High Court of Punjab and Haryana, Chandigarh
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Gurcharan Kaur & Ors v. Darshan Singh & Ors - FAO-630-1987  RD-P&H 5401 (8 August 2006)
FAO No. 630 of 1987
Date of Decision: 2.8.2006
Gurcharan Kaur and others
Darshan Singh and others
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR.
PRESENT: Mr. H.S. Gill, Advocate,
for the appellants.
Mr. Satish Bhanot, Sr. DAG, Punjab,
for the respondents.
M.M. KUMAR, J.
This appeal filed under Section 110D of the Motor Vehicles Act, 1939 (for brevity, `the Act') challenges award dated 1.4.1987, passed by the Motor Accident Claims Tribunal, Faridkot (for brevity, `the Tribunal') dismissing the claim petition filed by the claimant-appellants, claiming compensation to the tune of Rs.
1,50,000/- on account of death of Shri Nachhattar Singh.
FAO No. 630 of 1987
The whole controversy may first be noticed. On 8.5.1985, at 8.00 a.m., when Shri Nachhattar Singh along with his brother Shri Jalaur Singh had reached the main gate of the new Bus Stand, Kotkapura, then bus bearing Registration No. PUK-8113, driven by Darshan Singh, driver-respondent No. 1, working in the Punjab Roadways, struck Shri Nachhattar Singh, who fell on the ground. His bicycle was crushed and thereafter the bus struck the wall of the gate of the bus stand. It also struck against a shop which was demolished. Shri Nachhattar Singh was taken to Civil Hospital, Kotkapura, by his brother Shri Jalaur Singh but he succumbed to injuries suffered by him in the accident. Shri Jalaur Singh lodged a report with the police, which did not record the correct version as it was mentioned therein that the accident was the result of the fault of the deceased Shri Nachhattar Singh. The statement was thumb marked from Shri Jalaur Singh without having it read over to him. It was claimed that Shri Nachhattar Singh, in fact, had died on account of rash and negligent driving of Darshan Singh, respondent No. 1.
The deceased was stated to be 35 years of age and earning Rs. 1,200/- per month as labourer. Accordingly, the claimant-appellants had claimed Rs. 1,50,000/- in addition to compensation of Rs. 15,000/- under Section 92A of the Act.
The driver Darshan Singh, respondent No. 1, along with respondent Nos. 2 to 4 filed the written statement denying the assertion made in the claim petition by the claimant-appellants. They even denied the accident having ever taken place with the Punjab Roadways bus No. PUK-8113 on 8.5.1985 at 8.00 a.m. In any case it FAO No. 630 of 1987
is claimed that there was no negligence or carelessness on the part of the bus driver.
The Tribunal recorded categorical finding that Smt.
Gurcharan Kaur, claimant-appellant No. 1, is the widow of the deceased while other claimant-appellant Nos. 2 to 5 are the minor children of the deceased. Likewise, claimant-appellant No. 6 Bhag Singh has been held to be father of the deceased.
On the crucial issue as to whether the bus was being driven by Darshan Singh, driver-respondent No. 1, in a rash and negligent manner or what amount of compensation the claimant- appellants were entitled to, the Tribunal has held that the statement of Shri Jalaur Singh, AW2, brother of the deceased, cannot be accepted as a gospel truth and the driver cannot be presumed to be guilty of rashness or negligence while driving the bus. Analysis of evidence by the Tribunal is available in para Nos. 6 and 7 and the same reads as under:-
"6. These issues are inter-linked, so they are discussed and disposed of together. To prove these issues, there is the statement of Jalaur Singh A.W.2, who deposed that he and his brother Nachhatar Singh were going towards the new Bus Stand, Kotkapura, on their cycles and he was following Nachhatar Singh. Further he deposed that when Nachhatar Singh reached inside the bus stand, then a bus came from Moga side at a very high speed and it struck against the cycle of Nachhatar Singh and further it struck against a khokha and a wall which was FAO No. 630 of 1987
demolished and many other persons escaped injuries.
When the bus struck against Nachhatar Singh, he fell down. According to him, the driver of the bus did not blow any horn and the accident was the result of rash and negligent act of the driver. He stated that the bus belonged to Punjab Roadways. The witness took Nachhattar Singh to the hospital where he died. The photographer took photo of the scene of the accident and the same is Ex. P.1. The witness failed to give the number of the bus as he is illiterate. The police came to the place of the accident and recorded his statement which was not read over to him. According to this witness, they were earning Rs. 40/- per day and thus they used to earn Rs. 1100/- per month. In cross-examination, he admitted that he gave the statement to the police at about 8 A.M. His statement Ex. R.1 was read over to him, but he denied its correctness. He admitted that the driver of the bus was not known to him and the name of the driver was told to him by the police after his arrest.
