JOHARI LAL Vs. P C H REDDY

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the Motor Accidents Claims Tribunal, Jodhpur, dated January 28, 1970, whereby the claim of the appellant Johrilal under sec 110a of the Motor Vehicles Act, 1939, for a sum of Rs. 15,000/-, was dismissed by the said Tribunal.

(2.) FACTS giving rise to this litigation, in a nut-shell, are as follows: Johrilal, appellant, was an employee of Hindustan Aeronautics. On November, 2, 1967, he borrowed a scooter rickshaw from Radha Vallabh (P. W. 1) with a view to pay visits to his friends on the occasion of 'deepawali'. Johrilal himself was driving that scooter rickshaw and he went from Nagauri gate towards the main road which connects Paota to Mandore. When Johrilal reached the junction of Nagauri gate road and (he Mandore road he saw an army truck bearing No. B. C. 22229 coming fast from Paota side on the Mandore road. Looking to the speed of the truck Joharilal thought it proper to stop his vehicle on the Nagauri road near Shri Khet Singh's house and let the truck pass. It is alleged that the speed of the truck was quite high and, therefore, according to Joharilal, the driver of the truck P. C. H. Reddy could not control it because of his driving it rashly and negligently and the truck dashed against the ricksha when it was in a standing still position with a result that the rickshaw was over-turned and the petitioner Joharilal was thrown out. He sustained as many as six injuries including the fracture of his patella bone. Joharilal was immediately removed to the Mahatma Gandhi Hospital, Jodhpur, in a Jeep of the Border Security Force, where he remained under treatment for two months. Joharilal claimed before the Motor Accidents Claims Tribunal, Jodhpur (hereinafter referred to as 'the Tribunal') special damages under various heads to the tune of Rs. 4,000/- and general damages on account of mental agony, shock, loss of blood, physical sufferings, to the extent of Rs. 11,000/ -. Thus, a claim petition was filed before the Tribunal, but the Tribunal, after recording the evidence of both the parties, came to the conclusion that the petitioner could not prove the rash and negligent driving of Mr. P. C. H. Reddy the driver of the truck and, therefore, the petitioner was not found entitled to receive any com-pensation from the Union of India as well as from Mr. Reddy.

(3.) SECTION 83 of the Motor Vehicles Act lays down that "no person driving a motor vehicle shall allow any person to stand or sit or anything to be placed in such a manner or position as to hamper the driver in his control of the vehicle. " This mandate of the statute, as contained in sec. 83. makes it abundantly clear that the permission given to Suresh Chandra to sit on the left side of the driver was per se illegal and it was responsible to hamper the driver's vision on the left side. It was on account of this factor that the driver of the truck could not see the scooter rickshaw standing on the left of the main road at the junction where the two roads meet. It is apparent from the site plan Ex A/1 filed by the defendant driver himself, that the rickshaw after accident was found lying over-turned on the Nagauri gate road, which establishes that the collision of the truck with the ricksha must have taken place when the rickshaw was actually on the Nagauri gate road. The plea of the respondent Reddy that Joharilal was himself driving his rickshaw rashly and negligently and while he was trying to come on the main road, the rickshaw dashed against the truck cannot, in the light thrown by the site plan Ex. A/1, be believed. The condition of the rickshaw after the accident shows that its right mudguard was smashed which establishes that the ricksha must have been hit by the truck on its right side I the ricksha had collided against the truck, as is pleaded by Reddy, then the front of the rickshaw must have been damaged and not the right mudguard of the rickshaw. The injuries sustained by Joharilal also go to indicate that the truck must have dashed against the rickshaw as the impact of the collision was borne by the right leg of the victim causing the fracture of his right patella bone. The other minor injuries seem to have been sustained by Joharilal on account of the fact that he was thrown out of ricksha and he fell on his left side. I find that the learned judge, while considering the question of negligence of the truck driver entered into the realms of conjecture regarding the precaution that should have been taken by the rickshaw driver and the argument advanced by him was that when the petitioner had seen the truck from 40 to 50 yards, it was his duty to have dead stopped and should not have ventured to come to the main road before the truck passed away. This is factually wrong that the collision took place when Joharilal was trying to come over the main road. The site plan Ex. A/1 clearly shows that the collision actually took place when the rickshaw was on Nagauri gate road which undoubtedly supports the version of the appellant that he thought it safe to remain on the by lane, rather to come on the main road when he saw the truck coming towards him on the main road. This precautions taken by Joharilal, strengthens the case of the petitioner that it was on account of the negligence driving of the truck by Reddy that this mishap took place. In my opinion the negligence of the truck driver is writ large, as he permitted a person to sit on his left side which must have obstructed his left side which must have obstructed his left vision and he could not exactly locate the position of the rickshaw at the junction of the two roads. The violation of the mandatory provision of the statute contained in sec. 83 of the Motor Vehicles Act, per se, establishes the negligence of the truck driver. In this view of the matter I cannot agree with the finding of the trial court that the petitioner-claimant failed to prove the negligence on the part of the driver of the truck. 7. This brings me to the question of the damages to be awarded to to the petitioner-claimant, who has demanded special and general damages under the following heads: - (a) Special damages (1) Expenses incurred for medicines . . . . . . Rs. 200. 00 (2) Loss on account of earnings . . . . . . Rs. 1,500 00 (3) Loss on account of expenditure incurred for maintaining dependents . . . . . . . . . . . . Rs. 400. 00 (4) Expenditure incurred for repair of scooter . . . . . . . Rs. 500 00 (5) Loss on account of depreciation of the scooter rickshaw Rs. 1,000. 00 (6) Expenses incurred in connection with the filing of the petition . . . . . . . . . . . . . . . Rs. 400. 00 (b) General damages (7) On account of mental agony, shock, loss of blood, physical sufferings caused to the petitioner. . . . Rs. 11,000. 00 Total Rs. 15,000. 00 Learned counsel has candidly conceded before me that the petitioner did not lead any evidence to prove the actual expenditure under items Nos. 1, 2, 3 & 6 under the head 'special damages'. In order to prove his claim under item 5 of this head, he has drawn my attention to the statement of Radha Vallabh (P. W. 1), whose son owns this unfortunate scooter rickshaw. The scooter rickshaw was lent to Joharilal by Radha Vallabh He has come in the witness box and has deposed that he had spent Rs. 525/- for the repairs of the scooter rickshaw. It is true that Radha Vallabh did not yet realise this amount from Joharilal, but he says that he had demanded the payment of this amount from the petitioner and according to him this amount is still outstanding against Joharilal. There is no reason to disbelieve the testimony of Radha Vallabh on this point. The damage to the scooter rickshaw was quite obvious and, therefore, there is no reason to discard the testimony of Radha Vallabh on the point relating to the amount spent by him on the repairs of the rickshaw. In my opinion the petitioner was entitled to the special damage for Rs. 500/-, as claimed by him under this item. The claim of the petitioner for Rs. 500/- for the repairs of the scooter-rickshaw under the head "special damages', is, therefore, decreed.