date of decision: 4.5.2010
Gurcharan Singh and another
-----Appellant
Vs.
Ludhiana Transport Co. Private Limited and others
-----Respondents
CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE ALOK SINGH
Present:- Mr. Gurcharan Dass, Advocate for the appellant.
Mr. N.K.Khosla, advocate for respondent No.3.
---
Adarsh Kumar Goel,J.
1. This order will dispose of LPA Nos.952 to 955 of 2001 as all the appeals arise out of claims relating to same incident.
2. On 10.7.1983 at 7/8 PM, injured Gurcharan Singh with his son Jagwinder Singh, aged 13 years and daughter Jaswinder Kaur, aged 10 years, father Banta Singh, aged 60 years and brother Amarjit Singh were going on an auto-rickshaw being PUK 3799 driven by Amarjit Singh. They were proceeding to Village Thrike on Ludhiana-Jagraon road. Amarjit Singh gave signal to take a turn to right side to approach link road leading to Housing Board colony. The auto-rickshaw was hit by Bus No.PLJ 3751 driven by Jagir Singh rashly and negligently resulting in death of Banta Singh, Jagwinder Singh and Jaswinder Kaur and injuries to Gurcharan Singh and Amarjit Singh. Four claim LPA No.952 of 2001 (O&M) 2 petitions were filed under the provisions of the Motor Vehicles Act, 1988 (for short, 'the Act'). Gurcharan Singh and his wife Manjit Kaur claimed compensation of Rs.1000/- for treatment of Jaswinder Kaur and Rs.1 lac as compensation for her death. They claimed Rs.12000/- for treatment and Rs.1.5 lacs as compensation for the death of Jagwinder Singh. Bhagwan Kaur widow of Banta Singh claimed Rs.600/- for treatment and Rs.2.5 lacs for the death of Banta Singh. Amarjit Singh, injured claimed Rs.2.5 lacs as compensation for the injuries suffered by him.
3. The owner and driver contested the claim by stating that the bus was on its way from Raikot to Ludhiana and reached near Housing Board Colony at Ferozepur road and stopped for alighting of passengers. The auto rickshaw came from opposite direction and the driver lost control of the vehicle on account of which the auto rickshaw turned towards the road side and struck against the bus. Thus, the accident took place by rash and negligent driving by the driver of the auto rickshaw.
4. The claimants examined Gurcharan Singh, father of the deceased Jagwinder Singh and Jaswinder Kaur and son of deceased Banta Singh as AW4 who supported the version of negligent driving by the driver of the bus. His testimony was rejected by the Tribunal on the ground that record of his medical examination was not produced. As regards evidence of Amarjit Singh, who was examined as AW5, it was observed that he did not have the driving licence and even if his version was correct, the blame could not be put on the bus driver as the LPA No.952 of 2001 (O&M) 3 auto rickshaw appeared to have taken sudden turn on the right side. No dent was found on the body of the three-wheeler by AW5 Sulfi Ram. AW3 Dr. Shamsher Singh conducted post mortem and proved report Ex.A3. AW1 Amar Chand, HC proved FIR Ex.A1.
5. The respondents led evidence comprising of Balwinder Singh, Motor Vehicle Inspector, RW2 Gurcharan Singh, RW3 Ranjit Singh, RW 4 Major Singh, passengers in the bus and RW5 ASI Baggar Singh, Investigating Officer, RW6 Sikander Singh, conductor of the bus and RW7 Jagir Singh, driver of the bus.
6. The Tribunal after appreciating the evidence on record under Issue No.1, held that the death and injuries were not on account of rash and negligent driving of the bus and rather the same was on account of rash and negligent driving of the auto rickshaw. Accordingly, claim petitions were dismissed. On appeal, finding recorded by the Tribunal was upheld by learned Single Judge.
7. We have heard learned counsel for the parties and perused the record.
8. Contention raised on behalf of the appellants is that the approach adopted by the Tribunal as well as learned Single Judge was erroneous and evidence of Gurcharan Singh AW4 and Amarjit Singh AW5 was wrongly discarded. Evidence led by the respondents was not enough to rebut the evidence led by the claimants. It was patent that the accident was on account of negligent driving by the driver of the bus. The fact that three persons died immediately and two received injuries was undisputed. Accident was not disputed. In these circumstances, the LPA No.952 of 2001 (O&M) 4 negligence of the bus driver should have been held to have been established. Principles of criminal trial could not be imported to trial of claims for compensation. Negligence of the bus driver was required to be proved by preponderance of probabilities. The principle of res ipsa loquitur could also be invoked in such cases. Story put forward by the respondents that the auto rickshaw hit the stationary bus was patently unsustainable as in such a situation, death of three persons could not have taken place. It is only the running bus which could have caused such a tragedy. Rejection of evidence of Gurcharan Singh only on the ground that his medical record was not produced and rejection of evidence of AW5 Amarjit Singh only on the ground that he did not have driving licence was legally unjustified. Further conjecture of the Tribunal that even if the evidence of claimants was to be accepted, negligence was not of the bus driver as the auto rickshaw may have taken sudden turn, was without any basis. FIR was lodged immediately giving the version of negligence of the bus driver.
9. Learned counsel for the respondents supported the impugned finding.
10. Question for consideration is whether finding of the Tribunal and learned Single Judge holding that negligence of the driver of the bus was not established can be sustained.
11. In our view, findings recorded by the Tribunal and learned Single Judge are clearly unsustainable in law. No doubt, burden of proof is, in the first instance, on the claimants. This is a case where principle of res ipsa loquitur is attracted. In a claim of this nature, LPA No.952 of 2001 (O&M) 5 pragmatic approach is to be adopted for appreciating evidence and if the evidence on record gives rise to a reasonable inference that accident took place on account of negligent act, the burden will shift on the respondents.
12. In Pushpabai Parshottam Udeshi and Others v. M/s Ranjit Ginning & Pressing Co. Pvt. Ltd. and another , AIR 1977 SC 1735, para 6, it was observed:-
"6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at p. 306 states: "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Ed., Vol.28, at page 77, the position is stated thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff LPA No.952 of 2001 (O&M) 6 occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendants negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous". Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care."
13. If right approach is adopted, from evidence of AW4 Gurcharan Singh and AW5 Amarjit Singh to the effect that the bus in question was being driven negligently has to be accepted. The evidence is corroborated by objective circumstance of three deaths which was not probable if the bus was not in motion. The evidence led on behalf of the respondents is not enough to rebut the said evidence. Lodging of the FIR immediately after the accident attributing negligence to the driver of the bus has not been disputed. We, thus, reverse the finding of the Tribunal and learned Single Judge and hold that accident took place on account of rash and negligent driving by the driver of the bus.
14. As a result of above, we set aside the impugned award of the Tribunal and order of learned Single Judge and remand the matter to the Motor Accident Claims Tribunal, Ludhiana for fresh decision on LPA No.952 of 2001 (O&M) 7 merits in accordance with law. The parties are directed to appear before the Motor Accident Claims Tribunal, Ludhiana on 22.7.2010 for further proceedings.
15. The appeals stand disposed of accordingly.
(Adarsh Kumar Goel)
Judge
May 4, 2010 (Alok Singh)
'gs' Judge