- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 267 of 1995 SATISH BHAI V/S BABU SINGH & ORS. Mr. ABDUL AZIZ KHAN, for the appellant / petitioner Mr. ANIL BACHHAWAT, for the respondent Date of Order : 21.1.2008 HON'BLE SHRI N P GUPTA,J. JUDGMENT -------- This is claimant's appeal, whose claim petitions had been dismissed by the learned Motor Accident Claims Tribunal, Sirohi, vide judgment dated 10.4.95. The facts of the claim are, that on 20.11.86 at about 1.00 in the noon, he was driving his matador from Ambaji to Abu Road, and in that process, 2 kms. before Surpagala, the delinquent bus of the Corporation came from the opposite direction, being driven rashly and negligently, and dashed against the matador, with the result, that matador sustained property damage worth Rs.30,000/-, and the claimant sustained 3 fractures in his right leg, apart from simple and grievous injuries, for which he was treated at Baroda. The claimant is the owner and driver of the matador. - 2 - The Corporation denied the allegation, by pleading that on the fateful day, the defendant No.1 Babu Singh alongwith the conductor, Mohd. Yunus left Abu Road at 12.30 in the noon for Ambaji, and after dropping the passengers at Surpagala, he proceeded ahead, and after approximately 2 kms., the matador in question came from the opposite direction, at a fast speed, looking to that, the driver took his bus off the road, and halted it, leaving enough space, for even big vehicles to pass, but as the claimant could not control his vehicle, and was driving negligently, he caused the accident, with the result that the front shape of the driver side of the bus, head light glass, and bumper were damaged, and the passengers also sustained injuries, for which a report was lodged in the Police Station by the conductor, wherein a challan has been filed, which is pending before the Munsiff Magistrate, Abu Road. Thus, it was pleaded that there was no negligence on the part of the bus driver. Alongwith the claim, the claimant produced the Police documents, like FIR, site inspection note, site plan, mechanical examination report of the bus and the matador, and the medical certificate etc. In oral evidence, the claimant himself examined apart from other witnesses, while the Corporation examined its driver, Babu Singh. - 3 - The learned trial court, deciding issue no.1 relating to the negligence of the bus driver, after appreciating the evidence of the parties, including considering the site plan Ex. 3, which was admitted by the claimant to be correct, found that the claimant has not been able to establish that the accident occurred due to the negligence of the bus driver. Consequently the claim petition was dismissed. Since this is the precise finding, on the basis of which the entire claim has been dismissed, the learned counsel for the appellant arguing the appeal assailed precisely this very finding, on merits, and took me through the entire material on record, obviously with a view to re- appreciate the evidence as the first appellate court. I have heard the learned counsel for both the sides, and have gone through the record. I first of all take up the oral evidence of the parties. At the outset what I find is, that both have their own stories to say, in line with the stand taken in their respective pleadings. However, the claimant has admitted the site plan, Ex.3 to be correct. Obviously, the site inspection note is also the document produced by the claimant himself, and he is very much bound by all the recitals thereof. A look at the site plan, Ex.3 shows that - 4 - therein the bus is shown to be lying on its correct side, while the matador is shown right in front of the bus, i.e. on the wrong side, leaving practically entire road, or at least a very substantial part thereof, free. On the two sides of the road, hillocks have been shown, and in the north, a river is also shown. In this background, a look at Ex.P2, the site inspection note shows, that therein it has been clearly mentioned, that the two vehicles are lying in front of each other in damaged condition. Then the damage caused to the bus has been mentioned. Then it is mentioned, that the bus is standing on its correct side, 1 Ft. portion thereof is a footpath. Then the width of the Dammar portion of the road is mentioned to be 12 paces, with another 5 paces space on either side, as Kuccha footpath. Then it is mentioned, that the matador is lying on the wrong side, upto a distance of 5 paces from the Kuccha footpath, and that, in the left side of matador, 10 paces of space, including Kuccha and Pukka, is available. Then the damage caused to matador is also mentioned. Taking these facts, as they are, the picture that emerges is, that on the left side of matador as wide as 10 paces of space is available, as against which so far bus is concerned, that is standing on its correct side, not only on the correct side of the road, but also to some extent on - 5 - Kuccha portion of the footpath also. Even without anything else, these two things are sufficient to show, that it was the matador, who did not take enough care to find its passage, without hitting the bus, even though sufficient space was available. On the other hand, the bus was being driven on its correct side, and the driver had taken it further off the road, to some extent, which all can be said to be the only possibility on the part of the driver of the bus, to avoid the accident. That being the position, it cannot be said, that the learned Tribunal has committed error in deciding issue No.1, while finding the appellant to have failed to prove negligence in driving of the bus of the Corporation. The appeal thus, has no force, and is dismissed. The parties are left to bear their own costs. ( N P GUPTA ),J. /tarun/