SYDNEY VICTOR Vs. JANAB S KADER SHERIFF

JUDGEMENT

(1.) THESE two civil miscellaneous appeals arise out of two claim petitions in respect of one and the same motor accident. On 7-2-1967, at about 5-30 p. m. there was a collision between the bus bearing registration No. MDJ 3705 and the lorry bearing registration No. MSW 234 near milestone 43 in Madras-Bangalore Road. In that accident, Mrs. Sydney Victor, a school teacher at Madras, and Miss Chandra, a girl aged about 16 years, who were two of the passengers, traveling in the bus, were injured. On behalf of Mrs. Sydney Victor, M. O. P. 54 of 1967 was filed and on behalf of Miss Chandra M. O. P. 53 of 1967 was filed before the Motor Accidents claims Tribunal, Chingelput. In the two petitions, the owner of the bus was impleaded as the first respondent, the owner of the lorry was impleaded as the second respondent and the Insurance Company which is common to both the vehicles, was pleaded as the third respondent. The Tribunal held that the accident was as a result of rash and negligent driving of the lorry MSW 234, that the two injured, viz. , Mrs. Sydney Victor and Miss Chandra were entitled to compensation of Rs. 8,000 and Rs. 25,000 respectively, but both of them were guilty of contributory negligence, so much so, the quantum of compensation so arrived at was reduced by 50% in each case. The result was, Mrs. Sydney Victor was granted an award for only a sum of Rs. 4,000 and Miss Chandra was given only Rs. 12,500. In these two appeals, the two respective injured question the finding of the tribunal below regarding the alleged contributory negligence on their part. Therefore the main question would be whether the two injured or either of them were guilty of contributory negligence.

(2.) THAT the driver of the lorry MSW 234 drove his vehicle rashly and negligently and brought about the accident is not in dispute now. However, the order to appreciate the contention regarding the question of contributory negligence on the part of the two injured, the facts relating to the accident have to be stated. The bus in question was traveling from Vellore towards Sriperumbudur in the bangalore-Madras road. A party of ten persons had boarded this service bus at vellore, and the two injured, Mrs. Sydney Victor and Miss Chandra, were two members of the above said group of ten. The road runs east to west and the bus was proceeding from west towards east. The time was then about 5-30 p. m. The lorry in question came from the opposite direction. A bullock-cart was going ahead of the lorry. The lorry overtook the bullock-cart when the bus was approaching the spot from the opposite direction and in that process went to the offside of the road. Because of the broadness of the road, there was no head-on collision between the lorry and the bus in spite of the lorry going to the offside of the road. The two vehicles were passing each other, but while so passing, the right side cabin portion of the lorry hit against the rear portion of the right side of the bus. Mrs. Sydney Victor, who has given evidence as P. W. 1 (hereinafter referred to as p. W. 1) was sitting in the last but one seat, which seat was facing the rear. She was sitting close to the window of the bus. Miss Chandra (she has not given evidence) was sitting just opposite to P. W. 1, i. e. , in the last seat which is facing the front and she was also close to the window. As it was that part of the bus, viz. , rear portion of the right side of the bus where the two injured were sitting which was hit by the lorry, they were injured. P. W. 1's right thumb was completely severed. She had not received any other injury. Miss Chandra had received injuries on her head and there was fracture of the frontal bone.

(3.) IN the claim petitions it has been alleged that the driver of both the vehicles were rash and negligent in driving their respective vehicles. But there was nothing to show that the bus driver drove his vehicle either rashly or negligently. That is the finding of the Tribunal below and that is accepted by all the parties. As we said, the further finding of the Tribunal that the lorry driver drove his vehicle in a rash and negligent manner in that he went to the off-side of the road when there was traffic from the opposite direction and brought about the accident, is also accepted by all the parties. But the owner of the lorry and the Insurance Company have successfully contended before the tribunal below that P. W. 1 and the other injured, Miss Chandra, were guilty of contributory negligence. Their case is that while P. W. 1 had been holding the cross-bar of the window of the bus with her right hand. in which process her right thumb was outside the bus, Miss Chandra was resting her head over the window bar of the bus, so much so the head was projecting outside the window and that these acts on the part of the respective injured amounted to contributory negligence on their part. This has been accepted by the Tribunal below. First of all, we have to see what happened factually.