1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CIVIL MISC. APPEAL No. 403 of 1997 SUNDER LAL V/S BHAGWATI LAL & ORS Date of Judgment : 26.9.2008 HON'BLE SHRI N P GUPTA,J. Mr. SG OJHA, for the appellant / petitioner Mr. DHANPAT CHOUDHARY, for the respondent This appeal has been filed by the claimant, whose claim petition has been dismissed by the learned Tribunal, by deciding issue No.1, relating to negligence, against the claimant. The necessary facts are, that according to the claim petition, on 16.7.93, the claimant along with his wife was traveling in his wife’s car to Udaipur. When they reached near village Munged at about 7.30 in the evening, the delinquent bus of the Corporation came from the opposite direction and hit the car, causing serious injuries to the claimant. Inter alia, with these allegations, different amounts of compensation have been claimed, under different heads. The Corporation contested the claim, by pleading 2 that as a matter of fact, the accident occurred on account of negligent driving of the car by the claimant himself. The Police also after investigation submitted challan against the claimant. Thus, the claim was prayed to be dismissed. During trial, the claimant examined himself, while the Corporation examined the bus driver, Bhagwati Lal. The claimant produced various documents, including site plan with site inspection note as Ex.4. Learned Tribunal while deciding issue No.1 found, that both the drivers have given contradictory evidence, but then, from perusal of the material on record, in an overall manner, it is not established, that the accident occurred on account of negligence of the bus driver, rather it occurred on account of the negligent driving of the car itself, and thus the issue was decided against the claimant, and the claim petition has been dismissed. It is this finding, which is precisely under challenge in this appeal. I have gone through the record. In the claim petition in para 5, it is pleaded that on 16.7.93 at about 7.30 in the evening, on the road leading from Banswara to Salumbar Aspur, between the Bus Stand and Nandli, on the dammur road, near culvert 101/2F, the car was hit by negligent driving of the bus. While in the reply, it is pleaded, that the accident was caused by the claimant himself driving the car at a fast speed, and in a wrong 3 manner, and in an uncontrolled condition. Thus, pleading remain in the realm of allegation and counter-allegation only. Then coming to the evidence, the relevant part of the evidence of the parties, on the aspect of negligence is, to the effect, that according to the claimant, when he reached near village Munged, the Corporation's bus bearing No. RNP 3076 came at a fast speed and hit against the car, as a result of which the car fell in a pit, at a distance of 15 feet, and he sustained injuries, and that the accident occurred on account of the fault of the bus driver. In cross- examination he has denied the suggestion about the car being driven in the mid of the road, and it is asserted, that the car was being driven on its correct side. He has also denied the suggestion about his being under the influence of alcohol. This is the only evidence in this regard, on the side of the claimant. Then on the side of the Corporation, the driver Bhagwati Lal has deposed, that when he reached ahead of Nandli turn, the claimant was seemed driving his car out of control “लहरत हआ”, whereupon he stopped his bus on the side. According to him, the claimant was driving the car at a speed of 70-80 kms. p/h, and looking his car the passengers of the bus also started telling that the car driver will hit the bus, and in the meantime, the car hit the front wheel of the bus, and the car was thrown away. The driver of the car became unconscious. Then in the next breath, he has deposed that the car driver was conscious and tendered apology for the mistake, and requested for being carried to hospital. This 4 is the only evidence on the side of the defendant corporation. Thus, the evidence also rests in the realm of deposing their own stories. In that view of the matter, for deciding the matter, assistance is to be sought from Ex.4, the site inspection note and the site plan. A look at the site plan shows, that the bus is standing at point-A, face of the bus is towards south, and the bus is standing at the eastern edge of the road, while the car is lying at point- B, facing north, and is lying off the road in the west. The place, where the car is lying is towards further south from the bus, and that according to the site inspection memo, at the place in the right side of the bus, pieces of glass are lying on the road. This obviously shows, that the accident occurred at point-A only, and the car has been thrown away at point-B. With this, it is further clear from the site inspection note, that tarred portion of the road is 18 feet wide with 5 feet Kuccha footpath on either side, out of this, 10 feet clear tarred portion of the road is available beyond the bus towards the west, and the left side wheels of the bus are just on the last edge of the tarred portion of the road towards the west. Meaning thereby that the bus was being driven on the extreme correct side of the tarred portion of the road, of course, it was not on the footpath, but then, it had clearly left a clear passage to the extent of 10 feet available for the safe passage of the car. Notwithstanding this, the car has hit the bus. It is not shown, that the bus was placed at the place, where it was found, after causing accident at any other place. 5 Thus, in my view, it reasonably leads to the inference, that the car was at a fast speed, traveling on the left side, by going on the wrong side, hit the bus, as a result of which it was thrown away at the place, where it was found lying. Thus, in my view, it cannot be said, that the learned Tribunal had committed any error in deciding issue No.1. Thus, the appeal has no force and is dismissed. ( N P GUPTA ),J. /tarun/