Mangilal vs Chairman, R.S.R.T.C. and Others

Mohd. Yamin, J.—This appeal has been directed against the judgment of learned Motor Accident Claims Tribunal, Banswara dated 4.2.1991 by which the claim petition of the appellant was dismissed.

The claim petition related to an accident which occurred on 3.11.1987 at about 3.00 p.m. The appellant was going in a private bus No. RJY-3347 as passenger from Banswara to Mahi Dam. When the bus reached on crossing and turned towards Mahi Dam road, another bus belonging to RSRTC bearing No. RSG-7201 driven by Rajendra, respondent, carelessly and with a high speed came from the side of Ghatol and collided with the bus in which the appellant was travelling. The appellant was sitting on the side seat of the bus which was just opposite to the bonut on front side of the bus. The appellant suffered injuries. A report was lodged with police and during investigation he was examined medically. He suffered injuries which are mentioned in Ex. 2. There was a fracture on his left arm. The appellant-claimant claimed a sum of Rs. 42,000/- as compensation.

The respondent Roadways filed reply wherein the fact of accident was admitted but it was pleaded that there was no negligence on the part of the driver of the Roadways bus instead it was the driver of private bus who flouted traffic rules whereby the accident took place. It was denied that the appellant claimant was travelling as a passenger in the private bus. It was further pleaded that the amount of compensation claimed had no basis, it was specifically pleaded that the driver of the private bus suddenly turned it towards Mahi Dam without asking for the side on the I.T.I, crossing, therefore, the driver of respondent Roadways bus was not at all responsible. It was also pleaded that the claim petition was defective because of non-joinder of necessary parties. The learned Judge framed relevant issues whereupon the appellant led his evidence. The respondent Roadways did not lead evidence. Then the learned Judge of the Tribunal heard both the parties and dismissed the petition of the claimant holding that it was not proved as to what was the speed of the Roadways bus and there was no evidence that the driver of the Roadways was driving the bus negligently. The learned Tribunal relied, upon the site plan in arriving to the conclusion that the negligence of the Roadways bus was not proved.

I have heard the learned Counsels for the parties at length.

Learned Counsel for the appellant submitted that the site plan should not have been the basis to arrive at a conclusion by the learned trial Judge. He cited Nayanbala and Ors. v. Shankarlal and Ors. SB Civil Misc. Appeal No. 347/95, decided on 3.3.1998 in support of his contention. Another judgment on which he is relying is Shanti Devi and Ors. v. Anwar SB Civil Misc. Appeal No. 206/92, decided on 11.9.1987, wherein it was observed that when the Investigating Officer and motbirs of site plan have not been examined to prove the contents of the site plan, the site plan and inspection note could not be made basis to disbelieve the claimant.

I have gone through the evidence led by the claimant before the Tribunal. Mangilal has stated that when the bus in which he was travelling reached the crossing of that the Roadways bus came with a speed and dashed against the bus in which he was travelling. He was cross-examined on behalf of the Roadways and he admitted that he did not remember whether the driver of the bus in which he was travelling gave an indication to turn towards Mahi Dam. Another co-passenger P.W. 2 Harish was examined on behalf of the appellant who supported him and stated that as soon as private bus reached the crossing, the Roadways bus came with a high speed and dashed against private bus in which he and the appellant were travelling. This witness as well as the appellant Mangilal have stated that the bus in which they were travelling was not going with a high speed. He did admit that the private bus turned towards right side without giving an indication.

The MTO AW 5 Gokuldas examined both the buses and also saw the site. He has stated that the Roadways bus was standing on the left side on the kachi land while the private bus had suffered breakage on the right side. In this case site plan Ex. 3 and its memo Ex. 4 are such which do not help much and have to be excluded. From the evidence of the appellant as well as of Harish, it is clear that the driver of the private bus was not careful and he turned towards right side without giving any indication. That amounts to contributory negligence. Counsel for appellant submitted that the driver of the Roadways bus has not been produced to say that he was careful and have not been responsible for the accident.

According to the learned Counsel it is a case of contributory negligence and the Roadways should be held responsible to fee extent of negligence which has been proved by the claimant. Reliance was placed on Amrit Kaur Vs. Chandigarh Transport Undertaking and Others, in which the negligence of the deceased was also considered and even then the award against Chandigarh Transport Undertaking was passed. This ruling was also cited before the learned Tribunal but the learned Tribunal was of the opinion that this citation was not helpful because there was no evidence about speed of the Roadways bus. He was in difficult situation to determine the responsibility of the Roadways bus. Needless to say that when he had arrived at the conclusion that there was negligence of the Roadways bus driver and the matter was of contributory negligence, it was not required to know as to what was the speed of the Roadways bus. It was for the respondent itself to produce its driver to say about the speed and the manner in which accident took place because it was within the special knowledge of the driver. The Roadways has not produced any witness. Learned Counsel for the appellant cited : AIR1991SC487 Basthi Kasim Saheb (Dead)by LRs. v. The Mysore State Road Transport Corporation and Ors. in which it has been held that when the driver of the vehicle fails to explain happening of accident, principle of res ipsa loquitur applies and in such cases the burden is on the defendant to show that the driver was not negligent and that the accident might have happened in a manner which did not connote negligence on his part, but the defence has failed to produce any evidence to support such a possibility. Therefore, it could be said that the accident took place on account of rash and negligent act of driver and the claimant would be entitled to compensation. My view is that in these circumstances the Roadways cannot be said to be not a responsible party to the accident. The finding of the learned Trial Court on issue No. 1 is set aside.

It was submitted that case be remanded for decision of Issue Nos. 2 and 3. Order 41, Rule 24, C.P.C. provides that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. In view of this clear provision, the case need not be remanded for decision on Issue Nos. 2 and 3. Consequently, I have gone through the evidence on record.

So far as the amount of claim is concerned, there is no documentary evidence about the amount spent by the appellant. He has stated that he suffered a fracture of his left arm and took treatment in a hospital for 9 days where he spent about Rs. 2,000-2,500. He further stated that he is a peasant and earns about ten to fifteen thousand rupees in a year. He did not work at all for 2-4 days after the accident. According to him the accident left a permanent effect on his mind. According to Dr. Lal Chand P.W. 3 the claimant did not suffer any injury on his ribs and has suffered only four injuries which could be cured by treatment. P.W. 4 Dr. Ramratan has stated that the claimant''s fractured arm remained under plaster for about six months. He has also stated that the fractured arm was shortened by half an inch but it could not hamper working of the appellant at all.

Looking to all the facts and circumstances, I am of the view that the appellant should be granted following compensation.

(1) Amount spent on treatment : Rs. 2,500/- (2) Compensation for pain and mental agony : Rs. 5,000/- (3) Compensation for permanent shortening of the hand (which does not hamper work) : Rs. 2,500/- ______________ Total : Rs. 10,000/- ______________ 17. In view of above discussion, the appeal is allowed. The respondent is directed to pay a compensation of Rs. 10,000/- (Rupees ten thousand only) together with interest at the rate of 8% per annum from the date of filing of the petition i.e. 11.4.1988. No orders as to costs.