JUDGMENT
D.J. Moharir, J.
1. The learned Additional Member, Motor Accidents Claims Tribunal, Nagpur (Dr. S.S. Waghiolkar) made an Award in Motor Accident Claim Petition No. 68 of 1986, in favour of the respondent No. 1 Ramrao s/o Bahrain Koltake. The Award is for payment of a sum of Rs. 42, 000/-. This Award is challenged by the original respondents (appellants here). At the same time, the Award is also challenged by the successful claimants/petitioner Ramrao on the ground that it needs to be increased and modified accordingly; he has filed cross objections in that behalf.
2. The respondent No. 1 Ramrao is a green grocer. On 11.11.1985 at about 5.5.30 A.M. when the traffic on the road was admittedly very light, he was riding his bicycle on the Netaji S ubhash Road, in an east to west direction, towards the Cotton Market, on a way to Fule Market for purchase of vegetables and sale thereof also there, as a petty vegetable vendor. Near a place called the Dadaji Dhuniwale Asram, the respondent No. 1 Ramrao claimed that the postal van MTG 3633 driven by the appellant No. 4 Harishchandra Swamy came from behind him and knocked him down, the van sped away after knocking him down and he fell down from his bicycle having sustained injuries on head and elsewhere. He claimed to have become unconscious and was then removed to the Medical College and Hospital, Nagpur where he regained consciousness only after six days. As per particulars given in the petition under Section 110-A of the Motor Vehicles Act, Ram rao claimed that he had got multiple injuries and suffered from some permanent ones along with other disabilities due to bidden and apparently un observable injuries. He had lost the capacity to work physically. The injures, as he further detailed in paragraph 22(d) of his plaint which he sustained were serious ones on the head, shoulder, hands and legs. His eye sight had also been greatly affected due to the injury; he was unable to see clearly. He had also been required to take treatment at the Medical College and Hospital, Nagpur as also the Mental Hospital, Nagpur for considerably long period, was still undergoing such treatment from a private medical practitioner. He had spent large amounts on such private medical treatment. In view of the injures caused and the permanent disability which resulted, he had entirely lost the capacity to work and maintain his family. His minimum monthly income was Rs. 400/- and in bet accordingly, claiming life expectancy for 20 more years, i.e. upto 60 years, he claimed Rs. 96, 000/- as the 20 years purchase of the permanent disability, Rs. 5, 000/- for bodily pain and mental shock and Rs. 1, 000/- for miscellaneous expenses in all Rs. 1, 02, 000/-.
3. In their joint written statement (Exh. 15), the original respondents (appellants here) denied that Ramrao had been, in the first instance, knocked down by the postal van No. MTG 3633 which was admittedly being driven by the original respondent No. 4 Harishchandra Swamy, also admittedly in the east to west direction. The facts according to the respondents were that a S.T. bus had been going ahead of the postal van MTG 3633 and one person who, it was later learnt, was the original petitioner Ramrao, had been going on bicycle. The S.T. has overtook him; as soon as overtaking was complete, this cyclist Ramrao abruptly turned to his right to cross the road for going towards the Fule Market. The bicyclist turned very abruptly without giving any signal whatsoever. At this juncture the distance between the S.T. bus and the van was a very short one. The van had been going at a very moderate speed of 30-40 kilometers per hour. However, even in that speed it was not possible to bring the vehicle to a total and abrupt halt and, therefore, in order to avoid hitting the petitioner bicyclist, the driver Harishchandra Swamy swerved his motor van towards right, almost to his right hand side of the road. Bat, unfortunately at that very time another bicyclist came along Netaji Subhash Road in the opposite, i.e. west to east direction. Having seen the van swerving on the right side of the road, this bicyclist presumably took his bicycle to the left hand side and in the process came in violent contact with the petitioner bicyclist Ramrao and both of them dashed against each other and also then against the respondent No. 4 ‘s postal van which was at that time about to stop. The occurrence having taken place in this manner, it was submitted that the accident in question had taken place owing to the petitioner Ramrao’s own mistake., as a result of his failure to observe the traffic Rules. It was, therefore, denied that the respondent No. 4 was responsible for having collided, on his own and himself with the petitioner bicyclist who was the other way altogether. There was, therefore, no negligence on the part of the respondent No. 4 driver Harishchandra. It was also denied that he had been driving the vehicle, at the relevant time, in either a rash or in any way a negligent manner.
