Tejpal Singh Vs. Rajasthan State Roadways Transport Corporation and Mullan - Court Judgment

Guman Mal Lodha, J.

1. Tej Pal Singh, the claimant, who was aged 16 years at the time of filing of the ciaim petition, has filed this appeal against the rejection of his claim by the Motor Accident Claims Tribunal, Bbaratpur, on the ground that it has not been proved that the accident took place on account of the fault or negligence or rashness of the bus driver-Mullan, who was driving the Corporation's bus No. RJA 3601. The accident, as alleged, took place on 17th January, 1976 at 10.15 a.m. while the claimant-Tejpal Singh on his cycle was going to his village Peerka (Nagar) via Bharatpur-Khakawali (Nagar). While he reached near Khakawali which is 4 miles away from Nagar; Bus No. RJA 3601 which is owned by the Rajasthan State Road Transport Corporation, came with a fast speed from behind him and struck the claimant, as result of which right leg of the claimant was seriously crushed by the bus.

2. Before this Court, there is no dispute and it is common ground that, Tejpal Singh, the appellant, was going on cycle and there was an accident with the bus of the Corporation, as a result of which, Tejpal Singh sustained various injuries and one of his leg was amputed, as a whole.

3. The tribunal has found that there is no credible evidence to prove the fault or, rashness or negligence of the bus driver, and this finding is being challenged before this Court by the appellant-claimant.

4. Shri R.M. Lodha, the learned Counsel, appearing for the appellant has' led great emphasis on the statement of Zinsiram (P.W. 4), a police constable, who lodged an F.I.R. immediately after the occurrence and, has stated categorically that Tejpal Singh was going on cycle and the Roadways bus struck from behind the cyclist-Tejpal Singh, on account of which Tejpal Singhfell down on the right hand of the cycle and became unconscious and, one of the leg was fractured seriously. Zinsiram brought Tejpal Singh to Nagar and lodged F.I.R. (Ex. P. 1). According to this witness, the bus and the cycle collided and the actual impact was from the left from wheel of the bus with the cycle. But, in the F.I.R. (Ex. P. 1) he has mentioned that it was from the right wheel of the front side. The submission of Shri Lodha is that from the entire evidence reading as a whole, it would transpire that first the cycle was struck by front wheel and then as a result of the impact of this accident, he was dragged and then hit by the right side wheel of the front side of the bus.

5. The tribunal has disbelieved this evidence primarily on the ground that the bus stopped forthwith without any drag the collision was by front the right wheel of the front side of the bus which shows that the defence of the corporation is correct that the boy who was driving the cycle, became nervous on knowing that the bus has come from behind and came in front of the bus and even though the driver did best to stop the bus but, there was impact of right front wheel.

6. The contention of Shri Lodha is that no importance should be given to right or left because it is possible after having impact of the left wheel the boy can be thrown under right front wheel and can be crushed. According to him, in the instant case it is difficult to work out details as various factors took place which cannot be imagined or expected or anticipating.

7. Shri R.N. Munshi, the learned Counsel for the corporation-respondent, has pointed out that not only the evidence led by the corporation but also the claimant's evidence, conclusively proved that the fault was of the boy who became nervous and suddenly came in front of bus after loosing his balances and fell down. According to him, the driver of the bus did his best to stop the bus but, noneless the accident could not be avoided.

8. I have carefully gone through the entire evidence led in the case by both the parties and particularly, the evidence of constable Zinasiram (PW 4). Zinsiram is constable and may not prepared to accept the suggestion given in the cross-examination that he has tried to involve the bus driver, as he was not given freedom, however, before appreciating the evidence of thiswitness, I must mention that Tejpal Singh, the boy, who is victim of this accident in his examination-in-chief, has stated that the bus struck his cycle from behind on account of which he fell down and the wheel of the bus was over his right leg. In cross-examination, this witness has stated clearly that the impact of collision, between the cycle and the bus was from rightfront wheel and he fell down and, thereafter in the right hand side in the Kacha so also the cycle. According to him, he fell down at the point where the accident happened. It would not therefore, be dragging theory argued by Shri Lodha and the deduction made by him that first there was impact of accident between the left and front side of the wheel of the bus and the cycle on account of which the boy was crushed by right wheel of the front side. It is not the case of Tejpal Singh and, though if there would have been clinching evidence otherwise I would have ignored the infirmity in the evidence of the boy giving due consession to his immaturity but, I find that other evidence is also consistant with the theory and details of the accident given by Tejpal Singh. Normally Tejpal Singh was the best person to know as to how the accident happened as he is victim and, the other persons are those who would have seen the accident from some other place by observing from some distance, howsoever it may be.

9. It is also significant that the witness, Zinsi whom I am inclined to accept true witness so far as the presence is concerned, and further so far as his seeing the accident is concerned, has also not been consistent about the description of left or right side of the wheel. According to him, Tejpal Singh came from the right side and the accident took place from the left wheel. He was confronted with the relevant portion of the F.I.R. in which he has stated that after the accident there was dragging on the right side upto the foot-path, then, the boy fell down. When confronted be stated that it was not there. About this version in the F.I.R. so far as Madho (AW-8) is concerned, all that he stated, was that there was an accident and the cycle of Tejpal Singh was struck by the bus but he has not alleged rashness or negligence or anything about the fault of the bus driver. According to him, the accident took place on account of impact of the right front wheel of the bus.

10. It would thus be seen that leaving aside the evidence of the Corporation, the evidence produced by Tejpal Singh, itself, is faultering on the exact manner in which the accident took place and, whether it was left wheel or right wheel, obviously, there is not of confusion and contradictions.

11. On a reading of the entire evidence of the claimant's side as well as the Corporation, I am inclined to hold that the boy was going on the cycle and, when the bus came, there was collision with the right front wheel of the bus and the cycle and, the boy came from the left side. I am not inclined to accept the theory that there was collision of left front wheel of the bus and then the boy came down below the wheel, as in the facts and circumstances, mentioned above that possibility is ruled out and it is not even the case of Tejpal Singh, himself, it hardly requires to be mentioned here that no body can be more pious than the pope, himself, and Tejpal Singh was the best witness.

12. The question which now arises for consideration is, that, in such circumstances, whether there is no liability of the bus driver. In thisaspect, I am inclined to follow the principles laid down in Pandian Roadways Corporation v. Karunanidhi Madras)? Wherein in paras 15 and 16 it was held as follows:

15. In the present case, we have to find out as to what is the cause of the accident. The accident here is the running over the arm of the boy aged about 6. The driver was in a position to look out as to what was happening in the front. He saw the dogs fighting and he must have seen the boys coming on the cycle. If only he had stopped the vehicle, as a prudent man would have, he would have avoided the accident. The fact that he alleges that he did not see the boy falling until he came too close is not decisive of the question of negligence. Admittedly the cyclist was coming on at a slow speed and there was also a bus stop ahead. When he saw the boys coming in front and the dogs fighting with each other, he could have easily anticipated that the dogs would not be stationary before an oncoming bus and even likely to run this way or that. He should have immediately stopped the bus, so that neither the dogs nor the boys would have been injured. It is this doctrine of 'last opportunity' having gone into disrepute that is referred to in the decision of the Federal court of Malaysia in Chan Leo Kheo v. Lai Eiew and Ors. 1971 ACJ 408. It is unnecessary to deal with the said decision except to mention that in that case a car which had been stopped by the driver on highway and which was mistaken by the oncoming traffic as one on the move, was damage the court held that leaving the vehicle on a middle of the road was the cause of the accident and the oncoming/traffic was not responsible for it.

16. It has been pointed out that a higher degree of care is due from those who knew of or ought to anticipate the presence of disabled or immature persons. See Halsbury's Law of England, 3rd Edn., Vol 28 page 11, paragraph 9. This is such a case., when three immature persons were riding on a cycle, and were disturbed by a dog fight, the reaction of any person acting reasonably would have been to stop the vehicle, especially when the vehicle had allowed down because of the dogs and the presence of a bus stop at a short distance. It has, therefore, to be held that it is a clear case of negligence on the part of the bus driver.

An emphasis was led on the fact that a higher degree of care is due from those who know of or ought to anticipate the presence of disabled or immature persons.

13. However, it appears to me that on a thoughtful consideration of the evidence that though the bus driver cannot escape of the liability of being required to be more careful and, I feel, in such cases, his failure to stop the vehicle and avoid the accident even when the boy came in front, may be due to the fact that the boy became nervous or otherwise, cannot be avoided I also held that there was a composite negligence of the boy inasmuch as when the bus came from behind, he came from left side to right side and admittedly, he was driving on the left side and if he would not have come in front of the bus, that too on the extreme left hand side and continued to be driving the vehicle, there would have been no accident. Probability is that he became nervous and lost balance, for which the evidence has been produced or may be that he wanted to cross right side otherwise without becoming nervous a phenomenon for which there is no evidence directly and which can only be based on the conjectures. Be that as it may, it is established that the vehicle was struck driven on the right front wheel and there was no impact of the left wheel of the bus with the cyclist even though the cyclist was drivingon the left side.

14. I have, therefore, no hesitation in accepting the contention of Shri Munshi that the composite negligence for the immaturity of the boy, the court has got all sympathy and considerations.

15. The tribunal has calculated the compensation at Rs. 20,000/-. In my opinion, this is too conservative assumption of the damages and loss caused to the boy whose left leg as a whole was amputed on account of the accident. The amputation of the leg makes the life miserable and sometimes, worse than death.

16. In Tinsukhla Floor Mills v. Shiv Prasad 1980 ACJ 356, the accident took place as a result of which a young boy of 14 years and studying in school was injured and shose left leg was amputed having permanently disability. The tribunal awarded Rs. 50,000/- for mental suffering pains, mental agony treatment and permanent disability and it was upheld by this Court.

17. In the present case, I am inclined to adopt the above estimate. The amount of compensation is, therefore, increased from Rs. 20,000/- to Rs. 50,000/- as per the father of the claimant's statement Narottam Das. I would, therefore, allow Rs. 2,500/- for the sequences of treatment in addition to the amount of Rs. 50.000/.

18. The result would be that the amount would be Rs. 52,500/-. On account of the composite negligence, the boy claimant would be entitled to get fifty percent of the above amount of 52,500/- which would come to Rs. 26.225/-. Consequently, the impugned Award passed by the Tribunal is set aside and, the claim petition is accepted so also the appeal, as indicated above, Tejpal Singh would also get this amount of Rs. 26,225/- with interest at the rate of 12% from the date of application till the date of realisation, with costs of Rs. 500/-.