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Judgment
This appeal has been filed by the applicant, who is minor, through his father as his next friend and guardian, u/s 110-D of the Motor Vehicles Act (Act No. 4 of 1939), against an award of the Motor Accidents Claims Tribunal, Indore, dated 16-2-1974 in Claim Case No. 2 of 1972 by which the application for compensation has been dismissed.
The material facts of this case are that on 18-11-1971 at about 9 a.m., the Appellant, who was riding on a bicycle, was coming by P.W.D. road and was crossing the Palasia point near the Tilak statue, Indore, which road leads from east to west. He met with an accident with a bus No. M.P.O. 9553 owned and operated by Respondent No. 1 and driven by the driver Respondent No. 2, which was coming from Dewas to Indore on the national highway Agra-Road, which runs from north to south at that place. Admittedly, there are crossroads where the accident occurred on the main Agra-Bombay Road near the Tilak Statue. The factum of accident was not disputed or challenged before us.
It was alleged on behalf of the Appellant that the said but was driven rashly and negligently at a very excessive speed which dashed against the Appellant with the result that he came down under the left backside wheel of the said bus whereby he received future injuries and his bicycle was completely crushed. It was further alleged that as a result of this accident the Appellant has been disabled for ever and has been incapacitated to earn his livelihood for the whole of his life as he met with this accident at a tender age of ten years. He claimed a compensation of Rs. 52,750/- as under:
(a) Disablement for the whole life Rs. 40,000-00
(b) Mental shock & pain to parents Rs. 2,000-00
(c) Mental shock, pain and shortening of life span of the injured; Rs. 10,000-00
(d) Medical treatment of the injured and loss of earning of the guardian; Rs.:00-00
(e) Loss of bicycle. Rs. 250-00
Total Rs. 52,750-00
The Respondents, in their reply to the claim petition, denied their liability to pay any compensation on the ground that the bus-driver Respondent No. 2 was driving the bus at a speed of hardly ten miles per hour and at the crossing, had, blown the horn and, despite all the best efforts made by the driver, the accident could not be averted though the driver swerved the bus to the right side of the road as far as possible to save the Appellant, as the Appellant suddenly came on the main road in front of the bus. It was further averred that no liability for compensation can be fastened on the Respondents as there was no rashness or negligence on the part of the bus driver Respondent No. 2 who, according to the Respondents, was driving the bus carefully and cautiously.
The following issues were framed by the learned member:�
(1) Did the non-applicant No. 2 Umraoji drive bus No. M.P.O. 9553 so rashly or negligently as to hit the applicant, severely injuring him ?
(2) Is the applicant entitled to Rs. 52,750/- as compensation ?
(3) Relief & costs ?
and, after recording evidence of both the parties and hearing arguments, he dismissed the claim of the Appellant on the ground that there was no rashness or negligence on the part of Respondent No. 2 when the unfortunate accident occurred and that it was the Appellant who was responsible for the accident.
It was not disputed or challenged before us that as a result of this unfortunate accident the Appellant sustained severe injuries including fracture to the left hand and to the left leg with the result that the leg of the Appellant has been shortened by about two inches and the left hand has been deformed which has diminished the power to lift weight by that hand and these facts have been proved by the medical evidence on record viz., by Dr. J.B. Lahoti (A.W.I) who had taken the ''X-Ray'' photograph of the Appellant and by Dr. N.K. Vaidya (A.W. 3) who had examined the Appellant within half an hour after he met with the accident. Admittedly, the accident occurred at a point, where there are crossroads near the Tilak Statue-crossing at Palasia point, Indore, which is a very busy road and on which heavy vehicles also run continuously throughout the day and night.
