DALJIT KAUR @AMARJIT KAUR Vs. PUNJAB STATE

JUDGEMENT

(1.) THE present appeal has been filed by the appellant claiming enhancement of the compensation awarded on account of the death of Baldev Singh son of Sh. Harnam Singh by the Motor Accident Claims Tribunal, Hoshiarpur (hereinafter referred to as, the 'Tribunal') vide award dated 03.09.1990.

(2.) THE facts as stated are that, on 20.08.1989 Baldev Singh (deceased) was coming from Nangal to Ludhiana via Garhshankar on scooter No. PIM - 2228. As he reached ahead of village Hare Ka Pau, a Punjab Roadways bus bearing registration No.PJC -134 coming from the opposite direction being driven by respondent ­ Charan Singh in a rash and and negligent manner hit the scooter by going on the right side of road. Baldev Singh died at the spot. He was an employee of the Punjab State Electricity Board, Ludhiana and aged about 42 years. The claim petition was filed by the present appellant (his widow) and proforma respondents No.4 and 5 (i.e., father and mother of the deceased). The Tribunal while holding it to be a case of contributory negligence awarded a sum of Rs.2,88,000/ -. As the deceased Baldev Singh was held guilty of contributory negligence to the extent of 40%, the amount payable was assessed as Rs.1,72,800/ -. A sum of Rs.1,00,000/ - was directed to be paid to the present appellant and remaining amount was to be paid in equal shares to proforma respondents No.4 and 5 ­ parents.

(3.) THERE is no statutory definition of the term negligence. In common parlance, it is the omission to do something which a person is obligated to do or the act of doing something which a prudent or reasonable man would not do. Negligence is the failure to observe the degree of care, caution and precaution which the circumstances justly demand. To determine whether an act is or is not negligent, it is necessary to determine if any reasonable man would foresee that the act or its omission would cause damage or not. The crucial question in this case would be whether the deceased by exercise of reasonable care could have avoided the accident. It is worthwhile to note that Darshan Lal (AW2) is an independent witness. It has come into evidence that he is not related to the deceased ­ Baldev Singh. In fact, Baldev Singh deceased was not even known to him prior to the accident. Darshan Lal also had no axe to grind against the driver of the bus who was also a stranger to him. Darshan Lal in his testimony has clearly mentioned that Baldev Singh was going on the left side of the road and that the central front -side of the bus had hit the scooter. The part of the evidence of Darshan Lal to the effect that the scooter and bus had collided head on cannot be read in isolation to conclusively hold that Baldev Singh was at fault. It has been admitted by RW1, Charan Singh, the driver of the offending bus that he had never complained in this regard and neither he protested that the accident had been caused due to the negligence on the part of the deceased. There were passengers in the bus but none of them had recorded that the deceased was at fault. Furthermore, there is no site -plan or any other evidence broughtforth by the respondents to rebut the positive evidence led by the claimants in this regard. In the absence of the same, the Tribunal has wrongly concluded the deceased ­ Baldev Singh to be the guilty of contributory negligence. The Hon'ble Supreme Court in Syed Sadiq etc. v. Divisional Manager, United India Insurance Company, 2014 (1) RCR (Civil) 765 has held that in the absence of any evidence on record it would be incorrect to return a finding of contributory negligence. In that case the Tribunal and the High Court had held the claimant to be guilty of contributory negligence only on the ground that the accident had taken place in the middle of the road. This finding of the Tribunal is, thus, set aside and the accident is held to have been caused due to the rash and negligent driving of respondent No.3.