In cross-examination, he admitted that he had stated the bus number and the name of the driver when he made his statement before the police, but now he failed to give the number of the bus.
7. Gurjant Singh A.W. 1 deposed that he learnt about the accident from Gurcharan Kaur and then he accompanied her and other relations and went to the new FAO No. 630 of 1987
Bus Stand, Kotkapura, where they found the damaged cycle of Nachhatar Singh deceased and also saw the bus No. PUK-8113 involved in the accident. He deposed that the daily wages of the labourers of his village are Rs. 20/25 per day, besides the food and tea and during harvesting season, they are given Rs. 40/50 per day. In cross-examination he deposed that he did not know Darshan Singh driver earlier. They reached the place of occurrence at about 11 A.M. So, obviously he is not the eye-witness of the occurrence. Roshan Lal A.W. 4 was taken to the spot by the police and he took the photograph of the place of occurrence, which is Ex. P.1.
According to him the number of the bus involved in the accident was PUK-8113. Kartar Singh A.W. 5 deposed that he was carrying sand in his Rehra at about 8 A.M.
and was going to the bazaar from Moga side. When he reached near the bus stand, he found that a bus came from the side of Moga at a high speed and when the bus took turn towards the bus stand it struck against the cycle of Nachhatar Singh and then with the boundary wall. He also stated that Nachhatar Singh was run overby the bus.
According to him, the brother of Nachhatar Singh took the injured to the hospital and after half an hour he died in the hospital. It is worth mentioning that Kartar Singh, who appeared as an independent witness, did not depose at all that the bus was being driven rashly and FAO No. 630 of 1987
negligently by its driver. He simply deposed that the bus came at a high speed. Even the speed of the bus has not been given by him in his statement. Simply because the bus is stated to have been driven at high speed, it cannot be presumed that the driver was guilty of rashness or negligence on his part. Thus the statement of Jalaur Singh as A.W.2 that the accident took place due to the rash and negligent act of the bus driver does not find corroboration from the lone statement of Kartar Singh A.W. 5. Gurcharan Kaur A.W.6 is not a witness of the occurrence."
The statement of Shri Jalaur Singh has been further subjected to criticism by the Tribunal and the same has been discarded on the ground that Shri Jalaur Singh, AW-2 was an interested witness by observing as under:- " So far as Jalaur Singh is concerned, he is an interested witness being the brother of the deceased, but much reliance cannot be placed on his testimony as this witness got his statement recorded before the police at the time of the occurrence and on the basis of that statement D.D.R. No. 13 was recorded in the police station and the certified copy thereof is Ex. R.1. The learned Govt. Pleader argued that the statement of Jalaur Singh made in the court is an after-thought with a motive to ensure compensation to his relations, though at the earlier opportunity he got recorded the statement before FAO No. 630 of 1987
the police and as is evident from the copy of the D.D.R.
Ex. R.1, at that earlier opportunity he specifically deposed that a bus was coming from their back side and that his brother got perplexed and tried to cross the road and struck on one side of the bus and fell on the ground.
He also deposed that the bus driver tried his best to save his brother who having been struck against the bus and having fallen down suffered injury on his head and he expired in the hospital. Further, it has been stated in that D.D.R. that the death of Nachhatar Singh occurred due to his own mistake in crossing the road and for having fallen on the road and that none was there to be blamed for the accident and that he did not want the prosecution against any person. Obviously, due to the said statement made at the earliest opportunity by Jalaur Singh, the post-mortem on the dead body of Nachhatar Singh was not conducted. There is the statement of Dr. Raj Kumar Garg as A.W.3 that on 9.5.85 at 8.15 A.M. he examined Nachhatar Singh and found the following two injuries on his person:-
1. Swelling in occipital region 5 cms x 5 cms.
2. 2 cms x 2 cms lacerated wound at base of terminal phalynx of right little finger.
