NIRANJAN DASS Vs. GULZARI LAL

JUDGEMENT

(1.) This appeal has been placed before us pursuant to my order dated 9.11.1966. It is directed against the order of the Tribunal under the Motor Vehicles Act, at Delhi, dated 12.6.1963 dismissing the petition of Niranjan Dass appellant claiming a sum of Rs. 15,000.00 by way of damages and compensation for injuries suffered as a result of accident which took place on 17.8.1958. The facts may now be stated.

(2.) Niranjan Dass petitioner-appellant along with his wife came to Delhi from Ambala in a bus on 17.8.1958 and after getting down near the Delhi Railway Station, he hired a scooter No. DLD 6870 owned by Harbans Lal, respondent No. 2 and driven by Gulzari Lal No. 1, an employee of the owner, for carrying the appellant to New Delhi. The scooter was driven from Delhi Railway Statian towards the Fountain of the Chandni Chowk and on towards the Red Fort. While proceeding in Chandni Chowk a four-seater motor rickshaw No. D.L.C. 5427 driven by Santokh Singh, respondent No. 3, and owned by Teja Singh, respondent No 4 which was coming rashly and negligently from the opposite direction of Red Fort towards the Fountain, dashed against the right side of the scooter driven by Gulzari Lal in which the appellant and his wife were seated. On account of this collision, the appellant received multiple injuries. This accident, according to the appellant, was due to the fact that both the vehicles, in question were driven negligently and without due care and caution in a crowded street like Chandni Chowk. The claim was of course filed after the prescribed period of limitation but this point has not been canvassed and, therefore, it does not survive for any discussion.

(3.) The claim was resisted by the respondents and the pleadings of the parties gave rise to the following issues : 1. Whether respondent No. 2 was the owner of the scooter No. DLD 6870 when the accident occurred ? 2. Whether the scooter No. D.L.D. 6870 was driven by respondent No. 1 during the course of his employment or control of respondent No. 27 3. Whether accident took place on .account of the negligence of respondents Nos. 1 and 3 ; if so, of which of them ? 4. To what amount of compensation the petitioner is entitled to and from whom ? 5. Whether the vehicle No D.L.C. 5427 belonging to respondent No. 3 was insured with respondent No. 5 at the time of accident ? It may be pointed out that Messrs. Premier Insurance Company, Ltd., respondent No. 5, was impleaded on the ground of being the insurers of the two vehicles in respect of third party risk. Issues Nos. 1 and 2 were conceded before the Tribunal by means of a statement dated 24.5.1963 and were, therefore, decided against respondents Nos. 1 and 2 Under issue No. 5, it was found that vehicle No D.L.C. 5427 owned by Teja Singh and driven by Santokh Singh was not insured on the date of the accident though it was insured with the insurer, respondent No. 5, right from 148.1956 to 13.8.57 and then again up to 13.8.1958. After a gap of four days, this four seater motor rickshaw was again insured with the same insurer with effect from 18.8.58 to 17.8.1959. Under issue No. 3, the Tribunal found itself unable to hold that the accident was caused due to rash and negligent driving of Gulzari Lal or Santokh Singh. Santokh Singh and Gulzari Lal, according to the learned Tribunal, tried to shift the blame on each other and there being no independent evidence which, in the view of the Tribunal, must have been available in a busy place like Chandni Chowk in support of rash and negligent driving either of the one or the other driver, the Tribunal felt that it was not possible to come to a satisfactory finding on this issue. The only evidence, according to the impugned order, is of the appellant and of his wife Mrs. Vishan Devi. Mrs. Vishan Devi, according to the Tribunal, did not say anything about the negligent or rash driving of Gulzari Lal and she merely stated that the accident had taken place due to the negligence of the driver of the motor rickshaw because he was driving it at a high speed and was also talking with the occupants of his vehicle. This, in the view of the learned Tribunal, was a factor which militated against reliance on Mrs. Vishan Devi's testimony. Regarding the appellant, it is observed in the impugned order that he had appeared as a defence witness in a criminal case against Gulzari Lal and there he had admitted that the accident was not due to any rash or negligent act of the accused Gulzari Lal, who is respondent No. 1 in the present proceedings. "Gulzari Lal", so observes the learned Tribunal in the impugned order, "also deposed that it was not due to rash or negligent act on his part that the accident was caused." From this the Tribunal has concluded that it can be said as an admitted case of the parties as between the appellant and Gulzari Lal that the latter was not responsible for the accident at all. The Tribunal thus found no occasion to go into the question of the neglect or default of Gulzari Lal. After excluding Gulzari Lal's liability on this premise, the Tribunal proceeded to consider the case of Santokh Singh, respondent No. 3. While dealing with this case again, the Tribunal has emphasised that the evidence on this point was also that of the appellant and his wife Vishan Devi, A.W. 5. The lady. however, was not able to give the definite distance from which she saw the Sikh gentleman driving the motor rickshaw and she merely stated that it may have been 3 to 4 paces from the scene of the accident. According to the learned Tribunal, the lady could not have judged the speed of the other vehicle from such a small distance. In regard to the testimony of Niranjan Dass, the Tribunal expressed itself in the following words : "There is not a word in the statement of Niranjan Dass except that motor cycle rickshaw hit against the scooter occupied by him and his wife, that it was by the rash or negligent driving of Santokh Singh that the accident was caused and how Santokh Singh was negligent. His latter statement that the accident took place due to the negligent driving of the scooter by its driver Gulzari Lal as also by the negligent driving of motor rickshaw by its driver Santokh Singh cannot be accepted in face of his previous sworn statement before the criminal Court, as recorded in copy Exhibit R 3. He cannot be allowed to say things at his convenience, exculpating Gulzari Lal in the statement Exhibit R. 3 while inculpating him here in this Court of the charge of rash and negligent driving." It is this approach coupled with the absence of site plan prepared by the investigating officer of the police agency which induced the learned Tribunal to decide issue No. 3 against the appellant. Under issue No. 4, the learned Tribunal came to the conclusion that for permanent disability, pain and suffering undergone both physical and mental, loss of enjoyment of life, incapacity of work and shortened expectation of life, a sum of Rs. 4,000.00 would be fair and appropriate compensation. He did not award anything on account of expenses of treatment because of want of accounts and undependable evidence. As observed earlier, in the final result, the claim was disallowed.