Supreme Court of India
Nandkumar Vishnu Narkar vs Maharashtra State Road Transport ... on 13 February, 1996
Equivalent citations: 1999ACJ1388, (1998)8SCC708, AIRONLINE 1996 SC 186, 1998 (8) SCC 708, (2000) 1 TAC 204, (1999) 2 ACJ 1388, 1998 SCC (CRI) 1731
Bench: S.P. Bharucha, Faizanuddin, S.B. Majmudar
ORDER
1. The judgment and order under appeal is that of the High Court at Bombay in first appeal against the judgment of the Civil Judge, Senior Division, Alibag, in a suit for compensation arising out of a road accident. The trial court decreed the suit. The High Court reversed the decree.
2. The appellant was a passenger in a bus of the Maharashtra State Road Transport Corporation, the respondent. It was travelling on the night of 28-5-1975/29-5-1975 from Bombay to Goa. The appellant boarded the bus at Bombay and was to alight at Khed. At about midnight, the bus went off the highway near Bhira Junction, collided with a culvert and fell into a ditch. The appellant sustained multiple injuries, including the fracture of a lumbar vertebra. He was first taken to the hospital at Mangaon and then spent the period between 30-5-1975 and 26-9-1975, at Dr Talwalkar's hospital at Bombay. He claimed in his suit damages in the sum of Rs 1,50,000, alleging that the bus had been driven in a rash and negligent manner and this had caused the accident.
3. The trial court, upon consideration of the evidence, applied the principle of res ipsa loquitur for the reason that the road was straight, there was a vehicle coming from the opposite direction which the driver noticed at a distance of 25 to 30 feet, that he did not apply the brakes, and that he lost control over the bus: if he had control he would not have gone off the road. The trial court discounted the case made out in the written statement that the accident had been caused by the dazzling lights of the vehicle coming from the opposite direction, for this had not been put in cross-examination to the appellant nor had this been said when the driver reported the incident to his superior officer. The trial court noted that though there were two conductors on duty and they were present in court, they had not been examined. Regarding the injuries, there was no challenge and the evidence of Dr Talwalkar showed that the appellant's disability was permanent and could not be cured. The appellant was completely paralysed and could move only with the help of crutches or another person. Accordingly, damages as claimed were awarded.
4. The High Court noted the evidence and found itself unable to accept its assessment by the trial court. It said:
"In the first instance, if this witness Atmaram (DW 1) saw a vehicle from the opposite direction, there was no necessity for Him to bring his vehicle to a standstill, for if vehicles are to be stopped each time another vehicle comes from the opposite direction, no traffic can possibly move, unless of course the road is too narrow. But insofar as the road is concerned, there is no dispute that the tarred road was and is 18 feet in width while the kutcha road on each side is about 1 1/2 feet to 2 feet in width. Therefore, if Atmaram, the driver of the vehicle, had taken it that both vehicles could pass by each other, no fault can be found with him. Then again, Atmaram's (DW 1) evidence that he was cruising at a speed of about 35 to 40 kilometres per hour has not been challenged at all and there is no reason to reject this evidence. Thirdly, Atmaram could not have stopped the bus on the road as suggested by the learned Judge, but even if he had to do this, he would still have to pull it up to the left by swerving to the left for he could have only halted on the left of the road. Hence, the observation of the learned Judge that he ought not to have swerved to the left is not understandable. Fourthly, it was brought out in cross-examination that Atmaram had told the Court that he had applied the brakes and had tried to take the bus on a side and, in view of this, the learned Judge's observation that Atmaram had not applied the brakes is contrary to the evidence on record. Fifthly, the evidence of Atmaram clearly goes to show that he had narrated the entire incident to Kadam and this fact has been brought out in cross-examination."
5. We have been taken by learned counsel through the evidence of the appellant and the driver. The appellant has fairly stated that he was asleep at the time of the accident. He had become unconscious as a result of it and regained consciousness only the next day. The evidence of the driver in the examination-in-chief was that he was driving the bus at a speed of 30 to 40 kilometres per hour when a truck came from the opposite direction. The truck driver switched on full lights and drove towards the bus. Hence, he took the bus to the extreme left and it slipped on account of the rains. He had applied his brakes at the time of the accident and had been driving on the proper side of the road. If he had not attempted to apply the brakes and had taken the bus to the left after the driver of the truck had switched on full lights, the truck would have dashed against the bus. In cross-examination the driver said:
"The place of the accident where the accident took place is a straight road. The breadth of the tar road at the place of the incident is 18 feet while the breadth of the kutcha road on each side is between 1 1/2 feet to 2 feet. The goods truck coming from the opposite direction was noticed by me for the first time at a distance of 25 feet to 30 feet. It is correct to say that when I noticed the goods truck coming from the opposite direction and when I saw it at a distance of 25 feet to 30 feet, I thought that it was coming by its correct side and would pass my vehicle correctly. As I was convinced that the said goods truck would pass easily, I continued to drive my vehicle in the said speed in which I was driving my vehicle. The goods truck coming from the opposite direction was coming at a high speed, at a speed of 50-60 miles per hour. After I saw the goods truck coming from the opposite direction straight towards my vehicle, I applied the brakes within 1/2 or 1 minute. On the third day of the impact, I narrated as to how the incident took place to Shri Kadam, Stand-in-Chief, Bombay. I had told Shri Kadam that I had applied the brakes and tried to take the bus aside but it slipped and went off the road."
6. In our view, having regard to the driver's evidence, the conclusion of the trial court deserves to be accepted. It was right in holding that the accident had occurred as a result of the negligence of the driver of the bus. As it noted, the conductors were not examined. The report or complaint or statements that must have been made to the police were not produced. No evidence was led as to the condition of the road as would suggest that application of the brakes would cause the bus to "slip", albeit on a rainy day. What the evidence of the driver does suggest is that half a minute or a minute after he saw the truck, he pulled the bus to the left and applied the brakes simultaneously and forcefully. He did so only when he realised that the truck and the bus were going to pass each other on the culvert which he had not earlier noticed. The full lights which the truck driver used were to indicate to the bus driver, in well-recognised motoring language, which, however, the bus driver did not comprehend, that he intended going over the culvert first. The last-minute evasive action brought the bus into collision with the culvert and it then fell over into the ditch.
7. There is no serious dispute about the injuries that were caused to the appellant and the treatment that he had to receive. The award made by the trial court, therefore, does not require any interference.
8. The appeal is allowed. The judgment and order under appeal is set aside and the judgment and order of the trial court is restored. The respondent shall pay to the appellant the costs of the appeal, quantified at Rs 5000.
9. In satisfaction of the decree, the appellant has withdrawn the sum of Rs 80,000 deposited by the respondent, The respondent shall now be liable to pay the balance of the decretal amount with interest as ordered and costs as aforesaid.