K DIVYANANDA Vs. N SHIVA

JUDGEMENT

(1.) THE short point involved in this appeal is the question as to whether the compensation of Rs. 47,600/- which was computed in the present case was adequate. The allied issue that was canvassed and centered around the question as to whether the Tribunal was justified in having held the appellant guilty of contributory negligence and to have consequently reduced the compensation payable to him by 50%.

(2.) THE appellant's learned advocate has concentrated on the first aspect of the matter. He points out that the appellant who was riding a scooter had stated on oath before the Tribunal that he came out of the cross road to the junction and stopped there because the truck was approaching from his right side. This statement of the appellant has been disbelieved by the learned Member who has analysed the material before him and principally on the basis of the point of impact, has come to the conclusion that it is impossible to accept that the appellant had stopped when he approached the cross roads and that it is very clear that he proceeded into the path of the truck which was why the impact took place. The learned Member has recorded the finding that it is obvious that the appellant was in a hurry or in other words that he took the risk of trying to rush through and met with the impact in the process. The appellant's learned advocate has first advanced the submission that it was not permissible for the learned Member not to have arrived at this conclusion because there was nothing in the evidence of the appellant to doubt his credibility whereas, on the other hand it was obligatory on the part of the truck driver who was on the other side and who has chosen not to contest to have produced evidence to the contrary in which case alone, the learned Member could have concluded that the appellant was negligent. As far as this submission is concerned, I need to record that undoubtedly the Tribunal would have been better equipped if the driver had given evidence and that in the absence thereof, it is the appellant's evidence alone that was before the forum. It does not however ipso facto follow that this evidence is the gospel truth and that it has to be accepted in toto. Inevitably, the claimant who is the injured person is bound to guard himself against anything that would expose his negligence and that he would therefore seek to project a picture whereby the entire fault lies with the opposite party. Even if there is no contrary evidence, it is the function of the Tribunal to test and scrutinise the evidence that is before it and it is all the more necessary in cases where there is no evidence to the contrary. The learned member in this instance has followed the right procedure by evaluating the case on the basis of the totality of the material before him and by taking judicial notice of what the obligation on the part of the appellant was and to my mind, has rightly come to the conclusion that the appellant was also a contributory to what happened.

(3.) AT this stage I need to advert to a very significant and substantial aspect of the legal position which has been very strongly projected by Mr. Shankar who represents the Insurance Company. Starting from the maxim of res ipsa loquitor, he submits that the legal obligation on the part of a party approaching a cross-road or a junction has been defined in Regulation 9 of the Rules of the Road which casts a duty on the party approaching the junction to stop and to ascertain whether there are other vehicles approaching that junction and if so to give way to the vehicles approaching from the right. Learned counsel is justified when he points out to the Court that this is the obligation which was cast on the appellant when he approached the junction particularly since he was coming out of the smaller street and that there can be no dispute about the fact he did not give way to the lorry which was approaching from his right. I have no hesitation in upholding this submission because this is again completely in consonance with the finding recorded by the learned Member.