Gurdial Singh and Others vs The Pepsu Road Transport Corporation and Another

G.S. Singhvi, J.—Feeling aggrieved by the judgment of the learned Single Judge allowing F.A.O. No. 1210 of 1985 Pepsu Road Transport Corporation v. Gurdial Singh etc. and dismissing F.A.O. No. 1271 of 1985 Gurdial Singh v. Pepsu Road Transport Corporation and another, the claimants have preferred these appeals under Clause X of the Letters Patent.

The facts necessary for deciding the issue raised in these appeals are that while he was going from Patiala to Village Khurani, District Sangrur on his scooter bearing No. CHH-4682, Jang Singh son of Gurdial Singh was killed in a road accident which occurred at about 9.00 p.m. on 2.10.1982 due to collision of the scooter with bus No. PBP-3554. The appellants filed petition claiming compensation to the tune of Rs. 4,00,000/-. The respondent-Corporation and the driver, Mukhtiar Singh contested the claim petition by stating that the accident had occurred due to the fault of the deceased. The Motor Accidents Claims Tribunal, Sangrur framed the following issues:-

Whether the claimants have locus-standi to file the application? OPA

Whether Jang Singh died as a result of rash and negligent driving of bus No. PBP-3554 by Mukhtiar Singh driver on 2.10.1982 near Village Channo on the Patiala-Sangrur highway?

What amount of compensation are the respondents liable to pay and to whom?

Relief.

After considering the pleadings and the evidence produced by the parties, the Tribunal upheld the locus-standi of the appellants. It also held that the accident was caused due to wrong parking of the bus and failure of the driver to take adequate measures to give indication about the parked bus. At the same time, it held that the deceased was also negligent in driving his vehicle. On the issue of compensation, the Tribunal concluded that the estimated income of the deceased (Rs. 1,000/- to Rs. 1,500/- per month), who was practising as an advocate, cannot be said to be exaggerated. The Tribunal accepted the version of the claimants that the deceased was giving Rs. 600/- per month to his parents. By applying the multiplier of 16 and also by deducting 1/4th amount on account of contributory negligence, the Tribunal awarded compensation amounting to Rs. 86,000/-.

The claimants filed F.A.O. No. 1271 of 1985 for enhancement of the compensation and the Corporation filed F.A.O. No. 1210 of 1989 for quashing of the award in its entirety. The learned Single Judge reversed the finding of the Tribunal about the manner in which the accident occurred. He held that the evidence produced by the claimants was not sufficient to prove that the bus was parked on the metalled road without parking lights. The learned Single Judge further held that it was the duty of the scooterist to have taken care to avoid the parked bus and on the basis of these conclusions, he quashed the award passed by the Tribunal for payment of compensation to the claimants.

We have heard Shri LM. Suri and have carefully gone through the record of these appeals. In our opinion, the impugned judgment deserves to be set aside for more than one reasons which are set out hereunder:

(i) The learned Single Judge has reversed the finding of fact recorded by the Tribunal solely on the basis of roznamcha report Ex.R.1 prepared on the basis of the statement of Bimaljit Singh completely ignoring the fact that Bimaljit Singh was not produced as a witness to prove the contents of roznamcha report.

(ii) While dealing with the issue of negligence of bus driver, the learned Tribunal adverted to the evidence of both the parties and then held that he was negligent. This is clearly borne out from the following extract of the award:

"The only question, therefore, that survives before the Court is whether the respondent Mukhtiar Singh was in any way negligent in parking the said bus or the death was the result of sheer carelessness and negligence on the part of Jang Singh himself. Whereas it was the contention of the learned counsel for the claimant-petitioners that from the statement of Shri Gurdip Singh P.W.1 it was established on record that the bus was standing parked without parking lights being on which means that it was the fault of the driver who admittedly is Mukhtiar Singh respondent, the learned counsel for the respondents has argued that from the copy of the report roznamcha Ex.R.1 and the statement of Mukhtiar Singh it was proved on record that there was no negligence whatsoever on the part of Mukhtiar Singh respondent and as such, the respondents could not be held liable for paying any compensation. In this behalf, he has taken me through the contents of Ex.R.1 and pointed out that it is stated therein by Bimaljit Singh that the accident had taken place for which none was at fault. So also Mukhtiar Singh had testified that when he parked the bus, he had parked it on the kacha portion of the road and had switched on !he parking lights. It was, therefore, emphasised that there was absolutely no negligence on the part of the respondent which could entitle the claimants to any amount of compensation. However, I find myself unable to accept this argument. There is direct evidence of Gurdip Singh who was present at the time of accident and he has clearly sworn that the bus was standing there without any indication or parking lights being on. As for the copy of the report roznamcha Ex.R.1, it may be stated that the author Bimaljit Singh has not been produced to depose about the contents of that documents. True that being a public document, it may be admissible into evidence but then the truth of the contents thereof cannot be presumed unless the maker of the statement had been brought into the witness box and allowed to be subjected to cross examination by the petitioner-claimants. Simply because Bimaljit Singh had lodged some report with the police stating that the accident was not the result of fault of any one, that cannot lead to an inference that respondent-Mukhtiar Singh or the Pepsu Road Transport Corporation i.e., respondent No. 1 should be absolved of their liability. Coming to the statement of Mukhtiar Singh respondent, that also brings no luck to the respondents because according to him he himself had gone to the Head Office to report the matter there and it means that at the time of occurrence he was not present there. May be that at the time when he parked the bus at that place, he may have switched on the parking lights but this is not conclusive of the fact that the. parking lights were on at the time of the accident. There appears to be no reason to disbelieve the sworn testimony of Gurdip Singh P.W.1 who was present at the time of occurrence and he also received some injuries. He has sworn that at the time of accident, the bus was without any parking lights on. Even so, the learned counsel for the respondent has urged that had Jang Singh deceased been careful enough, he could have avoided the accident by crossing the parked bus from its side and the fact that the scooter struck into the bus clearly proves that it was Jang Singh himself who was responsible for the accident for no fault of the respondents. In reply, the learned counsel for the claimants has referred me to the authority in the case of Agya Kaur and Others Vs. General Manager, Pepsu Road Transport Corporation, Patiala and Others, . It was also a case where the car ramped into the stationary truck and the argument was advanced that the accident was caused because of negligence of the car driver. The Hon''ble High Court in such circumstances had held that the car driver may be responsible for contributory negligence but the owner of the truck and the driver thereof could not escape their liability as being not negligent in parking the truck. It was noted therein that the truck was parked without parking lights being on and also without placing any bricks by the side of the parked truck to indicate that the truck was not in order. As in that case so also in the present case, it is not claimed that any indication by placing bricks etc. had been put to show that the bus had been parked being out of order and that the other traffic should move away from it. Similarly, I have come to the conclusion that the parking lights were not on at the time of the accident. This is also a case of contributory negligence. In other words, it is held that the accident was caused because of negligence of Jang Singh as also due to the negligence of the respondents by parking the bus No. PBP-3554 in the manner indicated above. The issue is decided accordingly.

The learned Single Judge reversed this finding without even holding the Tribunal has erred in recording the aforesaid conclusion.

(ii) The learned Single Judge has gravely erred in absolving the bus driver of his responsibility to take care vis-a-vis users of the road. We are rather surprised that the learned Single Judge recorded this finding ignoring the law laid down by the Supreme Court and by this Court on the question of responsibility of the drivers of the buses and trucks to take care not only while driving their vehicles but also while parking them on the road sides.

In our opinion, the impugned judgment suffers from a patent illegality and, therefore, it deserves to be set aside.

In the result, we allow the appeals. The judgment of the learned Single Judge is reversed and the award passed by the Tribunal is upheld subject to the modification that the appellants No. 1 to 3 shall be entitled to 3/4th of the compensation awarded by the Tribunal along with interest at the rate of 12% per annum from the date of application. We would have saddled the respondents with costs but refrain from doing so because none has appeared on their behalf to contest the appeals.