JUDGMENT K.P. Singh, J.
1. Aggrieved by the decision of the Motor Accidents Claims Tribunal dated 22.2.1980 in Motor Accident Claim Case No. 30 of 1977, Nandi Devi v. U.P. State Road Transport Corporation, the defendant-appellant has preferred the abovenoted appeal under Section 110-D of the Motor Vehicles Act.
2. The claimants-respondents in this appeal had also preferred F.A.F.O. No. 573 of 1980 which was dismissed in default on 11.10.1990 as the learned counsel for the appellants in that case had not appeared.
3. The learned counsel for the appellant in this case has raised two questions for our consideration. Firstly, that the finding of the Tribunal regarding rash and negligent driving is against the weight of evidence on record and the circumstances involved in the present appeal. Secondly, that the deceased was guilty of contributory negligence as he was knocked down by the rear side of the truck in question, therefore, the determination of quantum of compensation errs on excessive side.
4. After hearing learned counsel for the appellant at some length and examining the impugned judgment and the evidence on record we do not agree with the contentions raised on behalf of the appellant in the present case.
5. During the course of argument, the learned counsel for the appellant has invited our attention to the ruling reported in Syad Akbar v. State of Karnataka 1980 ACJ 38 (SC). There is no dispute about the facts mentioned in the impugned judgment. According to the learned counsel for the appellant since the deceased was knocked down by the rear portion of the truck, it should be inferred that the deceased was also guilty of contributory negligence relying upon the interpretation placed on res ipsa loquitur (i.e., thing speaks for itself). The trial court has dealt with this aspect and has observed vide para 9 of the impugned judgment as below:
It has been urged by Mr. Sharma that the circumstance that the rear portion of the truck is alleged to have knocked down the deceased would show that deceased himself was negligent. There is absolutely no evidence on record which may show that Diwan Singh's statement about the truck coming at a fast speed or its rear portion knocking down Narayan Singh Garhia is incorrect. In Basanta Kumar Sahu v. Shyamsunder Agarwalla 1977 ACJ 359 (Orissa), the High Court of Orissa held that rear right wheel of the truck ran over the boy riding the tricycle resulting in his death and injuries to the pillion rider, then the truck driver was negligent and doctrine of res ipsa loquitur is applicable. It was this ruling which is certainly supporting the claimant's assertion that the mere fact that the rear side knocked down the deceased will not be sufficient to absolve the vehicle, its driver and owner from their liability if the vehicle was being driven negligently at a fast speed at a turning point and a pedestrian got knocked down by its rear angular side as is deposed by Diwan Singh. Mr. L.R. Sharma urged that this ruling relates to a child and not to an adult. In my opinion this will make no substantial difference because there is much lesser likelihood of a pedestrian getting knocked down by his own negligence by the rear side of the vehicle and ordinarily a full grown adult would not himself walk to be knocked down and it could only be when a fast moving vehicle suddenly knocks him down. It has been contended that on the alleged place of accident the accident could not have taken place in the manner alleged. On this point there is an inspection note of my learned predecessor dated 11.9.1979 wherein he has mentioned that accompanied by the parties he made local inspection on 11.9.1979. An iron rod was fixed nearly at the alleged place of accident and from the said place the bridle-path to Bhatkot ascended. Thereafter a truck was made to take a turn in the manner as the truck involved in the accident is stated to have taken the turn. The result of that experiment on the spot was that the said iron bar symbolising the deceased was uprooted from the place where it had been fixed. My learned predecessor after viewing it noted that it appears that the accident could have taken place in the manner alleged by the claimants... There is absolutely no evidence to show that in what manner the deceased contributed to the occurrence in which he was injured. There is no plea of contributory negligence nor any evidence in its support had been led and the experiment observed by my learned predecessor clearly supports the testimony of Diwan Singh on the point that the accident could have occurred in the manner deposed to by him.
6. The Tribunal relying upon the statement of Diwan Singh, the post-mortem report and the inspection note of his predecessor has rightly answered issue No. 1 in favour of the claimants-respondents and against the defendant-appellant. We do not find any cogent reason to take a contrary view. We affirm the finding recorded by the Tribunal that the driver Bhawan Singh was rash and negligent in driving the truck No. UPI 6687.
7. An argument was also advanced that due to mistake about the number of truck in the first information report, the claimants have failed to prove the accident alleged by them. We think that in the facts and circumstances of this case, the Tribunal has arrived at the correct conclusion that due to slight mistake in truck number it cannot be said that the incident had not taken place when there is overwhelming evidence regarding death of the deceased, post-mortem report and the oral evidence. The argument advanced by the learned counsel for the appellant in this regard is not acceptable to us.
8. Since the deceased was on kacha brick portion away from the main road, we are not inclined to accept the contention of the learned counsel for the appellant that the deceased should be held guilty of contributory negligence in the facts and circumstances of the present case. The rule based on res ipsa loquitur (i.e., thing speaks for itself) is not enough to hold that the deceased was guilty of contributory negligence and burden was upon the appellant to lead evidence to justify applicability of the aforesaid rule which the appellant has failed to prove in the present case. As the deceased was travelling on kacha portion of the road, which was a bit away from the main road, therefore, we are unable to hold that the deceased can be held guilty of contributory negligence in the present case.
9. The argument of the learned counsel for the appellant for reducing the amount awarded by the Tribunal on the basis of the contributory negligence of the deceased is not acceptable to us in the facts and circumstances of the present case.
10. A faint argument was also advanced that the driver of the truck was not negligent and our attention was invited to the ruling reported in Tekdhar Prasad v. State of Madhya Pradesh 1967 ACJ 10 (MP) and the ruling reported in Gourang Dhinda v. State of Orissa 1978 ACJ 318 (Orissa). The facts in the aforesaid two rulings are quite different from the facts involved in the present case. Merely because the deceased was hit by the rear portion of the truck does not convince us that the driver of the truck was not rash and negligent in the present case. In this regard the trial court rightly relied upon the principle of res ipsa loquitur and the ruling reported in Basanta Kumar Sahu v. Shyamsunder Agarwalla 1977 ACJ 359 (Orissa) and other evidence in the present case while answering issue No. 1 against the appellant. We think that the appellant does not derive any benefit from the two rulings cited on behalf of the appellant regarding the contention that the driver was not rash and negligent due to the suggestion that the deceased was hit by the rear portion of the vehicle.
11. From the foregoing discussion, both the contentions raised on behalf of the appellant fail and this appeal is devoid of merit and, is accordingly dismissed. Since the connected appeal regarding enhancement of the compensation awarded by the Tribunal has been dismissed in default, we do not think necessary to deal with the argument regarding the quantum of compensation advanced by the learned counsel for the appellant any more in this case.
Parties are directed to bear their own costs.