According to him, the patient died at 8.55 P.M. In cross- examination, this witness deposed that the injuries of Nachhatar Singh could be the result of a fall on a hard FAO No. 630 of 1987
surface and could also be the result of accident. The doctor no where gave the cause of the death of Nachhatar Singh. So, from the medical evidence it is not proved that Nachhatar Singh died due to the injuries suffered by him as a result of accident. From the earliest statement made by Jalaur Singh, it is not proved that Nachhatar Singh died in an accident caused by the rash and negligent act of Darshan Singh respondent. No other person has come forward to depose that the driver of the bus was driving rashly and negligently and he caused the accident. The earliest version given by Jalaur Singh does not reveal that the accident was the result of the rash and negligent act of the driver of the bus. It is very valuable admission on the part of Jalaur Singh who is the real brother of the deceased. Thus the claimants-applicants have miserably failed to establish on the record that the accident took place due to the rash and negligent act of the driver of the bus."
Mr. H.S. Gill, learned counsel for the claimant- appellants has vehemently argued that the Tribunal has committed a grave error in law by discarding the statement of AW-4 Roshan Lal who has taken the photographs of the scene of occurrence including Ex. P-1. He has emphasised that according to the statement of AW-4 Roshan Lal, the photograph Ex. P-1 was taken by the witness at the instance of the police and the same was prepared by him. He has further stated that the bus No. PUK 8113 was involved in the accident FAO No. 630 of 1987
which is visible and completely damaged bicycle could also be seen in the photograph. In the cross-examination of this witness nothing worthwhile could be extracted. The statement of this witness apart from proving the factum of accident has also proved the photograph Ex. P-1, which clearly shows that bus bearing No. PUK 8113 had struck against the wall of the new Bus Stand, Kotkapura. Learned counsel has also emphasised that the ocular version of the accident is available in the statement made by AW-2 Jalaur Singh, the brother of deceased Nachhattar Singh as well as independent witness Shri Kartar Singh AW-5. He has pointed out that the Tribunal is wholly unjustified in completely discarding the statements given by these witnesses. It has been highlighted by the learned counsel that if the statements of these witnesses and the high speed of the bus which came from Moga side without giving any horn are examined, in the light of the version given by the doctor then not only the manner of accident but also the negligent driving of Darshan Singh, driver- respondent No. 1, is proved. He has also submitted that there is a duty of reasonable care cast on the driver to slow down the bus when he was approaching the bus stand and he should have ensured that there was no danger to anyone's life on the road. Having failed to take reasonable care expected from a reasonable man, the driver cannot escape his liability, which in fact has to be borne by the Punjab Roadways i.e. the owner respondent Nos. 2 to 4. It has further been submitted that the version disclosed by AW-2 Jalaur Singh has been blown out of proportion in order to defeat the rightful claim made by the claimant-appellants as the Tribunal has been completely FAO No. 630 of 1987
miscarried because it is usual that the transport staff exert pressure on the police as well as the injured so that the driver may not have lost the employment.
Mr. Satish Bhanot, learned State counsel has submitted that the Tribunal has taken all aspects into consideration. The statement of AW-2 Jalaur Singh in the DDR is extremely significant according to the learned counsel because it highlights the factual position on the sport, for it was made immediately after the accident.
According to the learned counsel, the negligence on the part of the deceased was accepted by AW-2 Jalaur Singh and, therefore, the Tribunal has reached a correct conclusion that the respondents were not responsible.
I have thoughtfully considered the submissions made by the learned counsel for the parties and am of the view that the outright rejection of the claim made by the claimant-appellants by the Tribunal is not appreciable. A perusal of the statement of AW-2 Jalaur Singh, brother of the deceased Nachhattar Singh would undoubtedly show that the bus was coming at high speed and Ex. P-1 photograph was taken by the photographer. In the cross-examination he denied to have ever made any statement like Ex. R-1. The relevant portion of the statement made by Jalaur Singh is reproduced hereunder:- " About one year and 3 months ago, I and my brother Nichhattar Singh were going towards New Bus Stand, Kotkapura, on our cycles. I was following Nichhattar Singh. When Nichhattar Singh reached inside the bus stand and I was about 5 karms behind him, FAO No. 630 of 1987
then a bus came from the Moga side at a very high speed.
