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PETITIONER: THE NEW DATAR TRANSPORT CO.(PVT.) LTD

       Vs.

RESPONDENT: SMT. RADHABAI & ORS

DATE OF JUDGMENT:       07/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   457        1996 SCALE  (6)121

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal by special leave on the ground of pecuniary valuation arises  from the  judgment and  order of  the High Court Bombay  made on 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 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 death  had occurred  due  to  the  inevitable accident  but   the  respondents   would  be   entitled   to Rs.20,000/- and  odd towards  compensation. 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 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;      "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

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    right or  further to  the left when      there  was  possibility  of  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,  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      necessary  care  because  he  could      neither take  the car  to the right      nor further  to the  left or to the      right. 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. It was the duty      of the  driver of the passenger bus      to take  the bus on the proper side      of  the  road,  i.e.,  towards  his      left. If  the driver 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      scanned, does not 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 a  witness which is      not trustworthy.  The learned Judge      also seems  to have  failed to take      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  the

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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