Muni Lal Verma, J. - (1.) THE material facts which gave rise to this appeal and F.A.O. No. 171 of 1968 may be briefly stated as under:
(2.) SUDHIR Kumar, aged about 11 years, son of the Appellants was proceeding on a cycle and he was driving it putting his feet on the paddles by crossing one of his legs through its frame, on April 17, 1966, at about 4 p.m. on the road coming from the side of the lake and falling between Sectors 18 and 19 at Chandigarh. Krishana Padda Sen Chowdhary accompanied by his friend M. Biswas was then proceeding on the foot path towards the lake. Military truck No. RD. 15198 (hereinafter called the truck) appeared there from the side of the lake. It was driven by Chander Singh, the Sepoy. When he (Chander Singh) was overtaking Sudhir Kumar, the truck hit against his (Sudhir Kumar's) cycle, as a result of which the cycle and Sudhir Kumar fell on the road and he (Sudhir Kumar) died at the spot. Thereafter, the truck struck against the pavement (footpath) on its extreme right and hit M. Biswas, who too dropped on the ground and died at the spot. The truck was stopped thereafter. Krishana Padda Sen Chowdhary succeeded in saving himself and he sent information about the accident on telephone to the Air force Police. The local Police also reached the spot and he reported the accident to it. S.D. Joshi is the father and Mrs. Kanta Joshi is the mother of Sudhir Kumar and they claimed Rs. 20,000/ - by moving application before the Motor Accident Claims Tribunal, Chandigarh (hereinafter called the Tribunal) from the Union of India, averring that the accident resulting in the death of Sudhir Kumar had occurred due to rash and negligent driving of the truck Chander Singh who was acting in the course of his employment under the Union of India at the time of accident. Their claim was resisted solely on the ground that the accident, referred to above, had taken place due to faulty driving of the cycle by Sudhir Kumar and it was he who had dashed into the rear of the truck. Another plea was latter raised by amending the written statement that Chander Singh while driving the truck was performing an act of the Sovereign at the time of accident and, therefore, the Union of India was not liable for damages. Hence, the case was tried by the Tribunal on the following issues; 1. Was the accident due to any negligent act on the part of the driver of the vehicle involved ? 2. What is quantum of compensation due, if any, and from whom ? Relief.
(3.) WHETHER the vehicle in question was performing the act of the sovereign and if so, to what effect ? The Tribunal decided issue No. 4 in the negative. It held under issue No. 1 that the accident had taken place primarily due to negligent and rash driving of the truck by Chander Singh, though Sudhir Kumar had also contributed to it and that the negligence of Chander Singh was 75 per cent while negligence on the part of Sudhir Kumar was 25 per cent. Assessing the compensation at Rs. 4,000/ -, the Tribunal directed the Union of India to pay Rs. 3,000/ - to S.D. Joshi and Mrs. Kanta Joshi. Dissatisfied with the said result, S.D. Joshi and Mrs. Kanta Joshi have come to this Court in this appeal. 3. The Union of India too impeached the award rendered by the Tribunal in F.A.O. 171 of 1968. Since both these appeals are against one award, the same being disposed of by one judgment. 4. The facts that the accident resulting in the death of Sudhir Kumar had taken place, that Chander Singh was then driving the truck in the course of his employment under the Union of India; and that Sudhir Kumar was aged about eleven years when he died, are admitted. Assailing the finding recorded by the Tribunal on issue Nos. 1 and 2, Mr. G. C. Garg. learned Counsel appearing for the Appellants, contended that the accident was solely due to negligent driving of the truck by Chander Singh and that the compensation amount assessed by the Tribunal was inadequate. On the other hand. Mr. S.P. Jain, learned Counsel appearing for the Union of India, argued in opposition that the accident was due to the negligence of Sudhir Kumar or at least he had contributed to the happening in such a manner that his negligence could not be assessed less than that of Chander Singh; and that: the compensation amount assessed by the Tribunal was excessive. In my opinion, the contentions raised by Mr. G. C. Garg are well founded and the arguments advanced by Mr. S.P. Jain are unmeritorious. Of the numerous definitions of "negligence,'' among the best has been declared to be "the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance wide the circumstances justly demand, whereby such other person suffers injury." Whether negligence exists in a particular case has to be determined by a consideration of all the attendant or surrounding facts and circumstances, and the test of negligence is the exercise of ordinary care and caution which is expected of a prudent man in the circumstances of particular case. It is expected of drivers of automobiles especially heavy vehicles just like military trucks as in the instant case, to be cautious while overtaking a cyclist or a person who walks or drives a vehicle on the road. The duty to exercise ordinary care including the reasonable use of his faculties of sight and intelligence to observe and appreciate danger or the threatened danger of injury, is upon the driver of the overtaking automobile. If he fails in that duty, and such failure is the proximate cause of the injury he is guilty of negligence. He cannot hit, much less crush, another person simply because the said person is moving in the middle of the road, or that he is not in well control of the vehicle driven by him. It is the driver of the overtaking vehicle who is in its control and who can watch the movements etc. of the person or the vehicle which is being overtaken. Therefore, the driver of the overtaking automobile is under duty to see, and he is in a position to do so, that he leaves sufficient space between his automobile and the vehicle, or the person to be overtaken so that there shall not be any collision between the two. He has also to observe that he overtakes the vehicle or the person moving ahead when the latter has moved to the extreme left side and he should also manage his vehicle in such a manner that there is no danger or even threatened danger of any mishap. He has to see that the speed of his vehicle when overtaking, is such that it can be pulled up if the person or the vehicle to be overtaken, has failed to behave in a manner as was expected of him at the time of overtaking. The driver of the vehicle to be overtaken has to see forward in order to manage it and is not in a position to look behind, much less to watch the movement of the overtaking vehicle or automobile. So, there is no duty on him to observe all the precautions stated above, which are expected of the driver of the overtaking vehicle or automobile. His duty is to move on the left side of the road. Now, when the aforesaid test or considerations are applied to the facts and circumstances of the present case, the conclusion is inevitable that it was Chander Singh alone who was responsible for the negligence which caused the accident. Sudhir Kumar was a child of about eleven years. He was peddling the cycle putting one of his legs across its frame somewhere between the left side and middle of the road. Therefore, the duty imposed upon Chander Singh had increased and it was required of him to slow down the truck and to overtake him (Sudhir Kumar) when he had taken his cycle on the extreme left side of the road and he (Chander Singh) should have left ample space between the said cycle and the truck so that there could not be any possibility of collision between the two. He did not act in that manner. On the contrary, after hitting Sudhir Kumar, the truck had bumped against the payment on the right side and further knocked down M. Biswas who was moving on it (the pavement). Both of them, viz, Sudhir Kumar and M. Biswas, were so severely hit that they had died at the spot. The truck could be stopped at a distance of about twenty -five or thirty yards away from the place where Sudhir Kumar had been knocked to death. The aforesaid behavior of Chander Singh and the truck speak volume of negligence on the part of Chander Singh.;