The bus struck against the cycle of Nichhattar Singh and then it struck against a Khokha and wall of bus stand as a result of which the wall and Khokha got demolished and many other persons also escaped injuries. The accident took place outside the gate. When the bus struck against Nichhattar Singh, he fell down and was breathing his last. The bus stopped after striking the wall. The driver of the bus did not blow any horn and the accident took place due to rashness and negligence of the driver. The bus belonged to Punjab Roadways. I took Nichhattar Singh to the hospital, where he died. The photographer took photograph of the scene of accident and Ex. P.1 depicts place of accident. The bus is shown in the photograph. I am illiterate, so I cannot give the number of the bus. I also identify the cycle of the deceased in the photograph. Some persons, including Gurjant Singh Sarpanch, also came to the place of accident. The police also came there after the accident and I made by statement before the police. The same was not read over to me. Later on I came to know that the police had recorded my statement as stated by me. We used to earn Rs. 40/- per day, including Rs 15/- as overtime. The same daily charges are paid in the village. We used to earn about Rs 1100/- P.M.
XXXEX:- On behalf of respondent No. 1.
FAO No. 630 of 1987
The front portion of the bus struck against the cycle, the moment the bus took the turn. After striking Nichhattar Singh, the bus took a turn. I made my statement before the police at about 8 A.M. I have heard statement Ex. R-1. I did not make such a statement before the police. It is incorrect to suggest that I made this statement before the police and today I am intentionally deviating from my statement because it was favourable to Darshan Singh driver. I made the statement before the police after I returned from the hospital to the spot. I was all alone when my statement was recorded by the police. The Sarpanch was not present at that time. I was present in the hospital when persons from my village came. I did not know Darshan Singh previously. The police told me about the name of Darshan Singh when he was arrested. A police personnel had brought the photographer." The criticism offered by the Tribunal of this statement is that the witness was not able to give the registration number of the bus. A further reason to discard the statement is that Jalaur Singh had admitted that a statement was made by him to the police but he denied its correctness. In para 7, the Tribunal has discussed the statement made by another eye-witness AW-5 Kartar Singh. The Tribunal has discarded the statement of this witness as well because the witness had failed to disclose the speed of the bus and had simply stated that the bus was coming at a high speed, which could not constitute basis FAO No. 630 of 1987
for a presumption that the driver was guilty of rashness or negligence.
Therefore, it has been held by the Tribunal that the statement made by Jalaur Singh stating that the accident had taken place due to rash and negligent driving of the bus driver did not find corroboration from AW-5 Kartar Singh.
A joint reading of the statements of AW-2 Jalaur Singh and AW-5 Kartar Singh along with the statement of AW-4 Roshan Lal who clicked photograph Ex. P-1, would show that the accident had taken place which was witnessed by AW-2 Jalaur Singh and AW- 5 Kartar Singh. A casual glance at the photograph would further show that the bus had hit the wall of the bus stand after crushing the bicycle of the deceased who had received fatal injuries. The photograph Ex. P-1 is a tell tale story of the accident. The statement of the witnesses AW-2 Jalaur Singh and AW-5 Kartar Singh would leave no doubt that the accident was caused on account of rash and negligent driving of the driver Darshan Singh, respondent No. 1. It is well settled principle of criminal law that a statement made in the FIR is not the substantive piece of evidence nor it is evident from the facts stated therein . See Damodar Prasad Chandrikaprasad v.
State of Maharastra, (1972)1 SCC 107. Such a statement made in the FIR can be used to corroborate informee under Section 137 of the Evidence Act, 1872, or to contradict him under Section 135 of the Act if the informant is called as a witness at the time of trial. In an accident case accruing under the Motor Vehicles Act seeking compensation the application of rule of evidence is even otherwise not required. Once that is the position then it must be held that the FAO No. 630 of 1987
Tribunal is absolutely wrong in basing such a finding on the statement of Jalaur Singh, AW-2, made in the FIR Ex. R-1. The same cannot be sustained by completely ignoring the statement made by Jalaur Singh in the Court alongwith other witnesses like AW-5 Kartar Singh and AW-4 Roshan Lal. The statement Ex. R-1 made by Jalaur Singh, AW-2 immediately after the incident would clearly establish the factum of accident. The manner of accident has been proved by AW-2 Jalaur Singh when he appeared as a witness in the Court as well as the statement made by AW-5 Kartar Singh, who was also an eye witness. The Tribunal has committed grave error by discarding the statement of AW-2 Jalaur Singh on the ground that he was not able to disclose the bus number. It is on record that the statement was made by the witness after a period of one year three months of the accident and therefore discarding the statement on that basis is not only wholly unjustified but is absolutely illegal. Similarly, the statement of AW-5 Kartar Singh could not be discarded by the Tribunal on the suspicious ground that the witness failed to disclose the speed of the bus after stating that the offending bus was coming at a very high speed. It must be remembered that the witness as like AW-5 which are nearby the road where the accident had taken place would not be carrying speedometer like Traffic Police. It is too much to expect that the witness would know about the speed of the bus.
