NIDUMTHOTTIL KADANKOT KUDIRODAN Vs. P.V. KALLIANI AMMA

JUDGEMENT

(1.) IN an accident happened on 8-3-81, one M.P. Purushothaman sustained injuries and dies of those injuries. His widow and children made a claim on the owner, driver and the insurer of bus KLO 5102 for compensation. The Motor Accidents Claims Tribunal assessed a sum of Rs. 75,000/- as the compensation payable to the claimants, but the Claims Tribunal deducted 50% therefrom on the premise that the accident happened on account of the composite negligence perpetrated by the bus driver and the driver of the tempo van (KLN 2667) in which the deceased was men travelling. The claimants, widow and children of the deceased, have filed this appeal dissatisfied with the award.

(2.) THE accident happened in this way: The tempo van was proceeding from south to north along National Highway No. 17. The bus was coming from a bylane which converged into the National Highway at the place of occurrence. As the bus entered the National Highway, it collided with the tempo van.

(3.) LEARNED Counsel for the appellants contended that the claims Tribunal went wrong in finding that the accident was the consequence of negligence on the part of the van driver also. We have examined the relevant evidence on that aspect. We have our own reasons to hold that the Claims Tribunal erred in finding that there was composite negligence from the bus driver and van driver for causing the accident. As the broad case is admitted by both sides that the bus was entering into the National Highway from a bylane, the degree of care, diligence and circumspection which the bus driver should have adopted was of a far highway one. He is permitted to take his vehicle into the main road from a bylane only after ensuring that his passage is clear and that there is no risk involved in taking the vehicle into the main road, since the vehicles plying on the main road have the right of passage through the main road. As the accident is a collision between a vehicle which went into the main road from a bylane and another vehicle which was already plying through the main road, the doctrine of res ipso loquitur heavily favours the van driver and raises a presumption that the negligence was on the part of the bus driver. Of course, he is entitled to rebut the presumption. But no counter theory was advanced by the owner and driver of the bus in the joint written statement filed by them, except saying that the van was proceeding through the eastern side of the National Highway. R.W. 1 was the driver of the bus. Though he stuck to his theory that the van kept the eastern side of the National Highway, his further answers have completely shattered the possibility of the van being driven through the wrong side of the road. This is because R.W. 1 admitted that the spot of the bus where the van hit was the front right side of the bus. If as a matter of fact, the bus, after entering into the main road, had turned to south and was then hit against by another vehicle which kept the eastern side of the main road, the spot of hit would necessarily have been the front left side of the bus. When R.W. 1 was confronted with this aspect, he candidly admitted that the spot of hit would not have been on the front right side of the bus, if the bus was driven in the manner suggested by him during examination.