4. The particulars of the injuries sustained were denied so also the contention that any permanent disability of any sort had resulted. The petitioner Ramrao was put to strict proof of the injuries and the proof of the alleged permanent disability which according to the respondents, was not really and at all there. Therefore, the petition deserved to be dismissed with costs.
5. The learned Additional Member of the Motor Accident Claims Tribunal framed issues on these pleadings of the parties. The first issue as to whether the respondent No. 4 was driving his motor postal van rashly or negligently was answered in the affirmative and it was held that the petitioner Ramrao had sustained injuries as a result of the van dashing against him. The second issue as to whether the petitioner Ramrao was entitled to Rs. 1, 02, 000/- was answered as partly established, to the extent of Rs. 42, 000/- as stated earlier. The learned Additional Member rejected the contention of the respondents, in particular the respondent No. 4 driver, that the petitioner Ramrao had sustained injuries, not by reason of being knocked down by the postal van but as a result of the collision between him and another bicyclist and then a joint collision by the two against the respondent No. 4 ‘s postal van. In the result, the Award was made to the effect that the petition was partly allowed. The respondents were held jointly and severally liable and accordingly, directed to pay compensation of Rs. 36, 000/- on account of permanent disability, Rs. 5, 000/- on account of mental shock and bodily pain and Rs. 1, 000/- on account of miscellaneous expenses in all Rs. 42, 000/- with a further direction to pay interest at 6% per annum on this amount, from the date of the application till realization.
6. The present appeal is, therefore, filed by the original respondents to challenge the Award and to contend that the respondent No. 1 Ramrao was not at all entitled to any compensation whatsoever, whereas Ramrao’s claim is that the Award should have been for the full amount of Rs. 1, 02, 000/-.
7. The main issue is, therefore, whether a collision between the postal van No. MTG 3633, which was being admittedly driven by the present appellant No. 4 Harishchandra Swamy and the present respondent No. 1 Ramrao who was admittedly ridingabicycleatthat time, is proved in the first instance and secondly, whether such collision or knocking down of the bicyclist Ramrao by the postal van driven by the appellant No. 4 Harishchandra was a result of any negligent or rash driving on his part, and thirdly whether as contended by the appellants, the collision, if it did take place, was the result of any mistake committed by the bicyclist Ramrao and failure on his part to observe the rules of the road, particularly in attempting to cross the road abruptly, without regard to the traffic coming from behind and without giving any signal to any such vehicles on the road, behind him, to indicate that he wanted to cross the road and go over to his right hand side of the road.
8. The next set of points for decision would be whether any permanent disability as such, is established by the bicyclist Ramrao and if so, whether the amount of compensation as granted to him needs to be increased and the Award accordingly varied.
9. As it is, the fact that the respondent No. 1 Ramrao had been on 11.11.1985, going along Netaji Subhash Road in an cast to west direction, on a way to Fule Market for purchase of vegetables, the. time being about 5.30 a.m. is entirely undisputed, so also the fact that the original respondent No. 4 and now appellant No. 4 Harishchandra Swamy is an employee of the appellants 1 to 3, had been driving the red colour postal delivery van No. MTG 3633 is also undisputed. The fact that the respondent No. 1 Ramrao fell down on the road in front of Dadaji Dhuniwale Ashram which is on the right hand side as one proceeds in an east to west direction is also undisputed. That the original petitioner Ramrao himself is not aware of that fact and had felt ignorance of it. It must also appear that the PW 2 Anil Hedaoo was not only an eye-witness to the occurrence, but also a person who was involved in this collision, he having been also riding a bicycle at that lime, going in the opposite direction and being-under such peculiar circumstances-also knocked down by the postal delivery van driven by the appellant No. 4 Harishchandra.
