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6. Now, in the first instance, no such point with regard to contributory negligence appears to have been canvassed on behalf of the opponents before the Tribunal and to permit Mr. Pandya to raise that point for the first time in an appeal in this court particularly when the respondent-clamant is not present (though served), would amount to permitting the opponents to put up a new case without granting any opportunity to the other side to meet the same. I am, therefors6 of the opinion that such anew case cannot be permitted to be canvassed before this court in an appeal for the first time, because like any other question involving decision on controversial facts such a case has to be pleaded and proved which is not done in the instant case.
7. Again, on going through the, record, I find that there is no room for arriving at such a conclusion -about cantributory negligence ozi the part of the injured scooter driver (claimant) as Mr. Pandya wants me to draw from the material on record of , this case. Mr. Pandya relies on, three of the rules of the road which are contained in the 10th Schedule to the Motor Vehicles Act, 1939. Rule 1 enjoins upon the driver of a motor vehicle to drive the vehicle as close to the left hand side of the road as may be expedient and to allow all traffic which is proceeding in the opposite direction to pass him on his right hand side. Rule 6 provides that the driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon. Rule 7 provides that the driver of a motor vehicle shall, on entering a road intersection if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and m any other case give way to all traffic approaching the intersection on his right hand.
8. With regard to Rule 1, there b nothing to show that the driver of the scooter was not driving the scooter as close to -the left hand as expedient As the evidence shows, he was driving claw to the left hand side. But as Mr. Pandya points out from the panchnama, the scooter was found lying in the middle of the road and he therefore submits that the accident must have happened on the middle of the road. In the first instance,, it has to be borne in mind that at the time when the panchnama was drawn, the car could not be at the place oil the accident because it had been removed for the purpose bf carrying the Injured to the hospital. The scooter was lying there in the middle of the road, but its lying in the middle of the road need not necessarily lead to a conclusion that the accident had also happened at that very place, meaning thereby that the impact, and the head-on, collision between the two vehicles had taken Place, at the exact spot where the scooter was found lying, at the time of panchnama. As a matter of fact, as the evidence shows, because of the impact from a. heavy vehicle like the car to a light vehicle like the scooter, the scooter spun round from east to west and lay facing the opposite direction. The claimant's case was that the accident happened when his scooter was on the left hand side of the road and he and his witness (pinion seat driver) stated in cross-examination in clear terms, that it would be incorrect to say that, at the time of the accident, the scooter was being driven in the centre of the road.
9. With regard to Rule 6, that rule enjoins Precautions to be taken by the drivers when they are negotiating a road junction or a road corner. That- means, the said rule applies at a point of time just before a road junction or road corner is negotiated. In the instant case there ii nothing on record to justify a conclusion that the scooter driver had committed breach of this rule at the time when he negotiated the intersection, As a matter of fact, after he had fully negotiated the intersection and had already switched over to the road leading to Kankaria that the accident happened. It, therefore, cannot be said that the accident happened because of the breach of this rule.
10. Rule 7 would apply only in a case in which there is a main road designated as such , under Section 77 Of the Motor Vehicles Act. There is no evidence on record to suggest that the road between maninagar railway station and Bal Vatika was designated as a main road, as such, Rule 7, therefore, cannot be pressed into service by Mr. Pandya to advance the cause which he pleads. Again, mere breech of a rule of the road by itself though it may entail the imposition of penalty prescribed for the breach, would not prove negligence. It may at the most, be a piece of evidence to be considered along with other evidence on record for the purpose of arriving at the conclusion of, negligence. In the instant case, there is no such evidence lending assurance to any such finding about the negligence of the scooter driver.
11. x x x x x x x x x x x.
12. The appeal has no merit and is, therefore, dismissed.
13. Appeal dismissed.