JUDGMENT
B.A. Masodkar, J.
1. This appeal questions the refusal to award any compensation by the Motor Accidents Claims Tribunal, Greater Bombay, in an application filed under section 110 read with section 110-A of the Motor Vehicles Act, 1939 by the present appellant with regard to an accident of April 17, 1966 that occured in the morning at above 9.30 a.m. near about the Junction of Mahatma Gandhi Road and Nehru Road while going towards the Airport in the City of Bombay.
2. The appellant-applicant alleged that he was the passenger sitting in the tray of the tempo driven by his brother Mohamed Khalim Siddiqi (witness No. 4). As the tempo negotiated Mahatma Gandhi Road and entered Nehru Road for going towards the Airport, the lorry driven by Shaikhali (witness No. 2 for non-applicant) bearing No. MHT. 761 came from the opposite direction with excessive speed on the extreme right and dashed against the tempo as a result of which the tempo fell on its left side. The applicant and one of his companions Yakub were thrown out and as a result of the accident, the applicant received injuries for which he sought compensation putting his claim to the extent of Rs. 53,000/-.
3. The learned Member of the Tribunal, who heard the application and recorded the evidence, came to the conclusion that the negligence was not established. As to the quantum of compensation, he gave a finding that it would be Rs. 11,000/-. As the first question was answered against the applicant, the application was dismissed. That order is questioned in the present appeal.
4. In this Court, Mr. Hattangadi, the learned Counsel appearing in support of the appeal, has strenuously argued that the approach of the learned Member is vitiated by wrong application of law for liability and wrong appreciation of the evidence on record. He has contended that the case being one of accident, the entire evidence, including that of the applicant (witness No. 1), the driver of the tempo (witness No. 4), the other independent witness Gambhirbhai (witness No. 5) as well as of the driver of the lorry, Shaikhali, should have been taken into account together and the learned Member should have held that the accident occured due to the negligence of the driver of the lorry. The learned Counsel has further submitted that the facts themselves point to the negligence of the driver of the lorry and the maxim of res ipsa loquitur applies and shifts the burden on the non-applicant lorry driver. Mr. Hattangadi has relied on the decisions reported in Jamnagar Motor Transport Union (P.) Ltd. v. Gokaldas Pitamber’s L.R.S. and others, 1966 Accidents Claims Journal 42, Manjula Devi Bhuta and other v. Manjusri Raha and others, 1968 Accidents Claims Journal 1. Shakuntala Shridhar Shetty v. The State of Maharashtra, 78 Bom.L.R. 106, to submit that looking to the location of the accident, Shaikhali, the driver of the lorry, was under an obligation to anticipate that a vehicle like the tempo would enter at the Junction of the two roads and that he had the last chance of avoiding the accident because in his evidence Shaikhali has admitted that he had seen the tempo from a near distance and as such Shaikhali should have been in a position to avoid the accident. As the accident had occured, the learned Counsel submits, the only inevitable inference is that it was due to the negligence of the lorry driver.
5. As far as the law is concerned, the matter is no more res integra. It is settled by the high authority of the decision of the Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan, , where the Supreme Court ruled that the liability would not arise unless a person contravenes any of the duties imposed on him by common law or by the statute and in the case of a motor accident, the owner is only liable for negligence. Proof of negligence is, therefore, necessary before the owner or the Insurance Company could be held to be liable for the payment of compensation in a motor accident claim case. In view of this high authority, it is not necessary to consider the decisions at length on which Mr. Hattangadi heavily relies.
