G.T. Nanavati, J.
1. This appeal arises out of the judgment and award passed by the Motor Accident Claims Tribunal, Surendranagar in Motor Accident Claim Petition No. 32 of 1975. The appellant Gujarat State Road Transport Corporation is the original opponent No. 1 in the said claim petition.
2. On 3-6-85 at about 1-30 p.m. there was a collision between an S.T bus bearing No. GTE 6720 belonging to 'the appellant Corporation and the car bearing No. GJY 5517 belonging to respondents No. 1 to 6 who were original applicants in the said claim petition. As a result of the said collision, the car was damaged and the occupants of the said car including applicants No. 2 and 6 received injuries. Therefore, the applicants filed Motor Accident Claims Petition No. 32 of 1975 claiming Rs. 40,000/-as compensation in respect of the damage caused to the car, Rs. 1,000/- as compensation for the injuries received by applicant No. 7 and Rs. 9,000/-as compensation for the injuries received by applicant No, 6, The claim of the applicants was contested by the appellant Corporation on the ground that the accident had taken place as a result of rash and negligent driving of the car and not as a result of rash and negligent driving of the S.T. bus by its driver.
3. In order to prove their case that the collision had taken place because of rash and negligent driving of the S.T, Bus driver, the applicants examined Indualal Chimanlal Bbatt, Exh. 22, Kantilal Chhaganlal Exh. 61, Hinadevi Janaksinhji Zala, Exh. 62 and Ramesh Lakhabhai, Exh. 81. The appellant Corporation on the other hand examined the driver Mohmedbhai Habibbhai, Exh, 83.
4. The Tribunal, after considering the oral evidence of these witnesses and the evidence of the Panch witnesses and the Panchnama came to the conclusion that at the relevant time, the car was driven by Hinadevi and not by Indulal as claimed by the applicants and that the accident had taken place as a result of rash and negligent driving of the drivers of both the vehicles. The Tribunal also found that the S.T. driver was negligent to the extent of 75 percent and the driver of the car was negligent to the extent of 25 percent. The Tribunal also found that the damage of the 'car-Saras' to the extent of Rs. 16,000/-. The Tribunal, therefore, awarded Rs. 12,000/- to the applicants by way of compensation for the damage caused to thenar, Rs. 150/- to applicant No. 2 for the injuries received by him and Rs. 3,750/- to applicant No. 6 for the injuries received by her. Against that award, the S.T. Corporation has filed the present appeal. The respondents-applicants had also filed cross objections in the first appeal, but they have withdrawn the same before effective hearing.
5. It was urged by the learned advocate for the appellant that the Tribunal has committed an error in holding that the S.T. bus driver was negligent to the extent of 75 percent. He submitted that if the evidence on record is properly appropriated, it will be found that the S.T. driver was . not at all. rash and. negligent and that the accident had taken place as a result of rash and negligent driving of the car driver. Having gone through the evidence on record, we find that there is considerable force in this contention.
6. First witness examined on behalf of the applicants is Indulal Exh. 22, who according to the applicants was driving the car at the relevant time. He has stated that he had taken the family members of the applicants to the hospital at the request of Bharatsinh. After waiting there for about 5 or 10 minutes, they were returning to their house. At that time he was driving the car. When he came near the culvert, he took a 90 degree turn towards the left side ; and when he had crossed 3/4th portion of the culvert, one S.T. bus was seen by him coming from the opposite direction. According to him, he was driving the car with moderate speed. But the S.T. bus came with excessive speed and collided with his car. He has further stated that after crossing the culvert, he had to take a right hand side turn for going to the house of the applicants. He has further stated that finding the bus coming from the opposite direction, with excessive speed, he took a right side turn with a view to avoid the collision and with a hope that he will be able to cross the road and take the car to the right side toward the road leading to the palace. But before he could do so, the S.T. bus dashed against the car. In his cross exmination he has also stated that he had to take his car toward south, cross the culvert and then go over the road on the right hand side for the purpose of going to the palace. The map at Exh. 69 also makes the position about the situation of the roads very clear. It shows a road coming from the Hospital side and meeting the main road which runs north-south. The said road on the north leads to Surendranagar town and on the south to Limbdi town. The length of the culvert is shown to be about 40 to 43 feet. The width of the pucca road on the spot was about 12 feet with 3 or 4 feet cutcha road on either side. The map also shows that just at the southern end of the culvert there is a road going towards west and that is the road which, according to the evidence, leads to the house of the applicants. The S.T. bus station is situated at a distance of half a kilometre from the spot towards