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Tuesday, January 28, 2014

Accident claim - M.V. Act - Over taking a bus at red light area after green light on by a motor cyclist invites danger - motor cyclist was at wrong but not bus driver -FIR Registered against Bus driver - Accident while over taking the bus at red light area where passage was narrow - a motor cyclist died- Tribunal awarded compensation - High court reversed as there is no negligence on the part of the Bus Driver - Negligence lies on Motor Cyclist - mere registration of F.I.R. not a bar to come to different conclusion = LACHOO RAM & ORS. ... APPELLANT VS. HIMACHAL ROAD TRANSPORT CORPN. ... RESPONDENTS 2014 ( January part ) judis.nic.in/supremecourt/filename=41180

Accident claim - M.V. Act - Over taking a bus at red light area after green light on by a motor cyclist invites danger - motor cyclist was at wrong but not bus driver -FIR Registered against Bus driver - Accident while over taking the bus at red light area where passage was narrow - a motor cyclist died- Tribunal awarded compensation - High court reversed as there is no negligence on the part of the Bus Driver - Negligence lies on Motor Cyclist - mere registration of F.I.R. not a bar to come to different conclusion =

The High Court reversed  the  findings  given  by
the Motor Accident Claims Tribunal (II) at Shimla  in  MACT  No.  68-S/2  of
1995 and has set aside the Award dated  30.11.1998  whereby  the  appellants
were  allowed  compensation   of   Rs.2,74,000/-   including   the   interim
compensation, if already awarded to them along with interest at the rate  of
12% p.a. from the date of the claim petition. =

the High Court failed to keep in  view  the
apparent incorrectness of the defence plea which was of total denial of  the
case of the claimants that the bus of the respondent was involved in  the  accident
with the motor cycle of the deceased and the  deceased  died  due  to  such
accident.  The judgment of the High Court is further in  criticism  on  the
ground that the Court has not given due weightage to the fact that the  bus
and its driver were detained almost immediately after  the  occurrence  and
FIR was also registered against the driver. =
there is no  direct
evidence to show that the bus was involved in the accident and even if  that
is presumed, the evidence and the circumstances show that negligence was  on
the part of the deceased in trying to overtake the  bus  on  a  very  narrow
road in the town of Shimla immediately after  the  bus  has  started  moving
when the traffic signal turned green.

the defence of bus  - One, that the  bus
was not involved in the accident and second, that the accident did not  take
place  due  to  rash  and  negligent  driving  of  respondent   no.2.    The
registration of the FIR against the driver soon after the accident  was  not
denied and only a plea was taken  that  the  criminal  case  was  registered
falsely and in fact the deceased was never hit by the bus.  Further  defence
was taken that the deceased was an untrained  driver  and  he  himself  fell
down from the motor cycle and died due to his own fault. -

  “However, even if it is held that there was some  collision  the
        negligence is that of the motor cyclist himself since he could  not
        and should not have tried to overtake the bus  on  the  red  light.
        The road at the red light is extremely narrow and from  a  standing
        position to  suddenly  try  to  overtake  the  bus  is  asking  for
        trouble.”


9.    Although the High Court has given a tentative view,  as  noted  above,
for the reasons that there were some witnesses present  near  the  place  of
occurrence and they have claimed that the accident  was  between  the  motor
cycle and the bus and FIR was filed soon after the  occurrence  against  the
driver, we have no hesitation in  accepting  the  submission  that  on  this
issue the High Court should have  accepted  the  finding  of  the  Tribunal,
specially in view of its own observation noted above.

