Judgment:
P.S. Patankar, J.
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 17.11.1977 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. MRR 6122, 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 injuries 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, inter alia, 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 Member of the Additional Motor Accidents Claims Tribunal, Greater Bombay, Bombay, held that the evidence of eyewitness led on behalf of the appellants of Ishwarlal and that of eyewitness examined on behalf of the respondent, Bhatia, cannot be relied upon. He further took the view that the appellants have failed to establish 'affirmatively' that the accident was caused because of rash and negligent driving of municipal tanker. The appellants have failed to discharge the burden of proving rashness and negligence on the part of the driver of the municipal tanker. The learned Judge observed that Shashikant may have suddenly come in front of the moving municipal vehicle from its left side of which the driver was not aware and vehicle might have struck his bicycle accidentally. Therefore, the learned Judge dismissed the said application.
4. The learned advocate for the appellants submitted that the learned Judge has committed an error in disbelieving the eyewitness examined on behalf of the appellants. He further submitted that once the learned Judge disbelieved the evidence of eyewitness 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.
5. I would first examine the evidence which came to be led on behalf of the respondent. The driver Keru Balkrishna Landage was examined. He has only stated that his vehicle was found in the traffic jam and was moving at a slow speed and when he got some space for movement he moved the van in front. One person came near him and told him that a person had fallen behind the vehicle. In the cross-examination he has admitted that the person was bleeding from back of his head and his vehicle was nearly 25' away from where he had fallen. He has also stated that if the impact of the vehicle from behind is very negligible then the driver would not come to know about it. The other witness examined on behalf of the respondent was one Hirachand Mohanlal Bhatia. He has deposed that he was walking on the left side of the road and was going from S.v. Road to Malad, i.e., in the same direction. The cyclist was driving at fast speed and wanted to overtake the vehicle from the left side. However, members of the public came in the way and cyclist was required to apply the brakes and while applying the brakes the cyclist lost the balance and fell down on his right side. At that time traffic started moving and he came under the left rear wheel of the tanker. He has further deposed that left rear wheel of the tanker went over the head and chest of the cyclist and one of his organs came out of his body when the wheels of the tanker passed over him. As far as the deposition of Landage is concerned, it does not support the case of respondent that the deceased was holding to the platform of motor tanker. On the contrary, it suggests that there might have been impact of his vehicle on the cyclist though negligible. It also shows that deceased suffered injury on the back side of his head. The evidence, of Bhatia is clearly at variance with the written statement filed on behalf of the respondent. The respondent tried to make out the case that the deceased was holding the motor tanker from the rear side of the platform and fell down. Mr. Bhatia though claimed to be an eyewitness has not stated so and made out a totally different case, i.e., the deceased was going on the cycle at a fast speed and intended to overtake the motor tanker from the left side and at that time some members of the public obstructed due to which he lost the balance and fell down. Similarly, his evidence shows that deceased fell down and the motor tanker passed over his head and chest and one of the organs of his body had come out. This is not at all supported by the post-mortem notes which are at Exh. 10. The post-mortem notes show that he suffered contused wound on his forehead measuring 9.8. x 2.6 cms. There was also abrasion on his left hand and contusion on the left side of back. His ribs 2 to 5 on the left side were broken. Internal examination showed that there was subdural haematoma, right bone of skull cerebellum lacerated. All these clearly indicated that the rear side left wheel would not have passed over his head or chest or that any organ of his body had come out. If such a thing would have happened, then his body would have been crushed. Hence, the evidence of Bhatia cannot be relied upon and the learned Judge of the court below was right in disbelieving the same.
