Hari Chand And Another v. Union Of India .

1. First Appeals from Order Nos. 86 and 87 of 1969 have been filed by the Union of India against one and the same order passed by the Motor Accidents Claims Tribunal, Union Territory, Chandigarh (hereinafter called the Tribunal) dated the 2nd of April, 1969. First Appeals from Order Nos. 79 and 80 of 1969 have been preferred by Hari Chand Ohri and Rupinder Singh, Claimants, respectively, against the same order of the Tribunal. Therefore, all the four appeals are directed against one and the same order and the same shall be disposed of by one order. The claimants filed claim applications on the allegations that Bimal Kumar son of Hari Chand Ohri and Rupinder Singh, claimant-appellant in F.A.O No. 80 of 1969, were going on a scooter on the main road towards Post Graduate Medical Institute. When they reached near shoping Centre, Sector 14, a bus bearing No. CHW-74 came from the opposite direction and instead of taking a turn towards the left, it went straight and came on the wrong side. It was alleged that the bus first hit a cyclist and then came on its extreme right side and struck against the scooter. It was further alleged that the bus was being driven rashly and negligently and did not blow the horn while passing the crossing. Hari Chand and his wife claimed compensation to the tune of Rs. 1,00,000/- because of the death of their son Bimal Kumar aged 18 years. Rupinder Singh claimed a sum of Rs. 20,000/- because of the injuries and sufferance which he had to undergo on account of the accident.

2. The Union of India in their return pleaded as follows in reply to para 24 of the claim application.

The bus driver was coming from P.G.I passing through the University Campus and was to proceed towards the road of the market of Sector 14. The speed of the bus was very slow. The driver of the bus was to take a turn from the University Campus towards the market. When all of a sudden a scooter driven by Mr. Rupinder Singn came from the market side at a very fast speed. The deceased was sitting behind the scooter driver. The scooter was not visible to the driver till it exactly came in front of the bus which was on its correct side. The driver of the scooter had not blown any horn. The scooter driver instead of going on his left came on the right side of the road in front of the bus because its speed was very high. The bus driver immediately applied brakes but the brakes failed. There was no way out for the bus driver except to take the bus on his right in order to save the scooter riders and so he took the vehicle to the right. The Scooter driver also took a turn on the same side and collided with the bus. The scooter riders fell down and the bus by-passed them. The scooter riders sustained injuries on account of the fall and the collision. There was no fault of the bus driver, so there is no liability of Union of India. The scooter driver was most negligent and rash. He had no experience of driving a scooter, so much so that he even did not have a driving licence. The accident could not be averted because of the failure of brakes which took place on the spot.”

3. The learned Tribunal after examining the evidence led in this case, decided issue No. 1 in favour of the claimants and held that the accident had taken place due to the negligence of the driver of the bus. Under issue No. 2, the learned Tribunal awarded a sum of Rs. 5750/- as compensation to Rupinder Singh and a sum of Rs. 12,000/- to Hari Chand claimant and his wife. Aggrieved against the said order, both the claimants have filed appeals and the Union of India has also come up in appeal challenging the findings of the learned Tribunal on issue No. 1.

4. I have heard the learned counsel for the Union of India, Shri Chetan Dass Dewan, Additional Advocate General, Haryana, and Mr. L.M Suri, the learned counsel for the appellants in F.A.O Nos. 79 and 80 of 1969 and respondents in the other two appeals filed by the Union of India, at great length.

5. The learned Additional Advocate General, Haryana, took pains to argue this case on behalf of the Union of India. His first contention was that when the bus was coming from the P.G.I side, it had to take a turn on the left side towards the market of Sector 14. It was at that particular place that a cyclist coming from the market of Sector 14 came in front of the bus. So if the bus driver had taken a turn towards the left, the cyclist, would have been hit. In order to avoid that accident, the driver of bus drove the bus towards his right but in spite of his best efforts, the cyclist struck in the bus and when the driver wanted to apply the brakes, the brakes failed. It was for this reason that the bus struck the scooter which was being driven by Rupinder Singh claimant and on which Bimal Kumar deceased was also riding. Therefore, his contention is that the circumstances of the case are such that the driver cannot be held to be negligent and cannot be also held responsible for the accident.

6. He further contended that the evidence of Mr. T.N Bhalla, Advocate should not be relied upon because of the fact that he in the police statement stated that the driver wanted to turn the bus towards the left; but in his statement before the Tribunal, he stated that the bus was to take a turn towards the left side but instead of taking the turn, the bus went straight. Further that in the police statement he stated that the driver applied the brakes to stop the bus, but in the statement before the Court he stated that he did not know whether the driver of the bus tried to apply the brakes or not. Therefore, the contention of the learned counsel is that the evidence of this witness should not be believed.

