General Manager, Haryana Roadways Depot Hissar (owner of Bus v. Rajbala wd/o Rishi Pal & Ors.

Smt. Nanki Devi wd/o late Sh. Saviya Ram and others ......Respondents

3. X Obj No.659-CII of 1995 in/and FAO No.1880 of 1994 General Manager, Haryana Roadways Depot Hissar (owner of Bus No.HRT-5382) Versus ......Appellant Risal Singh s/o Rura Ram and others

4. FAO No.1881 of 1994 ......Respondents General Manager, Haryana Roadways Depot Hissar (owner of Bus No.HRT-5382) Versus ......Appellant Vedu Ram s/o Hari Singh s/o Datta Ram and others ......Respondents

5. FAO No.1882 of 1994 General Manager, Haryana Roadways Depot Hissar (owner of Bus No.HRT-5382) Versus ......Appellant Smt. Ramo wd/o late Sh. Mehar Chand and others .... ......Respondents FAO No.1878 of 1994 -2-

6. C.R. No.3534 of 1994 General Manager, Haryana Roadways Depot Hissar (owner of Bus No.HRT-5382) Versus ......Appellant Chanderawati w/o Chatar Singh and others ......Respondents

6. C.R. No.3535 of 1994 General Manager, Haryana Roadways Depot Hissar (owner of Bus No.HRT-5382) Versus ......Appellant Giani Ram and others Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. ......Respondents Mr. B.R. Gupta, Advocate for cross objectors in FAO No.1880 of 1994. Mr. Ravinder Arora, Advocate for Oriental Insurance Company Limited. Mr. Kunal Garg, AAG, Haryana. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

This is a joint appeal by the owner-Haryana Roadways and the insurer. The insurer is directed to be arrayed as a respondent in all these appeals and revisions and the appeals and revisions are taken up as having been filed only by the owner-Haryana Roadways. Registry is directed to carry out amendment in the memo of parties.

Cross objections have also come about in FAO No.1880 of FAO No.1878 of 1994 -3- 1994 where the accident resulted in death of a woman aged between 55 to 60 years and the claimants were the husband and children.

While determining the issue of negligence in a case where there was a head on collision between Haryana Roadways and the truck, which was coming from the opposite direction, the Tribunal held the insured's bus to be wholly responsible for the accident. This finding was on the basis of evidence that was given by RW-1, the driver of the truck to say that the collision took place when the bus was overtaking a canter truck and dashed against the other truck even when it was going on the extreme left side of the road. This was an evidence contra to the evidence led on the side of all the claimants and the driver of the bus, who was himself a claimant for the injuries suffered in the accident. All the petitioners' witnesses as PW-1 to PW8 gave evidence to the effect that the bus was being driven at a moderate speed but the accident took place only on account of the truck coming to the wrong side of the road and involving the bus in a head on collision. RW-2 was the only person who stated that the accident took place when the bus was trying to overtake the canter truck.

Learned Senior Counsel appearing for the appellants would contend that all the witnesses had stated in unison that it was only the truck driver who was responsible for the accident and to none of them was even a suggestion made that the bus was trying to overtake the truck and the accident had taken place by the bus dashing against the truck on the wrong side of the road. To the driver of the bus, who was examined as PW-6, there was no suggestion on the side of FAO No.1878 of 1994 -4- the owner and driver of the truck that the bus driver was trying to overtake yet another canter truck and it was only at that time, the accident took place. Learned counsel would point out at worst when it was a case of head on collision, the liability ought to have been apportioned in equal measure and the Tribunal was in error in casting the entire burden only on the driver of the bus.

I would accede to the submissions made by the counsel appearing for the Haryana Roadways by the fact that all the witnesses had only attributed the negligent driving to the driver of the truck and there was no reference by any one of them in their evidence that the bus was attempting to overtake the canter truck. Most significantly, the driver of the bus himself was not examined on this line that he was attempting to overtake the truck. A mere ipse dixit of the driver of the truck ought not to have been given full weightage to place the entire burden for the accident only on the driver of the bus. I will, therefore, set aside and modify the finding made by the Tribunal that the bus driver alone was responsible for the accident. Instead, I would hold that both of them were responsible for the accident and the plea that the bus driver was attempting to overtake yet another canter truck, which was accepted by the Tribunal is rejected as being wholly without any substantiation of evidence and the evidence so given by the driver of the truck ought not to have been accepted by the Tribunal.

The owner of the bus would not make issue on the question of quantum in any case and therefore, I would confirm the awards as regards the quantum in all cases except in FAO No.1880 of 1994 FAO No.1878 of 1994 -5- where there is a cross objection for enhancement. In the finding that I have rendered, attributing equal negligence on the driver of the Haryana Roadways as well as the driver of the truck, the liability under all the awards shall be borne equally between the owner of Haryana Roadways and the owner of the truck and consequently on the respective insurers.

As regards the claim for enhancement through a cross objection coming from husband of Mewa Devi, the Tribunal had taken the income of the lady to be Rs.600/- per month, make a deduction of Rs.200/- for personal expenses and take the contribution to the family at Rs.400/- per month and apply a multiplier of 8 to determine a compensation of Rs.40,000/-. I would instead take the notional income to be Rs.15,000/- per annum and for a lady, who was aged between 55 to 60 years, adopt a multiplier of 8 and take the deduction of 1/3rd for her personal expenses. The loss of dependence, I would calculate to be Rs.80,000/- and would provide for Rs.5,000/- towards loss of consortium to the husband and another sum of Rs.5000/- for loss to estate and funeral expenses. In all, the sum payable would be Rs.90,000/-. The Tribunal has awarded Rs.40,000/- and the amount in excess shall attract interest @6% from the date of the petition till the date of payment. The amount shall be paid equally by the respective insurers of the bus and the canter truck.

It is represented by the learned Senior Counsel appearing on behalf of the appellant that the insurance company for the bus had already paid Rs.43,000/- with interest. In the altered situation FAO No.1878 of 1994 -6- coming through this judgment where I have apportioned the liability in equal measure, if any amount has been paid in excess by the insurer for the bus, the right of the recovery will be made in the execution proceedings from the insurer and owner of the truck.

The appeals, civil revisions and cross objection are allowed to the above extent. November 11, 2010 Pankaj* (K. KANNAN) JUDGE