Insurance company appealed a motor accident compensation award challenging only the contributory negligence finding of 75% against the bus driver and 25% against the deceased scooterist. The High Court found the apportionment equitable on the evidence and dismissed the appeal, upholding the award.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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FAO-1784-2007 (O&M)
233
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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FAO-1784-2007 (O&M) Date of Decision : 20.11.2024
National Insura n ce Co. Ltd.
....Appellant
VERSUS
Subhash and Ot h ers
....Respondents
CORAM : HON’BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: M r . Manu Loona, Advocate for the appellant
M s . Jyoti Choudhary, Sr. Penal Co u nsel with M s . Gaganpreet Kaur, Advocate f o r respondent No.2 (DTC).
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SUDEEPTI SHARMA, J. (Oral)
FACTS NOT IN DISPUTE
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deceased) was c rushed under the bus while U mesh jumped and fell aside. A s a result of accide n t, Yash Sharma suffered injuries which proved fatal.
issues:-
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FAO-1784-2007 (O&M)
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SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES
as under:-
10. The evidence of Constable Pavitar Kumar is only regar d ing re g istration of FIR Ex.P3 against respondent no.2. The statement of P W 1 Surinder Kumar is about p endency of criminal case against res p ondent no.2.
11. Umesh Sharma, who was th e eye witness being pillion ride r on th e scooter of the deceased, depo s ed that on the date of accident i.e. 8. 2 .2004, at about 2.00 PM, he be i ng pillion rider on scooter no. H R-
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26 - E-0416 being driven by d eceased were proceeding f r om Si k anderpur Ghosi to Karan Pet r ol Pump situated opposite Sahara M a ll, Gurgaon, and as they reach e d opposite Chawla Chick-inn, bus no. DL-1P-B-6553 coming from b e hind hit against the scooter an d as a r esult Yash Sharma fell under r i ght rear wheel of the bus and w as cr u shed. He further stated that th e y had to take a right turn as s u ch th ey were towards right side of t h e road. On being cross-exami n ed, th e witness stated that he had see n the bus after it had hit the sco o ter an d stated its speed to be about 5 0 KMPH. He admitted that he did no t see the bus approaching the sc o oter. He admitted that the plac e of ac c ident is a crowded place as it i s close to Sahara Mall. He fur t her ad m itted that he learnt the name o f driver after FIR was lodged a nd po l ice had arrested him.
On the other hand, respon d ent no.2, bus driver, appeare d as R W 1 and gave version that he was driving the bus which was enr o ute Noida to Gurgaon and that as the b us reached near DLF, a scoot e rist ca m e from behind driving it rashly and negligently and hit against di v ider and lost balance. On bei n g cross-examined, witness de n ied th a t after being hit by the bus, sc o oterist was crushed under the r ear rig h t wheel. Admitting that he has b een facing trial, further stated t hat he has been acquitted of the c h arge. He further stated that he re p resented the Department of hi s false implication and that as the bu s was in city area, it could not b e at fast speed.
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RW3 Ranbir Singh, who was Conductor of the bus, w as ex a mined and deposed that on 8.2.2004 he was on duty as Condu c tor on the bus which was enroute Noi d a to Gurgaon and in the aftern o on as the bus reached Chakarpur, sc o oterist coming from behind trie d to ov e r take the bus and in the pro c ess entangled himself between the bu s and divider of the road and, thus, fell on the road and suff e red he a d injuries. He deposed about the complaint book having been iss u ed to him and proved certific a te Ex.R3, duty slip Ex.R4 and t hat th e passengers having mentioned th e sequence of events in Ex.R1. He stated about the accident being d u e to rash and negligent drivin g of sc o oterist who was all alone. On b e ing cross- examined, he stated t hat he was at the rear seat of the bus a nd was standing just near entrance of t he door towards right side an d had, thus, seen the scooter a s it ca m e parallel to the bus. He spo k e about the copy of report E x .R1 re g arding incident submitted to th e Department.
Respondents examined RW4 Pardeep, one of the passenger s in th e bus, who stated that he was travelling in DTC bus and th a t a sc o oterist who was trying to ove r take the bus from right side c a me be t ween the bus and the divider a n d in this process collided with the di v ider and due to which fell down and suffered injuries. He proved his writing Ex R1 in the complaint b ook of the bus.
RW2 Lal Singh, Assistant Traffic Inspector, has proved iss u ance of complaint book to the d river stating that a complaint book ha d been issued in the name of dri v er and not by bus number.