south. The map at Exh. 64 shows the position of both the vehicles after the impact. The bus was found in the middle of the culvert and its right front wheel was about 3'-9' away from the eastern wall of the culvert, and the right rear wheel was about 7 feet away from that wall, The panchnama and the map also show that when the bus had crossed almost half the length of the culvert its driver had applied brakes and the brake marks were noticed upto a distance of about 6-1/2 feet. The map further shows that the bus had not traveled beyond the culvert when the impact had taken place. As a result of the impact, the car was pushed away up to a distance of about ten feet. The position of the car after the impact is also shown in the map Exh. 64. If the evidence of witness Indulal is appreciated in the context of the position shown in the aforesaid maps and the panchnama, it becomes clear that the car had taken a turn towards left, and had entered the culvert and seeing the S.T. bus coming from the opposite direction, the driver of the car tried to take a turn towards fight with a hope that he will be able to take the car on the road, just near the southern and of the culvert and going towards the west. The evidence of this witness, however, has not been relied upon by the Tribunal and in our opinion rightly. For the reasons stated by the Tribunal, we agree with the findings recorded by it that his evidence to the effect that he was present in the car and that he was driving it cannot be believed. Therefore, whatever this witness has stated in respect of the manner in which the accident took place must be ignored.
7. We have then the evidence of Kantilal Exh. 61. He was at the relevant time serving as an Octroi clerk in Limdi Municipality. He has stated that on 3-6-75 at about 2-15 p.m. while he was sitting in the varandah of the octroinaka, he had seen one car coming from the eastern direction, entering the culvert and then proceeding towards the south. After the car had travelled 3/4th portion of the culvert, he heard some noise and when he looked in that direction he found that an S.T. bus had dashed with the car, He has further stated that as a result of this collision, the car was pushed back upto a distance of about ten feet. In his cross examination he stated that his face was towards the road i.e. towards eastern side and that he was sitting at a distance of about 8 to 10 feet from the northern end of the western wall of the culvert. In his cross examination he also admitted that his attention was drawn towards the car only when. he heard the noise of some collision. In view of this admission in the cross examination, it becomes obvious that his attention was drawn towards the car only after the impact was over and not before that. The Tribunal was, therefore, quite justified in discarding the evidence of this witness.
8. Hinadevi, Exh. 62 has stated that as she wanted to go to see one of her relative who was admitted in the Hospital, her mother had requested Indulal to take her to the hospital. She had gone to the hospital alongwith Mahipatsinh, Cbandravirsinh and one Ramesh. She has further stated that while they were returning from the hospital and when they came near the culvert, the car had taken a turn towards the south, entered the culvert and when it had covered about half the portion of the culvert, the S, T. bus dashed against their car as a result of which she received injuries. She has further stated that as he was stunned as a result of the sudden impact and the injuries received by her, she had almost become unconscious, In her cross examination she has stated that as she was stunned, she did not recollect to have seen the passenger coming from the city side i.e. the opposite side who has also committed in her cross examination that at the relevant time, she possessed only a learner's licence. She denied the suggestion that at the relevant time she was driving the car. The Tribunal after appreciating the evidence of this evidence and other witnesses came to the conclusion that it was this witness who was driving the car at the relevant time, and that finding was not challenged before us. From her evidence it becomes apparent that after the car had come near the junction of two roads, one coming from the Hospital side i.e. towards wastern side and the another runnina north-south, it had taken a turn towards the left for entering the culvert and going towards the south. Even she has stated that the ear had covered half the length of the culvert. It is an admitted position that the S.T. bus was coming from the S.T. depot which is towards south. Thus, the bus was coming from the opposite direction. The road is a straight road. As the maps show, the wicth of the pucca road at the place of accident is 12, and the cutcha road on the western side was of the width of 4'-4' and on the eastern side it was of the width of 3-2'. Thus, the total width of the road at that place was about 19 to 20 feet at the relevant time. If the car was really driven at a moderate speed and on the correct side of the road i.e. towards left hand side of the road, while it was passing through the culvert, then in that case, the impact would not have been on the left side of the car but the impact would have been on the right side of the road. From the photographs produced on the