- (1.) K. N. Singh, J. These are two appeals under S. 110-D of the Motor Vehicles Act, 1939 one preferred by the U. P. State Road Transport Corporation (hereinafter referred to as the Corporation) and the other preferred by the claimants against the award of the Motor. Accidents Claims Tribunal, Aligarh D/22-9-1976, awarding a sum of Rupees 35,000/- to the claimants. Both the appeals have been heard together and are being disposed of by a common judgment.
(2.) SRI Ram Lal Sahgal was employed as sub-inspector in the Central Excise Department at Sadabad in district Mathura. On 11-1-1969, while he was proceeding on motor cycle from Mathura to Delhi, he was knocked down by a stage carriage bearing registration No. 8904 which belonged to the corporation, Shri Ram Lal Sahgal succumbed to his injuries at the spot. He left Smt. Krishna Sahgal widow and one minor son aged about 2 1/2 years and a daughter 1 1/2 years Km. Asha. The widow and the two children filed claim petition under Section 110-A of the U. P. Motor Vehicles Act claiming a sum of Rs. One lac as compensation for the death of Ram Lal Sahgal. The U. P. Corporation contested the proceedings. In its written statement filed before the Tribunal, the Corporation pleaded that the roadways bus in question was proceeding from Aligarh to Hatharas and when it reached near the spot of accident some buffaloes were grazing on the left hand side of the driver. Suddenly two buffaloes fought each other they came on pucca road. The driver in order to save the accident swerved the vehicle towards his right. At the very moment a motorcyclist who was coming from the opposite direction in high speed dashed against the left front side of the bus. The motor cycle fell down upon him and the handle of the motor cycle pierced into the left forehead of the rider, as a result of which he died at the spot. The Corporation further pleaded that the driver of the bus was not driving the bus in a rash or negligent manner. On the other hand, the motor-cyclist was driving his motor cycle in a high speed and he was rash and negligent and was responsible for the accident. The Corporation further pleaded that it was not liable to pay any compensation and in the alternative it asserted that the amount of compensation claimed by the legal representatives of the deceased was excessive and highly exorbitant. 2a. Both the parties produced oral and documentary evidence before the Tribunal, in support of their case. The Tribunal by its order dated 22-9-1976, held that the driver of the Corporation's bus was guilty of rash and negligent driving, the bus was being driven at a high speed and the driver had no justification to take the vehicle towards the right patri of the road and to knock down the deceased Ram Lal Sehgal. The Corporation was liable to pay damages of the claimants, which it assessed at Rs. 35,000/ -. The Corporation as well as the claimants both have filed appeals against the award of the Tribunal. Sri. S. K. Sharma, learned counsel for the Corporation, urged that the deceased Ram Lal Sahgal was guilty of contributory negligence. He took us through the statements of the eye-witnesses and the site plan Ex. A6 of the place of accident. On a perusal of the oral and documentary evidence, we do not find any merit in the contention. Har Prasad Pandey D. W. 1, Senior Station In charge of Aligarh, who is an employee of the Corporation visited the site and prepared site plan Ex. A6 of the place of the incident on 15-1-1969. The site plan shows that width of the pucca portion of the road was 18 feet at the place of accident. The width of the Katcha Patri on either side was 10 feet. The accident took place on the Katcha Patri to the right of the Corporation's bus. After hitting the motor-cycle, the bus did not stop, instead it crossed the entire width of the Katcha Patri and hit a tree which was slightly uprooted. The tree was situate on the extreme fight of the Katcha Patri. Jagdish Singh, driver, D. W. 3, has admitted in his deposition that there was no traffic and the road was straight. He had seen the motor-cycle coming from the opposite direction which was being driven by the deceased on his left side. He further stated that since the buffaloes had come all of a sudden on the road, he swerved his vehicle to his right and in that process the motor-cycle dashed against the bus. The statement of the driver and the site plan prepared by the Station. In charge of the Corporation make it clear that the accident took place on the right said of the Patri of the road The bus had no justification to be on the right side Patri of the road. Ram Lal Sahgal deceased had committed no fault as he was following the rules of road by keeping on the left side of the road. The driver committed fault in going to the wrong side of the road and in hitting the motor cycle. On the facts proved, the doctrine of res ipsa loquitur is applicable. The proved facts speak for themselves that the driver of the bus was plying the vehicle in violation of the traffic rules and the vehicle was in great speed and for that reason it could not be controlled even after dashing against the motor cycle as it crossed the entire Patri and hit a tree and it could stop only thereafter. In addition to this. Musaram P. W. 1 and Bahadur P. W. 2, two eye-witnesses, were produced on behalf of the claimants, they clearly stated that the driver was driving the bus in a rash and negligent manner. They were subjected to lengthy cross-examination but nothing material could be elicited from them to discredit their testimony. In our opinion, the Tribunal rightly held that the driver of the bus was guilty of rash and negligent driving. The Corporation's plea that the buffaloes had come suddenly on the road and the driver in his bid to avoid collision with the buffaloes swerved his vehicle to right and in that process it dashed against the motor cycle has been rejected by the Tribunal. On a perusal of the evidence we find this plea was afterthought to explain the accident. No doubt this plea was raised in the written statement of the Corporation and also in the testimony of the defence witnesses but this is belied by the fact that the driver of the bus did not give any such version of the accident at the first available opportunity when he lodged the first information report Ex. A-1 immediately after the accident. In the first information report, he merely stated that the accident had taken place with a motor-cycle, as a result of which the motor- cyclist died at the spot. The diver who himself lodged the report did not state any other fact regarding the buffaloes. If the buffaloes had really darted on the road all of a sudden, as a result of which the driver had swerved his vehicle to his right, it was quite natural for him to state those facts in his first information report. The absence of this version in the first information report indicates that this was an afterthought version.
(3.) THERE is yet another circumstance which supports this conclusion. Annexure-A-7 is the report alleged to have been submitted by the driver to the Station In charge, Aligarh. In his testimony Jagdish Singh driver deposed that at first he went, to the Station In charge and submitted his report Ex. A-7 relating to the accident and thereafter he had gone to the police station to lodge the report. He deposed that after his report was recorded, the police took him in custody and put him in the lock up. On a perusal of Ex. A- 7 we find that the driver had stated that two buffaloes fighting with each other had all of a sudden came on the road and in order to save them, he took his bus to his right side and in trial process the bus dashed against the motor cycle. In the last sentence of the report, the driver further stated that after the accident he had gone to lodge the first information report at the police station where he was put in the police lock up. Ex. A-7 does not bear any date. According to the testimony of the driver, this report was given to the Station In charge prior to his going to the police station but on a perusal at the Ex. A-7 it appears that this report was prepared after the driver was released from the police custody. This circumstance, fully demonstrates that the story of buffaloes coming on the road was introduced by the driver later on with a view to set up defence. Ram Lal Sahgal was driving his motor-cycle on his left and he did not violate the traffic rules. The bus knocked him down on the Katcha Patri. In the circumstances deceased could not be held guilty of any contributory negligence.;