THE NEW DATAR TRANSPORT CO. (PVT.) LTD.versusSMT. RADHABAI AND ORS.

             THE NEW DATAR TRANSPORT CO. (PVT.) LTD.                                A
                                         v.
                         SMT. RADHABAI AND ORS.

                                 AUGUST 7, 1996

               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.j                               B

          Motor Vehicles Act, 1939 :

           Motor accident clabn-Negligence-Con1pensation-Accident due to
    collision of a passenger bus with a jeeir-Person sitting on left side of jeep   C
    died-Tlial judge held that death occun-ed due to inevitable accident but
    awarded Rs. 20, 000 as compe1;sation-High Cowt in appeal after appreciat-
    ing the evidence found that accident took place due to negligence of bus
    d!iver, upheld the amount and decreed the claim petition-Held, High Court
    recorded the finding based on appreciation of evidence-Judgment of High
    Cowt confinned.                                                                 D
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2233 (N)
    of 1970.

         From the Judgment and Decree dated 18/19/20.7.67 of the Bombay
    High Court in F.A. No. 63 of 1960.                                              E
          Mrs. AK. Verma for JBD & Co. for the Appellant.

          P.P. Malhotra and Naresh K. Sharma for the Respondent No. 9.

          U.U. Lalit for the Respondent.                                            F

          The following Order of the Court was delivered :

          This appeal by special leav~ on the ground of pecuniary valuation
    arises from the judgment and order of the High Court Bombay made on G
,   July 18, 19 & 20, 1967 in F.A. No. 63 & 79/64. The indisputed facts are
    that the S.D.O., R.J. Kulkarni was going in jeep No. MPK-741 along with
    Tehsildar G .S. Kulkarni, Shri Vaidya, Agricultural Assistant and Peon
    Parashram which was driven by Shantaram Patki a driver (P.W. 5) on
    February 14, 1959. When the jeep was proceeding at a speed of 25 to 30
    miles per hour at a place called Karanja, a passenger bus coming from the H
                                       379
    380                  SUPREME COURT REPORTS (1996) SUPP. 4 S.C.R.

A   opposite direction collided with the jeep on the extreme left hand side due
    to the impact of which R.J. Kulkarni died. The respondents laid a claim
    for damages for accident. The trial Court found as a fact that the dealh
    had occurred due to the inevitable accident but recorded the finding that
    had the defendants been liable to pay any damages or compensation to
    which the respondents would be entitled, it would have come to Rs. 20,000
B
    and odd. The trial Judge dismissed the petition on the ground that the
    accident was due to inevitable accident. On appeal, on reappreciation of
    the evidence, the High Court reversed the finding on negligence and held
    that the driver of the passenger bus was negligent; consequently upholding
    the amount awarded by the trial Court, the High Court decreed the
c   petition. Thus, this appeal by special leave.

          The only question is : whether P.W. 5 was negligent in driving the
    jeep due to which the collision had occurred ? The High Court had
    carefully scanned the evidence of P.W. 5 and held thus :
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             'We do not think, however, why the statement of Patki that Jeep
             car had not come to a standstill but was proceeding in slow motion
             at the time of the accident could not be accepted. Patki was asked
             in cross-examination as to why he did not take his jeep car either
             to the right or further to the left when there was possibility of
E            impact with the bus. Patki has replied that he did not take the car
             to the right side of the road because thereby he would be going
             on the wrong side of the road and he could not take the car further
             to the left as there was ditch on the left side of the road and the
             front wheels of the jeep car were likely to get into it. Possible,
F            these questions were asked by the defendants indicate that Patki
             might have avoided the impact by taking the car further to the left
             or to the right. We are unable to appreciate that Patki could be
              considered to be wanting in taking further to the left or to the
              right. We are unable to appreciate that Patki could be considered
              to be wanting in taking necessary care because he could neither
G             take the car to the right nor further to the left. The reason given
              by Shri Patki for continuing to drive the car on the kachcha road
              are adequate to show that he could not have deviated from the
              direction and the side without further risk. We are unable to
              appreciate how Patki could have taken his car towards the right.
H             It was the duty of the driver of the passenger bus to take the bus
             NEW DATAR TPT. CO.PVf.LTD. v. RADHABAI                      381

        on the proper side of the road, i.e., towards his left. If the driver   A
        of the bus did not or could not do so, the fault cannot be laid at
        the door of the driver of the jeep car, circumstances as he was at
        the relevant time, when he was already on the extreme left on the
        road i.e. the correct side when proceeding from Martizapur to
        Karanja. The testimony of this witness, which we have carefully
                                                                                B
        scanned, does no deserve the harsh criticism of the learned judge
        that Patki has no regard for truth. It is true that Patki has made a
        statement earlier that his car had come to stop. From that single
        statement it is difficult to hold that whole of the testimony of this
        witness is liable to be rejected, as evidence of witness which is not
        trustworthy. The learned Judge also seems to have failed to take        C
        into consideration that part of the evidence of Patki where he
        speaks about the wheels of the bus as far as he could notice.'

      This finding was recorded on pure appreciation of evidence and,
therefore, we do not think that we can reappreciate the evidence and come
to a different conclusion as to the nature of the accident and negligence of    D
the respective drivers.

      We, accordingly, confirm the finding and order of the High Court
and dismiss the appeal with no costs. The respondents are entitled to the
interest as awarded by the High Court.
                                                                                E
R.P.                                                     Appeal dismissed.