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1993 DIGILAW 205 (MP)

Surya Prasad v. Ali Ahmed And Sons

1993-03-31

P.P.NAOLEKAR

body1993
JUDGMENT P.P. Naolekar, J. 1. On 13.11.1979 bus No. UTS 8964 and a tractor No. CPA 5063 met with an accident, as a result thereof the trolley attached to the tractor was damaged. The appellant filed a claim petition claiming damages of Rs. 2774.48 for repairs of the trolley and Rs. 30/- as notice charges, totalling Rs. 2804.48. Admittedly, the respondent No. 1 Ali Ahmad & Sons is the owner of the bus and the bus was insured with respondent No. 3, The New India Insurance Company. The deceased respondent No. 2 Farjendh Ali Khan was the driver of the bus at the relevant time. 2. The case of the appellant is that the bus was coming from Shahdol and was going towards Manendragarh; it was being driven rashly and negligently and as a result thereof the driver of the bus lost control of the bus and the accident took place; the trolley was badly damaged and was repaired for which the appellant has incurred the expenses as mentioned above. According to respondent No. 1, the bus was not driven rashly and negligently; in fact, at the relevant time, the bus was stopped by the driver by applying brakes, as one riksha suddenly came in front of the bus and it is because of the tractor driver's mistake that the tractor was dashed against the bus and the trolley was damaged. The Trial Court dismissed the suit. 3. The appellant Surya Prasad examined himself as P.W. 4 and P.W. 5 Santosh who was driving the tractor at the relevant time. There is a statement of these two witnesses that at the relevant time the bus was being driven rashly and negligently; but for the timely precautions taken by the driver of the tractor, there would have been a head-on collision, which was averted, and the bus dashed against the trolley causing damage to it. Nothing has been brought about in the cross-examination of these witnesses to discredit their testimony. There is a specific statement made by these witnesses denying the story put-forth by the respondents that a riksha came in between and the driver of the bus by applying brakes stopped the vehicle on the spot and the trolley dashed against the bus. Nothing has been brought about in the cross-examination of these witnesses to discredit their testimony. There is a specific statement made by these witnesses denying the story put-forth by the respondents that a riksha came in between and the driver of the bus by applying brakes stopped the vehicle on the spot and the trolley dashed against the bus. Strangely, no witnesses have been examined by the respondents to prove their case that the bus was not driven rashly and negligently or that it was the trolley which dashed against the bus because of the negligent driving of the tractor. 4. The Trial Court has relied on the allegations made in the written statement to support the case put-forth by the respondents, without there being any evidence adduced before the Court to substantiate the plea raised in the written statement. The plea raised in the written statement has to be proved by evidence, without there being any proof, such statement cannot be relied on by the Court for discrediting the evidence led by the claimant. In the absence of any proof in rebuttal that the bus was not being driven rashly and negligently, the evidence of P.W. 4 Surya Prasad and P.W. 5 Santosh could not have been discredited. Accordingly I hold that the bus was being driven rashly and negligently and dashed against the trolley causing damage to it. 5. The appellant has examined P.W. 1 Amir Hussain to prove that for the purpose of repair of the trolley colour was purchased by the appellant from him worth Rs. 189/- and nuts and bolts worth Rs. 72480 were also purchased. P.W. 2 Subash Vishwakarma has stated about the purchase of timber worth Rs. 1010.68 for the trolley repairs. P.W. 3 Pooran has stated that he has charged Rs. 850/- as trolly repair charges. The appellant has proved that a total amount of Rs. 2774.48 was spent for the repair of the trolley. There is no evidence led by the respondents in rebuttal thereof. Neither I find anything in the statement of these witnesses to disbelieve the statement of these witnesses. The finding of the Trial Court that at the most an amount of Rs. 400/- would have been spent on the repairs of the trolley is not based on any material on record and is based on surmises and conjectures. 6. Neither I find anything in the statement of these witnesses to disbelieve the statement of these witnesses. The finding of the Trial Court that at the most an amount of Rs. 400/- would have been spent on the repairs of the trolley is not based on any material on record and is based on surmises and conjectures. 6. Accordingly, I hold that the appellant is entitled to have damages of the amount spent on the repairs of the trolley. As a result thereof, this appeal is allowed and the judgment and decree of the Trial Court is set aside and claim of the appellant for Rs. 2774.48 against the respondent is allowed with costs and interest at the rate of 6% per annum from the date of filing of the petition till realisation. The respondents 1 and 2 shall be jointly and severally liable to pay the decretal amount to the appellant. Counsel's fee as per schedule, if certified.