DELHI TRANSPORT CORPORATION v. SURINDER KUMAR — 1976 DIGILAW 23 (DEL)

B. C. Misra ( 1 ) THIS first appeal from order has been filed by the Delhi Transport Corporation, along with its driver against the order of the Motor Accidents Claims Tribunal, dated 15th July, 1972, by which the Tribunal has awarded a sum of Rs. 6,653. 00 to the respondent against the appellants. ( 2 ) THE accident giving rise to this appeal occurred on 12th July, 1966 in Dev Nagar, Delhi, and the bus, DLP 213, involved in the accident belonging to the first appellant was being driven by the second appellant. The bus is alleged to be driven at a fast speed and in a most negligent and rash manner and the rear left wheel of the bus passed over the feet of the respondent before me, who was riding a cycle and he received serious injuries. The medical report shows that his feet were crushed and he received permanent disability. He was at that time 21 years of age and was drawing a salary of Rs. 130. 50 per month. He made a claim for Rs. 30,000. 00 including Rs. 2,000. 00 on account of expenses and treatment. The claim petition was contested on behalf of the appellants, who inter alia, contended that the offending bus was driven on the correct side of the road at a speed of three to four miles per hour. The respondent was coming on a cycle on the left side of the bus and seeing the bus slowing down wanted to overtake it from the left side, but on account of the wrong judgment he struck against the pavement and fell down on the pavement, when his foot was entangled with the chain of the cycle and hurt. It was further contended that neither the cycle nor the cyclist touched any portion of the bus and the injuries sustained by the respondent were on account of the fall from his cycle. In this way, the liability was denied. On the pleadings of the parties, the following issues were framed :- "1. Whether the petition is not maintainable without notice under section 478 D. M. C. Act? 2. Whether the accident resulting in the injuries to the petitioner was due to rash and negligent driving on the part of respondent No. 1. ? 3. To what amount, if any, ishe petitioner entitled ? 4. Relief. Whether the petition is not maintainable without notice under section 478 D. M. C. Act? 2. Whether the accident resulting in the injuries to the petitioner was due to rash and negligent driving on the part of respondent No. 1. ? 3. To what amount, if any, ishe petitioner entitled ? 4. Relief. " ( 3 ) THE Tribunal below answered issue No. 1 against the appellants and held that no notice was necessary in the claim petition under section 110-A of the Motor Vehicles Act. In answer to issue No. 2, it held that the injuries had been caused as a result of the accident caused by rash and negligent driving of the second appellant, who was acting in the course of employment of the first appellant. In answer to issue No. 3, the Tribunal considered the entire circumstances of the case and held that the respondent was entitled to recover only a sum of Rs. 6,653. 00. which was accordingly awarded. Mr. D. R. Sethi, learned counsel for the appellants, has challenged the findings of the Tribunal on issues 2 and 3. The respondent has filed a cross-objection claiming enhancement of the amount of compensation. At the close of the arguments the respondent through his counsel stated that he did not wish to press the cross-objections. ( 4 ) SO far as the appeal is concerned, I am of the view that the findings of fact recorded by the court below are correct and fully justified on the material on record. This fact that the respondent received injuries on the date and time of the accident alleged by the respondent is not denied and at that time the offending bus was admittedly near the scene. The respondent has contended that the bus ran over him and crushed his feet, while the counter version is that on seeing the bus, the respondent riding the cycle slipped and fell down and received injuries. ( 5 ) THE injuries that the respondent had received, have been deposed to by Public Witness 1. Dr. K. K. Srivastava, Orthopedic Surgeon, Willington Hospital. He has stated that on the day of the occurrence the respondent was admitted in the Hospital on the surgical side and the case sheet showed that he had crushed injury of both the feet. Dr. K. K. Srivastava, Orthopedic Surgeon, Willington Hospital. He has stated that on the day of the occurrence the respondent was admitted in the Hospital on the surgical side and the case sheet showed that he had crushed injury of both the feet. The witness further deposed that the respondent was operated upon on 13th July, 1966 and then was transferred to the witness and on examination he found that the wound on the left ankle was giving bad smell and so the plaster was removed. The witness has further deposed that the left side of the heel of the respondent is not present and the foot is badly deformed and has got a bad skin cover and the right foot is reasonably alright, but he would not be able to walk like a normal man and the muscles of the left leg have also been reduced because he had not been able to use the limb and there is deformity in the front toe of left foot as well. The nature of injuries is grievous. In cross-examination, the witness clarified that a part of the heel had been lost, but the entire utility of the heel had gone and there was no chance of the growth of that part of the heel and that he would not be in a position to move in a normal gait with that heel bone, nor would he be able to stand erect without a special shoe. The Doctor further gave in answer to a question in cross-examination an opinion that the injuries caused to the respondent could not be attributed if that portion of the heel was entangled in the chain of a cycle. In my opinion, after carefully considering the statement of the Doctor, the crushed injuries of the feet could not possibly be caused by entanglement in the chain of the cycle or by falling on the herb of the footpath as has been alleged by the appellants. The version of the respondent that they were caused by getting under the bus is more probable. The version of the respondent is supported by the witnesses. ( 6 ) PUBLIC Witness 3, Harjas Mal is a fruit seller, who sells fruits on a rehri near the bus stop. The version of the respondent that they were caused by getting under the bus is more