Madan Mohan Punchhi, J. - (1.) THIS judgment shall dispose of F.A.O. Nos. 395, 396 and 398 of 1981 since they arise out of the same award of the Motor Accidents Claims Tribunal, Kurukshetra.
(2.) THE accident which is the basis of this litigation took place on 16th April, 1976. Lt. S.K. Ganguli, the Appellant in F.A.O. No. 395 of 1981, was a passenger in bus No. HYA 1295. So was Jaspal Singh deceased, whose next in kin are the Appellants in F.AO. No. 396 of 1981. The bus left Delhi during night for Chandigarh. It was being driven by Ajaib Singh Respondent. The bus struck into a stationary truck near Shahbad. In the accident, Jaspal Singh died and Lt. S.K. Ganguli suffered grievous injuries. The heirs of Jaspal Singh, being his widow Mohinder Kaur, two sons Shavinder Singh and Jagvinder Singh and a daughter Sukriti Kumari, preferred application for compensation. Similarly, S.K. Ganguli for the injuries suffered by him and the loss in his service, filed claim application for compensation. Since Ajaib Singh Respondent was held to be negligent in driving his bus and on the basis thereof the aforesaid two applications have been decided, the State of Haryana in F.A.O. No. 398 of 1981 has challenged that view, but only against S.K. Ganguli, for no compensation was paid to the heirs of Jaspal Singh deceased. F.A.O. No. 398 of 1981 The question of negligence is of paramount importance in this appeal. Issue No. 1 framed during the trial was to the effect - -Whether the accident took place because of the rash and negligent act on the part of the driver? Keeping apart the evidence led by the claimants for the moment, the evidence of Ajaib Singh driver as RW 1 goes a long way to establish it. According to him, at the relevant time he was driving his bus at a speed of 45 km. per hour. When he was on the highway an oncoming truck dazzled lights and despite his using the dipper and slowing the bus and simultaneously applying brakes, the left portion of the bus struck against the stationary truck. Further, according to him, there was no parking light or reflector or any light of the parking truck before the accident. When driving, he claimed with confidence that in the headlight of the bus he could see 200 yards in the ordinary course, but he noticed the oncoming truck from 150 yards and after covering that distance and further distance of 50 yards, the accident took place. Still further he claimed that if he had applied brakes at the speed of 50 km. per hour, he could stop the bus within 15 yards. From his statement it is inferable that when he was at a distance of 200 yards from the stationary truck he could have seen it and the road obstructed. If not, when confronted by the dazzling lights of the oncoming truck a lurking fear should have crossed his mind that the passage in his front could perhaps be blocked by a moving or stationary body. The very fact that the bus rammed into the stationary truck goes to show that the driver did not duly take care to avoid the truck Photographs Exhs. A -6 to A -10 also speak volumes about the accident. It is noteworthy that the truck was loaded with material and its front left tyre stood punctured. Its left side was barely on the kacha road but predominantly the truck was on the pacca road. Had the driver been vigilant, he could not have avoided seeing the stationary truck even after passing the oncoming truck. Once the dazzle of the light was over and there were about 50 yards or even less to cover, there was ample opportunity to swerve towards the right and avoid the accident. As plan Exh. P -30 shows the road was 23V2 feet wide and there was plenty of space for the bus to swerve and steer through. There was thus lack of caution by the driver for which his employers have to suffer. So has said Lt. S.K. Ganguli in his statement.
(3.) LEARNED Counsel for the State pleaded that the accident took place due to act of God, for it could not be perceived by the driver that the road would be obstructed. Alternatively it was pleaded that Section 81 of the Motor Vehicles Act. 1939, prohibits the road being blocked by a stationary vehicle and that the stationary truck which had violated that provision, was alone responsible. It is true that the driver of the stationary truck did defy the provisions of Section 81. But that would have at best established a case of composite negligence. One could have determined the share of blame with meticulous care had the driver/owner/insurer of that stationary truck been made parties to these proceedings. Since we do not have here the version of the stationary offending truck, it is futile to delve deep into that matter. Even if there is one per cent negligence of the bus driver (though not holding so) the recovery can yet be made from the owners of the offending bus. Thus, in my view the Tribunal rightly decided issue No. 1 in favour of the claimants on the establishment of the neglect of the driver. F.A.O. 395 of 1981;