- (1.) THE appeal is by the claimants against the dismissal of the petition for compensation. The deceased was 30 years of age said to be engaged in the business of sale of auto spare parts which he was running under the name and style of M/s Bharat Steel Products.
(2.) THE accident was said to have taken place on 11.10.1990 when he was travelling in a car (maruti van) from Smallkha towards Panipat. When the vehicle was overtaking a stationary truck, the insured's vehicle coming from the opposite direction which was a truck bearing registration No.PAT -8449 dashed against the vehicle in which the deceased was travelling and he had suffered fatal injuries and succumbed immediately following the accident.
(3.) THE accident was an admitted fact. It was, however, contended by the respondents that the driver of the vehicle in which the deceased was travelling was trying to overtake 3 vehicles which were going ahead of him and only on account of his own negligent driving, the truck had dashed against the maruti van. In evidence, the 1st respondent, shown as a driver, contended that he was not actually driving the vehicle but yet another person by name Chander Bhan was driving the vehicle at that time. The court found that the driver of the maruti van alone was responsible in having a poor judgment while overtaking the vehicles and coming by a serious accident by collision. It must be noticed that the petitioner himself was not a driver of the vehicle in which he was travelling. Whenever there is an accident involving two vehicles from opposite directions, without a modicum of negligence of both the drivers involved, there could not be an accident. Even if the driver of maruti van had been rash and negligent in overtaking vehicles without a proper judgment of whether he would be able to clear them and draw up towards the left side of the road and allow for an ongoing vehicle to go past without a collision, it should have been possible for the opposite vehicle coming on the opposite direction to avoid collision if he had also exercised a proper care. It was such a serious collision that the passenger in the car had actually died instantaneously. I would take this therefore to be a case of composite negligence and not a case of wholesale negligence on the part of the driver of the maruti van. If a passenger in a car had come by fatal injury by composite negligence, then the claimants shall be entitled to maintain a claim against anyone of the tort -feasors and leave it to one of them to seek for contribution from the other vehicle which was involved in the accident. A duty to apportion will exist whenever owners of both the vehicles are parties before court. In this case, the claimants have filed the case only against the owner of the truck and even such a claim is perfectly competent to be maintained without impleading the owner or the driver.;