NEW DELHI MUNICIPAL COMMITTEE Vs. KAMLESH KUMARI

JUDGEMENT

(1.) This judgment would dispose of two F.A.Os namely No. 88 of 1979 and 89 of 1979, which are directed against the com posite award dated 8th December, 1979 of Motor Accident Claims Tribunal Delhi given respectively in Claim No. 21 of 1978 (Old No. 130 of 1973) entitled Smt. Kamlesh Kumari & others v.N.D.M.C. and others and claim No. 38 of 1978 (Old No. 129 of 1973) entitled Ganesh Datta and another v N D M C and others. Both the claims were disposed of by a composite judement' of 8th December, 1978. The first mentioned case had arisen due to the death of one Sarwan Kumar while second mentioned claim and arisen due to death of Subash Chander Younger brother of Sarwan Kumar. These appeals have been filed by N.D.M.C., the owner of the truck which was involved in the accident and its driver. The claimants in respective claims have also filed cross objections in both these appeals. The cross-objections in F A O No 88 of 1979 have been registered as C.M. No. 164 of 1979 while cross-objection in P.A.O. No. 89 of 1979 have been registered as C.M. No. 180 of 1979 and as such these cross-objections are also proposed to be disposed of by this judgment

(2.) I have heard the learned counsel for the parties and have gone through the lower court files and after giving my considered thought to the matter before me I have come to the following findings :

(3.) One most important question which has to be considered by this court is whether the truck was being driven rashly and negligently. The learned Tribunal has given a finding that the truck was being driven rashly and negligently and accident occurred due to rash and negligent driving by appellant No. 2. Learned counsel for N.D.M.C. has challenged this finding. I do not find much substance in the submission of the learned counsel for the N.D.M.C. The lone eye witness has been examined as Public Witness . 7. He is Orn Prakash,a jhuggi dewller of nearby place who was coming on a cycle at the time of accident after closing his shop in Kamal Cinema and has observed the entire occurrence. It is categorical stated by him that 'the NDMC truck came from INA side on the diversion road and scooter was coming from Lodi Colony side...... There was up and down road about 50 feet wide. The truck came at a veiy fast speed. It did not blow any horn. The truck came on the wrong side of the road and knocked the scooter which was coming from the opposite direction and scooter was dragged for about 15-20 yards. The truck hit the electric pole as a result the pole was broken. The truck was damaged on its front side and one of the boys was run over by the wheel of the truck while the other was dragged along with the scooter by the truck. Both the boys-one dying at the spot while the other was removed in a very precarious condition to the hospital in a private car......I accompanied the police to the spot of occurrence.' There is nothing in his cross-examination which has been brought out by the counsel for the appellant in the lower court which belies his testimony in chief. He has categorically stated in the first line of cross-examination that his place of residence was at a distance of about one furlong from the point of occurrence. It is also stated that there was no other pedestrian at that time on spot. The suggestion by the learned counsel for NDMC that these was no light has been categorically denied by this witness in the cross-examination There was no other eye witness of the occurrence, NDMC has examined R.W. 1 and he is Hari Cand, the driver but there is nothing in his testimony which belies the testimony of Public Witness . 7. Public Witness . 7 is an independent witness and has no axe to grind, whereas Hari Chand is an interested witness to ward off the liability. Hari Chand had admitted during cross-examination that he was found guilty by the criminal court as well in criminal case arising out the accident. I have been taken through the plan prepared by 1.0. which is Ex. Public Witness . 10/1. It corroborates the story given by Public Witness . 7. Even otherwise the accident speaks for itself and the suggestion of the learned counsel for N.D.M.C. that scooter had struck on the rear side of the truck is not established by the evidence on record. There is one other important factor which cannot be lost sight of i.e. R.W. 1 Hari Chand has stated that one beldar was sitting along with him in the truck on the front seat but the said beldar has not been examined as a witness for reasons best known. The very fact that the truck first hit the scooter and thereafter hit the electric pole with such a force as to break the pole itself also shows the rashness of the speed of the truck. There is hardly anything to suggest any contributory negligence as there is not even an iota of evidence of contributory neglignce of the scooter driver. Considering all these facts the finding of the learned Tribunal that the accident arose due to rash ond negligent driving of the truck driver Hari Chand is confirmed.