BANSIDHAR MOHANTY Vs. SARAT CHANDRA PATNAIK AND ORS.

JUDGEMENT

(1.) THIS appeal under Section 110D of the Motor Vehicles Act of 1939 (hereinafter called the 'Act') is directed against the order of the Second Motor Accidents Claims Tribunal, Cuttack, rejecting a claim for compensation made under the Act.

(2.) THE Appellant while working as a Head Sorter in the Office of the Senior Superintendent of the R.M.S. (N) Division, Cuttack, was travelling from his village to Cuttack by a stage carriage bearing registration number ORC 747 on 3.9.1973. Respondent No. 1 is the owner of the vehicle and the said vehicle was in the pool of the Cuttack Motor Association (Respondent No. 2) and was insured with Respondent No. 3. The Appellant alleged that the vehicle was being driven both rashly and negligently by the driver and while the vehicle passed by the side of a school, two boys suddenly emerged from the school gate chasing each other and to avoid any untoward incident, the driver swerved the vehicle to the left and applied brakes. Consequently the vehicle skidded to a side and hit a neighbouring masonry pillar. Several of the passengers including the Appellant were injured. The Appellant had a fracture of the right wrist and sustained injuries on the back side of his head. He laid claim for compensation of Rs. 15,000/ -.

(3.) MR . Basu for the Appellant does not challenge the quantification of compensation but claims that the finding that negligence has not been proved is contrary to the evidence and, therefore, must be vacated. Appellant examines himself as P.W.I. He has stated that the bus was being driven in speed. But his evidence has not been accepted on the ground that such a plea had not been raised in the claim application. P. W. 2 is the Motor Vehicles Inspector. He has given evidence to the effect that there was deep skid mark of seven feet on left side flank of the road. The middle portion of the road was 12 feet and the left flank was 13 feet. There was a canal on the right side of the road. The road at the spot was straight. According to the witness, the accident was not due to any mechanical defect, but for sudden application of the foot brake. Though P.W. 2 has not specifically sated about the speed of the vehicle, from his cross -examination it would appear that the vehicle was moving at a speed of more than 15 to 20 miles. O.P.W. 1 has stated that it had rained and the flank of the road was wet. The road is known to the driver and he must have been aware of the location of the school and its playground by the side of the road. P.W.2's evidence shows that on one side there is a canal. Therefore, it was the duty of the driver while negotiating this portion of the road to drive with care. This being a school area, the driver was to apprehend the unexpected at any moment and, therefore, should have been more cautious. The driver should not have forgotten that to his care had been entrusted a host of passengers in his vehicle and their safety was his primary duty. It was as much his duty to see that while the vehicle was run on the public road, no man or animal was run over. Therefore, in the facts of this case it is difficult to accept the reasoning of the driver that as the driver had been required to swerve the vehicle to the left to avoid the accident of running over the two school boys, sufficient justification had been made out not to pay compensation to the claimant who had admittedly received several injuries. It is settled law that even a speed of fifteen miles per hour in given circumstances may be too high a speed. 5 -30 p.m. in the month of September would be the time when school boys would be playing in the field. It is not the case of the driver that he did not know of the location of the playground. Therefore, being aware of the fact that on the right side of the road a canal runs, on the left side of the road there is play -field from where boys are likely to emerge onto the road without notice and it had rained earlier in the day and the left flank of the road was still wet and taking into consideration that the road was straight at that point, there is no escape from the conclusion that the accident took place on account of rash and negligent driving of the vehicle. If the vehicle was run in a state where the the driver had full control over it, he should have been able to stop it when he found the boys emerging to the road one chasing the other from behind. The fact that he has not been able to control the vehicle and look after the safety of his passengers is a further feature to support the conclusion which I have reached.