But simply the involvement of the bus in the accident cannot make  the
respondent liable to pay compensation unless it can be held on the basis  of
materials on record that the accident was caused by rash and  negligent  act
of the driver-respondent no.2.  

we  find  the  reasons
given by the High Court to be much more cogent and acceptable in  coming  to
the conclusion noted above.  Since the bus was standing  at  the  red  light
and on being asked, soon after starting from the traffic signal  it  stopped
within 100 to 150 yards, it has rightly been reasoned  that  the  bus  could
not have started on a high speed. 
The road at the place of the accident  was
admittedly very narrow  and  PW.2,  who  has  been  found  reliable  by  the
Tribunal as well as by the High Court and was present on the spot,  has  not
claimed that the bus driver  had  given  a  signal  to  the  deceased  motor
cyclist to overtake him. 
This witness could  not  see  the  actual  accident
because at that time the motorcyclist, in an effort to overtake the bus  had
gone on its right side and was not visible and therefore he could only  hear
the sound of crash.  
It is not the  case  of  any  witnesses  that  the  bus
driver took any sudden  turn  while  proceeding  forward  from  the  traffic
signal or that he swerved the bus to the right side.
11.   In the facts of the case it  is  not  found  possible  to  accept  the
contention on behalf of the appellants/claimants that the  accident  was  on
account of rash or negligent driving by the driver-the respondent no.2.   In
that view of the matter it is not found possible to give any relief  to  the
appellants.
12.   The appeal is dismissed but without any costs.

2014 ( January part ) judis.nic.in/supremecourt/filename=41180


                                                         NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

              CIVIL APPEAL NO. 2570 OF 2008


 LACHOO RAM & ORS.                         ... APPELLANT

                       VS.

HIMACHAL ROAD TRANSPORT CORPN.     ... RESPONDENTS




                               J U D G M E N T






SHIVA KIRTI SINGH, J.


      Heard learned counsel for the appellants and learned counsel  for  the
respondent-Himachal Road Transport Corporation.
2.    The appellants are claimants.  They are aggrieved by the judgment  and
order under appeal whereby the High Court reversed  the  findings  given  by
the Motor Accident Claims Tribunal (II) at Shimla  in  MACT  No.  68-S/2  of
1995 and has set aside the Award dated  30.11.1998  whereby  the  appellants
were  allowed  compensation   of   Rs.2,74,000/-   including   the   interim
compensation, if already awarded to them along with interest at the rate  of
12% p.a. from the date of the claim petition.
3.    According to the learned  counsel  for  the  appellants  learned  High
Court was not justified in substituting its own findings in place  of  those
of the Tribunal by disbelieving  statement  of  PW.2  Shobha  Ram  and  PW.6
Hemant Kumar. The main criticism of  the  High  Court  judgment  is  on  the
ground that the case should have been decided on the basis of  preponderance
of probabilities as  was  done  by  the  Tribunal  whereas  High  Court  has
required a much higher degree of proof as if it was dealing with a  criminal
trial.  The order under appeal has also been criticized on the  ground  that
reasonings are perverse and that the High Court failed to keep in  view  the
apparent incorrectness of the defence plea which was of total denial of  the
case of the claimants that the bus of the respondent was involved in  the  accident
with the motor cycle of the deceased and the  deceased  died  due  to  such
accident.  The judgment of the High Court is further in  criticism  on  the
ground that the Court has not given due weightage to the fact that the  bus
and its driver were detained almost immediately after  the  occurrence  and
FIR was also registered against the driver.
4.    On the other hand, learned counsel for the respondent-Corporation  has
taken a counter stand that as a First Appellate Court  the  High  Court  was
bound to enter into  evidence,  evaluate  it  carefully  and  give  its  own
findings with reasons for the same.  According to him the reasons are  sound
for the view taken by the High Court which has held that there is no  direct
evidence to show that the bus was involved in the accident and even if  that
is presumed, the evidence and the circumstances show that negligence was  on
the part of the deceased in trying to overtake the  bus  on  a  very  narrow
road in the town of Shimla immediately after  the  bus  has  started  moving
when the traffic signal turned green.
5.    We have carefully gone through the materials on record and the appeal
including counter affidavit as well  as  statement  of  case  of  both  the
parties.
6.    According to the case of the appellants/claimants the  deceased  Dalip
Singh lost his life immediately after the accident as a result of  rash  and
negligent driving of a bus belonging to the  Corporation  driven  by  Lachoo
Ram respondent no.2 on 12.07.1995.  It is also their case that the  accident
occurred near traffic lights on the narrow  Cart  Road  at  the  point  near
Gurudwara Singh Sabha and State Bus Terminal, Shimla, which is  hardly  100-
150 yards from the Gurudwara.  Both, the deceased on a motor cycle  and  the
bus had stopped at the traffic light.  When  the  light  turned  green,  the
vehicles started.  The respondent no.2 allegedly moved the bus very fast  in
a rash and negligent manner and struck against the motorcycle by  its  side.
The deceased fell down and was fatally wounded leading to immediate death.
7.    The case of the respondent is that there  was  no  accident  involving
the bus of the Corporation and in the facts of the case there  could  be  no
question of rash and negligent driving attributed to respondent  no.2.   The
claim for compensation was resisted on both the grounds – One, that the  bus
was not involved in the accident and second, that the accident did not  take
place  due  to  rash  and  negligent  driving  of  respondent   no.2.    The
registration of the FIR against the driver soon after the accident  was  not
denied and only a plea was taken  that  the  criminal  case  was  registered
falsely and in fact the deceased was never hit by the bus.  Further  defence
was taken that the deceased was an untrained  driver  and  he  himself  fell
down from the motor cycle and died due to his own fault.
8.    The evidence and the materials as discussed by the  Tribunal  and  the
High Court lead to the conclusion that if the principle of preponderance  of
probabilities is applied, the Tribunal was right in giving  a  finding  that
the motor cycle of the deceased and the bus were involved in  the  accident.
Even the High Court has not totally overruled that possibility as  is  clear
from the observation in the second paragraph of its judgment on page  10  of
the paper book in the following words:
           “However, even if it is held that there was some  collision  the
        negligence is that of the motor cyclist himself since he could  not
        and should not have tried to overtake the bus  on  the  red  light.
        The road at the red light is extremely narrow and from  a  standing
        position to  suddenly  try  to  overtake  the  bus  is  asking  for
        trouble.”