7. Similarly, he contended that the evidence of Har Madan Lal Bhalla (P.W 9) should also not be believed because he could not tell the Court as to what part of the bus struck the scooter. He further contended that Ramesh Chand (P.W 11), who was also hit by the bus and who was riding on the cycle, should also not be believed because he did not see as to when the scooter was hit by the bus. The learned counsel laid great stress on the evidence of the driver of the bus Jai Singh (R.W 3) in this case and tried to argue that the claimants have not discharged the burden of proving their case.

8. On the other hand, the learned counsel for the claimants-respondents in the cases filed by the Union of India and the appellants in the other two appeals (F.A.O Nos. 79 and 80 of 1969) argued that the case now being put forth before the Court that it was because of the cyclist coming near the turn that the bus had to be driven towards the right, was never put in the written statement before the learned Tribunal. I have already reproduced the stand taken by the Union of India in their written statement in the earlier part of this Judgment. From that it is evident that the case which is now being put forth by the Union of India is not the same as put in their written statement before the learned Tribunal. In the written statement it is mentioned that the driver or the bus was to take a turn from the University Campus towards the market, when all of a sudden a scooter driven by Mr. Rupinder Singh came from the market side at a very fast speed. The deceased was sitting behind the scooter driver. The scooter was not visible to the driver till it exactly came in front of the bus which was on its correct side. The driver of the scooter had not blown any horn, and the accident took place because of the negligence and rash driving of the scooter driver.

9. There is no mention of any cyclist having come near the bus so as to have stopped the driver of the bus from taking a turn towards the left to which side the bus was to go. Therefore, it is quite apparent that the stand which is now being taken and argued by the learned counsel for the Union of India, was never taken in the written statement. It is now too late to improve upon the stand taken in the written statement.

10. It was held in Yakub v. The State of Madras . 1968 A.C.J 216. that a definite stand has to be taken by the claimant in the pleadings itself. This ruling would equally apply to the respondents. Thus the respondents cannot be allowed to take advantage of the evidence led by them which runs counter to the definite stand taken in the written statement. Even from the facts of this case, it is clear that the bus had travelled towards the right side of the crossing and had covered quite a long distance towards that side, whereas the scooter driver was coming on its correct side and the scooter was hit by the bus on the extreme right side of the main road. Thus the presumption would be that it was because of the negligence of the driver of the bus that the accident took place. It was open to the respondents to have rebutted that presumption by leading cogent evidence to show that it was not because of the negligence of the bus driver that the accident had taken place. I am fortified in this view by the decision of the Supreme Court in a case reported as Gobald Motor Service Ltd. v. R.M.K Veluswami . A.I.R 1962 S.C 1.. Similar view was taken in Parmeshwari Das v. Soman Devi . 1960 P.L.R 314.. In the present case I am of the opinion that the Union of India has not led any cogent or reliable evidence to rebut the presumption which has been raised in favour of the claimants.

11. On the other hand, the evidence produced by the claimants is quite satisfactory and convincing. The presence of Mr. T.N Bhalla, Advocate (P.W 10), Har Madan Lal Bhalla (P.W 9) and Ramesh Chand (P.W 11) at the time of the accident is established beyond all doubts. The statements of these witnesses were recorded by the police immediately after the occurrence and the presence of Mr. Bhalla, Advocate, is admitted by the respondent witnesses themselves. All these witnesses are not interested in the claimants in any manner nor they are inimical towards the respondents. The learned Tribunal has discussed the evidence of these witnesses in great detail and has rightly come to the conclusion that they are the persons whose evidence should be relied upon. I see no reason to discard the evidence of these three witnesses whose presence at the spot is established beyond all doubts and who have no axe of their own to grind by giving false evidence.

12. The evidence led by the respondents which consists of Mahma Singh (R.W 1), Surjit Singh (R.W 2) and Jai Singh, Driver, (R.W 3), is far from being satisfactory. Jai Singh (R.W 3) in his statement before the Court in cross-examination clearly stated that a cyclist was coming on his correct side. If that was so, there being an island in between the main road which goes to the market of sector 14, the bus driver could not turn towards his left after crossing the island which is in between the road and the learned counsel for the Union of India quite frankly conceded that if it is found from the evidence that the driver had crossed the island in the injunction in between the road, then, of course, he could be said to be negligent.

13. Keeping in view the statement of the driver and keeping in view the evidence of the witnesses referred to above, produced by the claimants, I have no doubt in my mind that the driver of the bus was quite negligent. The learned Tribunal was right when it further considered that the distance which the bus travelled from the T. Junction to the place of accident is also indicative of the fact that the bus was being run at a great speed. To the same effect is the evidence of Mr. T.N Bhalla, Advocate, when he says that the bus was running at a speed of about 30 miles per hour. If the bus would have been at a slow speed, it would have not been difficult for the driver to have stopped the bus when the cyclist, if at all, had appeared before the bus. The learned Tribunal has given a number of valid reasons to find issue No. 1 in favour of the claimants.

