PRABHAKAR Vs. BHARAT CO-OPERATIVE TRANSPORT SOCIETY LTD

JUDGEMENT

(1.) THIS is an appeal by the claimant Prabhakar under section HOD of the Motor Vehicles Act against dismissal of his entire claim for compensation arising out of a motor accident.

(2.) THE claimant Prabhakar aged about 33 years was employed as a teacher in the Education Department of the State Government and was posted at Madhyamik Vidyalaya, Tanodia, tehsil Agar, district Shajapur. His montly salary then was Rs. 241/ -. The claimant was going to Ujjain on 11 -4 -1971 in bus No. M. P. E. 1650 to appear at the M.A. (Final) examination in Economics which was to commence from 13 -4 -1971. This bus was owned by Respondent No. 1, driven by Respondent No. 2 Abdul Gafoor and was insured with Respondent No. 3 at the relevant time. The claimant was sitting in this bus behind the driver in the 4th row near the window. The bus had left Agar for Ujjain and when it was a few, miles from village Ghosla, it met with an accident.

(3.) THE first question for our consideration is regarding the alleged negligence of the bus driver. Abdul Gaffoor (D.W.I), the bus driver has admitted that he had seen the bullock carts from a distance of 1 or 1 1/2 furlongs he was driving the bus at 25 to 30 Kilometres per hour when he first saw the bullock carts and that he continued to drive the bus at the same speed even while overtaking the bullock carts without reducing the speed of the bus towards its right had dashed against a tree on the right edge of the road the berms i.e. kachcha portion of the road were 3 feet wide on either side of the tarred road it was not possible for him to stop the bus when the bullock cart turned towards its right and that the bus could be stopped at a distance of 4 to 5 feet when travelling at 10 to 15 kilometres per hour. Gopal (D.W.2) who was also a passenger in the bus states on his estimate that the bus was travelling at a speed of 30 kilometres per hour at the time of the accident. It is clear from the statement of the driver himself that he did not reduce the speed of the bus at any point of time after sighting the the bullock carts from a distance of 1 or 1J furlongs till the accident took place. Being the driver of that bus, his statement that the bus when travelling at the speed of 10 to 15 kilometres per hour could be stopped within 4 to 5 feet, is also significant to prove the condition of the bus. There is no other evidence to suggest to the contrary pointed out to us. Janmejai Soni (P. W. 4) and Ismail (P.W. 5) are two other witnesses, who were passengers in that bus. Janmejai Soni (P.W. 4) had taken the claimant to the Hospital after the accident. This witness states that the bus had stopped at a distance of 50 to 60 paces after the place of the accident. There is no cross -examination of the witness on this point. He further states that a piece of the bone of the claimant's right arm about 2\" to 3" long had broken and it fell within the bus and the same was carried by him and given to the doctor in the hospital in the hope that it may be of some use. He further states that there was blood on the trunk of the tree with which there was impact of the bus on its right side. According to him the bus was travelling at a very fast speed and his estimate of the speed is 60 to 70 kilometres. Ismail (P.W. 5) had boarded the bus at Agar and was sitting on the seat behind the driver. According to him, the bus stopped at a distance of 40 paces from the point of accident. He has not been cross examined on this point. He also states that the tarred portion of the road was not wide enough for the bus to over take the bullock carts without going down on the kachcha portion or the berm. Sewaram (P.W. 6) was the Station House Officer of the Police Station, Ghatia, who had inspected the spot and registered an offence after report of the accident was lodged at the Police Station. He states that one bullock had also received injuries. He has not been cross -examined on this point. Thus, in addition to the facts admitted by the bus driver, the further facts proved are:?The bus could be stopped only at a distance of at least 40 paces i.e. about 60 feet beyond the place of accident. The impact of the bus with the tree was so great that a piece of bone measuring 2\" to 3" of the claimant's right elbow had broken and fallen within the bus. One bullock of the bullock cart also received injuries so that the driver could not totally avoid impact with the cart, the bus having hit the bullock towards its left and the tree towards its right and that only half the road was covered by the bullock cart which had turned towards its right. It is common ground that there was no other traffic within sight at the time of the accident. It is on these facts that the question of negligence has to be determined.