RANJITSINGH GOPALSINGH Vs. MEENAXIBEN RAJMAL MEHTA

JUDGEMENT

(1.) The driver the jeep owner and the insurer have filed an appeal in the first matter challenging the award of Rs. 20000/to the insured respondent applicant while the injured has filed the cross appeal confining her claim only to Rs. 50 0 Mr. Oza has passed a Purshis stating that he confines the claim of the applicant only to Rs. 50 0 all throughout.

(2.) The accident in question took place on January 22nd 1966 at about 2 30 P.M. A jeep driven by opponent No. 1 and which belonged to opponent No. 2 was coming from the main road running from Deesa station running north south. There is a cross road running east west. On the western side is the village Rajpur. The applicants family had returned from Bhildi. The other members of the family had gone by bus from the railway station while the applicant Minaxiben was coming from the station side sitting on the carrier of her relation Rajendra who drove the cycle in question. The Panchnama Ex. 69 of the scene of the incident has been proved by the panch witness Manilal Ex. 71. The Panchnama shows that the tar road is about 16 ft. wide with kutcha road on the two sides to the east and west extending to about 9 ft. on each side. The accident has taken place as seen from the Panchnama at about 68 ft. distance after the cross road towards the south where there is a blood spot. The left hand wheel was at a distance of about 1-8 towards the west of this main road and the right hand wheel was at 5-9. The blood stains were at about 4 from the left wheel. There was blood found as seen from the Panchanama Ex. 69 as well as Ex. 70 of the jeep both on the front handle of the jeep and its spare and its spare wheel which was carried on the back on the right hand side. The cyclist carried two small cloth bags on both side of the governor carrier carrying a small tin (Dabba) of breakfast. Besides blood on the right handle there was a stream of blood on the door of the jeep. The cycle was lying at a distance of 4 ft. from the blood spots towards west. There is evidence of an independent witness Sagalchand Anandrao Ex. 45 who has deposed that the jeep was going at a speed of about 25-30 miles. It was coming from the opposite direction. He saw the cyclist in question going ahead of his car carrying one girl on the back carrier. At that time the right hand of the girl was smashed by the jeep which came from the opposite direction as a result of which both the cyclist and the girl fell down along with the cycle. The jeep was on the right side i.e. on the left of the road and was at a distance of 3 ft. from the tar road. The cycle was also on the correct side but was at a distance of 5 ft. from the tar road. He had seen the jeep from a distance of one furlong. He had also sounded his horn. In cross examination he stated that he had blown the horn because the cycle was coming ahead and the jeep was coming from the opposite direction. The handle of the jeep had dashed against the hand of the girl. There was no other vehicle on the road. Even Rajinder the cyclist Ex. 73 has deposed that when he heard the sound of the horn of the car following him he tried to give side to the car and the incident happened. He also deposed that the jeep was coming at great speed of about 30 miles. He was knowing cycling from the age of 10 years. The driver of the jeep Ranjitsingh Ex. 75 has deposed that he was driving the jeep at a speed of 15 to 20 miles per hour on left side of the road. He saw the cycle coming from a distance of about 45 ft. from the opposite direction. He then blew the horn and slowed the jeep. Then he passed by the cycle on the road by keeping a distance of about 21/2 ft. The cycle was going the middle of the road. Then he heard some noise and he felt that the cycle had fallen down and he stopped the jeep. At that time one car was coming from the opposite direction and that driver asked him to stop. The reason of accident given by him was that the cyclist had lost balance at the time of the incident. He also said that he had not dashed against the cycle. The evidence of this driver could hardly be believed that the jeep had not dashed against the cycle and he had cleared the cycle. In fact the collusion is by the front handle itself which tells its story by the blood marks. Even the blood stream is found at the door of the jeep as seen from the relevant panchnama. No doubt the spare wheel also had blood marks. Therefore the evidence of the independent eye witness gets clear corroboration from this panchnama that this was the case of the jeep knocking down the cyclist and the cycle. The primary facts which are established from this evidence show that the jeep was coming on the main road. It had just passed the cross junction road which was at a distance of 68 ft. from this spot as per the relevant motor regulations item 1 of the Schedule X of the Act the driver has to drive the vehicle as close to the left hand side as may be expedient allowing all traffic proceeding in the opposite direction to pass him on his right hand side. Under item 6 the driver of a motor vehicle has to slow down when approaching a road inter section a road junction or a road corner. If the driver had slowed down his vehicle on the cross junction road it would have been obviously easy for him to brake his vehicle or to swerve it on the Kutcha road when he had seen the cycle at a distance of about 45 ft. If he had slowed down the accident could never have happened. The panchnama shows that the vehicle came to a stop at a distance of 69 ft. It is not the case of the driver that he applied any brake In fact his case is that he had cleared the cycle and it is not until when his attention was drawn and when he was asked to stop by the car driver coming from the opposite side that he had stopped the jeep. Therefore the drivers negligence is obvious from these uncontroverted facts on record. After the decision in First Appeal No. 210 of 1968 decided on December 17 1970 by the Division Bench consisting of myself and D. A. Desai J. (Hirji Virji Transport v. Basiranbibi) XII G.L.R. 783 (786) it is now well settled that where the primary facts have been proved to raise a prima facie inference that the accident was caused by the negligence on the part of the defendants the issue shall be decided in plaintiffs favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie evidence. It is in this situation that the evidentiary burden of proof rests on the defendants in such a case. The defendants who are in control of this injurious agency and the surrounding circumstances bad on the establishment of such primary facts to prove that in all the circumstances which they knew or ought to have known they took all proper steps to avoid danger and once they failed to prove that they must be held liable to pay damages to the plaintiff. In the present case as we have already considered the primary facts tell their own story that in the present case it was the driver of the jeep who was grossly negligent and he was not on the proper look out even when he w as coming on this main road. He should have been on proper look out on the station road especially at a time when the persons alighting from the train would be going on the road. He was thus grossly negligent on the cross junction road. He was expected to slow down the jeep when he had seen the cycle and the car from the opposite direction from such long distance and he should have kept to the extreme left by going if necessary on the Kutcha road. Therefore if he had applied the brake or had swerved the vehicle the incident could never have happened when the cycle was on the middle of the road. Therefore it is obvious that the jeep driver had not done all which he ought to have done and had taken no Steps to avoid the danger and be had remained grossly negligent.

(3.) Mr. Dave however vehemently argued that the driver was coming on the main road at a speed of about 30 miles per hour and it was not an excessive speed. The question is hardly material whether the speed was less or more as the proper speed has to be judged in the context of all the circumstances. What is material is that at the cross junction road the driver had seen the cycle coming from the opposite side. If he had at proper time slowed down and had not remained negligent and he would have gone on the extreme left side on the road even by going if necessary on the Kutcha road the accident could have been avoided. We have already rejected his theory that he had not collided with the cycle when there are clear collusion marks found from the blood marks on the front handle.