Full Text
HIGH COURT OF DELHI
U.P. STATE ROAD TRANSPORT CORPORATION ..... Appellant
Through: Mr. Shadab Khan, Advocate.
Through: Mr. Saurabh Kansal, Mr. Tushar Alok, Mr. Manish Kumar and Mr. Raghav, Advocates.
JUDGMENT
1. This appeal is under Section 173 of the Motor Vehicles Act, 1988 (“the Act”) assailing an award dated 05.01.2013 passed by the Presiding Officer, MACT, Patiala House Courts, New Delhi in Suit No. 191/11/09 titled “Rajbir Singh v. Mahender Singh & Ors.”. The Tribunal awarded a total amount of Rs. 1,53,988/- to the respondent/claimant against which the owner of the offending vehicle has come up in appeal.
2. The incident occurred at 12:00 PM on 03.10.2008 when the respondent/claimant was going to Village Chand Hut from Palwal, Haryana MAC.APP. 355/2013 2 of 11 driving a car bearing registration no. DL-3CY8449 with three other occupants. At this time, the offending bus bearing registration no. UP-81N-9418 (“the offending vehicle”) struck a portion of the car being driven by the respondent, resulting in grievous injuries to all the occupants and resulted in the demise of one Rajpal. It was submitted that the driver fled the scene of the accident after the incident. The respondent/claimant sustained a fracture in the right hand, fracture of the second, third, and fourth ribs of the right side, fracture of the fifth, sixth, and seventh ribs of the left side along with several other grievous injuries.
3. The MACT framed the following issues: “1) Whether the accident occurred on 3.10.2008 was due to rash and negligent driving of the driver of the offending bus bearing no. UP81N9418?
2) To what amount of compensation is the petitioner entitled to and from whom?
3) Relief.”
4. With respect to the first issue, the MACT was of the prima facie view that in view of the testimonies and documents, injuries were sustained as a result of rash and negligent driving of the offending vehicle. With respect to the second and third issue, the MACT awarded compensation of Rs. 1,53,988/for elements such as medical treatment, pain and suffering, conveyance and MAC.APP. 355/2013 3 of 11 diet, and loss of income. Tabulation of the compensation awarded is provided as under: S.No. Component of Compensation Amount awarded
1. Medicines and Medical treatment Rs. 49,346/-
2. Pain and suffering loss of Amenities of life Rs. 50,000/-
3. Conveyance and Special Diet Rs. 30,000/-
4. Loss of Income Rs. 24,642/- Total Compensation Rs. 1,53,988/-
5. This appeal has been filed by the Appellant/Owner, canvassing the following grounds: a. The respondent acted negligently, and the MACT did not consider contributory negligence involved in a head-on collision in this matter. b. The MACT has granted excess compensation to the Respondent. Negligence
6. Counsel for the appellant submits that the MACT erred in holding the bus driver guilty of causing the accident. He states that the respondent/claimant was on the wrong side of the road and driving the car under the influence of liquor. Further, since this collision was head-on, both drivers must be attributed MAC.APP. 355/2013 4 of 11 contributory negligence. Counsel further contends that no reasoning on the issue of negligence had been provided by the MACT. He relies upon Bijoy Kumar Dugar v. Bidya Dhar Dutta (2006) 3 SCC 242 wherein it was held: “12. Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of MACT recorded under Issue 2. It is the evidence of Rajesh Kumar Gupta PW 2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head-on collision. MACT has not accepted the evidence of PW 2 to prove that the driver of the offending bus was driving the vehicle at abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as PW 2 wanted the Court to believe, it was but natural, as a prudent man, for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus coming from the opposite direction from a long distance. It was head-on collision in which both the vehicles were damaged and, unfortunately, Raj Kumar Dugar died on the spot. MACT, in our view, has rightly observed that had the knocking been on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of MACT on this point. MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary MAC.APP. 355/2013 5 of 11 relief granted by MACT and, in our view, the discretion exercised by MACT cannot be said to be inadequate and inappropriate.”
