HEMALATHA J Vs. S NAGENDER

JUDGEMENT

(1.) Alleging that the deceased, J. Vijayakumar, aged 34 years, working as Senior Assistant in Coromandal Fertilisers, Hyderabad, who is the husband of the 1st petitioner, father of petitioners 2 and 3 and son of petitioners 4 and 5, died in a motor accident on 27-5-1988 at about 9-45 p.m. on the tank bound in Hyderabad city, due to the hit of the A.P.S.R.T.C bus bearing registration No. AAZ 4216, which was driven by the 1st respondent in a rash and negligent driving, the petitioners filed O.P.No. 504 of 1988, on the file of the Additional Chief Judge, City Civil Court at Secunderabad claiming a total compensation of Rs.5,71,812-29. The lower tribunal having found that there was contributory negligence on the part of the deceased also and having fixed the negligence on the part of the deceased and the driver of the bus in the ratio of 1:3 and after considering the earning capacity of the deceased, ultimately granted a total compensation of Rs.1,95,000/-. Having been dissatisfied with the quantum of compensation awarded by the Lower Tribunal, the petitioners filed CMA No.1232 of 1991. Having been aggrieved by the award of compensation, the A.P.S.R.T.C.filed CMA No. 1206 of 1992.

(2.) As regards the contributory negligence fixed by the trial Court, in the ratio of 1:3 between the deceased and the driver of the bus, the learned Counsel, Mr. P.B. Vijayakumar, appearing on behalf of the claimants contended that there was no negligence on the part of the deceased and it is only on account of the negligence of the driver of the bus the accident had occurred. In support of his submission, he has relied upon the rough sketch of the scene of offence, marked as Ex. A-4. On the other hand, Sri V. Rajagopal Reddy, learned standing Counsel appearing on behalf of the the A.P.S.R.T.C. vehemently contended that there was negligence on the partof both the deceased and driver of the bus in the ratio of 50% : 50% and that the lower tribunal, according to the learned standing Counsel for A.P.S.R.T.C. went wrong in fixing the contributory negligence on the part of the deceased at 25% and it should have been 50%.

(3.) We have perused the sketch, Ex.A-4, marked before the Lower Tribunal. According to the rough sketch Ex.A-4, the accident spot is within the scooter zone. Blood stains were also noticed within the scooter zone and the scooter was found lying within the scooter zone. Admittedly there are four zones on the tank bound road, besides the pavements. The extreme left zone ana extreme right zone are meant for the traffic of scooters and other two wheelers while the middle two zones are meant for incoming and outgoing heavy vehicles like buses, i.e., one zone for the vehicles coming from Hyderabad side and one zone for the vehicles coming from Secunderabad side. So when the bloodstains were found within the scooter zone and when the scooterwas also found lying within the scooter zone, this itself amply establishes that the accident took place in the scooter zone. When the accident is proved to have occurred within the scooter zone, the burden is on the driver of the bus to show under what circumstances he went into the scooter zone. When the respondents have come forward with a plea that the scooterist was at fault and that the accident occurred on account of the contributory negligence on the part of the scooterist, they should have add uced cogent evidence by examining the persons who have knowledge of the incident. It is true mat at that part of the night no persons were readily available who have actually seen the accident. But it must be remembered that the persons who are having actual knowledge of the incident are the victim-the deceased and the driver of the bus. The victim has expired. The driver of the bus is very well available but he was not examined to discharge the burden cast upon the respondents to prove that the accident had occurred on account of the contributory negligence of the deceased. The approach of the Lower Tribunal on this aspect of the matter is patently wrong and is liable to be set aside in limini. When Ex. A-4 rough sketch of the scene of offence prepared by the Investigating Officer clearly shows that the blood stains were found within the scooter zone and when the scooter was also within the scooter zone and when the driver of the bus was not examined to explain the place of accident, an adverse inference as to be drawn against the respondents that the accident had occurred solely due to the rash and negligent driving of the bus by its driver and that there was no contributory negligence on the part of the deceased. In addition to the above, the petitioners have examined P.W.4 a watchman of the garden on the tank bund. P.W.4 deposed that he saw the accident. According to him, the bus was coming from Hyderabad side overtaking another bus in front of it and that the bus hit the scooterist. Ex. A-2 certified copy of the charge-sheet filed by the police in C.C-No. 14 of 1989 was also marked in the lower tribunal. It prima facie shows that according to the investigation done by the Investigating Officer, the accident had occurred due to the negligence of the bus driver only. Of course, it is not a conclusive proof. But, Ex.A-4 certified copy of rough sketch, a reference to which has already been made in the preceding paragraph, clearly clinches the issue. If the driver of the bus had effective control over the steering of the bus, he would have averted the accident. On a careful examination of the. facts and circumstances of this case, especially Ex.A-4 rough sketch, we are of the firm opinion that there was no contributory negligence on the part of the deceased who was proceeding on his scooter in the scooter zone. The contributory negligence of 25% fixed by the lower tribunal on the part of the deceased has to be set aside. The degree of negligence depends upon the facts and circumstances of a given case. In one case it may be 50% :50% between the deceased and the driver of the vehicle, or it may be 40% : 60% or 30% : 70% so on and so forth. It depends upon the facts and circumstances of each case. Taking into consideration the facts and circumstances of this case, we hold that there was no negligence on the part of the deceased and that the entire negligence was on the part of the driver of the bus. The finding of the Lower tribunal to that effect is therefore set aside.