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Seethamma and Ors. Vs. Benedict D'Sa and Ors. (19.08.1965 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 408 of 1964
Judge
Reported inAIR1967Mys11; 1967CriLJ216; (1966)1MysLJ576
ActsMotor Vehicles Act, 1939 - Sections 96, 110, 110A, 110B, 110C, 110E and 110F; Hindu Succession Act - Sections 8 and 17
AppellantSeethamma and Ors.
RespondentBenedict D'Sa and Ors.
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateK. Vittal Rao, ;S.G. Sundaraswamy and ;M.R. Venkatanarasimhachar, Advs.
Excerpt:
- major port trusts act, 1963 [c.a. no. 38 of 1963]. sections 49-b, 50-a & 50-b: [a.s. bopanna, j]port dues held, it includes only port dues as a category of levy and will not include pilotage charges and berth hire charges. -- section 56: show cause notice regarding short levy bills - notice issued indicating that it has approval of board of trustees - it is not by delegating power but after passing resolution held, show cause notice not invalid for want of competence. -- section 56: notice of payment of charges short levied or erroneously refunded - two years period within which notice is to be issued held, port trust cannot claim benefit of exclusion of time during which earlier writ petitions were pending before court. moreso, when court in earlier writ petition has passed an.....somnath iyer, j.1. on september 6. 1963. at about 5-15 p.m. at a point on the kulur ferry road in mangalore opposite to the p.w.d stores a young boy named padmanabha who was riding a bicycle and proceeding from the south to the north met with his death in consequence of serious in furies to his skull p.w 3 the resident medical officer. government wenlock hospital. mangalore. to whom padmanabha was taken and on whose body p.w 3 conducted the post-mortem examination on september 6, 1963. observed during the post-mortem that padmanabha's skull had been fractured on both sides and that his spleen and liver had both been lacerated. his opinion was that padmanabha died as a result of the skull having been crushed.2. on november 2, 1963. four persons claiming themselves to be the legal.....
Judgment:

Somnath Iyer, J.

1. On September 6. 1963. at about 5-15 p.m. at a point on the Kulur Ferry Road in Mangalore opposite to the P.W.D Stores a young boy named Padmanabha who was riding a bicycle and proceeding from the South to the North met with his death in consequence of serious in furies to his skull P.W 3 the Resident Medical Officer. Government Wenlock Hospital. Mangalore. to whom Padmanabha was taken and on whose body P.W 3 conducted the post-mortem examination on September 6, 1963. observed during the post-mortem that Padmanabha's skull had been fractured on both sides and that his spleen and liver had both been lacerated. His opinion was that Padmanabha died as a result of the skull having been crushed.

2. On November 2, 1963. four persons claiming themselves to be the legal representatives of Padmanabha made a claim before the Motor Accidents Claims Tribunal, Mangalore constituted under Section 110 of the Motor Vehicles Act, for an award that they should be paid a sum of Rs. 5,000/- as compensation by the four respondents. It was slated in that application that Padmanabha met with his death in consequence of a collision on the high-way at the point to which I have referred and that a motor vehicle which was owned by respondent 2 and driven by respondent 1 ran over Padmanabha while he was proceeding on the left side of the road and that that was how Padmanabha was killed.

Respondent 3 is an insurance company with whom respondent 2 had insured his motor vehicle against third-party risks. In reply to the notice issued by the claimants calling upon respondents 2 to pay compensation, respondent 2 asserted that he was not the owner of the motor vehicle at the time of the accident but had sold it to respondent 4. The claimants then made a claim also against respondent 4.

3. The Tribunal refused to make any award in favour of the claimants and so this appeal.

4. It should be mentioned here that among the claimants, the first claimant is Padmanabha's mother, claimants 2 and 3 are his little minor sisters and claimant 4 is his brother who was also a minor. The claim was made by these four persons against the respondents on the assumption that they are the legal representatives of Padmanabha with in the meaning of Section 110-A (b) of the Motor Vehicles Act. Although no investigation was made by the Tribunal as to who in deed were the legal representatives of the deceased Padmanabha, it is now no longer disputed before this Court that the first claimant Seethamma, the mother of Padmanabha is the only legal representative of the deceased. That is so is clear from Section 8 of the Hindu Succession Act, read with Section 17 of that Act. Section 8 incorporates the general rules of succession to the property of a male Hindu dying intestate and Section 17 provides that, that section with the modifications which Section 17 makes in regard to the provisions contained in sub-clauses (c) and (d) of Section 8, shall govern also succession to the property of a male Hindu governed by Aliyasanthana law Section 17 becomes relevant for the reason that we are informed, although there is no material on record touching that matter, that Padmanabha was a Hindu governed by the Aliyasanthana law when the Hindu Succession Act was enacted.

5. In the application which was presented by the claimants to the Tribunal, there is no allegation that there was any negligence on the part of the driver of the motor vehicle but it is more than abundantly clear that every one who contested the claim had no doubt that the action was one founded on negligence.

In Exhibit P-4, which was the notice which preceded the presentation of the claim before the Tribunal, it was asserted on behalf of the claimants that respondent 1 who drove the motor vehicle, drove it rashly and negligently on the wrong side of the road and collided against Padmanabha who was riding a bicycle, and, who was himself on the stretch of the road which was to his left.

It is obvious that the omission by the claimants to set out in their own application those allegations, is attributable to the form, in which, in accordance with the rules, they had to make the claim. That statutory form prescribed by the rules contains as many as 22 columns and in the first 21 columns, the claimant is required to slate particulars in regard to those 21 matters referred to therein. The 22nd column reads :

'Any other information that may be necessary or helpful in the disposal of the claim.

