Case: M.P. State Road Transport Corporation Vs. M.P. Electricity Board & Another

1. This Misc. Appeal under Section 110-D of the Motor Vehicles Act arises on account of the award rendered in Claim Case No.79/82 by the Motor accidents Claims Tribunal, Dhar, on 2.11.1985. 2. By the impugned award the learned Claims Tribunal has awarded a sum of Rs.23,374/- in favour of the respondent No.1 the M.P. Electricity Board towards the damages to the truck that had taken place on account of the accident by the Bus belonging to the M.P. State Road Transport Corporation. 3. Factual matrix of the case is given as under: The respondent No.1 M.P. Electricity Board (for short the Board) had filed a claim petition under Section 110-A of the Motor Vehicles Act claiming compensation of Rs.46,200/- against the appellant M.P. State Road Transport corporation (for short the Corporation) and the respondent No.2 Oriental Fire and General Insurance Co. as damages caused to the truck of the Board bearing registration No. M.P.K.3320 which was dashed by the Bus of the Corporation bearing registration No.C.P.H.8279 in road accident that had occurred on 7.5.1982 at about 12.45 p.m. at a distance of about 2 k.m. from village Nagda on Ratlam-Indore road. 4. The parties had admitted that the accident had taken place but had denied that the accident was caused on account of the rash and negligent driving of the Bus of the Corporation. It is also not disputed that the Bus was being driven by Mangilal and the truck was being driven by Ramesh. 5. The case of the claimant is that the truck No.M.P.K.3329 belonged to it and on 7.5.82 it was coming from Indore and going to Ratlam. It had certain goods in it. It has also been averred that the Bus of the Corporation came from the opposite direction rashly and negligently driven on its wrong side and dashed with the truck. The said Bus was alleged to be over loaded. It has also been mentioned that on account of the said accident many passengers travelling in the Bus had also got injured and some persons who were sitting in the truck had also received some injuries. 6. The specific pleading of the respondent No.1 Board is that the said accident had taken place on account of the rash and negligent driving of the Bus of the Corporation and that in the said accident the said truck was badly damaged resulting in financial loss to the Board. After the accident the damages were estimated by one registered Surveyor of Indore who had estimated that the loss to the truck amounts to Rs.459.44/-. The Surveyor was also paid Rs.1012.50 p. as his charges. It has also been mentioned that the appellant and the respondent No.2 both were informed about the said accident and were also asked to pay damages as mentioned above; but no steps were taken by the Corporation and therefore after serving notice the claim petition was filed, claiming notice charges Rs.256/- also. 7. The appellant and the respondent No.2 filed their separate written statement. The Corporation in its written statement had admitted the factum of accident but the manner in which the said accident had taken place was disputed. On the other hand the allegation was made that the accident had taken place on account of sole and negligent diving of the truck of the Board. 8. It has further been mentioned that the Bus was being driven very cautiously and carefully by its driver and he was trying to over-take one truck which was going ahead of it as the said truck had given a signal for such over taking and while it was in the process of over taking the truck of the Board came in a rash and negligent manner from the opposite direction and all of a sudden dashed against it, due to which the passengers of the Bus had also received certain grievous injuries and therefore the Corporation had denied its liability to pay any damages to the Board. On the other hand it had also filed counter claim amounting to Rs.76,95.98 p. claiming damages from the respondent Board. 9. The respondent No.2 Insurance Company in its written statement has admitted the factum of accident but had submitted that the accident had taken place on account of rash and negligent driving of the Bus by the driver of the Corporation. It is also admitted by the Insurance Company that the truck of the Board was insured with it, but has submitted that in view of the conditions of the policy no liability at all can be fastened on it and as far as the Insurance Company is concerned, the claim petition deserves to be dismissed against it. 10. On the basis of the pleadings of the parties the learned Claims Tribunal had framed several issues and after giving adequate opportunity of proving their respective cases, had awarded a total sum of Rs.23,374/- to the respondent-Board and the counter claim of the appellant Corporation was dismissed. The respondent No.1 has also filed cross objections against the said award in this appeal under Order 41 Rule 22, C.P.C. 11. The Claims Tribunal also came to the conclusion that since it was a head on collision both the drivers of the vehicles were negligent in driving their respective vehicles, and on account of this contributory negligence of the drivers, the liability of the Corporation was assessed at 75%, whereas the liability of the driver of the Board was assessed at 25% only. 12. I have heard the learned Counsel for the parties at length and have also perused the record of the case. As far as counter claim is concerned the Claims Tribunal has rightly rejected the same as the appellant had led no evidence o substantiate its stand for such claim. The Claims Tribunal also held that no questions in this regard were put by it in the cross examination of the witnesses of the Board and accordingly the Counsel for the Corporation had also plainly admitted that this aspect is not proved at all. Hence, their counter claim was dismissed and rejected. 13. Shri Dhupar who appeared for the appellant-Corporation also rightly conceded that in absence of any evidence to substantiate the counter claim as made by the Corporation before the Claims Tribunal, it shall be extremely difficult for him to attack the same and therefore he also did not press it. I, accordingly hold that the counter claim of the appellant was rightly rejected and nothing can therefore be awarded to the appellant for the alleged damages. 14. As regards cross objections are concerned, a perusal of the order sheet shall show that the same was not filed within the time granted under the law and therefore the application for condonation of delay was also filed. The ground mentioned in the said cross objections is that alongwith the notice of appeal the copy of the memo of appeal was not received and therefore the same could not be filed within time. 15. Perusal of various order sheets shows that no such objection was taken by the Counsel for the respondent No.1 and apart from this the notice of appeal which was sent to the respondent No.1 clearly mentions that the memo of appeal is also enclosed alongwith the said notice. There is no reason to disbelieve this fact. Under the facts and circumstances the cross objections of the respondent No.1 as also its application for condonation of delay (I.A.No.347/86) are hereby dismissed and rejected. 16. Now I proceed to decided the appeal by which as mentioned above the total amount of Rs.23374/- has been awarded to the respondent-No.1-Board. Ex.C.1 and C.2 are the reports of the Surveyor M/s. Prakash and Co., Dhar road, Indore and C.10 is his bill of fees and expenses for conducting the said report. They had inspected the truck after the accident. Perusal of the same shows that the Surveyor had prepared a detailed report of the damages to the truck that had taken place in the said accident. 17. Hari Prasad (AW4) Assistant Engineer was examined on behalf of the respondent No.1 who has proved the bills and vouchers which have been marked as Annexure C.14 to C.21. Some of the work was conducted by Mohan Lal (AW5) who has also proved some payments which were made to him. B.B. Sinha (AW3) was working as Divisional Engineer who has deposed with regard to the general damages to the vehicle and has also proved the Surveyors report. 18. There is no reason to disbelieve these witnesses from critical examination of these witnesses it is clearly established that the respondent No.1 Board had actually incurred much more loss than what has been decreed in its favour. The claims Tribunal has found it proved that a total amount of Rs.29,897/- has already been incurred in getting the truck-in-question repaired and further amount of Rs.1012.50 has been spent towards Surveyors charges and Rs.256/- towards notice charges. 19. Now the next question comes for consideration is with regard to determination of the percentage of liability and the percentage of the contributory negligence of both the drivers. 20. Perusal of the evidence of Mangilal (NAW2) the driver of the Bus of the Corporation shows that there are major contradictions in his statement. He has not come forward with a consistent story and therefore it is difficult to believe his evidence that he was driving the said Bus cautiously and carefully. He had also been negligent in driving the vehicle at the relevant point of time. 21. Similar is the evidence of Kamalsingh (NAW1) who happened to be a police constable and was travelling in the said Bus at the relevant point of time. But he has also admitted in his evidence that he cannot say at what speed both the vehicles were going at the relevant point of time. For this reasons also the Claims Tribunal has correctly held that greater percentage of negligence is that of the driver of the appellant Corporation and lesser percentage of the negligence is that of the driver of the truck of the Board. 22. The evidence of Ramesh (AW1) the driver off the truck and Chhotelal (AW2) who was travelling in the said truck appears to be more trust-worthy and reliable. Cumulative effect of all the evidence adduced by the parties on the point of negligence establishes that the said accident had occurred on account of rash and negligent driving of the Bus by its driver Mangilal but it certainly does not mean that the driver of the truck can be absolved from his liability. 23. What may constitute negligence shall certainly very from case to case and the circumstances or conditions under which a particular accident takes place. All the attending and surrounding facts and circumstances have to be taken into consideration while coming and deciding the question of negligence. When there is any head on collision it is generally presumed that it is on account of contributory negligence for the simple reason that both the drivers are able to see each other and if they so then the said accident can be averted. The Claims Tribunal has also very critically examined the evidence of eye witnesses as well as that both the drivers and then has come to the conclusion that the driver of the Bus of the Corporation was responsible for the extent of 75%; whereas the driver of the truck of the Board was liable to the extent of 25% only. There is no reason to come to a different conclusion than that has already been arrived at by the learned Claims Tribunal. 24. It has also been argued half heartedly that Ramesh (AW1) driver of the truck was not holding a valid license. But no such defence has been taken by the Corporation in its written statement. Similarly the authority of Shri B.B. Sinha was has signed and verified the petition was also challenged but no such defence has been taken in the written statement of the Corporation. Therefore both these objections are rejected. 25. It has also been argued that vouchers and balls have not been proved properly inasmuch as the persons to whom the payments were made have not been examined. 26. In such type of cases where the claims petitions are to be decided on summary trial basis the strict proof of each and every document as required under the Evidence Act is not contemplated. However, the said vouchers and bills have sufficiently been proved by Hari Prasad (AW4) and Mohanlal (AW5). Apart from this in the said bills and vouchers the truck number tallies with the truck of the accident vehicle. Therefore there is no reason to disbelieve this.

