The burden of proof of negligence in a motor vehicle accident case lies with the plaintiff, who must establish a prima facie case of negligence on the part of the defendant driver.

The plaintiff in O.S. No. 25 of 1959 of the Subordinate Judge's Court, Kozhikode, has preferred this Second Appeal challenging the decision of the Courts below dismissing the suit filed by him for recovery of Rs. 10,000 from the defendants by way of damages.

2. The plaintiff's case was that on the 15th of May, 1958, while he was proceeding on a motor-cycle from west to the east along Gandhi Road in Calicut City, a Hill-man car owned by the first defendant and driven by the second defendant dashed against his motor-cycle as a result of which the plaintiff sustained grievous injuries on his right leg necessitating his treatment as an in-patient in the Government Headquarters Hospital for more than six months. It is alleged that the accident was caused on account of negligence on the part of the driver of the car who suddenly reversed the vehicle and later moved southwards without sounding the horn or indicating the direction in which he was trying to proceed.

It is averred in the plaint that the car was driven right across the road at a very high speed so suddenly that the plaintiff could not take any action to avert the collision and that there was no negligence whatever on the part of the plaintiff. It is stated that the plaintiff had been earning about Rs. 1,000 per month as a timber merchant and that on account of the injuries caused by the accident he was totally disabled from attending to his business for over 8 months. The damages caused to him on this account have been estimated in the plaint at Rs. 6,666.60. In addition, the plaintiff has claimed a sum of Rs. 3,000 for the expenses of medical treatment and also a further sum of Rs. 1,000 as compensation for the physical and mental strain caused to him on account of the injuries. The plaint claim in the aggregate has, however, been limited to Rs. 10,000. The third defendant is the insurance company with whom the first defendant's vehicle had been insured.

3. The defendants contended that the accident occurred because of the plaintiff's own rash and negligent handling of the motor-cycle and not on account of any negligence on the part of the driver of the car. They pleaded that the plaintiff had absolutely no cause of action against the defendants and was not entitled to recover any amount from them by way of damages. They also questioned the various items of damages claimed in the plaint and put the plaintiff to strict proof therewith.

4. Both the Courts below have concurrently found that the plaintiff has not satisfactorily proved that the accident was caused as a result of negligence on the part of the driver of the car and that on this ground the suit for damages had to fail. This concurrent finding has been arrived at by the Courts below mainly on an appreciation of the oral testimony adduced in the case, there being very little documentary evidence relating to this important aspect of the case.

5. The question as to whether or not the accident was caused by negligence on the part of the second defendant is purely one of fact and a concurrent finding entered thereon by the Courts below is not ordinarily liable to be canvassed before this Court in second appeal. The learned counsel for the appellant, however, contended that in arriving at the said finding the Courts below have proceeded on a wrong understanding of the averments contained in the plaint and that there has also not been a proper consideration by them of the oral evidence adduced in the case. It was further urged that the finding entered by the lower Courts is perverse and is liable to be set aside on that ground. In view of these contentions raised by him I permitted counsel to take me through the pleadings and the entire evidence recorded in the case.

6. I am not satisfied that there has been any misreading of the pleadings by the Courts below. The pleadings have been correctly summarised in the judgments of the two Courts. The lower Courts were fully justified in observing that the averments con