Against that column, the claimants said that Padmanabha was an employee under a milk vendor and was proceeding on the road where he was killed and that the notices which were issued to the driver, the owner and the insurer fetched replies repudiating the claim for compensation. They also added that the fourth respondent was impleaded as a party by reason of the allegation made by respondent 2 that the vehicle had been sold to him.

6. It appears to me that the form which is prescribed for the presentation of a claim was mechanically filled up by the claimants in the belief that since rashness and negligence and other particulars had already been set out in the notice preceding the presentation of the claim petition, it was not necessary to reiterate those allegations again. To my mind, the language of the form is such as to mislead a claimant in that way. The 22nd column should require the claimant to state the grounds on which the respondents are sought to be made liable for compensation instead of merely asking him to give any other information that may be necessary or helpful in the disposal of the claim.

7. The form prescribed by the Rules is to my mind both inadequate and misleading. It asks the claimant to state many things without requiring him to state the really essential facts supporting the claim. The 22nd column is the only column against which those material facts could be stated, but, that column which speaks of 'any other information that may assist' 'the disposal of the claim', cannot be comprehended as a requisition for facts creating a right to compensation The language of that column appears to be in the nature of an invitation to state other subsidiary information which the claimant might consider useful to him.

8. So the prescribed form is a poor substitute for a plaint and there can be no rational reason for insistence on a pleading through its columns. A claim for compensation for death or injury which should be supported by a statement and proof of facts which create a right to it, should be allowed to be made through a properly prepared pleading such as a plaint produced before the ordinary Courts, and, not through the obscure columns of an imperfect form such as the one prescribed by the Rules. It is however, unnecessary to say more about this in this appeal.

9. However that may be, there can be hardly any doubt that the proceedings before the Tribunal proceeded on the assumption that the claim was one for compensation for death caused by negligence on the part of respondent 1 who drove the motor vehicle. Indeed, the fifth issue which was raised by the Tribunal rends:

' Whether the accident was caused due to the rash and negligent driving of the 1st respondent or whether it was caused by the negligence of the deceased '

So, it is manifest that, the case for the claimants was what was set out in Exhibit P-4 which is the notice issued to respondent 1 and which admittedly was similar to the notices issued to the other respondents. In that notice the allegation made by the claimants was that Padmanabha was proceeding from the South to the North on the Kulur Ferry road which is also called Mangalore Suratkal Road, at about 5-15 P.M., and that he was riding his bicycle on the left side of the road. It was also stated that the motor vehicle driven by respondent 1 which belonged to respondent 2 was travelling from the opposite direction from the North to the South, and, that respondent 1, instead of keeping the motor vehicle to his left drove it on the off-side of the road and collided against Padmanabha and killed him. It was alleged that Padmanabha was an employee under certain Ramakrishna, a milk vendor, earning Rs. 90 a month and that the pecuniary loss sustained by the claimants in consequence of Padmanabha's death amounted to Rs. 5,000.

10. All the four respondents produced their defence before the Tribunal. Respondent denied his liability to pay any compensation and also denied that there was any negligence or rashness on the part of the driver. He also made the allegation that al the time of the accident, he had ceased to be the owner of the motor vehicle which, according to him, had been sold to respondent 4. But that allegation was abandoned by respondent 2 before the Tribunal through a memo which he produced before it on September 27, 1964 in which he admitted that the registration certificate of the motor vehicle continued to be in his own name.

The meaning of this memo, according to Mr. Vittal Rao who appears for Respondent f before us is that, respondent 2 abandoned the plea that there was any sale in favour of respondent 4 and that in consequence of any such sale, respondent 2 became absolved from the vicarious liability to pay compensation to the claimants. We must, therefore, proceed upon the footing that respondent 2 was admittedly the owner of the motor vehicle when Padmanabha was killed.

11. But the more serious defence was that raised by respondents 1, 2 and 3 who are the driver, the owner and the insurer and respondent 4 who was the alleged purchaser of the motor vehicle.

It should be mentioned at this stage that we are not really concerned in this appeal with respondent 4. whatever might have been the position after the production of the memo by respondent 2 on June 27. 1964 before the Tribunal, with the abandonment of the plea that in consequence of the sale respondent 2 had become divested of the ownership of the vehicle at the time of the accident. If Padmanabha was killed in consequence of the rash and negligent act on the part of respondent 1, the liability to pay compensation was that of respondent 2 and not that of respondent 4

12. Mr. Vittal Rao appearing for respondent 2 does not dispute that the material on record establishes beyond doubt that at the time when Padmanabha died, respondent 2 was for all purposes the owner of the motor vehicle and that respondent 1 was under his employment. That being the true position Mr. Narayana Rao, the learned Advocate for the claimants, does not deny that if the claimants have proved negligence, the award can only be against respondent 2 and not against respondent 4 as between them

13. Every one of the remaining 3 respondents. Respondents 1, 2 and 3, denied that the claim ants were the legal representatives of the deceased Padmanabha. but since P. W 6 who is Padmanabha's mother gave evidence that she was the mother of her son and since as provided by Section 8 of the Hindu Succession Act read with Section 17. the mother who is in Class I is the sole legal representative of Padmanabha to the exclusion of claimants 2, 3 and 4 who are either the sisters or the brother of Padmanabha and who fall within Class II to the schedule of the Hindu Succession Act. So, it is not disputed before us by Mr. Vittal Rao that the first claimant is the legal representative of Padmanabha and therefore, entitled to compensation such as could be properly claimed by her in these proceedings

14. What respondent 1 stated in his defence was that although he did drive the motor vehicle, which, as already observed, belonged to respondent 2 he was not responsible for the death of Padmanabha In effect his defence was that there was no collision between the bicycle ridden by Padmanabha and the bus driven by respondent 1. His allegation was that Padmanabha when he was riding his bicycle, looked behind, lost his balance, and fell down and died in consequence of the injuries which he sustained when he fell on the road. Although respondent 2 did not in so many words adopt the defence put forward by respondent 1. respondent 3 said very much the same The defence by this respondent who is the insurer was that Padmanabha who was not very happy on the bicycle and was very unsteady on the road, looked behind, lost his balance, fell down and met with his death and that the bus has nothing to do with it.

15. On these pleadings the Tribunal raised the 5th issue which I have already extracted which poses the question whether the mishap was attributable to the rashness and negligence on the part of the driver or whether it was attributable to Padmanabha's negligence. On this issue the finding of the Tribunal was entirely in favour of the respondents, and adverse to the claimants. That finding was that there was no rashness or negligence on the part of the driver and that Padmanabha brought about his death by his own negligence. In effect, the finding was that Padmanabha was responsible for the mishap which befell him.

16. It should be however mentioned that, the Tribunal did not believe the story stated by respondents 2 and 3 that the injuries sustained by Padmanabha were attributable to the fall on the road when he looked behind and lost his balance. The Tribunal had no doubt in its mind that Padmanabha was caught under the wheels of the bus driven by respondent 1 and was crushed to death. But the Tribunal was nevertheless of the view that even though it was not true that Padmanabha died in manner mentioned by the contesting respondent, the evidence revealed that Padmanabha rode his bicycle on the off-side of the road instead of keeping to the left and collided against the bus which, according to the Tribunal was being driven on the correct side by respondent 1. But the Tribunal properly proceeded to record a finding as to the measure of the compensation properly claimable by the claimants and was of the view that a sum of Rs. 4,500 was the compensation which could have been claimed in that way if really negligence had been proved.

17. Mr. Narayana Rao, the learned Advocate for the claimants has endeavoured to support this appeal through a challenge which he has made to both the findings recorded by the Tribunal. He has assailed the finding that no negligence on the part of the driver was established as also the finding that the claimants could not claim any sum in excess of Rs. 4,500 as compensation. His submission was that the evidence of the witnesses who gave evidence about negligence was unreasonably disregarded by the Tribunal and that in arriving at the compensation claimable, the Tribunal instead of believing the positive and definite evidence on record indulged in mere speculation

18. It would first be convenient to discuss negligence, to prove which, the claimants examined three witnesses. Those witnesses are P.Ws 1, 2 and 4. P. Ws. 1 and 2 were called to describe the incident which they professed to have seen. P. W 4 gave evidence as to the speed with which respondent drove his motor vehicle at a point a furlong or one and half furlong away from the scene of occurrence, before the bus reached the place where Padmanabha was killed.

19. I should now proceed to summarise the effect of the evidence of P.Ws. 1 and 2. P. W. 1 is Ramakrishna, who, according to him. had employed Padmanabha for distribution or milk which he was selling of his constituents. P.W. 2 gave evidence that he was also riding a bicycle on his way from his shop to a restaurant where he wished to have some tea. The evidence of P. W. 1, was that at the time of the incident, he and Padmanabha were both riding their bicycle in single file along the Kulur Ferry Road from the South towards the North. P. W. 1 was riding his bicycle about 15 feet ahead of Padmanabha. The evidence of P. W. 2 was that he was also on a bicycle on his way to the restaurant and that he was about 20 feet behind Padmanabha.

20. The evidence of both these witnesses was that they were all riding their bicycles on the left side of the road, which it is not disputed is the correct side. The stretch of the road which was described by them as the left side of the road would be the western side of the road on which side alone it was their duty to ride their bicycles.

21. Now describing what happened just immediately before Padmanabha was kailled, P. W. 1 stated that when he and deceased were proceeding on the left side of the road, at a point opposite to a place known as the P W D. Stores, the bus driven by respondent 1 arrived from the opposite direction at high speed and on the same stretch of the road on which P. W. 1 and the deceased were riding their bicycles. The effect of his evidence is that respondent 1 was driving his bus not on that stretch of the road which was to his left side as he should have done, but on the stretch of the road to his right which he should not have done.

22. P. W. 1 proceeded to state that when the bus came there in that way, he became frightened and darted to the further left and after having left the road. 'went downwards' and that when he looked behind, he observed Padmanabha having fallen under the bus Proceeding to state what next happened, he added that the bus dragged Padmanabha along some distance and turned a little to the left and stopped, but Padmanabha had by then died. He also professed to have seen Padmanabha's bicycle lying at a distance and that its front wheel had been damaged P.W. 2 Viswanath who gave evidence that he was a binder in a press, stated that at 4-30 p.m., he left his press and was proceeding towards a restaurant on his bicycle for tea and that at a particular point of time, Padmanabha was proceeding on his bicycle twenty feel ahead of him and that P. W. 1 was ahead of Padmanabha on a bicycle and that they were all riding their bicycles on the left side of the road.

23. The account which he gave of the incident was that the bus came from the opposite side at a high speed along the same stretch of the road on which these three persons were riding their bicycles and that P. W. 1 then reached the extreme left side of the road just in time to save himself from being killed. He added that the bus then came and collided against the bicycle of the deceased and that the impact was on the right side of the bus. That Padmanabha then fell under the rear wheel of the bus which ran over him and that the driver of the bus turned it to the right and stopped it about ten feet away from the place where Padmanabha fell down and that Padmanabha along with his bicycle were both dragged along that distance was the further evidence given by him.

24. Mr. Narayana Rao's submission was that the evidence of these witnesses makes it more than abundantly clear that respondent 1 drove his bus on the off-side of the road which was by itself an actionable negligence. He pointed out to us that the road on which the bus was driven was a narrow road having a width of only 12 feet 10 inches with pavements on either side with a width of 3 feet. There is evidence given by P. W. 2 and also that given by the first respondent who gave evidence as R. W. 1 that at the time there was a collision, there was heavy traffic along the road.

Respondent 1 stated that school children and cyclists were using both sides of the road. During the hearing of the matter before the Tribunal, a sketch which was said to have been prepared by the police during the investigation which they had made, was brought on record by consent of parties and marked Exhibit P 2. From that sketch it will be seen that the road had a width of 12' 10', that there were two pavements on either side of the road measuring 3 feet in width. That sketch indicates also the position of the bus after its motion had been arrested and that some part of the front portion of the bus had really gone over the pavement on the eastern side of the road at that time.

25. The argument pressed upon us by Mr. Narayana Rao was that, we should believe the evidence of P. Ws. 1 and 2 that both of them and Padmanabha were riding their bicycles on the left side of the road and that they had a right to use the highway in that manner. He also asks us to believe the evidence given by them that respondent 1 instead of keeping his bus to his left side of the road, namely, on the eastern stretch of the road, drove it on the off-side at an immoderately high speed and struck down Padmanabha who was caught under the rear wheels of the bus.

26. The Tribunal, however, thought that P. Ws 1 and 2 were not witnesses of truth. It was of the opinion that their evidence was unworthy of belief and in coming to that conclusion it assigned reasons which, to my mind, appear to be quite singular. The main and the principal reason which in its opinion supported its findings was that the driver of the bus drove his bus on the correct side, namely, on the eastern side but that Padmanabha was on the off-side of the road instead of keeping himself on the western stretch of the road and collided against the bus

27. Before proceeding to discuss the reasoning employed by the Tribunal, it has to be observed that Mr Narayana Rao is right in making the submission before us that there was no material before the Tribunal on the basis of which it could have transported itself to the conclusion that Padmanabha was the off-side of the road instead of his left side Mr. Narayana Rao is right in his submission that in reaching that conclusion the Tribunal made out a case for respondents which they themselves never urged and in making that subinission, it seems to me, that Mr. Naravana Rao is on firm ground.

28. It will be recalled that respondent 1 did not even admit that his bus ran over Padmanabha. His definite plea was that Padmanabha who was unsteady on his bicycle at the relevant point of time very unwisely looked behind, lost his balance, fell on the ground and broke his head. No one and not even respondent 2 or respondent 3 suggested that Padmanabha rode his bicycle on the off side of the road, namely, the road to his right.

29. But the Tribunal, nevertheless fell persuaded to think that the probabilities demonstrated that Padmanabha was on the wrong side of the road when he was on his bicycle and that that was how there was a collision on the highway lip arrived at that conclusion by this process He adverted to the evidence of P. Ws 1 and 2 which was to the effect that Padmanabha was on the left side and that respondent 1 was on the off-side Having alluded to that evidence, the Tribunal stated that if indeed that is how the collision happened, the bus when it was in motion and was stopped by respondent 1 about 10 feet from the place of the incident, should have been on the centre of the road instead of its being found us is seen from Exhibit P-2, on the extreme eastern side with a part of the front portion of the bus on the pavement

30. It seems to me that the reasoning is both artificial and unrealistic It is nol easy to understand how the Tribunal could have thought that if Padmanabha was on the correct side of the road and the bus was on the off-side and it went and collided against him. the bus could not have gone beyond the centre of the road to the pavement as revealed by Exhibit P-2 The Tribunal seems to have assumed that in all cases where there is collision between a motor vehicle travelling on the off-side of the road and a pedestrain or a cyclist or even a motorist travelling in the opposite direction on the correct side of the road, the motor vehicle which is responsible for the collision should not go beyond the crown of the road and that it is always possible to arrest its motion when it has reached the centre of the road

What the Tribunal overlooked was that the question as to where and in what particular spot the person in charge of the motor vehicle will be able to stop that vehicle, depends upon various facts including the control he has over the vehicle, its speed, the condition of the road, his presence of mind and the like so, the supposition which impelled the conclusion that the evidence of P.Ws 1 and 2 was necessarily incompatible with the position of the motor vehicle revealed by Exhibit P-2 is manifestly groundless and quite unfounded and opposed to the pleadings and docs not fit into realities.

In my opinion, far from there being any antithesis between the evidence given by P. Ws 1 and 2 and the position of the motor vehicle revealed by the sketch Exhibit P-2. Exhibit P 2 really is in the nature of a corroborating piece of evidence lending assurance to the truth of the evidence given by P. Ws. 1 and 2.

32. (After discussing the evidence in para. 31, the judgment proceeds) : The Tribunal was inclined to think that there were other reasons for distrusting the testimony of the two witnesses. The first mistake committed by it was in thinking that there was anything in sketch which could support the deduction that the driver was on the correct side of the road. What the Tribunal did was to think that be cause according to the sketch the bus was on the left side of the road, respondent 1 must have been travelling on that stretch of the road. This inference overlooks the positive evidence given by the two witnesses that the bus reached the left side when it was only taken there after it collided against Padmanabha.

33. Before proceeding to consider the other criticism made by the Tribunal of the evidence of these witnesses, it should be pointed out that the Tribunal thought that the two witnesses were biassed in favour of the claimants and that they either 'indulged in unnecessary lies' or 'made a deliberate false statement'. The basic mistake committed by the Tribunal in this context was to think that P.Ws. 1 and 2 were not independent witnesses. The reason given by the Tribunal for coming to that conclusion was that P. W. 2 admitted that he was a friend of P.W.1 and that they were therefore, 'highly interested in each other'. The Tribunal thought that, that being the position it was necessary for the claimants to produce some other independent evidence.

34. It is true that P. W. 2 stated that he was a friend of P. W. 1, but the fact that there was such friendship between them cannot necessarily lead to the inference that they were highly interested in each other. The only interest which one might have had in the other can be no higher than the ordinary interest which normally one friend has in the other. But the real question is not whether P W 2 was a friend of P W 1 but whether any of these two witnesses had any reason to give false testimony in favour of the claimants.

A witness is generally characterised as an interested witness only when it is established or proved that there is some kind of Interest in the success of the party on whose behalf and in whose favour he gives evidence. If the two witnesses who have no such bias in favour of the party who calls them to give evidence but are however, interested In each other, it would be unreasonable to think that they are not Independent witnesses.

From the point of view of the claimants who called P. Ws. 1 and 2 to give evidence it is seen that they were disinterested witnesses unless it was established that there was some reason for thinking that they were themselves interested in the success of the claimants. That interest is, to my mind, not established though an ingenious argument was advanced before us for the first time before this Court that P. W. 1 gave evidence in support of the claimants with the intention of escaping from his own liability to pay compensation to the claimants under the provisions of the Workmen's Compensation Act.

35. Not even the Tribunal was disposed to think that, that was why P. W. 1 gave his evidence.

37. (After discussing the evidence, in paras 35 and 36 the judgment proceeds: Mr. Sundaraswamy appearing for the Insurer suggested to us that P. W. 1 might have felt persuaded to give false evidence out of humanitarian considerations and out of deep sympathy and commiseration for the destitute dependents of Padmanabha. It seems to me that, that argument is really groundless. It was not suggested that, there was any reason for P. W 1 to evince any such inordinate interest in supporting the claimants. All that is in evidence is that Padmanabha was an employee under P.W.1 and on the dale of the accident, P. W. 1 was taking Padmanabha to his customers to introduce them to him. It does not appear that there was even any casual acquaintance, between any of the claimants and either P.W. 1 or P. W. 2.

38. The Tribunal, however, thought that the journey performed by P. W. 1 and Padmanabha at the time of the accident was itself improbable.

39. (After discussing the evidence in para. 38, the judgment proceeds:) The approach In the Tribunal was at the inception misconceived, That misconception consisted of the fact that in its opinion the bus would have stopped on the crown of the road if the evidence of P. Ws 1 and 2 was true Of the sustainability of that inference, there has been sufficient discussion. If the Tribunal had not landed itself in that wrong finding, it is obvious that it would have had no hesitation in acting upon the evidence of P. Ws. 1 and 2.

40. Now there is one reason why we should say that P. Ws I and 2 are demonstrated to be witnesses of truth. No respondent in any one of the defences which they have produced alleged that Padmanabha was on the wrong side of the road. As already observed, although an attempt was made to establish for the first time in the cross-examination of P. W. 1 that he was on the wrong side of the road, that endeavour did not succeed since P. W. 1 denied it. But what is of significance is that when P. W. 2 gave similar evidence that Padmanabha was on the correct side of the road, that part of the evidence was not subjected to any cross-examination. It was not suggested to him as in the case of P. W. 1 that he was on the off-side of the road. But what is of greater importance is that when respondent 1 gave evidence as R. W. 1, he did not state in his examination-in-chief that Padmanabha was on the wrong side. Even when he was cross-examined what he stated was that he did not observe on which side of the road Padmanabha was riding his bicycle.

41. So, what follows is that the evidence of P Ws. 1 and 2 stands uncontroverted and there is nothing inherently improbable in that evidence.

42. Our attention, however, was asked by Messrs Vittal Rao and Sundaraswamy to the sketch Exhibit P-2. from which, according to them, it is clear that the bicycle ridden by Padmanabha was at a point 3' 7' from the eastern edge of the pavement, while the body of Padmanabha was still further to the East of that point at a distance of 1' 10' from that pavement. We were asked to say that the collision was at the point where the bicycle was found and that the body of Padmanabha must have been carried 1' 9' beyond with the vehicle when his body was dragged. The argument constructed was that if that was how the accident really happened, the evidence of P. Ws. 1 and 2 that Padmanabha was on the correct side of the road would stand displaced.

43. But the answer to this argument consists of that which emerges from the evidence of P. Ws. 1 and 2 whose evidence was that after the collision Padmanabha's body and his bicycle were dragged by the bus and the rear wheels in which they had both become entangled over a distance of 10 feet. One can easily' imagine that if that was bow the incident must have happened, there was nothing really intrinsically improbable about that version. During that process the bicycle must have got disentangled earlier than the body and so it is that we find in Exhibit P. 2 there is a distance of 1' 9' between the bicycle and the body and the bicycle itself is nearer the eastern side of the road than the other side. But that surely cannot support the submission placed before us that the point where the bicycle is shown in the sketch is really the place of the collision.

44. The proposition placed before us that in a proceeding like the one before us in which compensation is claimed on the ground of negligence, the burden of establishing actionable negligence on the part of the driver who drove the motor vehicle is entirely upon the claimants is unexceptionable. It is for the claimants to prove such negligence and the question is whether it has been proved.

It is a firmly established rule that a person driving a motor vehicle on a highway must drive the vehicle with reasonable care, strictly observing the traffic regulations and the rules of the road, so as not to imperil the safety of other persons whether they are pedestrians or cyclists or others who have a similar right Io use the high-way on which he drives it. So what is to be established is that respondent 1 in the case before us drove Ins motor vehicle without exercising that reasonable care that was expected of him. If he drove his motor vehicle on the correct side of the road, it would be easy to infer that the collision was on that stretch of the road and that there was no negligence, but, if on the contrary, the evidence establishes that the collision was on the off-side of the road from the direction in which the driver was proceeding, the fact that he did so is prima facie evidence of negligence unless it is established that in the circumstances it was reasonable on the part of the driver to depart from the correct side of the road and stray into the off-side.

45. In the circumstances of this case it is not very difficult to think that it was extremely unreasonable on the part of respondent 1 to drive his motor vehicle on the off-side of the road. The road was a narrow road on which there was heavy traffic which was unusually heavy at the time of the accident, by reason of the school children and cyclists using the highway on both sides of it. Respondent 1 did not explain why and for what reason he drove on the off-side. Since in my opinion we should believe the evidence of P. Ws. 1 and 2 that he did so and since we should dissent from the Tribunal's finding that Padmanabha was riding on the wrong side, what follows is that the collision happened when Padmanabha was on the right side and respondent 1 was on the wrong side. So, it became necessary for him to explain how it was that he brought his bus into the off-side of the road instead of keeping it on the correct side. He offered no explanation whatsoever for having done so, but on the contrary he stated something surprising in the course of his evidence.

46. What respondent 1 stated was that he did not see on which side of the road Padmanabha was riding his bicycle. He stated that he was driving the motor vehicle at 15 or 20 miles an hour and that when he was near the bus stand, he heard a sound from the rear side of the vehicle and shouts from the people in the neighbourhood. He added that he stopped the bus and saw Padmanabha lying on the road with blood exuding from his head. It seems to me that we should not believe the evidence of respondent 1, It is not easy to believe that he did not observe on which side of the road Padmanabha was riding his bicycle. It is not also easy to believe that he never knew how the accident happened until he stopped the bus and found Padmanabha in an injured condition.

47. It is Incontrovertible that a person driving a motor vehicle must keep a good look out In all directions of the road, on the sides and on the stretch of the road in front of him. The evidence of P. W. 1 is that near the place of the accident, the road was a straight road there was clear visibility over a distance of about a furlong So, respondent 1 should have bean able to see if he was really keeping that good lookout which was expected of him that Padmanabha was riding a bicycle right in front wrong on his part to drive his bus on that stretch of the road which was really the wrong side for him. The very ordinary care expected of him required him to stop the bus in that situation by the application of brakes so that there may be no peril or danger to Padmanabha who had an equal right to use the highway and was using the right part of it unlike the first respondent.

48. Far from having done anything of the kind, respondent 1 tried to make it appear that he did not even observe the fact that Padmanabha was on his own right side of the road. On the contrary, he said that he was driving his bus at a speed between 18 and 20 miles an hour. Although P. W. 1 did not state the exact speed at which the motor vehicle was driven, the effect of his evidence is that it was being driven at a high speed. The evidence of P. W. 2 was similar. P. W. 4 was called to give evidence that at a point a furlong or a furlong and a half behind the scene of occurrence and before respondent 1 collided against Padmanabha respondent 1 overtook another bus in which P. W. 4 was travelling. P. W. 4 stated that he apprehended when respondent 1 did that, that he would involve himself in an accident, as indeed he did. His evidence was that the bus in which he was travelling was being driven at 20 or 25 miles an hour which means, that the speed at which respondent 1 drove his bus was higher.

49. On the question of speed it should be observed that the mere fact that a motor vehicle is driven at a high speed is by itself not conclusive of any negligence. The speed at which a motor vehicle may be driven is the speed which in the circumstances is reasonable. While: it may be negligence on the part of a driver to drive a motor vehicle in a very crowded road even at ten miles an hour, one who drives his motor vehicle even at sixty miles an hour over a stretch of a high-way over which there is little or no traffic may not constitute negligence. Further, the evidence of P. Ws. 1, 2 and 4 on the question of speed at which the motor vehicle was driven by respondent 1 may be said to be approximate estimates made by men who could not possess the competence to judge accurately the speed of the vehicle.

50. But what, however, transpires is that from the point of view of the three witnesses the speed was on the side of being excessive. It seems to me that they were right in thinking so particularly since the evidence of P. W. 4 reveals that on the very narrow and crowded road, respondent 1 overtook another bus which was indeed a very perilous thing for him to do and within a furlong and more after he had done so, he knocked down Padmanabha. P. W. 1 was able to escape from being knocked down himself in consequence of his having been able to get away from the road which Padmanabha however was not able to do

51. It is also seen from the evidence of respondent 1 that he must have been driving his motor vehicle at a speed which was somewhat excessive. He gave evidence that between the two points which he described as Hampankatta and Kulur, he had to make eight trips according to the instructions given to him in six and half hours. The effect of his evidence is that each such trip would occupy an hour What be said was that the journey from Hampankatta to Kulur would occupy half an hour, which means, that the return journey would also occupy the same time. So, for the eight journeys he had to per-form between the two places, the time that he would have required is eight hours but he had to compress those eight journeys within six and half hours. That perhaps is the reason why respondent 1 was rushing from Kulur to Hampankatta at the time of the Incident and over-look the bus to which P. W. 4 was travelling. In that process, he must have been moving for the purpose of avoiding the other traffic on the road, from the correct side to the off-side and from the off-side to the correct side and it must have been during one of those perambulation that he found himself on the off-side when Padmanabha was right in front of him.