7. Counsel for the respondent contends that the bus driver, had admitted to the fact of the accident, but alleged that the respondent was negligent. He states that the allegation of the respondent being under the influence of liquor is not supported by any evidence. Further, the FIR, registered at the behest of another occupant of the car, states that the bus driver was driving negligently. The same is also supported by the site plan. Accordingly, he submits that fact of involvement of the offending vehicle is admitted, and the FIR proves there was no negligence on part of the respondent. The respondent counsel relied upon Renu Bala Paul and Ors. v. Bani Chakraborty Asid Ors, 1998 SCC OnLine Gau 20 and United India Insurance Co. Ltd. v. Deepak Goel, 2014 SCC OnLine Del 362 to state that under the Motor Vehicles Act, the level of evidence required is less as compared to criminal and civil trials. Additionally, he relies upon New India Assurance Co. Ltd. v. Urmila Rani &Ors., 2014 SCC OnLine Del 1470 whereby this court held:
MAC.APP. 355/2013 6 of 11
8. To support this contention, that the statement of the claimant and the FIR is sufficient to prove negligence, respondent’s counsel also relies upon Janabai v. M/S ICICI Lombard (2022) 10 SCC 512, Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. Ltd., (1997) 2 SCC 745. On contributory negligence, he relied upon a decision of the Hon’ble Supreme Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, (2002) 6 SCC
455.
9. Having considered the submissions of the parties on the issue of contributory negligence, it is imperative to assess the evidence on record in this regard. Respondent’s affidavit (PW- 1/A) bears out that he was driving the car along with other occupants, coming from Palwal, Haryana and the accident occurred due to the U.P. Roadways bus being driven by the driver in a rash and negligent manner, coming from the opposite side and collided with the front portion of his car. Not only there were grievous injuries to him and the occupants, but Rajpal also died on the spot. The injuries, as per the MLC, were fracture in the right hand, fractures of the second, third and fourth ribs of the right side as also fractured of the fifth, sixth and seventh ribs of the left side besides other injuries. A disability certificate was filed by the respondent issued by Jai Prakash Narayan Apex Trauma Centre, AIIMS dated 09th May, 2011 as per which he had suffered 5.91% permanent physical impairment in relation to right upper extremity. No doctor was summoned by the respondent in relation to the disability certificate. MAC.APP. 355/2013 7 of 11
10. In his cross-examination, the respondent confirmed that there was no divider on the road and he had seen the bus at a distance of 500 meters, and there was no vehicle in front of his car. He has categorically denied the suggestion that he was wrongly overtaking another vehicle or that he was negligent. He deposed that the speed of his car was about 30-40 kms per hour at the time of the accident. Besides that, the respondent stuck to his narrative in his cross-examination. A perusal of the FIR which is registered at the behest of Vijender Singh, one of the other occupants in the car also states that the bus driver was coming at fast speed and driving in a rash and negligent way and had a frontal collision with their car whereupon the front portion of car was completely damaged and all of them suffered injuries. A perusal of the sitemap shows the two vehicles on their own sides of the road and, therefore, cannot assist the appellant in their plea of contributory negligence in that the respondent was driving on the wrong side of the road.
11. The evidence of the driver of the bus, on the contrary seems to suggest that it was the negligence of the respondent who was overtaking another car and came on the wrong side of the road and stuck against the bus. Besides he stated that the respondent was under the influence of liquor. There was no evidence on record aside from the mere statement of the driver of the bus that the respondent was under the influence of liquor.
12. In his cross-examination, the driver confirmed that an FIR was registered against him and he in turn had not lodged any complaint that a false case was registered against me. Though, he denied the suggestion that accident MAC.APP. 355/2013 8 of 11 happened because of his negligence, in the opinion of this Court the MACT was correct in relying upon the testimony of the claimant/respondent.
13. It has been stated by the Hon’ble Supreme Court in Janabai v. ICICI Lambord Insurance Co. Ltd., (2022) 10 SCC 512 that:
14. In addition, reliance has been placed by the respondent on the decision of a Coordinate Bench of this Court in New India Assurance Co. Ltd. v. Urmila Rani, 2014 SCC OnLine Del 1470 where this Court has noted as under:-
MAC.APP. 355/2013 9 of 11
15. There is no proof on record that any act of the respondent contributed in a substantial and dominant manner to the said accident and the damage caused, which can be described as negligence. In this regard, the statement of the Hon’ble Supreme Court in Pramodkumar Rasikbhai Jhaveri (supra) is adverted to as under:
21. Accordingly, decision of the MACT stands confirmed and the appeal is dismissed and disposed of. Pending applications, if any, also stand disposed of.
22. Judgment/Order be uploaded on the website of this Court.
JUDGE DECEMBER 18, 2023