PETITIONER:
THE NEW DATAR TRANSPORT CO.(PVT.) LTD
Vs.
RESPONDENT:
SMT. RADHABAI & ORS
DATE OF JUDGMENT: 07/08/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (7) 457 1996 SCALE (6)121
ACT
HEADNOTE
JUDGMENT
ORDER
This appeal by special leave on the ground of pecuniary valuation arises from the judgment and order of the High Court Bombay made on July 18, 19 & 20, 1967 in F.A. No.63 & 79/64. The indisputed facts are that the S.D.O., R.J. Kulkarni was going in Jeep No.MPK-741 along with Tehsildar G.S.Kulkarni, Shri Vaidya, Agricultural Assistant and Peon Parashram which was driven by Shantaram Patki a driver (P.W.5) on February 14, 1959. When the jeep was proceeding at a speed of 25 to 30 miles per hour at a place called Karanja, a passenger bus coming from the opposite direction collided with the jeep on the extreme left hand side due to the impact of which R.J. Kulkarni died. The respondents laid a claim for damages for accident. The trial Court found as a fact that the death had occurred due to the inevitable accident but the respondents would be entitled to Rs.20,000/- and odd towards compensation. The trial Judge dismissed the petition on the ground that the accident was due to inevitable accident. On appeal, on reappreciation of the evidence, the High Court reversed the finding on negligence and held that the driver of the passenger bus was negligent; consequently upholding the amount awarded by the trial Court, the High Court decreed the petition. Thus, this appeal by special leave.
The only question is: whether P.W. 5 was negligent in driving the jeep due to which the collision had occurred? The High Court had carefully scanned the evidence of P.W.5 and held thus;
"We do not think, however, why the
statement of Patki that Jeep car
had not come to a standstill but
was proceeding in slow motion at
the time of the accident could not
be accepted. Patki was asked in
cross-examination as to why he did
not take his jeep car either to the
right or further to the left when
there was possibility of impact
with the bus. Patki has replied
that he did not take the car to the
right side of the road because
thereby he would be going on the
wrong side of the road and he could
not take the car further to the
left as there was ditch on the left
side of the road and the front
wheels of the Jeep car were likely
to get into it. Possible, these
questions were asked by the
defendants indicate that Patki
might have avoided the impact by
taking the car further to the left
or to the right. We are unable to
appreciate that Patki could be
considered to be wanting in taking
necessary care because he could
neither take the car to the right
nor further to the left or to the
right. The reason given by Shri
Patki for continuing to drive the
car on the kachcha road are
adequate to show that he could not
have deviated from the direction
and the side without further risk.
We are unable to appreciate how
Patki could have taken his car
towards the right. It was the duty
of the driver of the passenger bus
to take the bus on the proper side
of the road, i.e., towards his
left. If the driver of the bus did
not or could not do so, the fault
cannot be laid at the door of the
driver of the jeep car,
circumstances as he was at the
relevant time, when he was already
on the extreme left on the road
i.e. the correct side when
proceeding from Martizapur to
Karanja. The testimony of this
witness, which we have carefully
scanned, does not deserve the harsh
criticism of the learned Judge that
Patki has no regard for truth. It
is true that Patki has made a
statement earlier that his car had
come to stop. From that single
statement it is difficult to hold
that whole of the testimony of this
witness is liable to be rejected,
as evidence of a witness which is
not trustworthy. The learned Judge
also seems to have failed to take
into consideration that part of the
evidence of Patki where he speaks
about the wheels of the bus as far
as he could notice.
This finding was recorded on pure appreciation of evidence and, therefore, we do not think that we can reappreciate the evidence and come to a different conclusion as to the nature of the accident and negligence of the respective drivers.
We accordingly, confirm the finding and order of the High Court and dismiss the appeal with no costs. The respondents are entitled to the interest as awarded by the High Court