BIMLA DEVI Vs. SAKIRTI DEVI

JUDGEMENT

(1.) Bimla Devi & Ors. have filed an appeal underSection 110-D of the Motor Vehicle Act (hereinafter called the Act) againstthe judgment of the Motor Accident Claims Tribunal (hereinafter called the M.A.C.T.) dated 28-2-78. In short the facts of the case are that Pt. BehariLal died in motor car accident on 14-6-70 at about 7.00 a.m. The deceasedwas crossing Mehrauli Road on foot on the pedestrian crossing from Raj Nagar side towards South Extension. At that time his son was also accompanying him at some distance. The offending Car No. DLR-7284driven rashly, recklessly and negligently by Bhim Sen, respondent No.2,came at a very fast speed from Yusuf Sarai and hit the deceased with thefront portion as a result of which he was thrown away and sustained fatalinjuries. At that juncture there was a Red signal, but the respondent No. 2did not care to stop on the Red signal, instead entered the crossing withoutcaring for the safety of the persons. He did not observe proper look outnor blew horn and thus caused the death of Pt. Behari Lal. Deceasedbelonged to Village Katiyal, District Ludhiana, Punjab, and had come toDelhi to see his relations.

(2.) The M.A.C.T. after reccording the evidence of the parties assessedthe dependency income of the petitioners at Rs. 200.00 per month and appliedthe multiplier of five years, thereafter deducted 15% on account of lump sumpayment and uncertainties of life and awarded a sum of Rs. 10.200.00.

(3.) It is against this impugned award that the present appeal has beenfiled. Sakirti Devi and Bhim Sen, respondents 1 & 2 also filed appeal andcross objections, both of appealwhich were dismissed. Sakirti Devi, Respondent No. 1, is admittedly the owner of the offending car and Bhim Sen, respondent No. 2. was employed by her as the driver. So far as the accidentwith offending car is concerned that has been proved beyond doubt. Thestory set up by respondent No. 1 that the offending car was in the garrageat the relevant time is beyond the pleading and therefore, the Trial Courtrightly did not rely on the same. In the written statement it was not deniedthat respondent No. 2, Bhim Sen, was driving this car when the accidenttook place. Even otherwise the driver of the car has not appeared in thewitness box, therefore, adverse inference has to be drawn. Had he appearedit would have been proved that at the time of accident he was driving thiscar which hit the deceased. On the other hand, by an overwhelmingevidence, the petitioners have been able to prove that it was the offendingcar belonging to Sakirti Devi, driven by Bhim Sen, which hit the deceasedand ultimately caused his death. The eye witness Naresh Kumar, son of thedeceased, appearing as PW-11, testified that he was accompanying his fatherwhen this accident took place. Naresh Kumar had not been subjected tocross examination. His testimony in fact has remained unrebutted onrecord. Similarly the statement of Gurdev Singh, PW-3, who is not relatedto the deceased and his family, in fact an independent witness, had alsowitnessed this accident. He has in fact explicitly and vivedly described theaccident. According to him there was Red signal at that time, no othervehicle was coming, but the driver of the offending car violated the rules andcame there. After the accident he applied the brake and slowed down thecar for a short while but thereafter speeded away. PW-3 infact noted downthe car number. He was subjected to lengthy cross-examination but nothinghas been elicited which could contradict his testimony. Kishan Lal Sehgal,PW-2. is another eye witness of the accident. He corroborates the statement of Gurdev Singh in material particulars as to how the accident tookplace. The offending car after hitting the deceased slowed down for abit and thereafter speeded away. He also testified that there was a Redsignal when the offending car came from Mehrauli side crossing the same.His statement was recorded by the police. Their statements appear to betruthful and inspire confidence, coupled with their statements, the statement of Naresh Kumar, PW-11, who was with his father at the relevanttime, to my mind, the M.A.C.T. rightly came to the conclusion that it isthe offending car in question, driven by Bhim Sen, respondent No. 2,driven rashly and very negligently which caused this accident.