USHA RANI Vs. BARJESH KUMAR

JUDGEMENT

(1.) The appeal is against the dismissal of the petition for compensation arising out of the death of a man aged 48 years. The claimants were widow, minor child and the mother. The accident was said to have taken place when the deceased was standing near the Gurdwara Chowk waiting to board a bus after his office hours. The evidence given through PW-3 who claimed to be eyewitness and who had also given the FIR that was registered in less than ten minutes after the accident, was that the vehicle was turning at a hectic speed and being driven rashly and negligently, the deceased who was a pedestrian on the road, came under the wheels of the bus and got crushed under the tyres. At the time of cross-examination of PW-1, it was suggested to him that he could not have been present at the place since he was not able to recall which part of the tyre ran over the deceased. It was sought to be contended on the side of the respondents that the vehicle was driven very carefully by the driver at a modest speed but the petitioner came under the rear wheels of the bus in his attempt to commit suicide. The Conductor of the bus claimed that passengers in the bus immediately gave statements referring to the fact that the deceased was in a drunken state and was seen like attempting to commit suicide. Amongst the persons who had given statements to the driver one of them was also examined as a witness in Court.

(2.) If it is a case of suicide it would certainly exclude any element of rash driving of the driver. The point that has to be seen is whether on the evidence let in, it was possible to make an inference that the deceased had come under the rear wheel of the bus only when he was attempting to commit suicide. The statement which was relied on by the respondent was Ex.R/1, which made a reference to the fact that the deceased was heavily under the influence of liquor and he suddenly came under the rear wheel of the bus and committed suicide.

(3.) Learned counsel appearing for the appellants points out that if he was under the influence of liquor, the postmortem certificate must have definitely shown the presence of liquor in the viscera at the time of postmortem surgery. There was no such substance noticed in the postmortem certificate. Adverting to the evidence of one of the passengers, the counsel points out that the witness was not prepared to stand wholly to the recitals in the document. The evidence through RW/4 was: "I cannot say whether that person committed suicide or driver was at fault because the person was crushed under the rear tyre of the bus." He further stated that "he learnt about the accident after the man was crushed under the rear wheel of bus". A person approaching the bus to deliberately get killed, must have been noticed earlier. If a witness had known that an accident had taken place only after he came under the rear wheel then, he could not have made an inference that he came under the vehicle to commit suicide. If it was a straight road and the pedestrian comes under the rear wheel, there is some scope for a person to contend that unless there was some element of intention to deliberately get killed or a reckless jay-walking along the road, without minding the on coming the bus, the accident could not have happened in the manner that took place. However, it must be remembered that accident took place at a Chowk and the deceased was a pedestrian waiting for the bus. A bus carries a fairly long bay of about 30/40 feet and the front portion of the bus that is steered around a circle, could have swayed to the extremity of the road by centrifugal force and if a person comes under the rear wheel, it is not difficult to reconstruct the scene as a situation of a driver swerving to one side at a fairly high speed and a person standing at the road, got crushed under the tyre of the bus. Normally, in a situation of motor accident where a pedestrian gets killed by a motor vehicle, I will be loathe to infer any element of negligence on the part of pedestrian. It has to be invariably a greater care for a driver of motor vehicle to mind the safety of any pedestrian, even, in a situation where a pedestrian is prone to be careless. I have attempted to dwell on this point in a decision in FAO No.48 of 1991 titled as Mohindro Devi v. Sukh Ram dated 06.12.2010: