Philippose Cherian and anr. Vs. T.A. Edward Lobo and anr. - Court Judgment

K.T. Thomas, J.

1. A claim made on the owner and driver of a stage carriage bus KLK 7221 for compensation arising from death of a young man in a motor accident was dismissed by the Motor Accidents Claims Tribunal. The claimants are the father and mother of the deceased. Claims Tribunal found that there is no proof of negligence in driving the bus. This appeal is by the claimants.

2. The facts, in short, are these: The accident happened on 18.9.1982 around 2 p.m. The deceased, a second year B.Com. student, was riding his bicycle from west to east along Changanacherry-Karukachal road. The bus came from opposite direction and knocked him down. Consequently, the cyclist sustained serious injuries and later he succumbed to his injuries on the same day while undergoing treatment in the hospital. The claim was for Rs. 1,00,000/- after defraying a sum of Rs. 5,000/- already received from the owner of the bus. The claim was resisted, inter alia, on the ground that the accident happened due to the negligence of the deceased cyclist, The Claims Tribunal accepted the said contention and dismissed the petition.

3. The main question involved in this appeal is whether the accident occurred due to the negligence in driving the bus. Learned counsel for the appellants raised a new argument that as between a cyclist and driver of a heavy vehicle, the latter's duty is much greater to adopt care and diligence and hence there is a presumption when those vehicles collide with each other that the heavy vehicle was driven negligently. Learned counsel cited the decision of a Division Bench of the Karnataka High Court in G.M., Bangalore Trans. Service v. N. Narasimhiah 1976 ACJ 379 (Karnataka), in support of the said argument. In that case, a cyclist was proceeding ahead (or in front) of a bus and the cyclist was knocked down by the bus which came from behind. We do agree that in such a situation, the type of vehicle has a bearing in fixing the liability regarding negligence. This is because the bicycle is a human pedalled two-wheeler which is, on account of the very type of it, subject to far greater limitations in collecting momentum or velocity, whereas a fuel propelled automobile is able to speed up much faster than the cycle. But we do not think that the aforesaid standard can readily be adopted in a case where those two vehicles collide with each other while coming from opposite directions. It may be fallacious to lay down a broad principle that the duty to adopt care and circumspection of the person riding or driving a light vehicle or a two-wheeler or bicycle is less when compared with the duty of the driver of a heavy vehicle in all situations. Whether heavy or light, the driver of heavy vehicle has the duty to exercise reasonable care and circumspection. When two vehicles are driven in opposite directions, driver of one vehicle cannot say that the other vehicle should have been driven more carefully than himself. When two vehicles are driven or ridden in opposite directions they do not normally collide with each other if both vehicles keep their proper sides. Similarly, if both vehicles keep each one's wrong side while coming from opposite directions, chances for collision are remote. Collision takes place between two vehicles coming from opposite directions when one of them does not keep its proper side while the other maintains its proper side. This broad probability has to be borne in mind while deciding the question of negligence in driving.

4. In order to decide whether the bus was driven negligently, the safe test which can be made in this case is to ascertain the spot (whether north or south of the road) where the accident happened. If it happened on the northern half of the road, the reasonable inference is that the bus was on its wrong side. (It is admitted that the cycle was proceeding from west to east and the bus was driven from east to west).

5. A reference to evidence is necessary to determine that point. PW 3 is the only witness examined by the claimants to prove the occurrence. RW 2 was the driver of the bus. Claims Tribunal did not rely on the testimony of PW 3 who said that the accident happened due to the negligence of the driver of the bus. It seems to us that the Claims Tribunal did not evaluate the entire evidence, particularly the deposition of RW 2. In cross-examination RW 2 has admitted without any ambiguity that the accident happened on the northern side of the road. If that be so, an inference can be drawn that the bus proceeded through its wrong side. Doctrine of res ipsa loquitur applies in the circumstances. There is no evidence to rebut that presumption.

6. The Claims Tribunal appears to have heavily relied on Exh. A-5 which is the certified copy of a scene mahazar prepared by a Sub-Inspector of Police, who investigated the crime case registered in respect of the accident. Though copy of the scene mahazar was marked by the Claims Tribunal, neither the Sub-Inspector who prepared it nor anyone who was shown as attestor therein was examined. No objection was seen raised against marking the document. This seems to be only one of the many cases in which Motor Accidents Claims Tribunals rely on the entries made in scene mahazars prepared by the police without examining their authors as witnesses. We think it opportune to consider whether Claims Tribunals can rely on recitals or entries made in scene mahazars prepared by police when the maker of the scene mahazar was not examined as a witness in the Claims Tribunal.

7. A scene mahazar is most often, if not in all cases, prepared by the investigating officer during investigation of the crime. In motor accident cases, scene mahazar is prepared by the police officer while investigating into offences disclosed in first information report. Police officer is a public servant and the scene mahazar is a record made in discharge of his official duties. The entries in such record are themselves relevant facts under Section 35 of the Indian Evidence Act. The principle embodied in the Section is that in the case of official documents entries are made in the discharge of public duty by an officer who is authorised and is an accredited agency appointed for the purpose. [Vide Brij Mohan v. Priya Brat AIR 1965 SC 282]. The rationale is that when a public servant makes it himself in discharge of his official duty, the probability of its being truly and correctly recorded is high. What entry, in a record made by a public servant in discharge of his official duties, is admissible depends upon the entry sought to be used. In a scene mahazar it is usual to contain two types of facts. Those facts which were observed by the author with his own eyes and those which he heard from others. The latter category is hearsay and is hence inadmissible except for certain limited uses. An entry in scene mahazar which relates to what the author has seen with his own eyes is admissible as direct evidence. [Vide Rameshwar Dalai v. State of U.P. AIR 1978 SC 1558]. Then the only question is one of proof. By strict rules of Evidence Act the entries made by a public servant which are admissible in evidence have to be proved through the person who made them. If such person is not available the entries can be proved through another person who is competent to vouchsafe the handwriting or signature of the maker of the document. But it is well settled that such strict rules of Evidence Act are not to be insisted on by Tribunals of limited jurisdiction. [Vide Union of India v. T.R. Varma AIR 1957 SC 882]. When the certified copy of scene mahazar is marked without objection, the admissible portions therein can be used by the Claims Tribunal if none of the parties disputes the correctness thereof. It is open to the party who disputes the correctness of such entries to examine anyone connected with the document for showing that the entries are unreliable. Subject to this and subject to the principles of natural justice, the Tribunals are legally competent to make use of the entries in scene mahazar even if no person connected with its making has been examined as a witness.

8. But the Claims Tribunal in this case seems to have drawn a mistaken inference from the recitals contained in Exh. A-5, scene mahazar. As we went through Exh. A-5, we noticed that the place of accident was on the northern portion of the road. That was obviously the wrong side of the bus. We fail to understand as to how the Claims Tribunal could have found from the scene mahazar that the accident happened on the proper side for the bus. It is just the other way round. At any rate the scene mahazar entries are of no help to the respondents. On the contrary, they are helpful to the claimants in establishing negligence on the part of the bus driver.

9. As we found that the accident occurred on account of negligence of the bus driver, we hold that the driver as well as the bus owner are liable to compensate the claimants. We, therefore, remit the case to the Claims Tribunal to quantify the amount of compensation and also to decide the liability (if any) of the insurance company. Our attention was drawn to application filed by claimants before the Claims Tribunal under Section 92-A of the Motor Vehicles Act, 1939. As we remand the case to the lower court, it is open to the claimants to request the Claims Tribunal to pass appropriate orders thereon in accordance with law.

Appeal is disposed of in the above terms.