BHANUPRASAD MAGANLAL BHATNAGAR DR Vs. PRAVIN TAPUBHAI NAIK

JUDGEMENT

(1.) A doctor employed by the Directorate of Medical Services (Employees State Insurance Scheme) aged about 37 sustained serious injuries on 13/09/1973 at 3-30 p.m. when the scooter on which he was proceeding form Nadiad to Ahmedabad collided with a truck belonging to respondent No. 2 being driven by respondent No. 1. He had to be hospitalised for about five months and had to be operated upon five times. He developed permanent limp as a result of shortening of his left leg to the extent of 1/2. He also acquired some other handicaps on account of the mishap. The injured doctor appellant herein instituted Motor Accident Claim Application No. 8/74 before the Motor Accident Claim Tribunal of Ahmedabad (Rural) at Narol. Initially his claim for compensation before the Tribunal was valued at Rs. 40 0 but subsequently with the leave of the Court the claim was raised to the figure of Rs. 60 0 The stand taken by the truck driver and the truck owner respondents Nos. 1 & 2 respectively before the learned Tribunal was that the applicant had dashed against some other truck a stationary truck which was parked on the road. According to them the truck belonging to respondent No. 2 which was being driven by respondent No. 1 was not involved in the accident at all. The version of respondent No. 1 driver was that at the point of time when he had passed beyond the stationary truck parked on one side of the road he heard a noise and had realised that a collision had occurred. The learned Tribunal on an appreciation of evidence came to the conclusion that the defence of respondents Nos. 1 & 2 to the effect that their truck was not at all involved in the collision was untrue. Their version that the applicant had collided with the stationary truck was disbelieved and rejected. The learned Tribunal however came to the conclusion that the applicant had failed to establish that the collision had occurred on account of the negligence of respondent No. 1 driver though such was not the version of respondent No. 1 driver who (it will be recalled) had come forward with a total denial and had contended that there was no collision with his truck at all. Two persons would know about the circumstances in which the collision occurred if the truck driven by respondent No. 1 was involved in the accident viz. (1) the applicant and (2) the driver. The driver did not say that though there was collision it was the applicant who was negligent. Where then was the question of resorting to conjecture to hold that the driver who denied the collision altogether (and whose version was disbelieved) was not guilty of negligence but the applicant (whose version regarding collision was believed) himself was negligent. Even so strangely enough relying on the position of the scooter lying on the road as revealed by the panchnama which was made later in the evening the learned Tribunal concluded that the applicant must have been negligent. In this view of the matter the learned Tribunal dismissed the claim petition instituted by the appellant doctor by his impugned order dated 19/09/1975 The injured doctor has approached this Court by way of the present appeal has challenged the legality and validity of the decision rendered by the learned Tribunal and has claimed compensation to the tune of Rs. 60 0 for the injuries sustained by him.

(2.) The collision occurred on the National Highway at a place about 2 kms. from Bareja at about 3-20 p.m. By the very nature of things there is no eyewitness to the collision other than the applicant himself and the driver of the truck and his companion Dinesh who have been examined as the witnesses of the truck owner. The driver and his companion Dinesh have assumed the posture that the collision occurred with the stationary truck and not with their truck. They have therefore not narrated the circumstances in which the collision occurred. In view of the serious damage to the truck being driven by respondent No. 1 which was noticed at the time of the panchnama made on the date of the occurrence there is no manner of doubt that the collision had taken place with the said truck as we have already discussed a short while ago. Barring the applicant the only other persons who could have thrown light on the question as to the manner and the circumstances in which the collision occurred were the driver and his companion They have maintained complete silence for the very good reason that according to them the collision had not taken place with their vehicle and they had not seen the collision. It has been found that both of them are lying on this point. Under the circumstances the only evidence which is available to us is the evidence provided by the applicant himself and the finding on this question will have to be recorded on the basis of his evidence in the light of the circumstance that the driver and his companion who must have known in what circumstances the collision occurred have refused to tell the truth and have maintained silence on this aspect.

(3.) Now in the first place the learned Tribunal has overlooked the circumstance that as a result of the collision the scooter may have been flung to some distance depending on the speed of the velicles the position of the governor of the scooter and several circumstances. In our opinion it would not be possible to draw any inference as to on which side of the road the scooterist was going on the basis of the place where the scooter was found to be lying after the collision. In the second place it has been established that collision took place soon after 3-30 p. m. and the panchnama was made at about 5-30 p. m. The truck driver may have moved his vehicle soon after the collision in order that the traffic on the road was not blocked up. So also he or someone else might have moved the scooter so that it would not obstruct the traffic on the road. There was no guarantee that the vehicles in question remained frozen exactly on the spot where they were found at the time of the panchnama. Under the circumstances we are of the opinion that there is no basis whatsoever for drawing the inference that the scooterist was going on the wrong side of the road. Going by probabilities it is impossible to believe that the scooterist would have proceeded headlong in the direction of the truck. The scooterist could not have done so unless he wanted to commit suicide. The truck driver could have seen the scooterist coming from the opposite direction form a considerable distance. He should have therefore slowed down his vehicle or changed the gear or taken sufficient precautions in order to ensure that there was no collision he being the driver of the heavier vehicle. The driver has stated in his evidence that he was moving at a speed of 35 to 40 Kms. per hour. His companion Dinesh who is the son of the truckowner and claims to be the Cleaner of the vehicle has deposed that the speed was 25 to 30 Kms. per hour. We refuse to accept this evidence at its face value. In fact on probabilieties we are inclined to believe that the truck driver must have been proceeding at a considerably high speed having regard to the fact that he was driving the vehicle on the National Highway.