Therefore, it is also wholly unwarranted for the Tribunal to discard the statement of such a witness. If the statements made by both the witnesses are accepted then it would emerge that the accident was caused as a result of rash and negligent driving of the offending FAO No. 630 of 1987
vehicle by Darshan Singh, Driver. The afore-mentioned version disclosed by both the witnesses find ample corroboration from the statement made by Roshan Lal, AW-4, who had clicked photographs Ex. A-1, which unfold the tell tail story of the accident. Accordingly, the findings are liable to be reversed. The maxim res ipsa loquitur would be attracted to this case as the photograph examined in the light of the statement made by the aforementioned three witnesses would prove beyond any reasonable doubt that the accident was caused on account of rash and negligent driving of Darshan Singh, respondent No. 1. The Tribunal appears to have adopted the yardstick which is applied to criminal cases where the standard of proof is much heavier on the prosecution than the cases where claims of compensation are to be considered by the Tribunal. Moreover, Darshan Singh, driver-respondent No. 1, did not come before the Court to appear as a witness and, therefore, an adverse inference deserve to be raised against Darshan Singh, respondent No. 1. It has been repeatedly held by Hon'ble the Supreme Court that where the doctrine of res ipsa loquitur is applicable, a presumption of fault is raised against such a driver and in order to successfully rebut that presumption, contrary evidence is required to be proved. In that regard reliance may be placed on a judgment of Hon'ble the Supreme Court in the case of Gobald Motor Service Ltd. and another v.
R.M.K. Veluswami and others, AIR 1962 SC 1. In the facts and circumstances like the one in hand, the onus of proof, in fact, shifts on the respondents to prove that there was no negligence on their part. However, in the present case Darshan Singh, driver-respondent FAO No. 630 of 1987
No. 1, has failed to even appear before the Tribunal to buttress his stand, which is put forth in the written statement. Therefore, the findings recorded by the Tribunal are set aside and it is held that the accident was caused on account of rash and negligent driving of Darshan Singh, driver-respondent No. 1.
The next question which fall for consideration is the quantum of compensation which is required to be awarded. It is not disputed that claimant-appellant No. 1 is the widow of deceased Nachhattar Singh and claimant-appellant Nos. 2 to 5 are his dependent daughters and son. It is also clear that claimant-appellant No. 6 Bhag Singh is the father of the deceased Nachhattar Singh. The age of Nachhattar Singh has been proved to be 35 years at the time of his death. It has come in the statements of witnesses that he used to earn Rs. 20-25 per day beside food and tea. His income during harvesting season use to be raised up to Rs. 40-50. Therefore, I would presume that his monthly income was not less than Rs. 900/- @ Rs. 30/- per day. He would spent 1/3rd i.e. Rs. 300/- as his
personal expenses, which are to be deducted. The net dependency of all the claimant-appellants comes to Rs. 600/- per month and Rs.
7,200/- per year. It appears that in calculating the amount of compensation, I could adopt the structured formula provided in the 2nd
schedule to the Motor Vehicles Act, 1988, although the same was formulated for the purposes of Section 163-A of that Act. It may be safer method for arriving at the amount of compensation than any other method so far as the present case is concerned. The afore- mentioned view has been expressed by the Hon'ble Supreme Court in FAO No. 630 of 1987
para 22 of the judgement in the case of Kaushnuma Begum v. New India Assurance Co. Ltd., (2001) 2 SCC 9. Accordingly a multiplier of 16 would be applicable.
In view of above, the appeal is allowed and the impugned award dated 1.4.1987, passed by the Tribunal is set aside.
A sum of Rs. 1,15,200/-, rounded off to Rs. 1,15,000/- is awarded to the claimant-appellants along with interest @ 9 per cent per annum, which shall be payable from the date of filing the claim petition i.e.
17.12.1985 till the date of realisation. The amount is apportioned as follows:-
The widow Gurcharan Kaur, claimant-appellant No. 1 shall be entitled to 40% of the amount and the children i.e. claimant- appellant Nos. 2 to 5 shall be entitled to further 40% in equal share and 20% is awarded to Bhag Singh, claimant-appellant No. 6.
August 2, 2006 JUDGE
FIT FOR INDEXING
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