Andhra HC (Pre-Telangana)
Smt. Manne Bala Saraswathi And Others vs Pilchale Subbarao And Another on 20 January, 1989
Equivalent citations: 1990ACJ518, AIR1990AP95, AIR 1990 ANDHRA PRADESH 95
Author: K. Ramaswamy
Bench: K. Ramaswamy
JUDGMENT
1. It is rather unfortunate that the scooterist along with whom the deceased Prasada Rao was travelling as pillion rider brought about this situation which caused the death of Prasada Rao. The deceased Prasada Rao the husband of the first appellant, father of appellants 2 and 3 who are minors, and son of the fourth appellant, died in an accident on Aug. 5,1983 at about 8 a.m. He was a pillion rider in the sctoor and the deceased were coming opposite to the Corporation Bus A AZ 7148 driven by R. W. 1, the first Respondent. They were coming to Rushikonda. The accident took place when the bus travelled for 20 yards after passing Rushikonda on BheemunipatnamVisakha-patnam beach road.
2. It is the case of the appellants that the first respondent was coming rashly and negligently down gradient at that place. The deceased and the scooterist were coming upgradient very cautiously and due to rash land negligent driving of the first respondent, the accident occurred. The deceased was working as supervisor in A,P. State Construction Corporation Ltd., Visakhapatnam drawing a sum of Rs. 1600/- per mensem. Therefore, they laid a claim in a sum of Rs. 15,000/- on the theory of 'no fault liability' and.dismissed the claim of the appellants for the compensation alleged to be paid on account of the rash and negligent driving of the 1st respondent. Assailing the legality thereof, the appeal has been filed.
3. Sri Krishna Murthy, the learned counsel for the appellants has contended that P.W. 4 is the eye-witness. Though he was not examined in the criminal court in a complaint filed for an offence under S. 304-A, I.P.C., he is a natural witness. He is the driver of autorickshaw. Therefore his evidence is amply corroborated by the circumstantial evidence. Therefore, the Tribunal below is unjustified in holding that P. W. 4 is not an eye-witness. It is also further contended that the first respondent would have taken all necessary precautions when he is coming down gradient slowly. He had not taken any precautions. As a result, he also contributed for the accident by his rash and negligent driving. Thereby the Tribunal ought to have held that the corporation is liable to pay the compensation for the death of the deceased. Non-impleading of the scooterist or the Insurance Company is not fatal. It is open to the corporation to proceed against the scooterist and insurance company after making payment to the appellants of the compensation towards the death of the deceased Prasad Rao. The Tribunal, therefore, has committed grievous error of fact and law in dismissing the claim of the appellants.
4. The first question that arises for consideration is whether the first respondent-driver has contributed for the accident.
It cannot be disputed and it is not, in fact, disputed by Sri Reddeppa Reddy, the learned! counsel for the corporation that the accident has taken place on Aug. 5,1983, at 8 a.m. near Rushikonda. The photographs Exs. C. 5 to: C. 7 show that there is a curve towards right side of the road and the corporation bus was going down-gradient and the scooterist was going upwards. At that curve, the bus is on the extreme left. Thus it could be seen that it was coming down-gradient and came to the extreme left for taking a turn towards right side of the road. It is in the evidence of the driver of the scooter who was examined in the criminal case filed under S. 304-A, I.P.C. that the first respondent was coming in the first gear. The photographs also clearly show that the scooter went underneath the bus between the right wheel and the front cutter. It is case of the first respondent that he was coming slowly with caution. The scooterist came rashly and negligently and dashed against the bus. He has seen when the scooter was coming at a distance of 50 to 60 yards. Therefore, he is not at fault. The occurrence has taken place as a result of the rash and negligent driving of the scooterist. This plea was accepted by the Tribunal below. The only direct witness examined in this case is P.W. 4. He is claimed to have been the driver of an autorickshaw. His evidence was considered by the Tribunal below in extenso. His name has not been mentioned either in the report or in the charge-sheet nor -was he examined in the complaint laid for an offence under S. 304-A, I.P.C. He belongs to Rushikonda". His name is not known to the appellants. He admits that he did not give the information of his witnessing the accident to any body. He also admits that he did not give any complaint. He also admits that he does not know the appellants. The Tribunal below, on these grounds, was not prepared to accept him to be an eyewitness. According to him the vehicle dashed against the scooter and dragged it to a distance of 10 feet behind the bus. This assertion was demolished by Exs. C. 5 to C. 7 and R.W. 2 having taken the photographs was not disputed and his evidence was also not seriously cross-examined. From the evidence, it is clear, that P.W. 4 was speaking from his hat whatever comes uppermost without any bearing on the factual matrix. His assertion was demolished by the photographs Exs. C. 5 to C. 7. Under those circumstances, the reasons given by the Tribunal below in rejecting his evidence are relevant, cogent and material. I do not find any compelling reasons to differ from the reasons and conclusions reached.by the Tribunal that P.W. 4 is a contract witness. If that evidence is excluded, there is no other evidence to show that the accident has occurred as a result of the rash and negligent driving of the driver. If that be so, the next question is whether the theory of contributory negligence set up by the learned counsel for the appellant can be given credence to. It does not appear that this argument was addressed before the Tribunal below. However, this argument is without any substance. From the facts, it is clear that R.W. I was coming slowly in the first gear in the down-gradient. When there is a curve to his right side, obviously he has to take to extreme left and then come to extreme right when the curve has passed and that is the factual situation now. At that stage, the scooterist came from up-gradient and obviously dashed against the vehicle. The fact that the scooter came underneath the front wheel guard of the vehicle clearly shows that he is coming on the right side to his right in the middle of the road. The road does not admit of two vehicles to pass through. It is seen that when the vehicle of the corporation is on the extreme left and the scooterjs coming on the right side and dashed against the corporation bus, then it must be held that the scooterist is responsible for the accident and the driver of the corporation bus was not. in any way responsible for the accident. Under those circumstances, the theory of contributory negligence is without any basis. In that view the decision in United India F.&G. Insurance Co. Ltd. v. U. E. Prasad, AIR 1985 Karna-taka 160 cited by the learned counsel for the appellants is of little assistance. Thereunder the finding is that there is a contributory negligence of both the drivers, and, therefore, omission to implead the owner of the vehicle is not fatal as regards the liability of the driver of the vehicle and the entitlement to recover the compensation. Similar is the view taken by the Madras High Court in State v. P. K. Anandan, . In none of the cases, facts similar to those of this case are available. Under those circumstances, the ratio therein is of little assistance to decide this case. Accordingly, I do not find any illegality warranting interference in this appeal. The appellants are only entitled to the award of Rs. 15,000/- granted under no fault liability' with interest at 12% per annum instead of 6% per annum. The appeal is allowed only to the above extent. The appeal is dismissed in other respects. No costs.
5. Appeal partly allowed.