Proof of negligence of driver of motor vehicle.

The Judgment of the Court was delivered by Sadasivam, J.-

On the morning of 16th December, 1963 at about 9-15 A.M, there was an accident at the Junction of St. Mary's Road and C.P. Ramaswami Iyer Road, Madras in which the lorry MSY 3463 owned by T.U.G.S. Ltd and driven by one Sankaranarayanan (R.W. 1) and the scooter, MSY 4456 owned and driven by M. K. Subramanian (R.W. 2) Were involved. One K. Gopalakrishnan (P.W. 10) son of Krishnan (P.W. 11) who was travelling on the pillion of the scooter at the time of the accident, sustained a lacerated injury on his left leg 10 “ x 5?12;” with fracture of both bones as the right rear wheel of the lorry ran over his left leg after he fell down as a result of both the vehicle colliding on their sides and this finally resulted in the amputation of his left leg above the knee. The pillion-rider Gopalakrishnan claimed Rs. 3,60,210 as compensation in O.P. No. 60 of 1964 on the file of the Motor Accidents Claims Tribunal, Madras, (hereinafter referred to as the Tribunal) impleading R.W. 1 Sankaranarayanan, the driver of the lorry of T.U.C.S. Ltd. the owner of the lorry, the Co-operative Fire and General-Insurance Society Ltd., with whom the lorry was insured, R.W. 2 M. K. Subramanian the driver and the owner of the scooter, one A. K. Anand, the original owner of the scooter and the Oriental Fire and General Insurance Co., the insurer of the scooter as respondents 1 to 6 respectively. The Tribunal awarded compensation of Rs. 57, 865.37 and costs of Rs. 100 to the claiment Gopalakrishnan only as against R.W. 2, M. K. Subramanian, the driver of the scooter. The pillion-rider Gopalakrishnan has preferred C.M.A. 358 of 1964 on the ground that he should have been awarded compensation as claimed by him against all the parties. R.W. 2 M.K. Subramanian, the driver of the scooter has preferred C.M.A. No. 398 of 1064 against the award made against him. It is convenient to refer to the array of parties as described in O.P. 60 of 1964 on the file of the Motor Accidents Claims Tribunal.

The sketch, Exhibit P-1 prepared by P.W. 7 Vadivelu, Sub-Inspector of Police Traffic Investigation who went to the spot at 10 a.m. on the date of the accident is useful to understand the evidence in this case. According to the driver of the lorry the sketch is incorrect. P.W. 7 deposed that the driver of the scooter as well as the driver of the lorry showed him the same place, as marked in the sketch, as the point of impact of the two vehicles. But the driver of the lorry stated that he did not show to the Police the place where his lorry came into contract with the scooter. It is difficult to accept his statement as against that of the Sub-Inspector of Police. It is not possible to accept the evidence of the lorry driver that when he returned to the scene of occurrence, after going to the Police Station, the lorry had been pushed forward.

The lorry was laden with 40 bags of sugar and 13 bags of wheat and it was proceeding from east to west along St. Mary's Road at the time of the occurrence. The driver of the lorry deposed that he drove the vehicle at a speed of 15 to 30 kilometers which would work out approximately 9 to 18 miles per hour. P.W. 8 Arulraj, one of the witnesses to the occurrence, deposed that the lorry, came at a great speed. But the evidence of the Sub-Inspector shows that the lorry had travelled 24 ft. after the place of impact, as pointed out to him by the driver of the lorry as well as the driver of the scooter and the blood-mark noticed by him. Rule 307 of the Madras Motor Vehicles Rules requires the efficiency of the brakes of the Motor Vehicles to be such that when laden, it should stop on application of brakes within a distance of 45 ft. when travelling at 20 miles per hour and within 25 ft. when travelling at 15 miles, per hour. Thus, if the lorry had the required efficiency, which could normally be presumed as the lorry driver would otherwise have been prosecuted for driving the vehicle with in