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2004 DIGILAW 63 (HP)

STATE OF PUNJAB v. CHANDAN KUMAR MANDAL

2004-04-01

R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—In the accident which took place on 10.8.1993 near village Kangu, Tehsil Sundernagar of District Mandi, involving bus No. PB-12-8219 belonging to the appellants and truck No. HP-32-0972 belonging to respondent No. 2, Nand Lai, and of which respondent No. 3 was the insurer, grievous injuries were sustained by respondent No. 1 Shri Chandan Kumar on his right arm, who was then travelling in the abovesaid bus belonging to the appellations. As a result of such injuries the right arm of the respondent No. 1 had to be amputated from shoulder level. 2. Alleging composite negligence on the part of the two drivers of the vehicles involved in the accident, respondent No. 1 approached the learned Motor Accident Claims Tribunal (1) Mandi (for short : the Tribunal) under Section 166 of the Motor Vehicles Act, 1988, seeking compensation to the tune of Rs. 10,00,000 for the injuries and disability sustained by him. 3. Respondent No. 2, the owner of the truck, while resisting the claim petition, in his reply did not deny the accident and pleaded that the accident was as a result of the rash and negligent driving on the part of the driver of the bus belonging to the appellants. 4. The appellants, on the other hand, after admitting the accident, pleaded that the accident was as a result of rash and negligent driving on the part of the driver of the truck. They have pleaded and averred in para 24 of their reply as under :— "That para No. 24 of the petition is incorrect and hence denied. The true facts of the case that the bus in question was coming from Manali to Chandigarh at very moderate and slow speed after observing the traffic rules of the road and the driver of the bus No. PB-12-8219 was driving the bus at a very slow speed. The truck driver was driving the truck which was coming from Bilaspur to Mandi at a very high speed and its driver was driving his truck very rashly and negligently. It is submitted that the accident purely caused due to rash and negligent driving of the truck driver. It was not the fault of the bus driver. It is submitted that the compensation may kindly be awarded against respondents No. 1 and 2 alongwith Insurance Company of the truck." 5. It is submitted that the accident purely caused due to rash and negligent driving of the truck driver. It was not the fault of the bus driver. It is submitted that the compensation may kindly be awarded against respondents No. 1 and 2 alongwith Insurance Company of the truck." 5. Respondent No. 3, the insurer of the truck, denied the accident for want of knowledge. It was pleaded that it was not liable under the insurance policy since the driver of the truck did not possess a valid driving licence. 6. It may be stated that the driver of the truck was initially impleaded as respondent No. 2 in the claim petition before the learned Tribunal. Consequent upon his death during the pendency of the proceedings before the learned Tribunal, his name was deleted from the array of respondents vide order dated 22.11.1994 of the learned Tribunal. 7. The learned Tribunal on the basis of the evidence coming on record, came to the conclusion that the accident had taken place as a result of composite negligence of the drivers of the two vehicles involved in the accident. The claimant (respondent No.1) was held entitled to total compensation of Rs. 2,14,000 alongwith interest at the rate of 12% per annum from the date of petition, that is, 25.8.1993 till the date of payment. By holding that the two drivers had contributed to the negligence to the extent of 50% each, the liability in respect of payment of the amount of compensation was accordingly fixed on the appellants, the owners of the bus, to the extent of 50% and on the respondents No. 2 and 3, the owner and insurer of the truck to the extent of remaining 50%. 8. Aggrieved by the award dated 18.9.1996, the appellants have come up before the Court by way of the present appeal. 9. The quantum of compensation assessed and awarded in favour of the claimant/respondent No.l by the learned Tribunal has not been assailed by the learned Counsel for the appellants. The impugned award has been assailed only to the extent of the findings of the learned Tribunal holding the appellants guilty of composite negligence to the extent of 50% and making them liable for payment of the amount of compensation to that extent. The impugned award has been assailed only to the extent of the findings of the learned Tribunal holding the appellants guilty of composite negligence to the extent of 50% and making them liable for payment of the amount of compensation to that extent. It was contended by the learned Counsel for the appellants that the learned Tribunal on the basis of evidence coming on record, has erred in holding the appellants to be guilty of composite negligence. It was further contended that the accident had taken place due to the sole rash and negligent driving on the part of the driver of the truck. 