Decision:
0[ds]12. I have heard the learned Counsel for the parties at length and have also perused the record of the case. As far as counter claim is concerned the Claims Tribunal has rightly rejected the same as the appellant had led no evidence o substantiate its stand for such claim. The Claims Tribunal also held that no questions in this regard were put by it in the cross examination of the witnesses of the Board and accordingly the Counsel for the Corporation had also plainly admitted that this aspect is not proved at all. Hence, their counter claim was dismissed and rejected13. Shri Dhupar who appeared for then also rightly conceded that in absence of any evidence to substantiate the counter claim as made by the Corporation before the Claims Tribunal, it shall be extremely difficult for him to attack the same and therefore he also did not press it. I, accordingly hold that the counter claim of the appellant was rightly rejected and nothing can therefore be awarded to the appellant for the alleged damages14. As regards cross objections are concerned, a perusal of the order sheet shall show that the same was not filed within the time granted under the law and therefore the application for condonation of delay was also filed. The ground mentioned in the said cross objections is that alongwith the notice of appeal the copy of the memo of appeal was not received and therefore the same could not be filed within time15. Perusal of various order sheets shows that no such objection was taken by the Counsel for the respondent No.1 and apart from this the notice of appeal which was sent to the respondent No.1 clearly mentions that the memo of appeal is also enclosed alongwith the said notice. There is no reason to disbelieve this fact. Under the facts and circumstances the cross objections of the respondent No.1 as also its application for condonation of delay (I.A.No.347/86) are hereby dismissed and rejected16. Now I proceed to decided the appeal by which as mentioned above the total amount of Rs.23374/. Ex.C.1 and C.2 are the reports of the Surveyor M/s. Prakash and Co., Dhar road, Indore and C.10 is his bill of fees and expenses for conducting the said report. They had inspected the truck after the accident. Perusal of the same shows that the Surveyor had prepared a detailed report of the damages to the truck that had taken place in the said accident17. Hari Prasad (AW4) Assistant Engineer was examined on behalf of the respondent No.1 who has proved the bills and vouchers which have been marked as Annexure C.14 to C.21. Some of the work was conducted by Mohan Lal (AW5) who has also proved some payments which were made to him. B.B. Sinha (AW3) was working as Divisional Engineer who has deposed with regard to the general damages to the vehicle and has also proved the Surveyors report18. There is no reason to disbelieve these witnesses from critical examination of these witnesses it is clearly established that the respondent No.1 Board had actually incurred much more loss than what has been decreed in its favour. The claims Tribunal has found it proved that a total amount of Rs.29,897/has already been incurred in getting then repaired and further amount of Rs.1012.50 has been spent towards Surveyors charges and Rs.256/20. Perusal of the evidence of Mangilal (NAW2) the driver of the Bus of the Corporation shows that there are major contradictions in his statement. He has not come forward with a consistent story and therefore it is difficult to believe his evidence that he was driving the said Bus cautiously and carefully. He had also been negligent in driving the vehicle at the relevant point of time21. Similar is the evidence of Kamalsingh (NAW1) who happened to be a police constable and was travelling in the said Bus at the relevant point of time. But he has also admitted in his evidence that he cannot say at what speed both the vehicles were going at the relevant point of time. For this reasons also the Claims Tribunal has correctly held that greater percentage of negligence is that of the driver of the appellant Corporation and lesser percentage of the negligence is that of the driver of the truck of the Board22. The evidence of Ramesh (AW1) the driver off the truck and Chhotelal (AW2) who was travelling in the said truck appears to be morey and reliable. Cumulative effect of all the evidence adduced by the parties on the point of negligence establishes that the said accident had occurred on account of rash and negligent driving of the Bus by its driver Mangilal but it certainly does not mean that the driver of the truck can be absolved from his liability23. What may constitute negligence shall certainly very from case to case and the circumstances or conditions under which a particular accident takes place. All the attending and surrounding facts and circumstances have to be taken into consideration while coming and deciding the question of negligence. When there is any head on collision it is generally presumed that it is on account of contributory negligence for the simple reason that both the drivers are able to see each other and if they so then the said accident can be averted. The Claims Tribunal has also very critically examined the evidence of eye witnesses as well as that both the drivers and then has come to the conclusion that the driver of the Bus of the Corporation was responsible for the extent of 75%; whereas the driver of the truck of the Board was liable to the extent of 25% only. There is no reason to come to a different conclusion than that has already been arrived at by the learned Claims Tribunal24. It has also been argued half heartedly that Ramesh (AW1) driver of the truck was not holding a valid license. But no such defence has been taken by the Corporation in its written statement. Similarly the authority of Shri B.B. Sinha was has signed and verified the petition was also challenged but no such defence has been taken in the written statement of the Corporation. Therefore both these objections are rejected25. It has also been argued that vouchers and balls have not been proved properly inasmuch as the persons to whom the payments were made have not been examined26. In such type of cases where the claims petitions are to be decided on summary trial basis the strict proof of each and every document as required under the Evidence Act is not contemplated. However, the said vouchers and bills have sufficiently been proved by Hari Prasad (AW4) and Mohanlal (AW5). Apart from this in the said bills and vouchers the truck number tallies with the truck of the accident vehicle. Therefore there is no reason to disbelieve this.