V. Balakrishna Eradi, J.
1. The plaintiff in O.S. No. 25of 1959 of the Subordinate Judge's Court, Kozhikode, has preferred this Second Appeal challenging the decision of the Courts below dismissing the suit filed by him for recovery of Rs. 10,000 from the defendants by way of damages.
2. The plaintiff's case was that on the 15th of May, 1958, while he was proceeding on a motor-cycle from west to the cast along Gandhi Road in Calicut City, a Hill-man car owned by the first defendant and driven by the second defendant dashed against his muter-cycle as a result of which the plaintiff sustained grievous injuries on his right leg necessitating his treatment as an in-patient in the Government Headquarters Hospital for more than six months. It is alleged that the accident was caused on account of negligence on the part of the driver of the car who suddenly reversed the vehicle and later moved southwards without sounding the horn or indicating the direction in which he was trying to proceed.
It is averred in the plaint that the ear was driven right across the road at a very high speed so suddenly that the plaintiff could not take any action to avert the collision and that there was no negligence whatever on the part of the plaintiff. It is stated that the plaintiff had been earning about Rs. 1,000 per month as a timber merchant and that on account of the injuries caused by the accident he was totally disabled from attending to his business for over 8 months. The damages caused to him on this account have been estimated in the plaint at Rs. 6,666.60. In addition, the plaintiff has claimed a sum of Rs. 3,000 for the expenses of medical treatment and also a further sum of Rs. 1,000 as compensation for the physical and mental strain caused to him on account of the injuries. The plaint claim in the aggregate has, however, been limited to Rs. 10,000. The third defendant is the insurance company with whom the first defendant's vehicle had been insured.
3. The defendants contended that the accident occurred because of the plaintiff's own rash and negligent handling of the motor-cycle and not on account of any negligence on the part of the driver of the car. They pleaded that the plaintiff had absolutely no cause of action against the defendants and was not entitled to recover any amount from them by way of damages. They also questioned the various items of damages claimed in the plaint and put the plaintiff to strict proof therewith.
4. Both the Courts below have concurrently found that the plaintiff has not satisfactorily proved that the accident was caused as a result of negligence on the part of the driver of the car and that on thisground the suit for damages had to fail. This concurrent finding has been arrived at by the Courts below mainly on an appreciation of the oral testimony adduced in the case, there being very little documentary evidence relating to this important aspect of the case.
5. The question as to whether or not the accident was caused by negligence on the part of the second defendant is purely one of fact and a concurrent finding entered thereon by the Courts below is not ordinarily liable to be canvassed before this Court in second appeal. The learned counsel for the appellant, however, contended that in arriving at the said finding the Courts below nave proceeded on a wrong understanding of the averments contained in the plaint and that there has also not been a proper consideration by them of the oral evidence adduced in the case. It was further urged that the finding entered by the lower Courts is perverse and is liable to be set aside on that ground. In view of these contentions raised by him I permitted counsel to take me through the pleadings and the entire evidence recorded in the case.
6. I am not satisfied that there has been any misreading of the pleadings by the Courts below. The pleadings have been correctly summarised in the judgments of the two Courts. The lower Courts were fully justified in observing that the averments contained in paragraph III (2) of the plaint relating to the manner in which the accident is alleged to have taken place art absolutely vague and wanting in material particulars. I find no substance in the complaint that the approach made by the Courts below to a consideration of issues 3 and 4 has been in any manner vitiated by an erroneous understanding of the averments contained in the plaint.
7. Both the Courts below have fully discussed the oral evidence tendered by P.Ws. 1 to 3 and D.Ws. 1 and 2 and hence it cannot be said that they have omitted to discuss the evidence on record before entering their findings on the concerned issues. Having been taken through the oral evidence I am inclined to agree with the Courts below that the plaintiff has not succeeded in establishing that the accident was caused as a result of negligence on tbe part of the driver of the motor-car.
8. As observed by Lord Wensleydale in Morgan v. Sim, (1857) 11 Moo EC 307, 312:
'the party seeking to recover compensation for damage must make out that the party against whom be complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales, and does not satisfy the Court that it was occasioned by the negligence or default of the other party, he cannot succeed.'
9. Learned counsel for the appellant contended that there is prima facie proof of negligence in this case, because according to him, at the time of the collision, the motor-cycle was proceeding towards the east on the northern edge of the road on the metalled portion whereas the car which had been turned towards the west had almost crossed the road and came to the northern side. In other words, the argument was that the motor-cyclist was keeping to the left when he was hit and that inasmuch as he was keeping to the correct side according to the rules of the road and the car had come to the wrong side, negligence on the part of the car driver has to be presumed.
This argument, however, proceeds on certain assumptions of fact which are not entirely borne out by the evidence. As already noticed, the averments in the plaint as to the manner in which the accident took place are hopelessly vague. In Ext. B-8, which is the statement given by the plaintiff to the police very shortly after the accident, he has stated that the accident took place while the car was being reversed. The same version has apparently been stuck to in paragraph III (2) of the plaint also, although the averments are by no means clear. But the plaintiff in his oral testimony has attempted to make out that the collision occurred when after reversing the car the second defendant suddenly drove it across the road in the forward gear in a northerly direction.
I do not find any valid ground to differ from the view expressed concurrently by the Courts below that the statement in Ext. B-8, being the earliest in point of time and, therefore, made at a time when the facts were fresh in the mind of the person con-cerned, ought to be preferred to the version given by the plaintiff as P.W. 1 after a lapse of about 1 1/2 years. Particulars regarding the direction facing which the car was originally parked, and on which side of the road it had been parked which are most material and necessary for understanding the exact manner in which the accident took place, are significantly omitted to be mentioned in the plaint. The plaintiff has no consistent case in his evidence also on these aspects.
10. The testimony of P.Ws. 2 and 3 has been rightly rejected by the Courts below as unworthy of reliance. Even though the second defendant who has been examined as D.W. 1 has endeavoured to make his testimony helpful to the plaintiff, the Courts below have not chosen to believe his evidence since they were of the view that the witness who had been dismissed from the first defendant's service had every motive to depose against the interest of the first defendant.
11. The mere circumstance that the second defendant had been convicted in C.C. No. 1443 of 1958 for rashness and neg-ligence in connection with the accident can-not in any way be regarded as constituting even prima facie evidence of negligence in this action against his master, particularly because it is seen from Ex. A-1 that the conviction was based only on the plea of guilty put forward by the accused.
12. The learned counsel for the appellant invited my attention to the decision of the Madhya Pradesh High Court in Sada-ram Kanhaiya v. Sobharam Sadaram Kalar, AIR 19G2 Madh Pra 23, wherein it has been held that though in an action for damages for death due to rash and negligent driving it is for the plaintiff-to establish negligence of the defendant in the first instance, direct evidence is not necessary for establishing negligence and it may be inferred from the circumstances of the case. The difficulty for the plaintiff in this case, however, is that there is neither direct nor circumstantial evidence which can legitimately justify the interference that the accident in question was caused on account of the negligence on the part of the second defendant. Counsel sought to rely also on the decisions reported in Jang Bahadur Singh v. Sunder Lal Mandal AIR 1962 Pat 258; Bangalore Printing and Publishing Co. Ltd. v. M. K. Murthy, (1935) 13 Mys LJ 345; and Veeran v. Krishnamoorthy, 1965 Ker LJ 1112 = (AIR 1966 Ker 172), but they are not also of any greater assistance to the appellant.
18. It cannot be doubted that the initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff. Once this onus is discharged, it will bo for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. In the present case, it is apparent from the plaintiff's own testimony that the accident took place at a spot where the road is straight and admits of easy distant vision. The plaintiff has deposed that he saw the car parked on the road margin even from a distance of one furlong and that he later noticed that the car was being reversed on the road when he was at a distance of about 60 yards from it. Admittedly, there was little other traffic on the road at that time and the road has a width of about 35 feet. In such circumstances, the motorcyclist having been forewarned about the fact that the motor-car was in the process of being reversed across the road, it is reasonable to infer that with the exercise of due care and caution the collision could have been averted by timely action on the part of the cyclist. It has come out in evidence that the plaintiff was having only a learner's licence for riding motor-cycle and therefore, probably lacked experience. As observed by me earlier, essential details as to how and when exactly the collision took place, viz., whether it was during the backward motion of the car as stated in Ext. B-8 or while it was being driven forward after having been reversed, have not been satis-factorily proved. In these circumstances, the Courts below were, in my view, justified in holding that the plaintiff has failed to establish a prima facie case that the accident was caused on account of the negligence of the driver of the car.
14. The judgment and decree under appeal do not therefore call for any interference and are confirmed. The second appeal is dismissed, but in the circumstances of the case I make no order as to costs. No leave.