14. The learned counsel for the Union of India contended that if the facts are found that it was because of the coining of the cyclists in front of the bus, that the bus had taken a turn towards the right side, then a finding has to be returned that the driver was faced with inevitable circumstances and he could not be held to be negligent in any manner. For this proposition, he has relied on P. Arumukon v. Rethnamal and State of Punjab v. V.K Kalia. I have gone through the authorities cited by the learned counsel. The said authorities are not applicable to the facts of the present case because I have found clearly that the accident had taken place because of the rash and negligent driving by the bus driver and the case that it was because of the cyclist coming in front of the bus that the bus had to be turned towards the right side, is not established by the Union of India from the evidence led in this case nor it was pleaded in the written statement.

15. The learned counsel for the Union of India then contended that there is the evidence of Balraj Singh Sood (R.W 4), Chief Inspector, to the effect that every vehicle is required to be checked daily and, therefore, he could say that this vehicle was checked the previous night. He further pointed out from the evidence of this witness that this particular bus was put on the road at 6.35 A.M on that very day and if the brakes were out of order, it was not possible to ply the bus for such a long time in a city like Chandigarh where the brakes would be needed at every turning and at every bus stop. Therefore, his contention is that the finding of the learned Tribunal that there is no cogent evidence led in this case to come to a finding that the brakes had failed, and, therefore, the accident was inevitable, is not correct. I have considered this argument of the learned counsel for the Union of India and am of the opinion that the same is without any merit. The Union of India could lead positive evidence by producing the Foreman from the workshop and the person who had examined the vehicle before it was put on the road on that day to show that the brakes were in order. Even if the brakes were there but the same were weak, when the bus was put on the road, even in that exigency the Union of India would be held to be responsible for not keeping its vehicle in proper condition and would be liable for damages.

16. It was held in Yakub's case (supra) that inefficiency of brakes is itself a proof of negligence. In the present case the evidence is on record to show that even the handbrake was not working. It cannot be argued that the hand-brake also went out of order at that psychological moment. If the handbrake would have been there and the driver of the bus would have been cautious, even then, the accident could have been averted. Therefore, there is no merit in this contention of the learned counsel for the Union of India.

17. The learned counsel then contended that there is no plea taken in the claim application to the effect that the claimants Hari Chand Ohri and his wife were expecting any help from their deceased son Bimal Kumar. He, therefore, pleaded that the finding of the learned Tribunal is incorrect on issue No. 2. This contention of the learned Counsel for the Union of India is, without any merit and the same has to be rejected. In the claim application it has been claimed by Mr. Hari Chand Ohri and his wife that the deceased Bimal Kumar was supporting his parents and was contributing about Rs. 300/- per mensem towards their expenses besides payment for his own education. But the learned Tribunal has rightly come to the conclusion that averment is not substantiated as no reliable and cogent evidence is led by the claimants that he was earning the amount to the extent indicated above. The deceased was a student. Of course, some evidence has been led by the claimants that he was being given some work of photography by Mr. Amar Nath Photographer, Proprietor Bombay Photo House and Shri Piare Mohan, Proprietor Lilly Studios as he was quite competent in photography. The learned Tribunal did not believe this evidence and held that Bimal Kumar was not supporting his parents and contributing anything towards the expenses of the household while he was studying; but at the same time the Tribunal further held, that it could not be said that the claimants were not expecting any help from the deceased after he had attained the age when he would have been got employed. Therefore, I see no reason to differ with the findings of the learned Tribunal on this aspect of the matter.

18. The learned counsel for the claimant, Hari Chand, contended that a sum of Rs. 12,000/- awarded as compensation is too less and at least the wife of Mr. Hari Chand, who was aged about 42 years, should have been awarded compensation for five years more. Taking into consideration the facts of this case, I have no reason to differ with the findings of the learned Tribunal and I am of the opinion that a sum of Rs. 12,000/- awarded to Mr. Hari Chand Ohri and his wife is quite sufficient keeping in view the circumstances of the case.

19. The learned counsel for Rupinder Singh appellant, then contended that a sum of Rs. 5,000/- awarded to the claimant for having suffered so much pain etc. was too less. I do not find any merit in this contention of the learned counsel. He then contended that according to the finding of the learned Tribunal Rupinder Singh could not continue his studies on account of the accident and shall have to spend another year in the same class, therefore, one academic year of Rupinder Singh was wasted and only Rs. 500/- has been awarded as compensation for that I am of the opinion that a student living in Chandigarh would certainly spend more than Rs. 500/- per year on his studies in the College. Therefore, in my opinion, a sum of Rs. 1,000/- on account of fee and other expenses, which he had to pay for the second time, would be sufficient to meet the ends of justice. Thus the appeal of Rupinder Singh (F.A.O No. 80 of 1969) is accepted to the extent that now he will be entitled to a sum of Rs. 6,250/- instead of Rs. 5,750/-. Keeping in view the circumstances of the case, there will be no order as to costs.

20. The other three appeals, two appeals filed by the Union of India (F.A.O Nos. 86 and 87 of 1969) and the third appeal (F.A.O No. 79 of 1969) filed by Shri Hari Chand Ohri and his wife, are dismissed with costs.