THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR Appeal Suit No.2412 of 1999 JUDGMENT: This appeal is filed by the defendant against the decree granted by the learned Subordinate Judge, Parvathipuram, in O.S.No.47 of 1990, dated 26-07-1994. The respondent/plaintiff though served, nobody appears. This appeal was also being called with connected C.M.A. No.1627 of 1998 on several dates of hearings and as the earlier counsel had given up the Vakalat, the C.M.A. as well as this appeal appeared in the list on several occasions and ultimately I have directed the Office to print the name of the respondent, but no body is appearing for the respondent for the last three dates of hearings. I have heard the learned counsel for the appellant and this appeal is being disposed of in terms of Order 41 Rule 17 (2) of the Code of the Civil Procedure. The respondent filed a suit as an indigent person against the appellant seeking compensation of Rs.1,20,000/-. The said suit was filed on the basis of the plaint allegations as follows : “On 2-3-1989, the defendant (appellant herein) was taking his bullock cart. The defendant was then driving the cart with rashness and negligence and on the Bus Stand Road, Parvathipuram Town, the defendant hit the plaintiff with his cart without any care and caution and driving rashly and negligently in the busy locality and thus the plaintiff fell down and sustained multiple injuries, both simple and grievous…..” The aforesaid plaint allegations and the alleged consequent injuries is the basis of the aforesaid suit. While the defendant denied the claim of rash and negligent driving, it is stated in paragraph 5 of the Written Statement as follows: “The allegation that the defendant drove his cart rashly and negligently without any care is not at all correct. The defendant, at the time of the incident, was driving the cart slowly and cautiously. The plaintiff suddenly tried to cross the road and dashed against the cart and sustained injuries. The defendant was not at all responsible for the incident. The plaintiff was himself guilty of contributory negligence. The defendant, therefore, is not liable to pay any compensation to the plaintiff. The plaintiff is also not entitled to claim any compensation from the defendant. The allegation that C.C.24/89 on the file of the Special Judicial Second Class Magistrate, Parvathipuram, was filed against the defendant is true. But his plea of guilty therein was not voluntary. It was done at the instance of the elders by way of compromise. The defendant had also given an amount of Rs.1,000/- to the plaintiff for the necessary medical expenses even though he (defendant) was not liable to pay anything to the plaintiff.” During trial, the respondent/plaintiff examined himself as P.W.1 and also examined two Doctors P.W.2 and P.W.3, who treated the respondent for the injuries sustained. The plaintiff also marked Ex.A1, which is xerox copy of the wound certificate issued to the plaintiff by the Medical Officer, Government Hospital, Parvathipuram. The X series documents X1 to X4, which were also marked, related to x-rays of the plaintiff as well as the case sheet mentioned in K.G.Hospital, Visakhapatnam. On the basis of aforesaid oral and documentary evidence, the trial Court proceeded to consider the issues framed for consideration. Issue No.1, which is most relevant, was as follows : “Whether the defendant is guilty of negligent and rash driving of his cart causing physical damage to the plaintiff?” Issue No.1, however, was answered by the trial Court on the basis of evidence of P.W.1 coupled with evidence of treating Doctors P.Ws.2 and 3. The conclusions reached by the trial Court were that the defendant was negligent in driving the cart and as such he is guilty of negligent act and physical damage and permanent disability to the plaintiff. So far as the quantum of compensation is concerned, the trial Court, applying the principles o f res ipso loquitur came to the conclusion that the defendant having been guilty of negligence, a compensation of Rs.96,000/- was just and reasonable, apart from the plaintiff being entitled to recovery of Rs.9,000/- towards medical expenses incurred and Rs.10,000/- towards mental agony suffered by the plaintiff and thereby over all compensation of Rs.1,15,000/- with interest was allowed. As against the said decree, the present appeal by the defendant is filed. I have heard Sri K.V.Subrahmanya Narusu, learned senior counsel appearing for the defendant/appellant and as mentioned above, there is no appearance on behalf of the respondent. The learned counsel for the appellant has drawn my attention to the pleadings as reflected in the plaint, which are extracted above. Learned counsel submits that in support of issue No.1, except the self-serving evidence of P.W.1, there is no other evidence and the said evidence remained uncorroborated. The evidence of P.W.1, which was read out by the learned counsel, was emphasised to say that though even according to the plaintiff the road at which the accident took place was a busy road, no body is examined to prove the said accident. He also submit that the theory of the accident and the manner in which P.W.1 has developed his case by stating several aspects, which are not part of the pleadings, go to show that the plaintiff is trying to improve his case by stage to stage without there being sufficient pleadings. Learned counsel also submits that the finding of the trial Court while answering issue No.1 on the basis of evidence of P.W.1 and that of P.Ws.2 and 3 Doctors is wholly irrelevant and unsustainable, as the treating Doctors could not have spoken anything about the alleged accident. Learned counsel has also drawn my attention to the specific case of the defendant in the written statement that it is the plaintiff, who tried to cross the road and in the process has collided with the bullock cart driven by the defendant. He, therefore, submits that the plaintiff has belatedly and designedly filed the suit as an indigent only to extract money from the defendant and the trial Court committed serious error in answering issue No.1 in favour of the plaintiff. He also submit that the quantum of compensation as assessed by the trial Court is also without any foundation in as much as no external injuries were found and mere hoarseness of the voice is linked to the said accident and on that basis a claim is decreed against the appellant. In the light of the above, the point that arises for consideration is whether the finding of the trial Court on issue No.1 is sustainable in view of the fact that the only evidence in support of the said issue is that of the plaintiff. As has been extracted above, the only pleading of the plaintiff in the plaint is extremely sketchy and it does not give any details as the manner in which the accident is said to have occurred. The plaintiff as P.W.1, however, proceeds to describe the incident by giving several details, which are conspicuously absent in the pleadings. It is now well settled that when a claim for negligent action, as in the present case, is being laid against the defendant, the necessary ingredients in support of such claim must be pleaded so that the defendant has opportunity to meet the said case of the plaintiff. In the evidence of P.W.1, he says as follows: “On the date of accident when I was passing urine near about petrol bunk opposite to Srikanth Lodge, I saw the accused driving his cart with rashness and by the time I stood up for fear of the cart running over me, the cart suddenly dashed and ran over me. I lost my conscious. I regain my conscious in the Government Hospital. I received injuries and I was treated as inpatient for eleven days in the Government Hospital. My neck and throat are effected.” It would be clearly noticed and the further evidence shows that there were several people on the road, but surprisingly no body is examined by the plaintiff in support of his case. The only evidence I find is that of P.W.1, which is self-serving interested testimony. The said evidence is not corroborated by any other independent evidence. Even the orders of the criminal Court where the defendant is said to have been tried are also not exhibited at least to show the conclusions reached by the criminal Court. The evidence of P.W.1, therefore, was insufficient to prove a serious charge of rash and negligent driving of bullock cart by the defendant/appellant. There is also a contradiction in the evidence of P.W.1 where at some stage he says that there were several people on the road at that particular point of time and in the midst of such traffic, it is difficult to accept that the bullock cart was driven in such a way as to plaintiff got trampled upon. The finding of the trial Court on the said issue No.1 is most curious, inasmuch as the trial Court feels that the said evidence of P.W.1 is established and corroborated by the evidence of treating Doctors P.Ws.2 and 3, I am unable to appreciate as to how Doctors, who later treated the plaintiff, could say anything about the accident. The evidence of the said Doctors at best would substantiate the nature of the injuries or the treatment. The said Doctors had entered the on scene post-accident situation and merely because of the nature of the injuries or the treatment given by them, the rash and negligent driving of the bullock cart as alleged cannot be held to be established. The finding of the trial Court in paragraph 10 of the judgment under appeal is, therefore, clearly unsustainable and is liable to be set aside. So far as other issues relating to quantum of compensation is concerned, again, only evidence of P.W.1 is available where he speaks of spending his own moneys for the purpose of treatment and medicines. The evidence of the Doctors - P.Ws.2 and 3 shows that the treatment was required to be given to P.W.1, but on account thereof and after the treatment except hoarseness in the voice no permanent damage to any limb or vital organ is established. The hoarseness of the voice may be on account of several circumstances and factors. The trial Court has treated the same as equivalent to a permanent disability and has proceeded to grant compensation towards the said permanent disability as well as towards medical treatment both past and future. The said assumption of the trial Court is not sustainable and in my view, as the injury arising out of the accident resulting in permanent disability ought to have been assessed by the trial Court in the light of the medical evidence available. It is also noteworthy that though the plaintiff claims that he spent substantial amounts towards medical treatment and medicines none of prescriptions or the bills relating thereto are exhibited. The Court below, therefore, got carried away by the claim of the plaintiff and has liberally awarded compensation even in the absence of any evidence in support of the same. The decree as granted by the trial Court on the basis of the aforesaid evidence being clearly unsupported by the evidence on record, it is likely to be set aside. The learned counsel also placed reliance upon the evidence on behalf of the defendant, in support of his submissions, however, I feel that in the matter of this nature where the burden of proof is entirely on the plaintiff, the evidence laid on behalf of the defendant is hardly relevant. In the circumstances, therefore, the decree under appeal is unsustainable and liable to be set aside. Accordingly, the Appeal Suit is allowed setting aside the decree under appeal. However, there shall be no order as to costs. ________________________ VILAS V. AFZULPURKAR 24th November, 2009. skmr THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR Appeal Suit No.2412 of 1999 Date : 24-11-2009 Between : Rajana Chinnam Naidu .. Appellant And Kakimukkala Bhagavan .. Respondent