52. What I have discussed so far is sufficient to establish such negligence as the claimants had to prove. But it was urged before us that we should desist from reaching that conclusion since the claimants did not call any of the passengers who were travelling in the bus driven by respondent 1 to give evidence. It was also said that P. W. 2 admitted that he was not examined In the Court of the Magistrate where respondent 1 was prosecuted for rash and negligent driving, and, that he was not so examined probably on the ground that he was not a witness to the occurrence. It does not appear to me that it was either necessary for the claimants to examine the other passengers in the bus or that the evidence of P. W 2 could be disregarded on the ground that he was not examined in the Court of the Magistrate

It is not shown that P. W. 2 was not cited in the charge-sheet and it is just possible that P. W. 2, although cited, was not examined on the ground that he was only duplicating the evidence given by the others. If the evidence of P. Ws. 1 and 2 strikes us as evidence of witnesses of truth, as it should strike us, their evidence cannot be excluded or distrusted on the ground that some other witnesses might have been examined by the claimants.

53. Our attention was asked to the evidence of respondent 1 who stated that there were no marks on the bus, which Mr. Sundaraswami urged should have been found if really the collision was in manner described by P. Ws. 1 and 2. Respondent 1 did say that there were no such marks, and, that, to my mind is by no means conclusive. The question whether a collision leaves traces of it on the body of the bus is dependent on the manner in which it occurs, and, if soon after Padmanabha was knocked down by the bus, neither his bicycle nor he came into contact with the broad side-of the bus and went underneath the wheels, no one should feel surprised if there were no dents or scratches, and, beyond the evidence of respondent 1, there is really no other trustworthy evidence that there was not even a scratch on the body of the bus.

54. It was next urged before us that there was no indication in the sketch Exhibit P. 2 that, there were any marks left on the road when Padmanabha and his bicycle were dragged along it, and that if really the incident happened as described by the witnesses, respondent 1 must have suddenly jammed the brakes which would have left some traces on the road. But this argument assumes that there wore no such marks on the road but depends upon entirely on the sketch Exhibit P. 2 which does not refer to any such traces. But Exhibit P. 2 does no more than to delineate the topography and if it does not state that there were any marks on the road, it does not follow that there were no such marks.

55. At one stage to the argument Mr. Sundaraswamy asked us to say that since respondent 1 was acquitted by the Magistrate in the prosecution launched against him for rash and negligent driving, that acquittal to some extent negatives the negligence imputed to him. It is obvious that the order of acquittal upon which Mr. Sundaraswamy depends cannot be used In that way. We nave to found our conclusion as to negligence upon the material before us and the purpose for which the order of acquittal can be used is only to prove that there was an order of acquittal and nothing more.

56. When P. Ws. 1 and 2 were in the box, no questions were put to them to support the theory which was really advanced and propounded by respondents 1 and 3. That theory to which respondent 2 however, did not subscribe was that Padmanabha was not quite steady on the bicycle which he rode, and that when the accident happened, he looked behind for some inexplicable reason, lost his balance and fell on the road and met with his death. The evidence given by P. W 3, the Resident Medical Officer makes it abundantly clear that Padmanabha's injuries were not caused by the fall on the road and that those injuries are attributable to the fact that he was caught under the wheels of the bus and crushed. The Tribunal was right in depending upon the evidence of P. W. 3 in coming to that conclusion.

57. But what is surprising is that, to P. Ws. 1 and 2, no suggestion was made that when Padmanabha rode his bicycle in manner stated in the defence, he was unsteady on the bicycle, looked behind and fell down. The only suggestion made for the first time and that in the evidence of P. W. 1, was, that Padmanabha was on the wrong side of the road and nothing more. Mr. Vittal Rao however, asked attention to the evidence of Padmanabha's mother P. W. 5, who stated that Padmanabha was only a learner and that he bad commenced to learn cycling at the time of the accident and that it was therefore, very probable that when Padmanabha rode his bicycle in a crowded street, he was not able to control the bicycle or maintain his balance and must have found himself right in front of the bus when it was coming on the road. To say that Padmanabha was a learner is one thing and it is quite a different thing to say that while he was riding his bicycle before he had perfected the art of riding a bicycle, he found himself on the wrong side of the road. That he did so is not proved. Whatever may be the perils which a person who has not yet mastered the art of riding a bicycle encounters when travelling along a road which is full of traffic, if really he was keeping on the correct side of the road and a motor vehicle coming from the opposite direction on the off-side of the road knocks him down, the fact that the cyclist was a learner can surely be no defence to a claim to compensation on the ground of negligence.

58. I should have mentioned that during the arguments before us the evidence of P. W. 1 was subjected to the criticism that it was at variance with that given by Padmanabha's mother P. W. 5, on the question as to the duration of the employment of Padmanabha.

59. (After discussing the evidence the judgment proceeds): Dissenting, therefore, from the Tribunal we should, in my opinion, say that respondent 1 drove his motor vehicle in a rash and negligent way and collided against Padmanabha who was riding his bicycle on the correct side of the road without there being any negligence on his own part. That finding is what supports the claim to damages.

60. What should therefore, now, to be considered is the measure of damages. The evidence of P. W. 1 was that Padmanabha at the relevant point of lime, was earning Rs. 90 a month under him. The Tribunal was disposed to think that his evidence could not be accepted since in its opinion it was not probable that a milk vendor like P. W. 1 would have paid a salary of Rs. 90 a month to Padmanabha.

61. P. W. 1 was asked whether he had maintained any accounts and some questions were put to him as to whether he paid any sales-tax and he stated that he did not pay. It is surely unreasonable to expect a milk vendor like P. W. 1 to maintain accounts having regard to the business carried by him. But to my mind there is nothing improbable in Padmanabha being paid a salary of Rs. 90 a month for the work which he was doing under P. W. 1

It was urged before us that in Exhibit P-4 there is no statement that Padmanabha was getting a salary of Rs. 90 a month But that would not be a reason for distrusting the evidence of P. W 1. It is just probable that the notice stated nothing about it either for the reason that it was considered to be a matter which need not be mentioned in the notice or because, the claimants had no information about the exact salary which Padmanabha was receiving.