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12. The death of Yash Sharma has not been disputed even by the res p ondents. Only the manner ha s been disputed. While as per P W5 U m esh Sharma, who was pillion r i der on scooter of deceased, bu s hit ag a inst scooter from its backside and deceased was crushed under the rig h t rear wheel, however, as pe r respondents, the deceased st r uck ag a inst divider of the road and suffered head injury of his own. Cl a imants examined Dr. Kuldeep Singh who conducted post mortem ex a mination on the body of decea s ed. Though he did not state a b out cr u sh injury but injury no.1 fo u nd on the dead body has been me n tioned as a lacerated wound 2 5 x 10 cm. placed obliquely on the lo w er abdominal wall and pelvis including scrotum and perine u m. Sc r otum and penis crushed, urina r y bladder ruptured and visibl e on th e surface. PW5 Umesh Sharma has specifically deposed that t hey we r e to turn right. Taking the situ a tion given by PW5 Umesh Sha r ma as admitted position that bus wa s coming from their back and t hey we r e to turn right and the decea s ed was crushed under rear r i ght wh e el, certainly indicates that neg l igence was contributory of sco o ter dri v er and bus driver. PW5 Umes h Sharma only states that they h ad br o ught the scooter towards right side. He does not state that the de c eased had given a signal to tur n right. That besides to take a r i ght tur n , scooterist was supposed to w a it and see and be cautious that the ro a d was clear to take right turn, before he negotiated to take r i ght tur n . The action on the part of de c eased of taking right turn wit h out se e ing that the road was clear an d the traffic following him and the
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po i nt of impact being rear righ t side wheel, statement of U m esh Sh a rma that bus had struck the scooter at back, does not ap p ear pr o bable, as in that situation the point of impact would have been the fro n t wheels or the front portion o f the bus and not rear side wheel. U m esh Sharma is real brother of d eceased and would certainly b e an int e rested witness. But the fact s i tuation that emerges that poin t of im p act being the rear right wheel a nd PW5 Umesh Sharma admit t ing th a t they were processing turn to w ards right, certainly scooter dr i ver wa s required to be cautious an d see that road was clear be f ore ne g otiating turn, thus, suggesting that the scooter driver as wel l as bu s driver both have contributed i n the causing of accident. Tho u gh R W 1 Ram Mehar denied the total involvement of bus but injury n o.1 as f ound on the dead body of de c eased in the post mortem report, in d icating crush injury, certainly s u ggests involvement of bus and w as no t possible due to fall. Althoug h respondent no.2 may have been ac q uitted vide Judgment dated 15. 4 .2005 by criminal court, howe v er, cri m inal case has to be decide d prosecution proving the guil t of ac c used beyond reasonable shado w of doubt, while claim case ha s to be decided on probabilities an d by preponderance of evide n ce. Alt h ough Judgment has not been exhibited but the procedure b e ing su m mary, can be taken into c o nsideration. That besides, m ere ac q uittal is no ground to dismiss the claim petition. Similarly, e ven th e deposition of RW3 Ranbir Si n gh, Conductor, would again b e of int e rested witness being colleag u e of respondent no.2 and R W4
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Pa r deep is a passenger, who mad e entry in the complaint book, copy Ex.R1. Even his endorsement find s mention that scooter after stri k ing wi t h divider was hit with the b us. Therefore, in any case the in v olvement of bus does stand pro v ed. Representation Ex.R2 is in the sh a pe of self serving admission on behalf of respondent no.2. RW2 Lal Si n gh has only brought the compl a int book and is not witness to the oc c urrence. In Andhra Pradesh State Road Transport Corporation versus Jayalakshmi and others, 2006 ACJ 2620 , wherein also the ac c ident occurred in the process of bus taking right turn wit h out sig n al unmindful of the traffic fro m the rear, it was held to be a c ase of contributory negligence. Depo s ition of PW1 Surinder Kuma r is ab o ut pendency of criminal case but since the case already stands dis p osed of, therefore, his evidenc e is immaterial. Although claim a nts rel i ed upon Judgments New Majha Transport Co-operative Society Limited and another versus Surjit Kaur and another, 1[1984] АСС 237, Prem Kanwar and others versus Aadam and others, III [2006] ACJ 917, Dilip versus Director Nahru Bal Mandir and others, II [1992] ACC 81 and Sukhdev Singh and others versus Vinod Kumar and others, III [2003] ACC 710, but none of them has a ny ap p licability as Judgment in Ne w Majha's case [supra) was on the po i nt of motive of false implicatio n ; Judgment in Prem Kanwar's c ase [s up ra] was on the point that F IR and charge sheet proved the in v olvement of vehicle; Judgment in Sukhdev's case [supra] wa s on th e point that Tribunal while deci d ing may not go into technical i ties
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an d mystic maybes. The area w here accident took place wa s a cr o wded area and bus was expect e d to be at a slow speed and h a d it be e n in a controllable speed, t he impact would have certa i nly re d uced. Taking all these factors i nto consideration, the contribu t ion is a ssessed as 75% of bus driver and 25% of deceased himself. T he iss u e is decided accordingly.”
ANALYSIS OF THE RECORD
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Their testimoni e s, while attempting to exoner a te the bus driver, are self-ser v ing and lack indep e ndent corroboration. RW4’s en t ry in the complaint book mentions that the scooter struck the divider first; howeve r , this assertion does not negate the established fact that the bus ultimately crushed t he deceased. 14. Ev i dence by way of affidavit of R W1 (Ram Mehar), the bus dri v er, denied any inv o lvement of the bus in the ac c ident. However, his denial st a nds contradicted b y the medical evidence, the post-mortem findings, and the corroborated te s timony of PW5. His testimony, therefore, lacks credibility. 15. Fu r ther documentary evidence i.e. the complaint book entry (Ex. R 1) mentions both the scooter striking the divide r and the involvement of the b us. While it attemp t s to reduce the liability of the bus driver, the post-mortem findings and other testi m onies substantiate the bus’s direct involvement in the accident.
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for the acciden t due to a failure to signal and e xercise due caution while ma k ing the turn. However, the predominant cause of the accident was the bus driv e r’s negligence, spe c ifically in operating the vehicl e at an excessive and unsafe sp e ed. The apportion m ent of liability 75% to the bus driver and 25% to the decease d is equitable and s u pported by the evidence on rec o rd.
November 20, 2 024 (SUDEEPTI SHARMA) tripti JUDGE
Wheth e r speaking/non-speaking : Spea k ing Wheth e r reportable : Yes/ N o
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1 issue framed by the court
Whether the Tribunal erred in finding contributory negligence apportioned 75% against the bus driver and 25% against the deceased scooterist?
1 provisions across 1 enactments
National Insurance Co. Ltd.
Subhash
Others
Sudeepti Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
