MADHU ALIAS M C MADAPPA Vs. MAHADEVA

JUDGEMENT

(1.) THIS appeal is instituted under Sec.110D of the Motor Vehicles Act by the original claimants and is directed against the judgment and award d/7-7-1975 passed by the District Judge and Member, Motor Accidents Claims Tribunal, Mysore, in M.V.Misc. No.75 of 1972 on his file. The claimants averred in the petition that their son Ramesh and other children were playing near the park on the foot-path of Vasanthamahal road, Nazarbad Mohalla on 1-6-72 at about 8 a.m. when the Police jeep coming from the northern direction 'and driven rashly and negligently went off the road on the left side and hit the young boy Ramesh(Madhu) causing him fatal injuries. The boy was removed to the hospital where he succumbed to the injuries within about six hours after the accident. On these allegations, a sum of Rs.50,000 as damages was claimed from the respondents. Respondent-1 is the driver. Respondent-2 is the owner and Respt-3 in the insurer of the jeep: Respondent-1, by his statement of objections filed on 31-7-73, contended that the boy who was flying a kite came suddenly from the opposite side in chase of the kite which had been cut off and dashed against the real portion of the jeep and sustained injuries. Thus, he denied his liability contending that the accident was inevitable. Respondents 2 and 3 contended similarly. They also asserted that the compensation claimed was too high. The Tribunal raised the following issues for decision on the basis of the pleadings before it. (1) Is the petition maintainable? (2) Is the accident due to the rash and negligent driving of the first respondent? or Is it an inevitable accident? (3) Are the claimants entitled to any compensation, and if so, the quantum and from whom? The claimants examined as many as six witnesses. PW.1 is the doctor who treated the boy. PWs.2, 3 and 4 are the eye-witnesses so also PW.5. PW. 6 is the mother of the deceased boy, being one of the claimants. As against this, the respondents did not examine any witnesses on their behalf. The Tribunal, appreciating the evidence on record, held that the accident was inevitable and as such, the claimants were not entitled to any compensation. It, however, held that the petition was maintainable, by its judgment d. 7-7-75. Aggrieved by the said judgment and award dismissing the petition, the claimants have come up in appeal before this Court. The learned Advocate appearing on behalf of the appellants-claimants vehemently contended that the Tribunal was not justified in holding that the accident was not the result of rash and negligent driving of the jeep in question. He further, submitted that on the facts of this case, the Tribunal ought to have awarded compensation for the death of Ramesh to the claimants who are the parents of the deceased boy. As against that, the learned Govt Pleader appearing for the respondents argued supporting the reasoning and findings of the learned Member of the Tribunal The points, therefore, that aiise for our consideration in this appeal are: Whether the Tribunal was justified in holding that the accident was inevitable; if not, what is the quantum of compensation to which the claimants are entitled to ? PW.2 Chikkanna has deposed that on the date of the accident at about 8 a.m., he was going on the road by the side of Nazarbad Police Station having taken coffee in Mylari Hotel and then saw a disturbance and further found the boy Rmesh underneajth the side wheel of the jeep lying injured on the face. The boy was unconscious. The legs of Ramesh were on the footpath and the head was on the road. The road iuns north to south and the jeep was facing south. The jeep was on the left side of the road and the front left wheel of the jeep was on the footpath and the rest was on the road. He took the child to the shop of a doctor in the first instance and since that doctor did not attend on the child immediately, he took the child to the Mission Hospital. He has further deposed that Ramesh expired at about 4 p.m. on, the same day. In the cross-examination it is elicited that the left front wheel of the jeep was touching the head of the boy. He has further stated that his statement was recorded by the police. It is also elicited that there are parks on both the left and light sides of the road. Boys were flying kites in the area. Thus, it emerges from his evidence that the jeep actually left the tar road and went on the kaccha road before it caused the accident to the young boy Ramesh It is also established that it was a busy locality having parks on either side of the road and that boys were flying kites by the road side. The evidence of PW.2 is corroborated in the testimony of PW.3 Swamy and PW.4 Vasu. Both of them are the brothers of the deceased boy Ramesh. The have deposed similarly.. Nothing is elicited in the cross- examination of these witnesses to disbelieve their evidence. It is true that the evidence of PW.5 is not consistent with the evidence of these eye witnesses. By reading the evidence of PW.5, we get an impression that he has not seen the accident at all. He has positively stated that the accident happened on the light side of the road to the jeep which is not the case of the claimants nor of the other side. Hence, it is not proper to place any reliance on the evidence of this witness who could not even properly describe the scene of occurrence. The other witnesses exmined on behalf of the claimants have consistently deposed, as stated above, that the boy Ramesh was on the foot-path on the left side of the road when the jeep went off the road and hit him. If that be so, it attracts the uoctrine of resipsa loquitur (the thing speaks for itself) and the burden shifts on to the driver tot explain why he went off the road in causing the accident. In this case, the driver has desisted from entering the box. It may also be mentioned further that the driver, in his statement of objections has taken a positive stand that the boy Ramesh came suddenly running across the road and hit the jeep on the rear side. If that were so, it was his duty to step into the box and explain the circumstances. Non-appearance of the driver in the box would attract adverse inference against him. That apart the positive testimony of the witnesses discussed above would clearly establish that there was actionable negligence on the part of the driver in leaving the road and going on the Kaccha road while hitting the boy. In the cross-examination of PW.2, it is no doubt elicited that a boy suddenly crossed the road from right to left and the driver of the jeep in order to save that boy, swerved the jeep towards left and hit Ramesh. In, the first place, that is not the stand taken by the driven. Even assuming that it is a fact, even so, the responsibility of the driver cannot be absolved. It is laid down by Lord Uthwatt in Upson's case, 1949 AC. 155. thus :