DALIP SINGH, J. - (1.) THIS appeal has been filed against the award dated 4.2.1994 passed by the Judge, Motor Accident Claims Tribunal, Sambhar Lake, Distt. Jaipur in MACT Case No. 156/1992 filed by the appellant for compensation for the injury received by her while travelling in the bus bearing registration No. HNM 2755 owned by the respondent No. 2. It is on account of the said injury, her right hand was amputated and she filed the claim petition.
(2.) HOWEVER , the learned tribunal while deciding the Issue No. 1 has held that the negligence was not of the driver of the bus owned by the respondent No. 2 but that of the vehicle approaching from the opposite direction and it was also contributory negligence of the appellant herself who was sitting with her hand protruding out of the window and she received the said injury on account of being struck by the vehicle approaching from the opposite direction. In the opinion of the Tribunal, the claim petition ought to have been filed against the owner of the vehicle approaching from the opposite direction and consequently absolved the respondent of its liability. Learned Counsel for the appellant has submitted that even assuming that it was the fault on the part of the appellant that she was sitting with her hand protruding out of the window arid it was on account of her fault that she received the injury oh account of impact from the vehicle approaching from the opposite side, if is also the responsibility of the driver of the bus in which the appellant was travelling as a passenger to have ensured the safety of the passengers is not undermined and that the sufficient space should have been left and precaution should have been taken to avoid any kind of impact with the vehicle approaching from the opposite direction. Learned Counsel for the appellant placed reliance on the judgment rendered in the case of Gyan Prakash Bhargava v. Baboolal 1985 ACJ 661. In the said case the injured was driving a car resting his elbow on the window and met with an accident. As a result of the impact the claimant injured his hand on account of the impact by the bus approaching from the opposite direction. The Court held that there was no contributory negligence on the part of the car driver in resting his elbow on the car window. It was also held that the driver of the car was under a duty to maintain a safe distance. He has also placed reliance on the decision of this Court rendered in the case of Abdul Zabbar v. Ram Swaroop and Ors. 1985 ACJ 594, in which case the passenger of the bus received injury resulting in the amputation of right hand. Injured had projected a part of his hand outside the bus. The injured received injury on account of impact from the bus approaching from the opposite direction. This Court held that the passenger was not guilty of contributory negligence and it was the duty of the driver to ensure the safety of the passenger. Learned Counsel for the appellant has also placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Jamnagar Motor Transport Union (P) ltd. v. Gokaldas Pitamber's L.Rs. and Ors. 1966 ACJ 42, where in the similar circumstances, on account of the grazing of the two vehicles approaching from the opposite directions, it was held that it was the duty of the driver to have maintained control over the speed so that no collision would have occurred. It may be very difficult to say that only one of the drivers of the bus was negligent. Their Lordships have held that the driver of both the vehicles would be held negligent.
(3.) IN the light of the aforesaid, learned Counsel for the appellant submits that the option lies with the claimants in such circumstances, to file a claim petition for compensation against the owner, driver and insurer of both the vehicles or against any one of them. He has also placed reliance on the decision rendered in the case of Sampat Kanwar Bai and Anr. v. Gurmeet Singh and Anr. 1988 ACJ 342, whether on the principle of joint tortfeasors it was held that the owner, driver and insurers of both the vehicles may be proper parties but it cannot necessarily be held that they are the necessary parties and in the absence of one of the parties, the claim petition cannot be allowed. On the contrary, both the parties are jointly and severally liable and the claimants can choose to file a claim petition and recover the damages from any one of them or both.;