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2001 DIGILAW 401 (HP)

HIMACHAL ROAD TRANSPORT CORP. v. SATYA DEVI

2001-12-19

A.K.GOEL, LOKESHWAR SINGH PANTA

body2001
JUDGMENT Arun Kumar Goel, J. :- This appeal by Himachal Road Transport Corporation, hereinafter referred to as the "HRTC". is directed against the award dated 19.8.1996. passed by the learned Motor Accident Claims Tribunal. Shimla. By means of this award in case No.MACC No. 73-S/2 of 1993. claim petition filed by respondent No. 1 to 5 has been allowed and as a consequence of it. they have been awarded compensation in the sum of Rs.2.57.000/- with interest at the rate of 12 per cent per annum from the date of filing of the petition, i.e. 22.9.1993 and the amount has been apportioned as ordered in Para 10 of the said award. 2. Appellant is aggrieved by this award as according to it its vehicle bearing registration No. HP-33-973 was not involved in the accident and there is no evidence worth the name which could be legally translated by the Tribunal below so as to hold it responsible for payment of compensation. 3. Brief facts giving rise to this appeal as set up in the petition under Section 163 filed before the Tribunal below are that late Shri Budhi Chand. husband of respondent No.l. father of respondent No.2 to 4 and son. respectively of respondent No.5. died in a motor vehicular accident on 13.2.1993. According to them this accident had taken place near Hira Nagar towards Banuti. Tehsil and District Shimla. Deceased, at the time of accident, was 32 years of age. He was working as a mason on daily basis, and also on contract basis besides being an agriculturist. According to claimants-respondents, his income was Rs.5.000/- per month by way of working as mason/contractor. He used to work as an agriculturist also. This accident, according to the claimants, had allegedly taken place on the night of 13.2.1993 and 14.2.1993 between Hira Nagar and Banuti at 7/7.15 P.M. According to them deceased received multiple injuries in the accident on his head because he was run over by the bus. This bus was of Mandi Unit of H.R.T.C. Thus a compensation of Rs.5.00.000/-was claimed. 4. This petition was contested and resisted by the appellant. Case set up by the appellant was that no-accident had occurred on 13.2.1993 of the bus in question, so claimants have no cause of action to maintain the petition. This bus was of Mandi Unit of H.R.T.C. Thus a compensation of Rs.5.00.000/-was claimed. 4. This petition was contested and resisted by the appellant. Case set up by the appellant was that no-accident had occurred on 13.2.1993 of the bus in question, so claimants have no cause of action to maintain the petition. Factum of accident was specifically denied and/or the same having been caused due to rash and negligent driving of the driver-appellant No.2. (he was respondent No.2 before the Tribunal below). In this background claim of the claimants was repudiated. 5. , Learned Tribunal below framed the following issues and after conclusion of the trial has passed, the impugned award, hereinabove:- 1. Whether Budhi Chand died on account of rash and negligent driving of respondent No.2 an employee of respondent No.l. who caused this accident while driving bus No. HP-33-973. if so its effect? ...OPP 2. If issue No. 1 is proved in the affirmative to what amount the claimants are entitled to ? ....OPP 3. Relief. 6. Mr. Chandel. learned counsel appearing for the appellant, forcefully urged that this is a case of no evidence and the learned Tribunal below was not justified in fastening the appellant with the liability, as has been wrongly done in this- case. By referring to the evidence examined on behalf of respondent Nos. 1 to 5 claimants, he submitted that even if it be assumed for the sake of argument, without being conceded, that the accident did take place, still there is no evidence that the deceased was run over by the bus in question or any accident involving the bus in question on the date, time and place as alleged. 7. This position has been controverted by the learned Senior Counsel. According to him statement of Sanjay Kumar (PW-3) is conclusive and sufficient to fasten the appellants with the liability. This evidence when read with other materials on record, no exception can be taken to the impugned award which deserves to be upheld by dismissing the appeal with examplary costs per Mr. Verma. 8. Thus with a view to properly appreciate the respective submissions, we think it necessary to refer to the evidence examined during the course of trial before the learned Tribunal below. 9. Balwant Singh is PW-1. He has brought the original record and according to him Ex. PW-1/A is the true copy of the FIR. Verma. 8. Thus with a view to properly appreciate the respective submissions, we think it necessary to refer to the evidence examined during the course of trial before the learned Tribunal below. 