record of the case and the panchnama, it would clearly appear that it is the right side portion of the car which is damaged. From the evidence produced on the record of the case, it becomes apparent that the car having already covered half the portion of the culvert, Hinadevi who was driving the car at the relevant time, possibly thought that it will be possible for her to take the car on the road just near the. southern end of the culvert and leading towards the west by taking a swerve on the right hand side. Possibly with that hope she had taken a turn towards right hand side, but before she could cover the entire length of the culvert and reach at the end of the culvert, the car collided with the S.T. bus. That appears to be the reason why the right hand side portion of the car collided with the S.T. bus. It was urged by the learned advocate for the respondents No. 1 to 6 that the car had not at all entered the culvert and that it really wanted to go straight towards the west after crossing the main road and taking a slight turn towards right. Neither the map nor the panchnama nor any other document or evidence on record shows that there is any such road near the northern end of the wall of the culvert. Moreover, this submission is contrary to what Hinadevi has stated, he has, in terms, stated that the car after coming near the culvert had taken a turn towards left end had covered half the portion of the culvert. If Hinadevi really wanted to go straight without crossing the culvert, as contended by Mr. Raval, there was no reason for her to take a turn towards south. The contention raised by Mr. Raval, therefore, clearly appears to be without any basis. He appears to have raised this contention only with a view to get out of the situation Which clearly shows that it was the driver of the car who was negligent. Mr. Raval then relied upon a statement made by witness Mohmedbhai Exh. 83 in his evidence, and contended that the car had not entered the culvert at all. If the evidence of this witness is read as a whole, it becomes apparent that what he wanted to convey was that he had crossed 3/4th portion of the culvert and at that time the car which was being driven in a zig-zag manner came and dashed against his bus. Either became of some confusion or in order to show that he was not at fault, he stated that the car had not negotiated the curve in order to come on the culvert, but had straight dashed against my bus. As we have pointed out above, there was no road ahead on the western side and the car must have taken a turn for entering the culvert. That is what Hinadevi and Ramesh have stated in their evidence. Ramesh, Exh. 91 has also stated that the car had covered half the portion of the culvert and at that place the S.T. bus came.. there, from the opposite direction and dashed with the car. If the evidence of all these witnesses is read as a whole, it becomes apparent that it was as a result of rash and negligent driving of the car by Hinadevi that the accident had taken place. The driver of the bus had applied the brakes on seeing the car coming from the opposite direction either, because it was being driven in a zig-zag manner or because it was being driven with high speed, and that he was able to stop the bus within a distance of only about 6-1/2 feet. Though the bus was in the middle of the road, there was space of about 7 feet on the right hand side of the bus. Therefore, he had taken all the precautions to see that the impact could be avoided. As against that, no brake marks of the car were noticed when the Panchnama was made and that would go to show that the driver of the car bad not applied brakes at the relevant time. Morever, the evidence further discloses that the car had taken a turn towards the right and that would go to show that the driver of the car was possibly thought that without coming into contact with the bus she will be able to cross the, culvert and take: the car on the road which was at the southern end of the culvert. Thus, the accident clearly appears to have taken place as a result of rash and negligent driving of the car by Hinadevi. Moreover, Hinadevi at the relevant time had only a learner's licence as stated by her ; and the evidence does not disclose that any other person knowing driving was sitting by her side. That would also show the extern of rashness and negligence on the part of the driver of the car. Not only that, but she did not produce any evidence to show that she was possessing learner's licence at the relevant time. The Tribunal was, therefore, in error in holding that her negligence was only to the extent of 25 per cent and that of the driver of the S.T. bus was to the extent of 75 per cent. The evidence on record discloses that the S.T. Driver was not at all negligent.
9. For all these reasons, this appeal will have to be allowed and the award passed by the Tribunal will have to be set aside. As we are holding that the appellant Corporation and its driver are not liable, we have not gone into the question regarding adequancy or otherwise of the quantum of compensation awarded to the applicants.
10. In the result, this appeal is allowed. The impugned award passed by the Tribunal is set aside and the, claim petition filed by the applicants respondents No. 1 to 6 is dismissed. There will be no order as to costs.