NATHALAL CHHAGANLAL Vs. KOLI KARSAN LAVJI

JUDGEMENT

(1.) The topography of the place as it emerges from the panchnama as also the oral evidence may be noted first. The wider of the two roads which are inter-sected by the chawk is the Subhash road or the Sardar Road which is a straight road running from East to West and the width of that road is 24 ft. with a foot-path on either side of the width of 4 ft. This is a cement road. The other road i.e. Takhatsinhji Road which is also referred to as the Scientific or Watch Gali runs from North to South and though the width of that road is not recorded in the Panch- nama the witnesses refer to the same as 12 ft. At this stage the position of the vehicles may also be noted as it was found at the time of the panchnama. The carrier was found lying in the South-West corner of the chawk i.e. the inter-section facing Western direction. The distance between its front right wheel and the Northern border of the road was 15 ft while the same on the Southern side was 10 ft. The Southern boarder of the road was at a distance of 4 ft. from the front left wheel. There were brake marks to the extent of 20 ft towards the Eastern side of the carrier.

(2.) The learned Judge constituting the Tribunal was carried away by the fact that looking to the position in which the carrier was lying it was found that it was on the left hand side of the road and it had covered a substantial part of the intersection. He therefore came to the conclusion that the driver of the motor-cycle was also negligent in coming and dashing against the truck when it was in this position and this would also show that the motor-cycle was being driven on the right hand side of the road that means the road on which the motor-cycle was proceed- ing covered by the inter-section. In our opinion the learned Judge has erred in coming to the conclusion that the appellant was guilty of con- tributory negligence. As observed by the learned Judge himself there was dent on the front mudguard of the carrier and this leads to the conclu- sion that the impact was by the front portion of the mudguard and not by the wheel or the side portion of the mudguard of the carrier on the motor-cycle and that the carrier had come in contact with the motor- cycle only by the front portion and not by the side portion. This would also be the position if we bear in mind the fact that the motor-cycle was actually found lying pressed under the front right wheel. This there- fore appears to be a case in which the motor-cycle has already preceded into the inter-section and thereafter the carrier-driver has knocked it down by dashing against it from its front part. The carrier is a heavier vehicle and a duty is cast on the driver of such a vehicle to be careful and cautions before entering an inter-section. It has to slow down its speed look to the right and the left and then start negotiating the inter-section. If these precautions which a driver is obliged to take were taken by the driver of the carrier he would have seen that the motor-cycle had already entered the intersection and if the speed was moderate and had been cut down he would have immediately been able to control his vehicle and would have been able first to allow the motor-cycle which had already entered the intersection to pass before negotiating the inter- section. The significant factor in this connection is the fact as disclosed by the panchnama that there were brake-marks to the extent of about 20 ft. and though this may not necessarily prove the appellants case that the motor-cycle and the appellant were dragged along with the carrier from the right side of the road which was being negotiated by the carrier to the left hand side of the road still this would lend considerable support to his version that the actual impact was not at the point where the truck was lying at the time of the panchnama but at a point 20 ft. away towards the Eastern side of the carrier and if this is so then it can not be said that the motor-cyclist was proceeding on the wrong side of the road when he started negotiating the intersection and that he dashed against the carrier which had already negotiated a substantial part of the intersection. If that was so the impact or the damage on the carrier would be on the right side body of the carrier and not on the front right side of the truck. The learned Judge therefore in our opinion committed an error in arriving at the conclusion that the motor-cycle driver was guilty of contributory negligence and his finding in this regard is therefore set aside and we hold that there is no material on record to warrant a conclusion that the appellant-driver of the motor-cycle was guilty of contributory negligence. Again if one keeps before ones minds eye the respective directions in which the two vehicles were pro- ceeding it will become manifest that the motor-cycle was proceeding on a road which lay on the right side of the road on which the carrier was proceeding; and it had therefore a right of precedence over the carrier as per the Rules of the Road. The driver of the carrier has committed a breach of duty caste on him any the Rule in failing to give precedence to the other vehicle entering the intersection from his right side; and he is therefore guilty of a negligent act. In the case of drivers entering an intersection from two different roads passing through an intersection the relevant rule of the road enjoins on the driver entering from the left to give precedence to the driver entering from the right side of the first mentioned driver and to allow it to pass the intersection before entering the same. The learned Judge has failed to address him- self on this important aspect which has led him to come to an erroneous decision about contributory negligence. The entire amount of award therefore awarded by the Tribunal and the additional amount which may be awarded by this Court in appeal will be fully payable to the appellant.

(3.) Appeal partly allowed. The respondents to pay an additional amount of Rs. 4200.00 and interest thereon at the rate of 6 percent from the date of the claim petition till payment and costs on the said amount throughout. There will be no order as to costs for the claim disallowed in the facts and circumstances of the case. Appeal partly allowed.