UDAVJIPURSHOTTAM AMARCHEDA Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) THE Appellants herein are the father and mother, who were aged 48 and 40 respectively on the date of accident in which their son Shashikant, aged about 22 years, died. The accident took place on 17th November 1977 at about 9 -00 a.m. Shashikant was going on a bicycle along S.V. Road from Goregaon towards Malad. At the same time a motor tanker belonging to the Respondent, bearing No. MRR6122, driven by one Keru Balkrishna Landage was also proceeding in the same direction. It is the case of the Appellants that the driver of the Municipal tanker was rash and negligent in driving the same and hit the bicycle of Shashikant from behind, as a result of which Shashikant was knocked down on the road and received serious injuries. Deceased Shashikant was removed to Cooper Hospital after the accident but succumbed to the injures immediately thereafter. The Appellants claimed that Shashikant was working as a carpenter in Bombay and was earning about Rs. 20/ - to Rs. 25/ - per day. He was so working for nearly 6 years prior to his death and he was not married. The Appellants were having 3 unmarried daughters who were all staying at Ahmedabad and they were all depending on the support of Shashikant who was sending money to them every month. The Appellants filed the claim application on 30 -11 -1977 claiming compensation of Rs. 25,000/ -.

(2.) THE claim of the Appellants came to be resisted on behalf of the Respondent. It was interalia contended that driver of the motor tanker was not rash and negligent in driving the same. He has taken due care and caution. It was contended that Shashikant himself invited the accident on account of his own negligence and carelessness. He was running his bicycle by holding the municipal tanker from the rear side of its platform and was thus violating the traffic rules and acting negligently, Shashikant himself was careless and rash while driving bicycle in that manner and was himself responsible for the accident.

(3.) THE learned advocate for the Appellants submitted that the learned Judge has committed, an error in disbelieving the eye witness examined on behalf of the Appellants. He further submitted that once the learned Judge disbelieved the evidence of eye witness Bhatia, who was examined on behalf of the Respondent, the principle of res ipsa loquitur is attracted and it was for the Respondent to explain how the accident had taken place and since the Respondent has totally failed in it, it should have been presumed that the accident was the result of rash and negligent driving of the municipal tanker. He submitted that the learned Judge has committed an error in making surmises and placing affirmative burden to prove on the Appellants. He further submitted that considering the dependency and the ages of the Appellants, the claim made by the Appellants was highly reasonable and ought to have been granted.