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Judgment
Kailash Gambhir, J.—By way of the present appeal, the appellant seeks to challenge the award dated 10.4.2007, whereby the Tribunal has held appellant and driver of the appellant jointly and severally liable to satisfy the award amount.
Brief facts of the case are that on 5th October, 1990, the deceased Shri Sukhdev Singh Gill was travelling in a three wheeler scooter bearing registration No. DL 1 R 1053 from India International Centre to U.K. Embassy, when a DTC bus bearing registration No. DHF-3671 being driven by the driver of the said bus in a rash and negligent manner hit the TSR of Shri Sukhdev Singh Gill, as a result of which, Shri Sukhdev Singh Gill was thrown out of the TSR and suffered serious injuries.
Counsel for the appellant states that in the earlier order dated 19.12.2001, passed by the Tribunal, the Tribunal has clearly held that there was no negligence on the part of the driver of the offending vehicle. Counsel for the appellant contends that PW-5 was the only eye witness to the accident and in his deposition he has stated that the bus was not at fault as the bus was being driven by its driver at a very normal speed. Counsel states that the said witness PW-5 also stated that he cannot say who was responsible for causing the said accident. Counsel for the appellant thus contends that once the said evidence was relied upon by the Tribunal in the previous order, therefore, it could not have given any contrary findings based on the same very evidence. Counsel for the appellant further contends that admittedly, the TSR was coming from the side lane at a high speed of 60 k.m. per hour, therefore, no fault can be found with the driver of the bus who was on the main road and was driving the bus at a normal speed of 30 k.m. per hour. Counsel for the appellant further contends that without establishing negligence on the part of the driver of the offending vehicle no award could have been passed by the Tribunal against the appellant. Counsel for the appellant further contends that even the driver of the said TSR was not impleaded by the claimants respondents and the Tribunal has not taken into consideration the composite negligence on the part of the driver of the said TSR. Counsel for the appellant contends that the award of the tribunal is thus absolutely perverse and irrational.
Per contra Mr. T.R. Sandhu, counsel for the claimants/respondents submits that the award suffers from no infirmity and is just and fair, therefore, requires no interference.
I have heard learned Counsel for the parties and have perused the record.
On perusal of the award, it becomes manifest that the said witness PW5, Sh. Moolchand entered the witness box after a gap of 11 years. After a gap of 11 years it cannot be expected of a person to narrate the accident as if it took place yester years. Be that as it may, trivial contradictions in the testimony of the aforesaid witness cannot disturb the entire testimony of the witness as the testimony of the witness has to be read in its entirely. As regards the statement of the said witness that the bus was not at a high speed, I am in agreement with the view taken by the learned tribunal that whether a vehicle is at a high speed or a low speed depends on the density of vehicles on the road, width and type of road, etc. Also, on the perusal of the site plan filed by the Investigating Officer, it becomes manifest that the TSR had crossed half of the road and was hit at point ''A'' in the plan and surely the impact was forceful and the bus was at such speed due to which the TSR was thrown at point ''B'' in the said plan and the deceased Sh. Sukhdev Singh Gill was thrown out of the TSR and fell at point ''C''. This clearly shows that the driver of the offending bus was negligent and was driving the said bus in a rash manner. I do not find any infirmity in the award passed by the tribunal.
No merit in the appeal.
Dismissed.