probable. The version of the respondent is supported by the witnesses. ( 6 ) PUBLIC Witness 3, Harjas Mal is a fruit seller, who sells fruits on a rehri near the bus stop. He has deposed that a bus came from Hari Nagar Depot side, from his be hind at a fast speed, the driver did not stop the bus at the bus stop and did not give any horn and knocked down the cyclist and that many people gathered there; the police reached the spot soon after and removed the cyclist to the Hospital and the statement of the witness was recorded. The witness further deposed that the left front corner of bus struck the cyclist and both the feet of the respondent were run over and the bone was protruding out and a portion of the heel was coming out. Public Witness 4, Prem Singh also supports the story of the respondent. He has deposed that a bus came from behind at a very fast speed and knocked down the cyclist and the cyclist fell down and was run over under the rear wheel of the bus. Public Witness 6, Hem Raj, is a passenger who was travelling in the same bus, and he had also stated that the feet of the respondent came under the bus and the bus stopped, which had been running on full speed, when the passengers raised hue and cry. The witness got down from the bus and informed the parents of the respondent. Therespondent before me was examined as Public Witness 8. He deposed that he was 25 years of age on the date of occurrence; the offending bus was running at a high speed and knocked down the respondent and thereafter both his feet were run over by the rear wheel of the bus; that the driver removed him from under the bus and put him on the patri and then he became unconscious and was removed to Willington Hospital. He stated that he was unable to move and suffered mental pain and serious injuries. He has further stated that he was employed as a peon drawing a salary of Rs. 139. 00 p. m. and the treatment in the Hospital was free. He stated that he was unable to move and suffered mental pain and serious injuries. He has further stated that he was employed as a peon drawing a salary of Rs. 139. 00 p. m. and the treatment in the Hospital was free. The witness denied the case of the opposite party, which was put to him in cross-examination. ( 7 ) ON behalf of the appellants, the conductor of the offending bus was examined as R. W. 1, who stated that there was not much space between the bus and the patri on the left of the road, that there was a slight slope on the spot and the cycle slipped; thereafter the cyclist fell down without touching the bus and neither did the bus hit him, nor did the cycle touch the bus. However, he admitted that some passengers recorded their complaint in the complaint book in the vehicle which was filed in the criminal court. In cross- examination he admitted that the cyclist received injuries on the feet, but there was no blood oozing out and only the skin of the foot was slightly peeled off. R. W. 2, Om Parkash is another witness examined on behalf of the appellants. He was a passenger in the bus. He had stated that as the bus was moving towards the stop, it was at a slow speed and a boy came on a cycle wanted to cross the bus from left side of the bus, when he was overtaking, he slipped and fell down. He stated that he did not know how the cyclist received injuries, but he saw from the bus that the heel of the cyclist was bleeding. He then gave his writing to the conductor which he wrote down in the complaint book. In cross examination he stated that the cyclist had come after the bus had stopped and not that the cyclist was ahead of the bus. R. W. 3, Nahar Singh stated that a cyclist came from the back side and seeking the slowing down of the bus tried to overtake it from the left side and in this process, he fell down on the patri and got injuries due to entanglement of his foot in the chain of the cycle and the driver was not at fault as he was going to stop the bus at the stand. ( 8 ) R. W. 4, Jagan Singh, is the driver of the offending bus (appellant 2 herein ). He has stated, that when he reached the Kikar Wala Chowk bus stand, the conductor gave the bell in order to stop the bus. The bus stop was at a distance of 10 yards from the bus and he was going on correct side of the road at a speed of three or four miles per hour as he was going to stop the bus. Then suddenly he heard the emergency bell and he stopped the bus there and then and on getting down from the bus, he saw a cyclist with his cycle had. fallen down on the patri near the left rear of the bus and his foot injured. There upon he rang up the police. He was challanged by the police, but was acquitted by the criminal court. ( 9 ) THE statements of the witness leave no room for doubt that the feet of the respondent were crushed and this could not possibly happen in the way alleged by the appellants, but it could have happened as alleged by the respondent. The court below after examining the entire material on record and having had the advantage of seeking the demeanour of the witnesses believed the statements of the respondent s witnesses and has rightly not placed reliance on the version of the appellants. I have examined the case afresh and I have no doubt that the finding of the court below is amply justified on the material on record and it does not suffer from any legal infirmity. I hold that the case of the respondent has been fully established that the injuries had been caused to him by the rash and negligent act of the second appellant, who was acting in the course ofemployment of the first appellant. The finding of the Tribunal on issue No. 2 is, therefore, affirmed. In view of the said finding, the damages that have been awarded to the respondent cannot be said to be excessive or unreasonable and they are amply justified on the material on record and the findings on issue Nos. 3 and 4 do not call for interference. So far as the cross-objections are concerned, the learned counsel for the respondent states that he does not want to press them. They are accordingly dismissed. 3 and 4 do not call for interference. So far as the cross-objections are concerned, the learned counsel for the respondent states that he does not want to press them. They are accordingly dismissed. Under the circumstances, the appeal and the cross-objections are both dismissed. The parties are left to bear their respective costs in this court.