62. However that may be, the Tribunal thought that Padmanabha might have been earning Rs 50 a month at the time of the accident and that according to reasonable expectations, he would have been able to earn Rs. 100 sometime later and that the pecuniary loss sustained by the claimants would be a loss extending over a period of 15 years according to ordinary and reasonable expectations. Out of the sum of Rs, 50, the Tribunal thought that a sum of Rs. 25 would be required by Padmanabha towards his own expenses, and, the pecuniary loss was the remainder. That was capitalised by the Tribunal over a period of 15 years and the conclusion reached was that Rs. 4,500 would be the proper measure of compensation.

63. Mr. Narayana Rao, to my mind, is right in urging that this assessment of the compensation does not rest upon any evidence or on any acceptable principles.

64. The argument maintained by him was that the Tribunal should not have kept aside positive evidence which afforded a satisfactory basis for the computation of damages and indulged in mere speculation as to the income which Padmanabha was earning when he was killed.

65. This submission is not without substance.

66. The evidence of P. W. 1 that Padmanabha was earning a salary of Rs. 90 a month stands corroborated by the evidence of his mother P. W. 5 who stated that he was getting a salary of Rs. 90 a month. Her evidence was also to the effect that even during the period when he was doing some kind of other work, he was earning Rs. 3 a day. Her own income, according to her was Rs. 9 a week. Taking all the circumstances into consideration, it seems to me, that it was really not right on the part of the Tribunal to discard all this evidence and to arrive at the conclusion that Padmanabha could not have been earning more than Rs. 50 a month when he died. We should, I think, proceed upon the basis that he was earning Rs. 90 a month then.

67. The Tribunal thought that Padmanabha would have been able to earn a larger income as he grew older and it was right in coming to that conclusion. The Tribunal capitalised the income over a period of fifteen years, and, it is not contended before us by the learned advocates appearing for the respondents that, that capitalisation was excessive. We should take Rs. 90 as the income of Padmanabha at the time of the accident and compute the pecuniary loss having regard to normal and ordinary expectations, and, making allowances for either loss or diminution of the earning power in consequence of unforeseen events, such as death, illness and the like, and also discounting the amount suitably for the reason that the claimant would receive in a lump sum the amount so computed.

68. Now, even if out of Rs. 90 which Padmanabha was earning, a moiety can be said to have been required for the personal expenses of Padmanabha and the remainder is capitalised in manner done by the Tribunal, and, it is suitably discounted, the compensation claimable by the claimant would be in excess of Rs 5.000 which the claimants have claimed. In that view of the matter, the compensation which was claimed cannot be said to be excessive

69. Messrs. Villalarao and Sundaraswamy appearing for respondents 2 and 3 respectively did not contend before us that the assessment made by the Tribunal of the compensation payable was excessive or that if the compensation was assessed at Rs. 5,000 any exception could be taken to such assessment.

70. In reversal of the award made by the Tribunal, we should now make an award that claimant 1 who is the only legal representative of the deceased Padmanabha is entitled to be paid a compensation of Rs. 5,000.

71. Now, the question is as to who should pay this amount to the first claimant Seethamma. At one stage, it was suggested by the respondents that a claim for compensation under Section 110-A of the Motor Vehicles Act could not lie against the driver of the motor vehicle. That was also the contention which was raised on behalf of respondent I, but, respondent 1 has not appeared before us and no one represents him. We have been taken through the relevant statutory provisions, and, it appears to me that a claim for compensation can be made under Chapter VIII of the Motor Vehicles Act not only against the owner of the motor vehicle and the insurer, but also against the driver whose negligence produces the claim for compensation.

72. Section 110 empowers the Stale Government to constitute a Claims Tribunal for the purpose of adjudicating upon claims to compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles. Section 110-A creates the right to make an application for compensation arising out of such accident. Section 96 of the Act creates a liability to pay such compensation on the part of the insurer. Section 110-F bars the jurisdiction of Civil Courts to make adjudications which could be made by the claims Tribunal for the area for which such Tribunal has been constituted. There is no provision forbidding the recovery of compensation through the machinery provided by Chapter VIII from the driver of the motor vehicle who is principally responsible for the death or injury if there be negligence on his part. It is clear that a claim for compensation against him could be made only under the provisions of that Chapter to the Claims Tribunal and not to the Civil Court whose jurisdiction is barred by Section 110-F.

73. The consequence of holding that no claim can be made against the driver under Chapter VIII would be that the driver who is the principal architect of the misfortune which befell the deceased or the injured could not be proceeded against for recovery of compensation either under the Motor Vehicles Act or in a Civil Court. An interpretation leading to such a result cannot be sound. In my opinion, the claim against the driver under Chapter VIII is possible in the same way in which it is possible against the owner and the insurer.

74. It is nut urged before us that the insurer is not liable to pay to claimant 1 the entire sum of Rs. 6,000 which has been assessed to be the compensation claimable by claimant 1.

75. The award which we should make in this appeal should be that, claimant 1 is entitled in recover from respondents 1, 2 and 3 the sum of Rs. 5,000 as compensation. She is also entitled to recover interest at four per cent on this sum of money from July 6, 1964, when the Tribunal made its award until the date of payment. In addition. The award shall also specify that, the entire amount of the decree, namely, the compensation, the interest thereon and the costs shall all be paid by the insurer towards its liability under the policy of insurance. Claimant 1 shall be at liberty to execute the award against all or any of the respondents as she shall select.

76. Claimant 1 will also be entitled to her costs both in this appeal as well as in the proceedings before the Tribunal and, these costs shall be payable by respondents 1, 2, and 3.

Chandrashekhar, J.

77. I agree.

78. Appeal allowed.


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