The
New Datar Transport Co.(Pvt.) Ltd Vs. Smt. Radhabai & Ors [1996] INSC 913 (7 August 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (7) 457 1996 SCALE (6)121
ACT:
HEAD NOTE:
O R D
E R
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.
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