SUPERINTENDENT MECHANICAL AND TRANSPORT Vs. SEETHA BAI

JUDGEMENT

(1.) I have heard both the learned Advocates at some length and perused the record of the case, in particular the sketch as also the report of the Inspector with regard to the relative damage to the two vehicles. Mr. Srinivasan, learned Advocate who represents the appellants has briefly referred to the facts of the case because he submits that these are of some importance. The Van which belonged to the Wheel and Axle Plant of the Railways was proceeding towards Makhri Circle and it is the case of the driver that there was a bullock-cart in front and therefore, he had to slow down as there was an on-coming truck in the opposite direction. He states that all of a sudden, there was an impact at the rear of the Van and he stopped the same and got down to find that an Enfield Motor Cycle was fallen there in a damaged condition after having collided against the side of the Van towards the rear of it. The rider had fallen in an injured condition and he was immediately rushed to the hospital where he subsequently died. The sketch confirms the position that the impact was towards the rear of the van on the left side as there were damage marks on the body of the van and on the right side front of the motor cycle. Mr. Srinivasan submitted that this material is totally compatible with his submission that the motor-cyclist was obviously riding at a very fast speed and that he was unable to control the vehicle at that speed and collided against the side of the van. His contention is that even if there is some liability on the appellants, that the Court will have to guage the level of contributory negligence on the part of the rider of the motor cycle for purposes of ascertaining to what extent the amount computed by the Tribunal must be reduced. Learned Advocate submitted that on the facts of the present case, there can be no dispute about the fact that the deceased had contributed equally to what happened and to this extent, his submission was that the compensation awarded will have to be scaled down by 50%. His contention is that the evidence of the driver and the occupants of the van supports the theory of contributory negligence and he also points out to me that there was some infirmity in the evidence of P. W. 1 on whom the Tribunal has placed heavy reliance.

(2.) THE respondents' learned Advocate has vehemently refuted this position. He points out that this is a case in which the doctrine of res ipsa loquitor or in other words that the facts speak for themselves will have to be applied. He points out to me that if the theory advanced by the appellants' learned Advocate is to be accepted, that the impact would have been on the back of the van and not at the side of it. He has relied heavily on the evidence of P. W. 1 who is a totally disinterested and independent person, who has also stated that the van was travelling fast, that the driver decided to over-take the cart and when he found at the last minute that he could not do so, that he had no option except to change his line and swerve back to the left side of the road and virtually got into the line of movement of the motor cycle rider. Learned Advocate submits that this is the only explanation for the manner in which the collision took place and more importantly, for the point of impact being on the side of the van. He points out that this is a case in which the deceased would have normally expected the van to overtake the cart but however there was a sudden alteration in the movement of the van and it changed direction, that the inevitable result was that the deceased had no time to take corrective steps and was hit by the side of the offending vehicle.

(3.) I do agree with the appellants' learned Advocate that the evidence will have to be correctly evaluated for purposes of deciding as to whether there was contributory negligence on the part of the two wheeler rider. While it is true that there is a tendency on the part of the two wheeler rider not to confine themselves to the left side of the road as the Rules of the road require, and to indiscriminately wander of without observing any modicum of lane discipline, the Court is required to take equal notice of the manner in which vehicles decide to overtake even when such a course of action is contra indicated. We do not have on record any definite indication of the speed of the motor cycle or the manner in which it was being ridden because it was following the van and nobody seems to have observed it. We do however have very definite evidence on record that the van which was travelling relatively fast had decided to overtake the bullock-cart which was down right a wrong decision particularly in a City when there is plenty of cross traffic the road in question was a busy one and the law requires that the driver of the van had to exercise enough of patience until there was enough of clear road to permit him to overtake safely. The driver had totally disregarded the Rules of the road, he had totally disregarded the cannons of safety and he still attempted to over-take the bullock-cart regardless of the on-coming truck and when he realised at the last minute that this would not be possible as often happens, he dangerously re-traced his steps back to the left side of the road without bothering to take notice of the fact there was a motor cycle following him.