6. In my opinion, once the evidence of Bhatia is disbelieved and the case which is tried to be made out by the respondent cannot be accepted, the principle of res ipsa loquitur would be attracted in the present case. It was for the respondent to explain how the accident had taken place and the respondent has failed to prove the same. On the contrary, the evidence of eyewitness examined on behalf of the appellants, prima facie, supports the case made out by the appellants and, similarly, the post-mortem report at Exh. 10 supports the said case. There is no reason, in my opinion, to disbelieve this witness of the appellants, i.e., Ishwarlal Kalanji Jadhav. On the fateful day he was passing from the opposite side and was clearly able to see the accident. He has deposed that front left side of the motor vehicle hit the cyclist due to which he fell down and came under the rear wheel. He has stated that motor vehicle hit the cyclist from back and the accident had taken place in his front. The cyclist was at the correct side and was at a distance of 2 to 2 1/2 ft. of the western kerb of the footpath. He has denied that the rear left wheel of the motor vehicle came in contact with the deceased. His evidence is completely corroborated by the postmortem notes. The post-mortem notes also show that Shashikant suffered main injury on the head. Dr. D.V. Kulkarni was also examined on behalf of the appellants who has proved the post-mortem report, Exh. 10. He has deposed that the injuries as stated in the post-mortem report do not suggest that deceased himself had come under the wheel of the vehicle. He has stated that if there was a violent impact to the body and the person is thrown to the ground then he would suffer head injury as shown in the post-mortem report. In the cross-examination he has stated that there was acute head injury to the brain and as a result of that injury the deceased died. All this leaves no manner of doubt that deceased was hit from behind due to which he fell down and suffered injuries. This also proves the case of the appellants that the deceased was hit from behind by the left side of motor vehicle. The learned Judge has ignored the evidence of Dr. Kulkarni. In my opinion, the learned Judge has committed an error in disbelieving this witness Ishwarlal because he did not inform the police regarding the accident. It was an error to hold that this inaction on the part of Ishwarlal raised serious doubt regarding he being an eyewitness since it is well-known that people are reluctant to go to police station. It is also an error to doubt about his testimony because no relation was examined to whom Ishwarlal reported about the accident so as to corroborate his case. Failure in this respect cannot lead one to the conclusion that Ishwarlal was not an eyewitness. Further it was an error to doubt about the presence of Ishwarlal at the site of accident because his shop was closed on Thursday and there was no reason for him to be at the (Sic.) shop well-known that even on the days when the shops are officially closed, the owners come to the shop for doing many sundry acts. Merely because Ishwarlal was proceeding towards the shop on Thursday did not mean that his presence at the spot was improbable. Similarly, the learned Judge committed an error in surmising two other aspects. He held that Shashikant might have suddenly come in front of the moving municipal vehicle from his left side of which the driver was not aware and vehicle might have struck his bicycle accidentally. It was not the case of the respondent in the written statement nor there was any evidence to support this. There was no reason for the learned Judge to come to such a conclusion. Similarly, it was an error to say that if Shashikant was really proceeding ahead of the municipal vehicle in the same direction from the left side and the driver of the municipal van had dashed against his bicycle from the back side, then certainly the driver, who was driving the vehicle at the medium speed, could have immediately halted it by applying brakes. The learned Judge has forgotten that there was heavy traffic on the road and the driver, viz., Landage himself has deposed that when he got space he stated moving the vehicle. Vehicle was about 25 feet away from the accident site when he stopped the vehicle. Further failure to halt cannot (Sic.) the appellants with disability. On the contrary, the learned Judge should have drawn the inference of rash and negligent driving from this. Therefore, in my opinion, evidence led on behalf of the appellants clearly shows that the left side of the motor vehicle dashed Shashikant from behind due to which he was knocked down and received the head injury resulting in his death. Prima facie, therefore, the driver of the motor vehicle was rash and negligent in driving the same. The respondent has failed to adduce any evidence to explain how the accident had taken place or there was no rashness and negligence on the part of the driver.
7. It is very clear from the evidence that no untoward incident took place till the motor vehicle dashed against the deceased. There was no unexpected development and it was for the driver of the motor tanker to explain how the accident happened. However, the driver Landage has given no such explanation. The burden was upon the respondent to discharge and explain the position by leading the evidence. In such a situation the principle of res ipsa loquitur is attracted and irresistible conclusion can be drawn that the driver was driving rashly. The appellants in the present case could not have proved the actual cause of the accident and on the face of it, it was so improbable that such an accident could not have happened without negligence of the driver. It was for the respondent to show that the driver was not negligent and the accident might have happened in the manner which did not connote negligence on his part. But the respondent has failed to produce any evidence to support such possibility. Therefore, I hold that the appellants have proved that deceased died due to accident caused on account of rash and negligent driving of the municipal van-tanker No. MRR 6122 and the appellants are entitled to claim the compensation from the respondent.
8. The father of deceased, by name, Udavji Purshottam Amarcheda, Exh. 6, has stated in evidence that the deceased was earning Rs. 20/- to Rs. 25/- per day. He was their only son. He was having 3 unmarried daughters. Deceased Shashikant was sending Rs. 200/- to Rs. 250/- per month and he was aged 22 and not married. In the cross-examination he has stated that his family was depending upon the earnings of Shashikant. The other evidence shows that he himself was 48 years of age and his wife, i.e., mother of deceased was about 40 years of age. Considering this, one can safely take the dependency of the family to the extent of at least Rs. 150/- per month. Further considering the age of appellants, multiplier of 15 can be applied. If this multiplier is applied, then the appellants shall be entitled to get compensation of Rs. 27,000/-. Hence the claim of Rs. 25,000/- made by the appellants was quite reasonable and proper and the appellants would get the same in full. Hence I pass the order.
9. Impugned judgment and order is set aside. The application is granted and the appellants shall be entitled to get Rs. 25,000 as compensation with interest at the rate of 12 per cent per annum from the date of application, i.e., 30.11.1977 till payment. The respondent is directed to deposit the said amount in the trial court within a period of 2 months from today. On depositing the said amount, the same shall be apportioned equally between the appellants.
In the facts and circumstances of the case there shall be no order as to costs.
The office to send writ to the lower court expeditiously.