GUMAN MAL LODHA, J. - (1.) THESE nine appeals No. 226 of 1984, 230 of 1984, 228 of 1984, 215 of 1984, 141 of 1985, 42 of 1985, 139 of 1985, 140 of 1985 and 138 of 1985, are all related to one accident in which a number of persons were injured and two including the driver cum owner was fatally injured. All the claimants have filed appeals for increase of the compensation awarded by the accident Claims Tribunal. The owner of the truck M/s. Oriental Road Lines and the claimants who are legal representatives of deceased driver cum owner of the car has also filed appeals. None of the insurance Companies have come in appeal.
(2.) THE unfortunate accident happened on 28. 1. 1978 at about 5. 30 A. M. when the car bearing registration No. RSG 214 collided with a trailer No. RSR 3125 in front of the residence of Collector on Jai Singh Highway, Jaipur. THE result was death of the taxi driver and also the occupants of the taxi sustained grievous injuries and one Shrimati Shankari Devi died. The first point which required consideration is as to who was responsible for the accident. The evidence recorded shows that PW-1 Nawal Kishore stated that the car No. RSG 214 was going when a truck came from front side. The car driver on noticing the truck from opposite side diverted the car on the left side. At that time a trailer came on the reverse direction and collided with the car. The trailer was not having the back light nor there was any person to give any signal or indication that the trailer is coming on the reverse direction. The reason of the accident was that the trailer came in the reverse side without any signal or light and the car had no wiper. Gopi Ram's statement is also similar. According to him the trailer came in the reverse direction without a light or signal and that resulted in the accident with the car. He also mentioned that the car had no wiper and it was raining at that time. According to him the responsibility lies more on the driver of the trailer than that of the car. AW-4 Sulochana has stated that the car was going fast. Anup Agarwal AW. 7 has stated that the car was going fast. Anup Agarwal AW. 7 has also stated that the car had no wiper, and the driver drove the car inspite of the absence of wiper even when it was pointed out by the grand father. The trailer had no horn, no light in the back and no indication that it is coming on the reverse side. According to this witness both are equally liable. Bhagchand Khalasi of the trailer had tried to fix the responsibility on the car driver by saying that the car came rashly and negligently with fast speed. Wazid Ali had supported him. Now after analysing the evidence it is obvious that accident happened primarily on account of the fact that the trailer came on the reverse side without a light and without there being any person giving signal nor any horn was given. It is significant that when a heavy vehicle like trailer decides to go on the reverse side and no signal is given, nor horn is given, no light in the shape of back light is there, then it is bound to create problem for the incoming vehicle who would notice it at such a time and occasion when the accident will become imminent and there will be no escape. The fact that the truck was coming on the front side and the car driver had no option but to divert the car on the left side would show that the car driver was not at all at fault. However, his fault was that he was driving the vehicle without a wiper. It has come in evidence that there were rains although it was not rainy season, because it was January. Even then not having wiper and that too by a taxi driver is certainly a negligence, though it may be of very minor significance.
(3.) THE Tribunal has apportioned the negligence and rashness and responsibility of this accident equality i. e. 50:50. I am of the opinion that it is not correct. Primary responsibility and liability of this accident was of the driver of the trailer who took the trailer on the back side on the reverse direction without signal or the person to indicate it. It would put at 90% so far as the trailer driver is concerned. THE taxi driver would be responsible and liable only for 10%. Thus the liability is apportioned as 90% of the trailer driver and 10 per cent of the car driver. This would automatically result in apportionment of the claim amount for the two vehicles, when the claim amount is discussed and decided. Now the question comes that whether the passangers, who were travelling in the car were also liable. Mr. Singh submitted that according to English Law the principle is that when the passanger sit in a car or vehicle which has got some defect and which is being driven negligently and it has come in their observation then are also responsible for contributing negligence. This principle is too difficult to be accepted in the Indian conditions. It is well known that the passengers have to travel in a very difficult condition. Mostly they have got no control over the taxi driver or bus driver or the train or the plane in which they travel. It would be too much to expect in Indian conditions that the passangers to travel in air bound plane or a seat of a bus of a railway would first inspect the vehicle and find out whether every thing is in order, then control or supervise or regulate the speed which is to be driven. ;