PRABHATSING NATHUBHAI MAHIDA Vs. SHANTILAL NAGJIBHAI THAKORE

JUDGEMENT

(1.) In these two appeals arising under sec. 110-D of the Motor Vehicles Act 1939 the original claimants of the two companion Claim Petitions as filed before the Motor Accident Claims Tribunal Kairn seek upward revision of damages as awarded to them by the Claims Tribu- nal. The Insurance Company which is respondent No. 3 in First Appeal No. 4 of 1978 has filed Cross objections. Similarly respondents No. 1 & 2 in both the Claim Petitions who are the driver and the owner of the offending truck which was involved in the accident in question have filed cross objections. J. Factual backdrop:

(2.) On the night of 9/03/1976 at about 9-30 P. M. Motor Truck No. GTG 2266 driven by the original opponent No. 1 Respondent No. 1 in both these appeals met with an accident near Kaira town in Kaira District. As a result of the said accident two passengers sitting in the drivers cabin in the said truck were thrown out on the road from the aforesaid running truck. One of them namely Ajit succumbed to his injuries while the other fellow traveler Gajendrasing Ramsing received accidental injuries which fortunately for him were comparatively trivial in nature. The aforesaid accident resulted into two claim petitions before the Motor Accident Claims Tribunal Kaira at Nadiad. The Motor Accident Clarion Petition No. 182 of 1976 came to be Sled by the parents of the deceased Ajit who prayed for a total award of Rs. 30 0 for damages under relevant heads from the driver of the truck its owner and the Insurance Company which had insured the said truck. All the three of them were joined as respondents Nos. 1 2 & 3 respectively. Similar Claim Petition No. 213 of 1976 was filed by the injured claimant Gajen- drasing Ramsing against the same set of opponents claiming Rs. 9 999 by way of damages. The claimants contended that the accident was caused on account of rash and negligent driving of the truck by its driver original opponent No. 1. Their case was that while it was being driven between Bawla and Kaira it dashed against a pillar of the Kaira Bridge and as a result thereof deceased Ajit and the injured claimant were thrown out. Their precise case in Claim Petitions was that one Ranjitsing was relative of the claimants in Claim Petition No. 182 of 1976 who are the parents of the deceased Ajit. Said Ranjitsing was in need of wheat for his agricultural operations. Deceased Ajit had contracted with opponent No 2 the owner of the truck to carry his wheat from village Radhu to Kaira. Under these circumstances the claim petitions were filed praying for different amounts of damages from the same set of opponents as mentioned above. Both these claim petitions which arose out of the same accident were tried together by the Tribunal and evidence was recorded in common and both the claim petitions were consolidated. ... ... ... .. ... ... ... [His Lordship after discussing the evidence in the case further observed: ]

(3.) The aforesaid evidence regarding the actual occurrence of the accident clearly brings to light one salient fact that the deceased Ajit injured claimant Gajendrasing and Mahesh were traveling in the truck in question and at the time when the truck met with the accident deceased Ajit and Gajendrasing were sitting in the drivers cabin. Injured Gajendrasing clearly admitted in his cross examination that the door of the drivers cabin was of sliding nature and they bad not closed the door. Reference to door obviously points out the fact that it was on the opposite side of the drivers seat namely on the left side of the drivers cabin by the side of which the deceased as well as the injured claimant Gajendrasing were sitting It is therefore evident that even though the said side door could have been shut the injured claimant as well as the deceased had not thought it necessary to close the door. That was certainly a rash and negligent act on their part. If the door by their side was closed by them they would never have been thrown out however rash and negligent would have been the driving of the truck at the relevant time. The fact that both of them were thrown off from the running vehicle highlights the fact that there was sufficient open space on the left side of the drivers cabin through which they could be thrown out. It is obvious that though the side door of the drivers cabin was of sliding type the said door was not closed by them. It is therefore clear that in the causing of the accidental injuries the contribution of injured claimants was not insignificant; but it appears to be of the same magnitude as that of the driver of the vehicle. The Tribunal in para 6 of its judgment has noted the fact that the deceased as well as the injured Gajendrasing were grown up boys and were studying in college and if they were traveling by a truck and the door was of sliding type they should have made sure before the truck started that the door was closed. The Tribunal further stated that after the accident the truck had proceeded ahead. In these circumstances the extent of contributory negligence on the part of both the victims deceased Ajit as well as injured Gajendrasing was assessed by the Tribunal at 50%. In the light of the aforesaid evidence which I have discussed the said finding reached by the Tribunal appears to be quite justified. It is not possible to accept the alternative contention of Mr. Qureshi that the extent of contributory negligence on the part of the con- cerned victims in any case may be sliced down to 25%. From the evidence on record on this case it is clear that the cause of the accidental inju- ries visited upon both the victims was the rash and negligent act of the driver of the vehicle. But in causing accidental injuries equally negligent were the concerned victims who never cared to close the cabin door which was by their side. Thus their contribution cannot be said to he in any way less than that of the driver of the vehicle when the accident in question saw the light of the day. The alternative submission of Mr. Qureshi has therefore got to be repelled and the findings reached by the Tribunal on issues Nos. 1 & 2 to the effect that the accident was caused on account of equally rash and negligent act on the part of the driver of the truck as well as on account of the negligence of the con- cerned victims have got to be upheld. In this connection it is worthwhile to have a look at the observations found in Charlesworth on Negligence Sixth Edition London Sweet and Maxwell at page 903. The learned author while considering the question of contributory negligence of passengers traveling in motor vehicles has made the following pertinent observations: