Mathai @ Baby vs Thomas and Others

K. Sreedharan, J.—Claimant in O.P. No. (M.A.C.) 607 of 1983 on the file of the Motor Accident claims Tribunal, Kottayam, is the appellant. He was injured on account of an accident involving a chassis driven by the first respondent. Consequently, he was treated in the Medical College Hospital for about nine days. Since he was not completely cured, he got himself admitted a second time and was in hospital for about twenty days. He claimed compensation to the tune of Rs. 80,000/ from respondents 1 to 3 who are the driver, owner and insurer of the vehicle respectively. Learned Tribunal, by award dated 20.9.1984, dismissed the claim finding that claimant filed to prove negligence on the part of the first respondent-driver. Aggrieved by the said decision, he has come up in appeal.

The short question that arises for consideration in this appeal is whether first respondent was rash and negligent in driving the chassis at about 4.30 p.m. on 31.7.1980, which caused injuries on the appellant.

The averments made by the appellant before the Tribunal were to the following effect. He was employed as a Head-load worker in the Kalpaka Super Market and was earning a monthly income of Rs. 1,000/-. The accident took plaice in front of Rajadhani Hotel on the Main Central Road at Kottayam. Claimant was pulling a hand-cart from it''s front, keeping to the left side of the Main Central Road. At about 4.30 p.m. on 31.7.1980, Chassis No. ALC 117464 driven by the 1st respondent came from behind and hit on the rear side of the hand-cart. On being hit, the cart suddenly turned to the right and the claimant was thrown to the ground and he sustained adverse injuries.

Respondents 1 and 2, namely the driver and the owner, filed a detailed written statement. According to them, first respondent was driving the vehicle at a speed of 10 kms. per hour because the road was very busy. While the 1st respondent was driving the Chassis from south to north along the left side, claimant suddenly pulled his cart to the tarred portion of the road from west to east. He did not even care to notify whether the vehicle coming from south to north is a Chassis or not. Consequently, the hand hard hit at the compressor tank of the Chassis, which is fitted inside the chassis at the middle portion. This will make it clear that the accident is the result of the rash and negligent act of the claimant. Claimant was pulling the cart from its back side.

On the side of the claimant, Exhibits A1 to A36 were marked and PWs 1 and 2 were examined. Ext. Al is the certified copy of the scene mahazar in Crime 221/1980 of the Kottayam West Police Station and Exhibit A2 is the certified copy of the Accident Register-cum-Wound Certificate. Exhibit A3 is the Discharge Card issued by PW 2, the doctor who treated the claimant. The certificate issued by the Doctor is marked as Exhibit-M and proved by PW 2. Ext. A5 is the prescription given to the claimant by Dr. A.K. Ashokan, E.N.T. Specialist. Exhibits A6 to A36 are bills obtained from Medical shops for the purchase of medicines. On the side of the respondents, first respondent was examined as RW-1 and Exts. B1 and B2 and B3 were marked. Exhibit Bl is the Inspection Report prepared by the Assistant Motor Vehicles Inspector of the Chassis immediately after the incident. Exhibit B2 is the Insurance Policy Certificate and Exhibit B3 the photo copy of the Certificate of Registration of the Chassis, which was subsequently registered as KRK 3015.

Exhibit Bl Inspection Report prepared by the Assistant Motor Vehicles Inspector shows that as a result of the collusion, a small scratch mark on the left side of the compressor tank was seen. The compressor tank was fitted on the central portion of the left side of the Chassis. No other mark, consequent on the impact with the hand-cart, was noted by the Assistant Motor Vehicles Inspector on the Chassis. Exhibit Bl report thereby shows that the hand-cart hit against the compressor tank of the Chassis and that the compressor tank was fitted on the left side of the Chassis at the central portion. If the hand-cart was hit from behind as contemplated by the claimant, there should have been some mark of contact on he front portion of the Chassis. No such mark has been noted by the Assistant Motor Vehicles Inspector. First Respondent as RW-1 has categorically stated that he did not see any cart in front of the vehicle while he was driving the same from v south to north. According to him, the push-cart was pushed into the road from west to east after the front portion passed the place where the cart was parked. This contention of RW 1 appears to be the cause for the accident. After the front portion passed the point where the hand-cart was parked, the claimant has pushed the cart into the road and thereby it came into contact with the central portion of the Chassis, where the compressor tank was fitted. But for the rash and negligent act of the claimant, in pushing the cart into the road while the Chassis was passing, the accident would not have happened.

RW-1 was not cross-examined by the claimant to bring out the case pleaded by him. Five or six questions put to the witness in cross-examination has not brought out any negligence on the part of the first respondent-driver. If we are to find negligence on the basis of the evidence now on record, we should venture into mystic maybe which, according to us, is not expected of us.

The evidence of the claimant as PW-1 has not gone to improve the situation to any extent. In his cross-examination, he has virtually conceded the contention raised by respondents 1 and 2.

In paragraph 4 of the written statement filed by respondents 1 and 2, among other things, it was contended:

The accident is a result of the contributory negligence on the part of the petitioner.

This sense is not to be culled out from the remaining part of the written statement and read in isolation to find that there was no admission of negligence on the part of the driver of the Chassis as well. According to us, the above sentence can only mean that the accident was as a result of the negligent act of the claimant. This is so if that sentence is read with the remaining portions of paragraph 4 of the written statement.

In view of what has been stated above, we find no ground to interfere with the conclusion arrived at by the Tribunal below that the claimant has not succeeded in establishing negligence on the part of first respondent, the driver of the vehicle, in the absence of negligence on the part of the driver of the Chassis, claimant is not entitled to any compensation under the Motor Vehicles Act.

Appeal fails. It is accordingly dismissed. No costs.