10. Admittedly, the two vehicles at the relevant time were proceeding in opposite directions. It is also admitted that the accident had taken place on a curve, that is, when the two vehicles were negotiating the curve. It is in the statement of RW 1 Tara Singh, the driver of the bus involved in the accident, that the accident took place on the National Highway and at the place of accident two three vehicles could easily cross the road simultaneously. In other words, the road was quite wide. 11. The rule of the road is that when two vehicles are approaching each other from opposite directions, each must go on the left or near side of the road for the purpose of allowing the other to pass. Failure to observe this rule is prima facie evidence of negligence. 12. In Sushma Mitra v. M.P. State Road Transport Corporation and others, 1974 ACJ 87, the right arm of the claimant therein, who was travelling in the bus, got severely injured and disabled while the bus and the truck coming in opposite directions were crossing each other. Holding the drivers of both the vehicles for composite negligence, a Division Bench of the Madhya Pradesh High Court observed :— "It cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of passengers. While driving he must have the passengers in contemplation and he must avoid acts or omissions which can reasonably be foreseen to injure them and in deciding what acts or omissions he should avoid, he must bear in mind the normal habits of passengers. While driving he must have the passengers in contemplation and he must avoid acts or omissions which can reasonably be foreseen to injure them and in deciding what acts or omissions he should avoid, he must bear in mind the normal habits of passengers. It is a matter of common experience that passengers who sit adjoining a window very often rest their arm on the window-sill by which act the elbow projects outside the window. The driver of the bus must have these passengers also in contemplation and, therefore, while overtaking or crossing another vehicle on the road he must not come too close to the vehicle that is overtaken or crossed and he must leave sufficient gap between the vehicles to avoid injury to these passengers. The driver of a vehicle coming from the opposite direction owes a similar duty while crossing a passenger bus. He too must have in contemplation passengers sitting near the windows of the on coming bus who may have their hands resting on the windows, and in crossing the bus he must not only avoid contact with the body of the bus but he must also avoid coming in contact with the elbow of any passenger that may be resting on the window and projecting outside the body of the bus. He must, therefore, take precautions to move to his near side and leave sufficient gap for preventing any mishap." The above ratio was reiterated by another Division Bench of the Madhya Pradesh High Court in Suresh Kumar v. Pradeep Kumar and others, 1984 ACJ 189. 13. In Suraj Narain and another v. Sneh Lata Jain and others, 1985 ACJ 581, two buses coming from the opposite directions grazed against each other while crossing and the right hand of a passenger was completely out. It was held by the High Court of Rajasthan, by following the ratio laid down in Sushma Mitras case (supra), that both the drivers were expected to leave in between minimum space by which the passengers travelling inside the bus, are not adversely affected by the impact of dashing against each other. Since the two buses dashed against each other from their sides as they did not leave enough space in between, the two drivers of both the buses were held guilty of composite negligence. 14. In New India Assurance Co. Since the two buses dashed against each other from their sides as they did not leave enough space in between, the two drivers of both the buses were held guilty of composite negligence. 14. In New India Assurance Co. Ltd. and another y. Kamalbai and others, 1994 ACJ 519, there was a head on collision between the two vehicles coming from opposite directions, width of the road was sufficient enough for two vehicles to pass. The Division Bench of the Bombay High Court held the drivers of both the vehicles to be guilty of composite negligence. 15. In the present case as well on the basis of evidence coming on record, the composite negligence of the drivers of the two vehicles involved in the accident is writ large. The road at the spot, which is a National High Way, was wide enough to permit two three vehicles cross simultaneously. The accident occurred on a curve when the two vehicles were negotiating the curve. It can be very well deduced from the facts of the case that the two drivers of the offending vehicles had not taken due care and precaution in leaving sufficient space in between while driving passed each others on the curve. Therefore, the learned Tribunal has rightly held the two drivers to be guilty of composite negligence to the extent of 50% each and in holding the appellants liable to that extent. Resultantly, there being no merit in the appeal, the same is accordingly dismissed leaving the parties to bear their own costs. 16. Kisan Vikas Patra amounting to Rs. 77,000 lying in safe custody of the Registry shall be handed over to the claimant-respondent and the remaining amount of compensation lying invested in fixed deposit alongwith interest accruing due, if any, shall be paid to the claimant respondent by remitting the same to his bank account the particulars of which shall be supplied by the claimant-respondent to the Registry of this Court.