HANUMAN DASS Vs. USHA RANI

JUDGEMENT

(1.) USHA Rani, appellant in F. A. O. No. 15 of 1972, and respondent in F. A. O. No. 2 of 1972 (hereinafter referred to as the claimant) met with an accident on March 13, 1969 with truck No. HRH 7218 driven by Hanuman Dass, appellant in F. A. O. No. 2 of 1972 and respondent in F. A. N. No. 15 of 1972. As a result of the said accident, her right collar bone was fractured, right arm was amputated near the shoulder and three fingers of right foot were chopped off. She remained indoor patient in Civil Hospital in the General Ward from 13th March, 1969 to 11th May, 1969. She claimed compensation to the tune of rupees one lac, but the Court awarded only a sum of Rs. 15,000.00, which comprised of Rs. 5,000.00for pain and suffering, Rs. 5,000.00for permanent deformity and Rs. 5,000.00for medical expenses, loss of studies and general charges. Dissatisfied with the aforesaid award the claimant as also Hanuman Dass who apart from being the unlicensed driver of the said truck, also happens to be its owner, challenged the said award in the two separate appeals already mentioned.

(2.) MR . Dhingra, learned counsel for the appellant, in F. A. O. No. 2 of 1972 has challenged the finding of the Tribunal, under the issue of negligence and also the quantum of compensation.

(3.) I do not think, there is any merit in the contention advanced by Mr. Dhingra. It is an admitted fact that the truck against an electric pole standing on the corner of the terrace in front of the house of Rameshwar Dayal, upon which Usha Rani, in order to escape injury, had mounted. A vehicle has to be driven on the path, and in the course of normal driving, there is no question of its leaving the path and striking against the platform and the electric pole abutting the path unless the driver happened to be negligent or there were circumstances which left him no choice but to take the vehicle to a point where it struck the electric pole. To the facts of the present case, the doctrine of res ipsa loquitur is straightway attracted, which means that the facts speak for themselves for the negligence of the driver, unless he placed on the record the circumstances which left him no choice but to take the truck in the direction of the electric pole. No such explanation is forthcoming in this case. In the circumstances of this case, by virtue of the application of the aforesaid doctrine the initial onus had to be on the driver to prove that he had not been negligent. If he fails to discharge that onus, then the issue of negligence has to be concluded against him. In the present case the driver examined six witnesses, out of whom, 5 had deposed to the actual happening of the accident. The Tribunal, and in my opinion rightly, did not place reliance on their evidence as they were found to be got up witnesses and five out of them had not been summoned by the Police. Although the driver has faced a criminal trial, yet if the witnesses are to be believed, they in order to prove the innocence of the driver, did not make themselves available to the police nor were they cited as able to the police nor were they cited as witnesses in the criminal case. What is more, the driver himself made confessional statement in the criminal Court which was proved and placed on the record of this Court, copy of which is Exhibit A. W. II/1. While confronted with that statement, the driver who appeared as R. W. 7 admitted that he had made the confessional statement, in which he had admitted that the accident occurred as a result of his own rash and negligent driving. He, however, sought to explain that he made the said confessional statement in order to suffer lesser punishment. The explanation offered by him for making confessional statement is hardly convincing.