10. The versions as to how the collision took place, if it did, are entirely different did inconsistent ones as one must eventually come to conclude. The petitioner Ramrao himself stated that at the point of time of impact or collision or dash given to him by the postal delivery van, he had been actually riding his bicycle. However, at the stage of his deposition he states rather strangely for reasons best known to him that he had ridden the bicycle some distance along the road, but at the material point of time he had been actually carrying his bicycle along with him by his hand and not riding it. This makes the position dearly undisputed, even admitted by him, is that the collision as it took place according to him, was in the middle of the road. Now, he has in his examination-in-chief stated that he had been going by his correct side, i.e. by his left side of the road in which position, if he had continued to be going, there could have been no occasion for a collision, if as stated by the appellant No. 4 Harishchandra, bus had already overtaken him and he (Harishchandra) had been driving his postal delivery van closely behind it. Therefore, the fact that the rcspondent No. 1 Ramrao, the bicyclist, must have entered the middle portion of the road becomes more than evident. It will be noted that such exactly is also the plea in the Written Statement. The plea was that after the bus had overtaken the bicyclist Ramrao, the latter had very abruptly and without giving any signal to the on-going traffic behind him, started crossing the road. In almost unambiguous words, Ramrao then admits in his cross-examination, not once but twice that he had been crossing the road indeed. In these circumstances, the submission of the learned Counsel for the respondent No. 1 Ramrao, that the story of S.T. bus having gone ahead of Ramrao and the postal delivery van then coming from behind and knocking him down, was entirely a false one and cannot be banked upon. In fact, it will also be appreciated that a specific suggestion was made to Ramrao consistently with the pleas in the Written Statement that the S.T. bus had been going behind him and that it had then overtaken him. His only answer was that he did not know and the denial was not categorical. The fact thus remains that the respondent No. 1 Ramrao had not been going by his left side of the road as a pedestrian or a bicyclist, but had left the left side of his road, turned into the middle of the road to cross it and it was at that point of time that the collision, if it did take place, between the van and bicycle, occurred. This was because as the appellant No. 4 insisted-uncontroverted and undislodged that the respondent No. 1 Ramrao had not made any signal that he was intending to cross the road. Of course, he has denied the suggestion that at that time another bicyclist came in a west to east opposite direction, collided against Ramrao and that both of them in the process of such collision also collided against the postal van which had come very close to them by that time. That denial or rather that statement of ignorance and want of knowledge about the other bicyclist Anil Hedaoo cannot in our opinion carry much substance when the petitioner has eventually examined the said other bicyclist Anil Hedaoo as his own witness. Now, let us look into the evidence of Anil at Exh. 25. He states that he came from the Cotton Market side, i.e. from the West towards Dadaji Dhuniwale Math, the postal van was behind the bicyclist Ramrao which dashed against his bicycle, Ramrao fell down with the bicycle on the road and at that very time the postal van came to stop, irrespective of the contention that the vehicle was then being driven at a recklessly high speed. Such a statement on the part of Anil only confirms the plea in defence that the vehicle had been going only at a moderate speed of 30-40 kms. per hour and could not be brought to stop forthwith. In fact, as the written statement explains, it was with the awareness that an attempt to stop the vehicle immediately at that speed would only hasten the collision, that the appellant No. 4 Harishchandra had tried to swerve towards his right hand side so as to avoid colliding with the bicyclist Ramrao. Anil says that the collision did take place but the driver of the vehicle reversed it to some distance and then to the foot-path on the side of the Dadaji Dhuniwale Math and in that process of taking the vehicle to Dadaji Dhuniwale Math, the postal van again dashed against his (Anil’s) own bicycle and thereby he also fell down. This suggestion is not accepted by the petitioner. Unfortunately and inspite of the fact that the record of the criminal case under Section 304-A of the Indian Penal Code which had been then pending against the appellant No. 4 at that time, had been called, the