RAJASTHAN STATE ROAD TRANSPORT Vs. MANGAL SINGH

JUDGEMENT

(1.) SINCE instant special appeal arises out of a very old claim of the year 1987, we propose to dispose it, at the admission stage itself.

(2.) ADUMBRATED in brief the facts are that the claimant Mangal Singh was travelling in the bus belonging to the appellant Rajasthan State Road Transport Corporation, Jaipur (hereinafter referred to as "the Corporation") from Chittorgarh to Fatehgarh. He set near the window seat. On the way a truck coming from the opposite side passed too closely by the side of the bus causing injury to the right hand of the claimant, The claimant was operated upon and his right upper arm, just below the shoulder joint was imputed resulting in 80% permanent disability. At the relevant time the claimant was earning Rs. 1500/- per month, as an employee of a private company namely M/s Rajfed Oil Mill, Fatehnagar. He claimed compensation in the sum of Rs. 1,69,500/-. The claim was resisted by the appellant Corporation. In the opinion of the tribunal, claimant himself was negligent in keeping out his elbow and, therefore, was not entitled to damages. In view of the finding, the tribunal disallowed the claim.

(3.) IT is contended by Mr. Anil Bachhawat learned counsel for the appellant that the learned Single Judge failed to consider that there is no pleading in specific words about the rash and negligent driving by the driver of the bus in the application. The learned counsel has placed reliance on the two decisions of the Apex Court i.e. Nagar Palika, Jind v. Jagat Singh reported in 1995(3) R.R.R. 74 : AIR 1995 SC 1377 and Smt. Sawarni v. Smt. Inder Kaur and Ors., reported in 1997(1) R.C.R.(Civil) 41 : AIR 1996 SC 2823. It is held therein that the appellate court was not right in setting aside the finding of the trial court merely on the ground of mutation entry in favour of the defendant. In our view, both the cases referred by the learned counsel are absolutely out of context. An application for claiming damages under the Motor Vehicles Act is not a plaint governed by the Civil Procedure Code. There is a form prescribed under the Rajasthan Motor Vehicle Rules for making an application for compensation which does not require averments to be made in so many words. In an application for compensation under the Motor Vehicles Act the question of rashness and negligence is a matter of inference to be drawn from the circumstances leading to accident, the manner in which the accident occurred and other relevant facts. We must keep in mind the principle of res ipsa locutor in a given situation, it is for the tribunal to draw his inference regarding rashness and negligence from the material on record. We may usefully refer to a decision of Orissa High Court in Bhuban Chandra Dutta Gupta v. General Manager, Orissa State Road Transport Corporation and Ors., reported in 1985 ACJ 228. Even if the Code of Civil Procedure is applicable, it is well established law that if a plea is not specifically made and yet it is covered by as issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it, if it is satisfactorily proved by evidence. Reference be made to Bhagwati Prasad v. Chandra Maul reported in AIR 1966 SC 735.