ALI Vs. MADHAVAN

JUDGEMENT

(1.) This is an appeal by the claimants who are the parents of the deceased Dr. K. P. Mohammed Ashraf, who died in an accident which took place at 1.30 P.M. on 01/01/1979 in front of the Karuna Hospital, Cheruvannur. The appellants filed MAC No. 940 of 1980 which was originally numbered as OP No. 183 of 1979 on the file of the District Court, Kozhikode. In the OP the claimants claimed a compensation of Rs.3,00,000/- for the death of their son. The Motor Accidents Claims Tribunal, Kozhikode, by its judgment dated 28/06/1984 dismissed the OP on the ground that the accident took place as a result of rash and negligent driving of the motor cycle by the deceased and that it was a clear case of motor cycle coming and dashing against the bus, which was on its right side of the road. The Tribunal held that the petitioners failed to prove negligence on the part of the bus driver, the second respondent. Aggrieved by the dismissal of OP the present appeal is filed.

(2.) In this appeal Shri. T. H. Abdul Aziz, counsel appearing for the claimants - appellants, contends that the judgment of the Tribunal is wholly unjustified. The accident took place in the middle of the road and it is a clear case of the bus, KLZ 6364, driven by the second respondent, at great speed and in a negligent manner, coming and dashing against the motor cycle of the deceased who was coming in the opposite direction. There is no acceptable reason to doubt the evidence of PWs 3 and 4 who are eyewitnesses to the accident. While PW 3 saw the accident while he was on the road, PW 4 who is a passenger in the offending bus saw the accident while he was sitting in the front portion of the bus to the left of the driver of the bus. The Tribunal went wrong in placing reliance on interested evidence of RW 1, the driver, and the evidence of RW 2, the Assistant Sub

(3.) The learned counsel for respondents land 2, the bus owner and the driver, contends that PWs 3 and 4 are trumped-up eyewitnesses procured by the uncle of the deceased doctor. Their evidence was rightly discarded by the Tribunal. The evidence of PWs 3 and 4 does not indicate in which portion of the road the accident and the impact took place and how it took place. The evidence on record clearly indicates that the motor cycle driven by the deceased came at great speed and on its wrong side and violently dashed against the bus, which was travelling on its right side. The theory of the accident taking place while the bus was overtaking another bus is demolished by the circumstantial evidence and the position of the bus and the motor cycle. The physical features noticed at the time of inquest are consistent with the case of the motor cycle coming and dashing against the bus. They are not consistent with the case of the bus going to the wrong side of the road and dashing against the motor cycle. The existence of skid mark of 8 metres length only proves that the driver applied breaks and took precautions to avoid the accident. But inspite of the care and caution exercised by the bus driver the deceased came on his motor cycle and dashed against the bus in a violent manner and met his death. The damage caused to the bus itself shows that it is a case of the motor cycle coming and dashing against the bus violently. The deceased alone is responsible for the accident. The evidence of RW s 1 and 2 completely demolishes the theory of the bus going and dashing against the motor cycle and then dragging the motor cycle and the deceased. The injuries found on the deceased are not consistent with the case of injuries caused by dragging. The evidence of RW s 1 and 2 appears to be truthful and is fully supported by Ext.R2 and the circumstantial evidence. The very fact that the driver of the bus was acquitted in the criminal case lends support to the theory that the driver of the bus is not at fault. He further contends that in this case there is absolutely no scope for invoking the doctrine of res ipsa loquitur.