S M VYAS Vs. SUDHABEN SUKETHU SUTARIA SMT

JUDGEMENT

(1.) . These two first appeals are filed by the original opponent No. 2 (owner of the vehicle) and the concerned Insurance Company (insurer of the vehicle) against awards given by the Motor Accident Claims Tribunal at Ahmedabad awarding Rs. 35 728 with interest and costs to claimant Sudhaben in M.A.C.T. No. 1-A/144 of 1971 and also awarding a sum of Rs. 47 500 to claimant Sukethu in M.A.C.T. Application No. 1-A/145/71 with similar order for costs and interest.

(2.) Mr. Bhatt in this connection submits that there is evidence on record showing that the scooter at the relevant time carried four persons though it is not permissible to carry more than two persons including the driver on a scooter as per rules under the Motor Vehicles Act and that therefore the Tribunal ought to have held that this breach on the part of the driver of the scooter amounted to negligence attributable to the accident itself. In Mr. Bhatts submission when a vehicle meant for carrying two persons carries four persons it is not only possible or plausible that the driver who carries them will be guilty of contributory negligence but in all probabilities he will be guilty of contributory negligence and in the instant case therefore the Tribunal on being satisfied that Sukethu at the time of the accident was driving the scooter carrying thereon besides himself his wife and his two minor children ought to have held that he was guilty of contributory negligence. Mr. Bhatt in this connection draws our attention to the case of Amthiben Maganlal Wd/o Maganlal Pranlal Mistry & Ors. v. Supdt. Geophysicist O.N.G.C. & Ors. 17 G.L.R. 910. This was a case in which an O.N.G.C. Truck and a jeep met with an accident and it was shown that the driver and two others were occupying the front seat of the jeep; and it was observed that Even if it had not contravened any statutory rule they were exposed to some greater risk by sitting in that fashion of being thrown out in case of collision. The driver of the jeep would have also some difficulty to change or control his gears between the two seats in front. Just as actionable negligence required the foreeseability of harm to others so contributory negligence required forseeability of harm to oneself. A person was guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man he might hurt himself and in his reckonings he must take into account the possibility of others being careless. Therefore once negligence was proved then no matter whether it was actionable negligence or contributory negligence the person who was guilty of it must bear his proper share of responsibility for the consequences. The consequences did not depend on forseeability but on causation. This principle would be clearly applicable in the present case because the deceased by occupying extreme right hand seat together with the injured witness who was in the middle on this single 30 seat had exposed himself to some greater risk in case of such collision.

(3.) In our opinion merely because apart from the driver and one adult member on the opinion seat two children were carried on a scooter it cannot be said that the driver of the scooter was guilty of contributory negligence if the scooter met with an accident on account of the negligence on the part of the driver of the other vehicle as is found in the instant case unless there is evidence on record establishing the same. Solely because breach of a rule is made it cannot lead to an inference that the breach has culminated into contributory negligence in an accident of this type. In the decision cited the facts are entirely different. There the deceased had by his own act of sitting in a particular position exposed himself to danger and had thereby contributed to the negligence. The ratio laid down therein does not apply to the facts of the present case. Here there is a clear finding based on assessment of evidence by the Tribunal with which assessment we are entirely in agreement that it was the Ambassador car which came from the opposite direction with excessive speed with the headlights fully on and passing over to the wrong side of the road dashed against the scooter which was being driven on the correct side of the road. This position is borne out by the notes made in the panchnama within a short time of the accident which did reveal that the car had crossed over to the other side of the road at the time of the accident and it was found lying towards the right hand side of the road so far as the car is concerned while the scooter lay on its left side. These are primary facts and they tell their own story; and it would be therefore for the opponents to rebut the presumption of negligence on the part of the car driver which they have failed to do in the instant case. Again there is cogent and reliable evidence on the record of the three eye witnesses examined on behalf of the claimants clearly establishing that the accident happened because of the exclusive negligence on the part of the car driver and there was no question of any contributory negligence on the part of the scooter driver. As against this the second opponent who stepped in to the witness box could not throw any light on the incident because as is admitted by himself his attention was drawn only after the collision occurred between the two vehicles. He is therefore not in a position to show as to how the accident happened. We therefore do not find any substance in Mr. Bhatts submission with regard to the finding of negligence. Mr. Bhatt has not challenged the finding with regard to the quantum of the award and he has not been able to show how the conclusions arrived at by the Tribunal are erroneous so far its findings about negligence and contributory negligence are concerned. There is therefore no merit in these appeals and they deserve to fail. 8 Both the appeals dismissed with costs. Appeals dismissed