S.S. Sandhawalia, J. - (1.) THESE seven app -(sic) preferred by the (sic) and the rent by the (sic) Fire and General Insurance Company Ltd., and the owner of the insured vehicle (with cross -objections in (sic) -raise identical (sic) of law and fact. Learned Counsel for the parties are agreed that this judgment will govern all of them.
(2.) ALL these appeals arise from an unfortunate automobile accident which took place on the 31st of July, 1958, within the town of Amritsar. On that day at about 10.30 P. M. Sehdev Seth Appellant was driving Fiat Car No. PNJ (sic) from Railway Station, Amritsar to wards putlighar on the main Grant runk(sic) Road As the driver approached a traffic island located at the junction of the G T Road with the read going over the over bridge (called the Sege(sic) Bridge, which pastes over the railway lines) he diped(sic) his head lights. From the (sic) side a (sic) driven by (sic) Singh deceased with his wife Smt Manjit Kaur (now the (sic) with her children) seated on the (sic) sent thereof approached nearer the deceased scooter driver issued of going round the traffic island which was incumbent on (sic) and swerved towards the right to (sic) into the (sic) over bridge (sic) attempting to do so he crashed head -on into the on coming car No. PNJ -200(sic) driven by Sahdev Seth Appellant and the force of the impact violently threw both the riders of the scooter on the road. The driver of the car stopped the vehicle dead within two to three yards of the impact. Harbans Singh deceased received grievious(sic) injuries and even though he was removed forthwith to the V. J. Hospital, he succumbed to them during the night Smt. Manjit Kaur claimant received relatively minor injuries and survived. The accident apart from ethers was witnessed by Constables A. W. 6 (sic) Singh and A W.7 Shingara Singh. Smt. Manjit Kaur claimant alongwith her five children preferred a petition before the Tribunal claiming damage to the tune of Rs. 5, 000/(sic). The learned Tribunal held on issue No. 1 that the driver of the car was driving it at a relatively high aced(sic) and had been negligent in not being able to avoid a collision with a scooter. He assessed the smages(sic) for the death of Harbans Singh at a lump sum of Rs. 43,530/ - and also granted Rs. 3.600/(sic) in respect of the injuries sustained by Smt Manjit Kaur. On appeal being preferred by the claimants as also by the insurer and the car owner, the learned Single Judge has held that the deceased Harbans Singh was certainly guilty of negligence but oplned(sic) that his contribution towards this accident should be fixed at 20 per cent whilst(sic) that of Sahdev Seth Appellant at (sic) per cent, apparently because he was according to the learned Single Judge responsible for the accident to a larger extent. After apportioning the negligence the learned Single Judge avsred( sic) to the issue of damage and enhanced the amount of compensation for the death of Harbans Singh to Rs. 1.50.000/ whilst maintaining the compensation of Rs. 3,000/ - given to Smt Manjit Kaur claimed for her injuries.
(3.) IN this appeal the matter is now in a narrow compass in view of the findings of fact arrived at by the learned Single Judge himself: these have indeed been not seriously assailed even on behalf of the claimants. With regard to the patent negligence, on the part of Harbans Singh deceased in driving the scooter he first observed as follows In the appeal, I have some through the evidence with the help of the learned Counsel. So far as the ommission of Harbans Singh deceased, to make a turn round the traffic island is concerned, evidence of Inder Singh A W 6, is quite clear. He has categorically stated that the deceased did not reach the traffic island before he made a turn towards the Rego(sic) Bridge. It is now to be seen whether in these circumstances the Appellant still should be held responsible for (sic) driving or not.." Adverting then to Rule 9 contained in the (sic) Schedule of the Motor Vehicles Act the learned Single Judge also held that in (sic) of its clear language Harbans Singh deceased was also neglisent(sic) to some extent However, in apportioning the negligence the brief rationale thereof is only as follows: - The learned Counsel for the Respondents had drawn my attention to the photograph of the site after the accident took place. It shows that the front portion of the car drives by the Appellant was also damaged. From this fact it can safely be inferred that the deceased had gone fairly ahead towards Rego Birdge when the Appellants car, apparently being driven at a fast speed, struck against it I am, therefore, of the (sic) that negligent driving of the Appellant was to a large extent responsible for this unfortunate accident. In these circumstances, I hold that the contribution of the deceased in terms of negligence towards this accident should be fixed at 20%. In the aforesaid context the very first sad indeed the primary question herein is whether in face of the virtually admitted factual position and the glaring infraction of the statutory traffic rules by Harbans Singh deceased himself he was not primarily and solely responsible for the accident due to his own rash and negligent driving. The answer to my mind appears to be plain that he indeed was so.(sic) Since the learned Single Judge his laid the larger and the heavier burden of contributory negligence on Sahdev Seth Appellant, it is expedient to advert to this aspect first Now it is not in dispute that the time of the accident was as late as 10.30 PM Admittedly at that time the wide G T. Road at the material point was relatively bereft of traffic Sehdev Seth Appellant was proceeding in his car on his left side with all the normal and reasonable care of a good driver when he approached the traffic island It has to be highlighted that traffic island is located at what is virtually a 'T' junction where the relatively minor read over the Rego(sic) bridge joins the maiahish(sic) way Admittedly again the traffic island is not in the mindle of the G T. Road, but on its extreme end where the road over the bridge joins the same. There is no evidence worth the same that either when approaching the traffic island or after passing the same, the car was going rashly or fastly driven. The significant fact in this context is that A.W I Manjit Kaur Petitioner, the star wit -ness in the case does not say a word in her examination in chief even that the car was being drives fastly or negligently. None of the claimants have even attempted to assess prooisely(sic) the speed of the car A W 6 Inder Singh and AW 7 Shargara Singh, the two police constable, who have no axe to grind in their evidence clearly state that as Sehdev Seth Appellant approached the traffic island, he took the basic care of dipping the head -lights of hit car which were on. In his cross -examination. R W 2 (sic) Sehdev Sath Appellant stated that he was driving at a speed between 20 to 30 miles per hour Considering the wide road, the absence of the traffic and the time of the night, this speed cannot even remotely be labblled as 'rash'. It bears repetition that the car was being driven on the main G T. road and therefore, there was no duty cast upon its driver to slow down (sic) vehicle when approaching a (sic) junction It has been se held in M/S Hoshiarpur National (sic) Pvt Ltd v. The Motor Accidents Claims Tribunal, Hoshiapur, (1979) 81 P.L.R. 618.;