6. It can only be observed that like any other fact there must exist evidence from which it can be safely inferred that the accident was the result of the negligence complained of. During the course of the arguments, though the learned Counsel submitted that this could be the case of a composite negligence of both the driver of the tempo and the driver of the lorry, thus at any rate making liable the driver of the lorry, it is indeed difficult to appreciate this approach to the present case. The applicant has filed his claim statement and lodged information before the Tribunal so as to get the award of compensation and in paragraph 22 of that claim statement, he has in no uncertain terms specifically alleged acts of negligence that resulted in the accident only against the driver of the lorry. Paragraph 22 of the application goes to assert that the driver of the tempo and the driving of the tempo were totally fault-free and it was the lorry, which was driven in a rash and negligent manner and in excessive speed and by the wrong side, that dashed against the tempo. Not only this was the case set out in paragraph 22, but evidence was led in support of that case only to establish the negligence of the driver of the lorry, Mohamed Khalim, the driver of the tempo, who is the real brother of the applicant, has been examined as witness No. 4 in support of the specific case with regard to the negligence of the driver of the lorry. It is, therefore, difficult to appreciate the submission of the learned Counsel that we should infer alternatively that this was a case of composite negligence alleged against the tempo driver as well as the driver of the lorry.
7. Having disposed of this alternate submission, we may now take a look at the evidence so as to find out whether any such case of negligence has been satisfactorily made out. As far as the judgment under appeal is concerned, the learned Member, after taking into account to the evidence, has accepted the evidence of the driver as disclosing the true version of the incident and has rejected the version given by the witness examined by the applicant to establish the so-called case of negligence.
8. The evidence of applicant Mohamed Siddiqi with regard to the accident is to the effect his brother Mohamed Khalim was driving the tempo and he himself was travelling in the tray. The tempo was going from Mahatma Gandhi Road to Nehru Road. On coming to the Junction, the tempo turned to the left, entered Nehru Road and was proceeding towards the Airport. After about 10 years, he noticed a lorry at a distance of about 20 yards. In between there was a bullock-cart in front of the lorry. The lorry was coming at great speed and overtook the bullock-cart and, in doing so, came on the wrong side of the road and the glass of the wind-screen of the lorry got entangled with the canopy of the tempo resulting in a jerk and the tempo fell on its left side. In the cross-examination, the witness has admitted that he had given a notice before filing his claim, which is as per Exhibit No. 1. In that notice, the story about the bullock-cart has admittedly not been disclosed. He has further stated that one Vinod Shah, who was driving an Ambassador car, was being them and he had taken the witness and Yakub to the hospital. It is further admitted that the accident occured some 20 to 30 yards to the west of the Junction on Nehru Road and he has stated that he had seen the lorry after they had taken a turn from 30 or 40 feet and in between, according to him, the bullock-cart was at a distance of about 5 yards and the bullock-cart was to the left-side. He has asserted that the windscreen of the lorry hit the tempo and that is how the tempo was pushed back and then it turned turtle. According to the witness, the tempo was to the extreme left-side of the road. He has denied the suggestion that the tempo was in a fast speed or that the accident actually occured at the Junction of the two roads. He has further denied the suggestion that the lorry was in a slow speed and it was the tempo which took a wrong turn and dashed against the lorry. However, he has admitted that there was damage to the canopy road and the mudguard of the tempo itself.
9. The version given by Mohamed Siddiqi in this manner would indicate that the lorry should be visible to the tempo driver or the occupants of the tempo itself after it crossed the junction of the two roads and actually, according to the witness, the accident was on Nehru Road after the lorry had overtaken the intervening bullock-cart. The story of the overtaking of the bullock-cart was not disclosed in the application and it was, for the first time, being deposed to in the evidence. The significant fact that the mudguard of the tempo was also damaged in the impact is not spoken to in the examination-in-chief and what this witness was trying to assert is the coming into contact of the windscreen of the lorry with the canopy of the tempo.