It was contended by learned Counsel for the Appellant that, but for the rash and negligent driving of Respondent No. 2, the accident could have been averted as the bus-driver did not take that care and caution which he was expected to take on a road especially at a crossing point, like the present one. It was urged that it was the duty of the bus-driver to slow down the bus and reduce the speed before reaching this cross-road so that, in case of any eventuality, the vehicle could be stopped immediately. Learned Counsel for the Appellant took us through the entire evidence placed on record and submitted that there was no justification for the learned Member to come to the conclusion that rash and negligent driving by Respondent No. 2 has not been proved in this case.
It is no doubt true that merely because there is an accident, no presumption can be drawn that the same must have occurred due to rash and negligent driving. There may be several reasons for the accident and it is also difficult to conclude that because of the injuries sustained by the victim, which may also be fatal in some cases, the other side alone can be held responsible for any damage or compensation, though a party who claims compensation has to prove what was rashness and negligence on the part of the other side. ''Negligence'' would mean breach of duty caused by the omission to do some thing which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or, doing something which a prudent and reasonable man would not do. Since no absolute rule can be judged in a given case, negligence would necessarily vary in different cases and, for judging the same, all the attending and surrounding facts and circumstances in a particular case have to be taken into account. The test of negligence is the exercise of ordinary care and caution which is expected from a prudent man in the circumstances of a given case. It is expected of drivers of automobiles moving in opposite directions to see that they drive the same on correct side of the road and at a speed which they can control so as to stop the vehicle, in the event of necessity, especially at cross roads, in order to avoid any type of accident.
In the present case, the factum of accident having been admitted by the Respondents consequently resulting in injuries and deformities to the Appellant, it was for the Respondents to prove that there was no rashness or negligence on their part and that they had taken every care and caution which was expected of them in driving the vehicle. Admittedly, in this case, except the driver and the conductor of the bus, the Respondents have not examined any other independent witnesses including any passenger who may have traveled by that bus on that day, though some witnesses were cited but were not examined and given up.
Dwarkaprasad (A.W. 4) and Satish Chandra (A.W. 5), who are eye-witnesses to the accident, have stated that when the Appellant was crossing the Agra-Bombay Road and going towards the city, the said bus came all of a sudden from Dewas side without blowing any horn and dashed against the Appellant as a result of which he came down under the left backside wheel of the bus. There is nothing to disbelieve the statement of the Appellant about the manner in which the accident took place. It was tried to be suggested to these witnesses that this bus had stopped earlier just at a short distance behind the place of the accident to enable certain passengers to get down, but they have clearly denied this suggestion and there is no evidence also to suggest that in fact any passengers had alighted from the bus at the place where it was alleged to have stopped earlier than Palasia-point. It appears that this suggestion was thrown in order to show that the bus could not have gained any speed, much less any excessive speed, after starting from that place where it was alleged to have stopped, till it reached the place of accident But this suggestion has been falsified by Respondent No. 2 himself in his deposition and he has clearly admitted that the bus stopped only after the accident had taken place. He has admitted that he had seen the boy (Appellant) on the main road from a sufficient distance before the accident actually took place and had actually slowed down the bus, to stop it at Palasia point as some passengers were to get down, the speed being about four or five miles per hour. If really this was so, in our opinion, he would not have, been required to swerve the bus to the right side of the road to save the Appellant which actually stopped only after going ten or fifteen feet ahead. This clearly goes to show that the bus was in excessive speed and was being driven rashly and negligently despite the fact that the missing page compensation which the Appellant is entitled to claim and recover from the Respondent No. 1 who is principally liable for the same.
As a result of the aforesaid discussion, this appeal partly succeeds and is allowed to the extend that the award given by the learned Member of the Motor Accidents Claims Tribunal, Indore, is set aside and the Appellant is awarded a compensation of Rs. 6,700/- in all payable by Respondent no, 1 alone with interest at the rate of 6 per cent per annum from the date of the claim petition, that is, 3-1-1972 till realisation. The appeal against Respondent No. 2 is dismissed. However, in the circumstances of the case, the parties are directed to bear their own costs through out.