SHARDA PRASAD SINGH Vs. MAHARASHTRA STATE ROAD TRANSPORT CORPORATION

JUDGEMENT

(1.) This is an appeal filed by the appellant against the judgment and decree passed by the Civil Judge, Senior Division, Alibag dated 30th September, 1981 in Special Civil Suit No. 26 of 1979 directing the appellant-original defendant No. 1 to pay an amount of Rs. 72,176-49 Ps. towards the claim made by the Maharashtra State Road Transport Corporation arising out of an accident in which the Ambassador car of the Corporation was badly damaged and two of its employees died on the spot and the third one suffered certain injuries. It is not disputed that on 15th of March, 1978 Sarvashi Shirodkar and Sawant were in the car belonging to the Corporation and Shri Muley was at the wheel. According to the plaintiff-Corporation, the car was being driven with due care and in a moderate speed obeying all the relevant rules and regulations. When it came near Mile Stone No. 137/6 of Bombay-Konkan-Goa Road in village Lohar Mal, there was a narrow culvert on the road. At that time the tanker owned by the appellant-defendant No. 1 Sharda Prasad Singh and driven by the defendant No. 2 was coming from the opposite direction and was proceeding to Bombay side. Seeing that the tanker was coming at an excessive and uncontrollable speed, the driver of the staff car swerved it to the extreme left side of the road and halted it to enable the tanker to pass through the culvert. However, as the tanker was being driven in a rash and negligent manner, the driver could not control it. As a result of it, the tanker dashed against the off-side front portion of the staff car with great force resulting in the staff car being dragged for about 15 feet from the culvert. The tanker capsized on the eastern side of the road with its head towards Ratnagari side. The staff car was dragged backward for about 15 feet diagonally across the road and ultimately capsized on the same side of the road with its head towards Bombay side. Due to the impact and dragging of the staff car, the two occupants namely Shirodkar and Muley diet on the spot and the third occupant Shri Sawant sustained injuries. According to the plaintiff, the accident took place because the defendant No. 2, the driver of the tanker drove it in a rash and negligent manner. It was the case of the plaintiff that as a result of this accident the staff car was smashed and the plaintiff was required to incur an expenditure of Rs. 23,000/- for its repairs. Since the staff car remained idle for about 10 months, the plaintiff was put to loss to the extent of Rs. 10,000/-. The plaintiff had also to pay a sum of Rs. 23,100 to the dependants of Shri Shirodka and Shri Muley under the provisions of the Workmens Compensation Act. The plaintiff was required to grant leave to Shri Sawant for a period of 103 days on account of his disability due to the multiple injuries sustained by him in the accident and thereby incurred expenses to the extent of Rs. 1,476-49 Ps. Thus the plaintiff had claimed in the suit Rs. 32,000/- by way of damages and idle charges qua the staff car and Rs. 47,678/- paid to the dependants of the deceased under the provisions of a Workmens Compensation Act.

(2.) The dependants denied the various allegations made in the plaint. Defendant No. 1 admitted that he is the owner of the tanker and the defendant No. 2 was the driver. They also admitted that defendant No. 3 is the Insurance Company with which the tanker involved in the accident was insured at the relevant time. However, according to the defendants, the tanker was being driven at a moderate speed with due care and caution as per the traffic rules. It was on the correct side of the road. However, it was the driver of the staff car who was driving the car rashly and negligently. Thus the accident took place because of the rash and negligent driving of Shri Muley, the driver of the staff car. Therefore, the claim made by the plaintiff was denied in toto. On the basis of these pleadings, the learned Judge of the trial Court formed necessary issues. In support of the suit, plaintiff examined Pradip Sawant, one of the occupants in the car who was also injured. Vijaykumar Saidanna Vigampalli who proves the repair charges of the staff car, Pandurang Vithal Shirgaonkar the witness to the spot panchanama and Anant Narayan Dharap who proves the payment made to Sanghi Motors, Bombay, Limited towards the repair charges, and the amount paid to the dependants of Shri Muley and Shri Shirodkar under the provisions of the Workmens Compensation Act. On behalf of the defendants Shri Jose, the driver of the tanker is examined. After appreciating all the evidence on record, the learned Judge of the trial Court came to the conclusion that it was the driver of the tanker who was driving the vehicle rashly and negligently. He negatived the contention raised by the defendants. Having recorded a finding that it was the driver of the tanker who was responsible for the accident, the learned Judge allowed the plaintiffs claim of Rs. 23,000/- towards the damage caused to the car, Rs. 1500/- towards the damages for the car remaining idle for 10 months and for Rs. 46,200/- towards the amount paid by the plaintiff to the dependants of deceased Shri Muley and Shri Shirodkar and for Rs. 1,476-49 Ps. towards the disability leave granted to the injured, Shri Sawant. Thus the claim made by the plaintiff was allowed to the tune of Rs. 72,176-49 Ps. However, the learned Judge restricted the liability of defendant, No. 3 the Insurance Company to the extent of Rs. 50,000/- only. As already observed, it is this judgment and decree which are challenged in the present appeal by the owner of the tanker, the appellant.

(3.) Shri Patel, the learned Counsel for the appellant, contended before us that the learned Judge of the trial Court committed an error in accepting the evidence of Pradip Sawant, the witness for the plaintiff. According to the learned Counsel, the said evidence is inconsistent with the pleadings of the parties. The learned Judge also committed an error in basing his finding on the final position of the vehicle as found after the accident. According to Shri Patel, the position of the vehicle after the accident is not a guide to decide as to who was driving the vehicle in a rash and negligent manner nor wheel marks on the road are relevant for deciding the said question. Ultimately, there is word against word so far as the evidence relating to the rash and negligent driving is concerned. Pradip Sawant P.W. 1 has stated that the tanker driver was at fault whereas Shri Jose the driver of the tanker has stated in his deposition that it was the deceased Muley who was responsible for the accident. According to Shri Patel, having regard to the circumstances and facts brought on record this is a case where it could be safely said that both the drivers were equally responsible for the accident. It was a case of contributory negligence, and therefore, the learned Judge of the trial Court committed an error in holding that the driver of the tanker alone was responsible for the accident. He also contended that it is not proved that the amount paid to the dependants of Shri Shirodkar and Shri Muley were paid under the provisions of the Workmens Compensation Act nor it is proved that an expenditure of Rs. 23,000/- was incurred for the repairs of the staff car. Shri Patel also contended that in any case the learned Judge committed an error in restricting the liability of the Insurance Company to Rs. 50,000/- only when under the contract of Insurance, defendant No. 3 was liable to pay Rs. 53,000/- towards the damage to the property of the third party. So far as the compensation payable for the death of Shri Shirodkar and Shri Muley is concerned, on each count the Insurance Company was liable to pay compensation to the extent of Rs. 50,000/- in view of the decision of the Supreme Court in (Motor Owners Company Ltd. v. Jadavji Keshavji Modi and others) A.I.R. 1981, Supreme Court, 2059. He also contended that the Civil Court had no jurisdiction to enter the suit in view of the provisions of section 110 F of the Motor Vehicles Act.