10. There is other evidence, namely, the evidence of Mohamed Khalim, the driver of the tempo (who is the brother of the applicant himself), with regard to the incident and reference to that evidence suggests that the right front mudguard of the lorry brushed against the right rear mudguard of the tempo and at the same time windscreen of the lorry and the driver’s side got entangled with the canopy of the tempo. Mohamed Khalim has stated that when the tempo entered Nehru Road, he had seen the lorry coming from the front which had overtaken the bullock-cart and then had come on the wrong side of the road. The witness had swerved the tempo to the left upto the edge of the gutter and in that position the incident occurred. The variation between the say of the applicant and Mohamed Khalim cannot be overlooked. If the driver Mohamed Khalim was right that at the time of the incidence had stopped the tempo and then the lorry brushed against the right rear mudguard of the tempo and the accident occurred, it is indeed difficult to reconcile the versions given by these two witnesses with regard to the incident. In cross-examination, Mohamed Khalim has admitted that it would be correct to say that the bullock-cart was on the left hand side of the road and that he had not noticed the lorry before he had entered Nehru Road. After he had entered Nehru Road, he had seen the lorry from a distance of about 40 to 50 feet and the bullock-cart was at a distance of about 10 feet at the time of turning into Nehru Road. He has admitted that Nehru Road has a curve. He has denied the suggestion that, in fact, there was no bullock-cart or that the incident occurred at the very Junction of the two roads. He has denied the suggestion that he was driving the tempo in a fast speed and that his tempo hit the lorry which was practically stationary on the left side of the road. Keeping in view the location of the roads and their intersection and the fact admitted by Mohamed Khalim that he had taken the tempo by the curve into Nehru Road and there was a bullock-cart-in-between the lorry and the tempo and it was the lorry which had overtaken the bullock-cart, it is not possible from this evidence to hold that it was the lorry which dashed against the stationary tempo. By far, the possibility of the driver of the tempo not noticing the lorry because of the bullock-cart and negotiating the curve, entering into Nehru Road and dashing his tempo against the lorry is not at all ruled out.
11. The evidence of Gambhirbhai (witness No. 5) is also to the effect that the lorry overtook the bullock-cart but without reducing its speed and then hit the canopy of the tempo which was coming from the front and that is how the tempo fell on its side and the lorry after going ahead for a distance of about 30 to 40 fast stopped. Gambhirbhai has asserted that he was coming from Andheri in his own car which was negotiating the same road and was behind the lorry. Keeping in view Gambhirbhai’s position as the occupant of the Ambassador car which had overtaken the bullock-cart, it is indeed difficult to accept the evidence of Gambhirbhai that after the overtaking, the lorry did not reduce the speed and then hit the canopy of the tempo. Situationally, Gambhirbhai would not be in a position to watch all this. In cross-examination he has candidly admitted that he could not see the tempo when the lorry was overtaking the bullock-cart. He has further asserted that the incident occurred near the junction of Mahatma Gandhi Road and Nehru Road and he was unable to state the exact distance. Even he was unable to say whether the accident took place before the junction or after the junction. He had, however, seen the tempo coming by Nehru Road, but he was unable to say the distance from which he had seen the tempo. The evidence of Gambhirbhai does not help the case set out by the applicant.
12. That leaves the evidence of the driver of the lorry. Shaikhali has stated that when his lorry was near the junction, he had kept a look-out and saw a tempo taking a turn at the corner in speed and at that time the backside of the tempo hit his lorry on the front right side. He went to the police Station after the incident and reported the matter. In cross-examination, he has stated that his lorry was near the junction of the two roads and has stated that he saw the tempo just at the time of the collision, He has admitted that he could not see the traffic coming from the right side of Mahatma Gandhi Road from the spot of collision. He has asserted that his speed was only 15 miles per hour. He was denied the suggestion that he had, in fact, overtaken the bullock-cart while approaching the junction of the two roads or that for that purpose he had gone to the other side of the road and collided with the tempo.
13. The evidence of Shaikhali is straight forward and in spite of the cross-examination, his assertion can hardly be doubted. Though, no doubt, he has not accepted the overtaking of the bullock-cart, that by itself, only because the witness of the applicant have spoken about such overtaking, will not lend lie to his version of the collision. Keeping the distances disclosed by the evidence and the situation of the roads in view, it is not possible to hold that the lorry was, in fact, being driven in high speed and as a result of the reckless driving it had collided with the tempo. The other possibility that the tempo might have come from Mahatma Gandhi Road for going towards the Airport and dashed against the lorry at the junction, as it stated, by Shaikhali, is not at all ruled out.
14. That being the position of the total evidence, it is indeed difficult to find any merit in the present appeal. The application was rightly rejected. The appeal fails and is dismissed. There will be no order as to costs.