Nasiruddin Bapulal Malgave and Another vs Ramesh Onkari Lal and Others

V.V. Vaze, J.—Javed, 12, studying in sixth standard in the Municipal School at Miraj was cycling towards Shivaji statue at the crossing of Pandharpur road and Miraj hospital road at Miraj. He was knocked down by a truck belonging to opponent No. 3 Surendrasinghg Bhatiya which was being driven by opponent No. 1 Ramesh Barot. The truck was insured with opponent No. 4 United Indian Insurance Company, Indore. The parents of Javed filed a motor accident claim No. 33 of 1981 before the Motor Accident Claims Tribunal at Sangli which dismissed the same. Hence the appeal.

The driver of the truck who should have been the best witness to talk about the manner in which the accident took place has not been examined and we have the evidence of one Bapu Kadam who works as a cook in Benuka hotel situated towards south of Shivaji statue on Pandharpur road. Bapu was sitting in the hotel in the evening when there were no electric lights because of a break down in the plant. He saw a boy cycling on the Pandharpur road coming from the south as well as the truck coming from the eastern road which was taking a turn towards the south. The cycle dashed on the rear side of the truck and the truck driver Surendrasingh took the boy to the hospital.

Considering the panchnama of the accident it appears that the truck which was approaching the crossing from the eastern side took a turn towards the south. The eye witness Kadam cannot say whether the boy wanted to continue cycling to the month or desired to take a turn towards the east.: the result is that the boy was found on the wrong side of the road after impact and on this basis the Tribunal held that the driver having adhered to his own side of the road was not guilty of any negligence.

Prima-facie it appears to be a very simplistic interpretation of the mechanics of the accident but one has to bear in mind that there were no electric lights in the town and the truck driver did have a duty of care towards young cyclist whom he could spot while taking a turn. As the truck driver has not entered the box we do not know whether the driver had switched on the lights of the truck and whether he had signalled either by hand or the indicator lights his intention to take a left turn. Under these circumstances we find that the truck driver as well as the boy Javed were guilty of contributory negligence in equal proportion.

As far as the quantum of damages is concerned the learned Tribunal has recorded a finding that had he come to the conclusion that the truck driver were held guilty of negligence the Tribunal would have paid Rs. 15,000/- as damages. We find this quantification to be justified and allow the appeal ordering that the opponents shall pay Rs. 7,500/- and proportionate costs before the Tribunal with interest @ 6% P a from the date of the application till realisation to the applicants. Parties shall bear their respective costs in this Court.