9. Balwant Singh is PW-1. He has brought the original record and according to him Ex. PW-1/A is the true copy of the FIR. In cross examination he admitted that there is no mention of any vehicle number in the FIR in question. PW-2 is Ratti Ram. S/o Gobindu. Senior Clerk. Indira Gandhi Medical College Hospital. Shimla. He has brought the summoned record and as per it. Ex.PW- 2/A is the attested copy of the postmortem report of the deceased which was conducted by Dr. B.K. Mishra. 10. PW-3 is Sanjay Kumar. According to him he was travelling in HRTC bus from Ganahati to Totu on 13.2.1993. He was on way to Totu for bringing a mechanic because his D.C.M. Toyota had gone out of order. The bus was of Mandi Region. According to him when this bus reached near Banuti. it suddenly had a jump. Bus was stopped by the driver for a moment at the instance of the conductor. However, it was driven away saying that nothing has happened. per him .he came back with mechanic at about 11.00 P.M. it was then he saw dead body of Budhi Chand (shown as Bushi Chand in the statement) there at the spot where the bus had taken jump when he was travelling in the bus on that day to Jutogh. This bus had crossed the place at about 7.00 P.M. The body could not be identified because it had been crushed with the tyre. He was called by the police the next day and his statement was recorded. According to him when bus had passed, there were 5/6 persons in it. Bus was being driven at a high speed. In cross examination on behalf of HRTC, he has admitted that he did not know the number of the bus with which accident had taken place. He further stated that he was unable to tell that Budhi Chand had died due to accident or due to some other reasons. Deceased belonged to his area per him. 11. PW-4 is the widow of the deceased. According to her in February. 1993 deceased was employed as a mason at Totu. On 13.2.1993 deceased was coming by bus to his home. Deceased belonged to his area per him. 11. PW-4 is the widow of the deceased. According to her in February. 1993 deceased was employed as a mason at Totu. On 13.2.1993 deceased was coming by bus to his home. He got down at Hira Nagar because of some private work there. Then he7 started on foot to the village which takes 1/2 an hour on foot from Hira Nagar. He did not turn up that night. On the next day she was informed by Rajinder that her husband had died and the dead body has been taken to hospital. According to her they were dependent on the deceased, who was earning Rs.4.000/- per month while working as mason. Deceased was living separately from his father. In cross examiantion she has admitted that she was not told by anyone how her husband had died. In cross examination on behalf of driver she has stated that she did not know number of the HRTC bus with which the accident had taken place. 12. PW-5 is one Dhani Ram Thakur, who has stated that deceased belonged to his area and he used to work as mason. He was 35 years of age. He used to earn about Rs.3.000/- per month. 13. On the other hand driver of the bus has stepped into witness box. He has stated that on the fateful day he had driven the bus in question from Mandi to Shimla. He started at 12.15 P.M. from Mandi and reached Dhalli at 7.30 P.M. According to him he crossed the alleged place of occurrence at about 5.30 P.M. or 6.00 P.M. on fateful day. No person was walking on the road at that lime at the spot nor any one was hit against his bus. He has further gone on record to say that no accident had at all taken place with his bus on the alleged date. This case has been falsely made against him. In his cross examination while admitting that there was a check post at Ghanahatti, he stated that it was not there at that time. He further admitted that persons had boarded the bus at Ghanahatti. He however denied the suggestion that there were 8-10 passengers in that bus. Rather there were 25/30 passengers. In his cross examination while admitting that there was a check post at Ghanahatti, he stated that it was not there at that time. He further admitted that persons had boarded the bus at Ghanahatti. He however denied the suggestion that there were 8-10 passengers in that bus. Rather there were 25/30 passengers. He denied the suggestion on behalf of the respondents-claimants that at Banuti deceased was run over as a result of rash and negligent driving on his pan and he did not stop the bus despite the fact that conductor had asked the witness lo stop the same. He admitted the pendency of criminal case. He denied all other suggestions on behalf of the respondents-claimants. 