Maharashtra State Road Transport Corporation vs Rajani and Others

B.A. Masodkar, J.—The Appellant is the State Road Transport Corporation and questions the award made by the District and Sessions Judge, Jalgaon and Ex officio Member of the Motor Accidents Claims Tribunal for Jalgaon District (hereinafter referred to as ''the Tribunal'') directing payment of Rs. 67,500/- as the compensation with regard to the death of one Surendra Prahlad Khadke, in an accident that admittedly took place on December 28,1978, at about 9.30 a.m. on the Jalgaon-Bhusawal Road. An S.T. bus No. MHF 5642 was driven by the driver of the Appellant by name Suresh Pathak. Under that bus, a Vicky Moped bearing No. MTT 9421, which was driven by the deceased Surendra, was found crushed. Instantaneously, the deceased Surendra died. The Tribunal has held that the accident occurred due to the negligence of the driver of the S.T. bus. That finding is seriously questioned in the present appeal.

Mr. Hegde, the learned Counsel appearing in support of the appeal, contends that the facts, looking to the map (Exh. 59), which shows that the S.T. bus was travelling towards Nashirabad and its eventual position, as is given in the map, is to the right side of the road which is also consistent with the recitals in the panchnama, indicate that the accident must have occurred, as is stated by the driver, because from the road that comes from the left hand side the Vicky Moped must have entered the highway suddenly and in the process to save the vehicle and its rider, the S.T. bus swerved and took itself towards the right. There was a braking mark to the extent of 50'', which is within the standard prescribed by Rule 147 of the Bombay Motor Vehicles Rules, 1959, and that shows that the driver of the S.T. bus had taken all diligent steps not only to save the Vicky Moped but to avoid the accident. In the submission of Mr. Hegde even if we applied the maxim res ipsa loquitur, it would indicate that the driver of the S.T. bus had taken all the care to save Vicky Moped, which had suddenly appeared on the highway. If these factors are patently available in the panchnama and the map, the unchallenged affidavit of the driver of the S.T. bus, Suresh Pathak, should have weighed with the court below in determining the question of negligence. He pointed out that the driver of the S.T. bus has not been cross-examined and that should be enough to accept his version, there being no other evidence as to how the accident occurred.

Ex facie, these submissions do contain some merit, but the facts in the present case indicate that the Tribunal was right in holding the driver of the S.T. bus as defaulter and negligent.

The case set out in the written statement, to which the driver of the S.T. bus is a party, goes to show that the S.T. bus was proceeding on the highway and when it reached the backside of the New Divisional Workshop, a motor cycle came by a footpath at an excessive speed and the driver of the S.T. bus was not able to see the motor cycle. The motor-cyclist (driver of Vicky Moped) rashly and at an excessive speed came on the road and, seeing the S.T. bus coming, was baffled and confused and he gave a dash to the headlights of the S.T. bus. The driver of the S.T. bus applied brakes on seeing the motor-cyclist and in order to avoid collision and to save the said motor-cyclist, he took the S.T. bus to the right side of the road, but he Was unsuccessful, even though the S.T. bus stopped immediately. Thus, the case set out in para 4 of the written statement with regard to accident is that from the footpath the motor-cyclist came on the road and he was seen coming on the road in a rash and excessive speed giving dash to the headlights of the opponents'' vehicle. If we look to the evidence on which Mr. Hegde relied, it is indeed difficult to reconcile these assertions in the written statement. Now, Suresh Pathak in his affidavit has stated that his vehicle was going by the left side and that the place which is to the left side of the road where the accident took place is covered by trees. He has produced two photographs taken on December 29,1978. Out of those trees, a footpath joins the highway. From that footpath, the motor-cyclist appeared on the highway. According to him, he did not see it before the motor-cyclist was on the highway. After looking to the S.T. bus, it was the driver of the motor cycle who became confused and that is what the deponent has stated and that he applied the brakes and stopped the vehicle. At that time, the vehicle was taken towards the right side so as to save the other vehicle, but the deceased Surendra attempted to cross the highway from in front of his vehicle and while doing so, the deceased Surendra was dashed by the left side of the S.T. bus and was thrown down and eventually died.

These assertions in the affidavit do not support the case set out in the pleadings. On the other hand, the same are at variance. The pleadings set out a case that the dash was given by the motor-cyclist, while the affidavit gives an impression that the motor-cyclist appeared on the road and was crossing the road when the accident took place. The finding of the blood in the centre of the road is not explained by such an affidavit. Similarly, we are not in a position to appreciate the assertion that the driver of the S.T. bus was not in a position to see the footpath and yet he has asserted that the motor-cyclist came from the footpath on the road. In all probability, as the panchnama shows, the accident occurred while the Vicky Moped was already on the highway and it was dashed somewhere in the centre portion of the road and thereafter the S.T. bus was taken to the right side where it halted. It is possible, looking to the point of impact on the S.T. bus, that after the hit the driver of the S.T. bus took the S.T. bus towards the right. The mere existence of brake marks would not be enough. There is no other factor which will indicate that the Vicky Moped appeared on the highway suddenly and by any footpath. The panchnama does not make any such mention, nor any tyre-marks of the Vicky Moped are noticed. The photographs produced by the driver of the S.T. bus do not indicate any existence of the footpath. The photograph is that of a big cart track. The highway is not straight one but is a curved one. There is a curve clearly seen beyond the mile stone as is available in the photographs. This goes to show that the accident must have occurred when the Vicky Moped was in the central portion of the highway and within the visible distance of the S.T. bus. The S.T. bus must have hit the Vicky Moped and then taken to the right side.

That being the clear position, the Tribunal was right in holding in favour of the Respondents.

In the result, there is no merit in the present appeal. The same is dismissed with no order as to costs.