panchnama of the scene of the accident therein, which would show the relevant position of the two bicyclists on the road, has not been formally proved and got admitted in evidence. The witness stated that he like Ramrao, also became unconscious and both of them were then removed to the Medical College and Hospital, Nagpur. On cross-examination, Anil has also very clearly admitted that at that early hour of {he morning, the traffic on the road was quite light. Consequently with the plea that the bicyclist Ramrao had abruptly started crossing the road on his bicycle and the appellant No. 4 Harishchandra had, therefore, attempted to swerve his motor van to the extreme right of the road, this witness admits two positions that the motor van did not hit his bicycle frontally and it was the left side (front) portion of the van that had hit the bicyclist Ramrao. This narration of the incident in the cross examinaion therefore, once again supports the defence plea that it was because of Ramrao’s attempt to cross the road abruptly, without giving any signal to the on-going traffic behind him that the collision occurred. It could not be said with Anil’s admission that the vehicle was of the slow speed at a very short distance, that the vehicle was being driven at any reckless speed. Could it be said that any rule of the road was being observed by Harishchandra at that time? He repeats that the vehicle was stopped at once and that speaks for the low and not objectionable speed of the vehicle at the material lime, having regard to the hour of the day and the amount of traffic-light on the road at that time. In the circumstances, there is in the first place nothing in the evidence of the respondent No. 1 Ramrao which could be said to have established any decree of negligence on the part of the driver of the motor van, Harishchandra.
11. The effort of the learned Counsel for the respondents Shri Nagale, is quite discemibly to establish that the evidence of the appellant No. 4 is false or untrue at any rate and for that reason, and not on its own merits, the evidence of the petitioner Ramrao should be disbelieved. Shri Nagale argued that the story that the negligence of the driver must be taken to have been more formally established, if his story of a S.T bus coming from behind and then overtaking the bicyclist is to be disbelieved for want of any evidence and in view of the denial of the suggestion in that behalf made to Anil Hedaoo (PW-2). According to him, Harishchandra should also be disbelieved when he has actually stated and suggested to the petitioner Ramrao as also to Anil Hedaoo-suggestion has been denied also-that it was in the first instance a collision between the two bicyclists and then a joint collision by both of them against the postal delivery van. In the first place it must be appreciated that petitioner cannot stand to gain by showing the weakness in the defence assuming that there is one in it. The petitioner must stand on his own to establish the case of the negligence to the satisfaction of the Court, i.e. upon preponderances of probability if not beyond any reasonable doubt. The state of evidence as it comes from the petitioner, can hardly warrant the invocation of the doctrine of res ipsa loquitur so as to shift the burden on the appellant No. 4 Harishchandra to rebut that doctrine and to establish absence of negligence on his part Looking to the comparative merits of reliability, we have already noted that the respondent No. 1 Ramrao has for reasons best known to him changed his stance; having pleaded that he had been actually riding his bicycle at the material time, he has now taken to state that he had been going on foot and carrying the bicycle by his hand. This was, as we must note, in an obvious attempt to establish a greater degree of innocence on his part as a road user/pedestrian, that in our opinion cannot be accepted.
12. In this view of the matter that the respondent No. 1 was not entitled to any compensation whatsoever, the quantum of any additional compensation as claimed by him by the cross-objection-is not necessary to be decided.
13. The appeal filed by the original respondents-Ministry of Communication, the Senior Manager Post & Telegraph, the Manager, Post and Telegraph and the postal van driver Harishchandra Swamy must succeed and the Award as made be quashed.
14. The appeal is hereby allowed. The Award dated 6.9.1988 passed by the learned Member, Additional Motor Accident Claims Tribunal, Nagpur is hereby set aside and the petition under Section 110-A of Motor Vehicles Act shall stand dismissed.
15. The cross objections filed by the original petitioner (Respondent No. 1 here) shall stand dismissed.
16. In the circumstances of the case, there shall however, be no order as to costs either in the appeal or in the cross-objections.