14. RW-2 is Munshi Ram. Conductor of the bus in question, he admitted being conductor on the bus which was being driven by appellant No.2. According to him they left Mandi at 12.15 P.M. and reached Dhalli at 7.30 P.M. His express stand is that no person was crushed or run over by the bus at Banuti on that date. In cross examiantion he has stated that there were 20/25 persons sitting in the bus when it crossed Banuti. They reached Darla More at 2.45 P.M. From Darla More, distance of shimla is 49 K.M. It took four hours to reach Shimla. While denying the suggestion that the bus crossed Banuti on that date at 7 or 7.15 P.M.. he stated that it had crossed at 5.45 P.M. from Banuti. Distance between Darla More to Mandi according to the witness, is 60/70 K.M. He stated that buses are entered at Dhalli. but corrected himself by saying that no entry of arrival is made. However, it is only regarding departure in the morning. He specifically denied the suggestion on behalf of the claimants that Mohan Singh was driving the bus in a rash and negligent manner and as a consequence of it. at Banuti he run over the deceased, thus he died at the spot. He also denied that he is either deposing falsely or that the bus did not stop despite the fact that deceased was run over. 15. In the aforesaid background we are satisfied that there is no .evidence direct or indirect or even remotely connecting the bus in question causing accident which resulted in the death of Budhi Chand. 16. He also denied that he is either deposing falsely or that the bus did not stop despite the fact that deceased was run over. 15. In the aforesaid background we are satisfied that there is no .evidence direct or indirect or even remotely connecting the bus in question causing accident which resulted in the death of Budhi Chand. 16. No doubt the matter needs to be determined on preponderance of evidence. Mere registration of the case and/or even acquittal cannot be taken as a circumstance to establish that the accident was the result of rash and negligent driving and/or the vehicle being involved in the accident in question. There had to be some evidence to satisfy the court that the death of Budhi chand was attributable to the accident and its being outcome of rash and negligent driving on the part of the driver-appellant No.2 at the relevant time and place. 17. We may observe that there is no direct evidence to that effect. Though great emphasis was laid by the learned senior counsel to accept the statement of PW-3 and thus hold that the accident was the outcome of rash and negligent driving on the part of the bus driver. With a view to test this submission, evidence of the said witness has been referred to hereinabove in its entirety. Even by taking most liberal view of the said statement, by no stretch of imagination it can be said that he in any manner connects the death of Budhi Chand with the bus in question, matchless same being the outcome of the rash and negligent driving on the part of the bus driver. 18. Faced with this situation, still the learned senior counsel persisted with vehemence that there is no other consequence possible after entire evidence on record is scanned. Here we cannot loose site of the statements of RWs 1 & 2. Both have in no uncertain terms stated on oath that the bus in question was not involved in any accident, matchless in the one causing death of Budhi chand. as alleged. They have specifically stated that they had reached Dhalli at 7.30 P.M. We see no reason to disbelieve the version given by both of them. 19. Both have in no uncertain terms stated on oath that the bus in question was not involved in any accident, matchless in the one causing death of Budhi chand. as alleged. They have specifically stated that they had reached Dhalli at 7.30 P.M. We see no reason to disbelieve the version given by both of them. 19. Another reason not to accept the statement of PW-3 regarding accident in question is that what he has stated in his examnation-in-chief Per him at the site at Banuti bus had a jump. It slowed down, then again it was driven away. This in no case can be said to prove factum of the accident as claimed by respondents No. 1 to 5. he returned at 11.00 P.M. with the mechanic. In case he had seen the dead body at 11.00 P.M. on the date of occurrence, in the ordinary course of human conduct, he would have done something more than merely passing by it. Even if he was unable to identify the dead body of Budhi Chand. least that could be done was to have stopped the vehicle in which he was travelling and then had a look at the dead body. Particularly when he stated that deceased belonged to his area. In his.cross examiantion he has un-done whatever he stated in his examination- in-chief and whatever worth it was by saying that he does not know number of the HRTC bus with which accident had taken place as also was unable to tell if Budhi Chand had died due to accident or some other reason. 20. Nothing has been brought to our notice on behalf of respondent No. 1 to 5 with reference to the record of the Tribunal below which may connect the death of Budhi Chand with the bus in question. 21. No other point is urged. 22. In view of the aforesaid discussion this appeal deserves to be allowed and it is ordered accordingly. As a consequence of it the impugned award passed by the learned Tribunal below in MACC No.73-S/2 of 1993. on 19.8.1996 in case titled Satya Devi and others v. HRTC and another, is hereby set aside. Record of the case shows that the amount in question was deposited in the Registry of this court. It is ordered that the same will be refunded to the appellant- Corporation alongwith interest forthwith. No costs.