9.    Although the High Court has given a tentative view,  as  noted  above,
for the reasons that there were some witnesses present  near  the  place  of
occurrence and they have claimed that the accident  was  between  the  motor
cycle and the bus and FIR was filed soon after the  occurrence  against  the
driver, we have no hesitation in  accepting  the  submission  that  on  this
issue the High Court should have  accepted  the  finding  of  the  Tribunal,
specially in view of its own observation noted above.
10.   But simply the involvement of the bus in the accident cannot make  the
respondent liable to pay compensation unless it can be held on the basis  of
materials on record that the accident was caused by rash and  negligent  act
of the driver-respondent no.2.
On this  issue,  on  comparing  the  reasons
given by the Tribunal while discussing the issue no.1  and  those  given  by
the High Court on pages 10 and 11 of the paper book,  we  find  the  reasons
given by the High Court to be much more cogent and acceptable in  coming  to
the conclusion noted above.  Since the bus was standing  at  the  red  light
and on being asked, soon after starting from the traffic signal  it  stopped
within 100 to 150 yards, it has rightly been reasoned  that  the  bus  could
not have started on a high speed. 
The road at the place of the accident  was
admittedly very narrow  and  PW.2,  who  has  been  found  reliable  by  the
Tribunal as well as by the High Court and was present on the spot,  has  not
claimed that the bus driver  had  given  a  signal  to  the  deceased  motor
cyclist to overtake him. 
This witness could  not  see  the  actual  accident
because at that time the motorcyclist, in an effort to overtake the bus  had
gone on its right side and was not visible and therefore he could only  hear
the sound of crash.  
It is not the  case  of  any  witnesses  that  the  bus
driver took any sudden  turn  while  proceeding  forward  from  the  traffic
signal or that he swerved the bus to the right side.
11.   In the facts of the case it  is  not  found  possible  to  accept  the
contention on behalf of the appellants/claimants that the  accident  was  on
account of rash or negligent driving by the driver-the respondent no.2.   In
that view of the matter it is not found possible to give any relief  to  the
appellants.
12.   The appeal is dismissed but without any costs.

                                  ……………………………………………C.J.I.
                                    (P. SATHASIVAM)




                                    ……………………………………………………J.
                                    (RANJAN GOGOI)




                                    ……………………………………………………J.
                                    (SHIVA KIRTI SINGH)
New Delhi,
January 28, 2014.

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