KOTHANDAN Vs. GOVINDARAJAN

JUDGEMENT

(1.) THE decision in 1970 A.C.J. 44 Pandian Roadtwys Corporation, Madurai v. Kafunanithi 94 L. W. 786 and the decision in 94 L. W. 786 (Pandian Roadways Corporation, Madurai v. Karunanithi 94 L. W. 786) are relied on by the learned Counsel for the appellants in support of their contention that the Tribunal has not properly appreciated the evidence available on record, and it had wrongly come to the conclusion that the evidence emanating from the witnesses: PW 1 Cbinnaponnu, PW 2 Royappaa and PW 4 Irudayaraj were unreliable. It is also pointed out by the learned Counsel for the appellants herein that nothing material has been brought in the cross examination of PW 1, PW 2 and PW 4, the witnesses examined on the side of the appellants herein so as to reject their claim for compensation. It is further submitted that the ingredients of the offence of rashness and negligence on the part of the driver of the vehicle involved in the accident have been proved in the instant case before us. Since it is in evidence that the driver had fled from the scene of accident, it is a case of hit and run. It is relevant in this connection to note that the Tribunal came to the conclusion that the claimants have not proved rashness and negligence on the part of the driver of the vehicle involved in the accident. The Tribunal came to the conclusion that: in the event of an Award, a flat sum of Rs. 5000/- will be just and adequate compensation for the death.

(2.) THE only point that arises for consideration in this appeal is: Whether the Tribunal had properly appreciated the evidence that had been let in through PW 1, PW 2, PW 4 and PW 5 ?

(3.) A careful and anxious scrutiny of the entire evidence in this case, both oral and documentary, shows that the deceased had been hit and done away with only because of rash and negligent driving of the vehicle in question by its driver at the time of the accident. PW 2 has stated in his witness that three persons including the deceased boy were playing marbles on the payment adjoining Kuppam Road and that the marable rolled on the road, whereupon the deceased boy ran to pick the same and at that time the left portion of the passing lorry hit him. Merely because PW 2 would give an entirely a different version in the witness box that the boy was walking on the road and that the lorry came rashly and hit the boy, than the one what has been stated by PW 2 in the F.I.R.-Ex, P. 1, which is not a vital discrepancy or contradiction, the evidence of PW 2 cannot be discarded The fact remains that PW 2 was present at the place of occurrence during the time of occurrence. The question is whether the deceased had contributed to the accident. There is nothing on record to show that the deceased had contributed his act so as to cause the accident which involved his death, nor there is anything wrong or false in the contents of Ex. P. 1 F. I. R. The presence of PW 2 cannot also be disputed because nothing material had been elicited in the cross-examination of PW 2 to doubt his presence. Therefore, with the evidence of PW 2 alone, it can be held that only due to rash and negligent driving of the lorry in question by its driver, the accident had occurred in which the deceased sustained grievous injuries to which he succumbed Before accepting the contents of the document which is filed as an exhibit or the varacity of the oral evidence emanating from an individual while figuring as a witness in the box, the reason for rejecting the evidence of PW 2 given by the Tribunal are not at all acceptable, and they are not trivial in nature and not at all go to the root of the evidence Merely because RW 1 emphatically dented that he obtained the signature of PW 2 on a blank paper and RW 1 further reiterated that PW 2 told him that the deceased was playing marble and then suddenly ran across the road to pick up the marble, as already stated by this Court, the evidence of PW 2 cannot be rejected or discarded. RW 1 found on investigation that the occurrence was inevitable. It was 'inevitable' so far as RW 1 is concerned. This Court comes to the definite conclusion that only due to rash and negligent driving of the lorry by its driver in the instant case before us, the accident occurred in which the deceased died. We are not here guided by the opinion of anybody. A court has to cone to its own independent conclusion and not carried a,way by the evidence of RW 1 who is no other than the investigating officer. Merely because the road was narrow having 6.30 meters wide and there was a side-road celled Kuppam Road, it does not mean that the driver of the vehicle may be careless. In the instant case, such a kind of care which a prudent and reasonable driver, under the circumstances, ought to have been exercised, which aspect when scrutinised, clearly shows that the driver of the vehicle had failed to exercise. In other words, he had indulged in rash and negligent driving of the vehicle which resulted in the accident. This Court sets aside the finding of the Tribunal that the appellants herein have not proved rashness and negligence on the part of the lorry driver, and holds on the evidence available on the side of the appellants herein including the documentary evidence let in on their side, that they have proved beyond all reasonable doubt that it was only due to rash and negligent driving of the lorry in question the occurrence in the instant case before us had taken place in which the deceased died.