NATIONAL INSURANCE COMPANY LIMITED Vs. B RAJYA LAXMI

JUDGEMENT

(1.) THE insurance company who is no other than the 3rd respondent in O.P. No. 989 of 1999 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, is the appellant herein having aggrieved by the finding of the tribunal in the result portion of the award with regard to fixing joint liability on 2nd respondent/owner and 3rd respondent/insurer of the lorry along with 1st respondent -APSRTC, though the accident was the result of fault of the bus driver alone as per the evidence on record and as per the findings of the tribunal. Thereby, the appellant sought for setting aside the judgment and decree passed by the tribunal in so far as the appellant/3rd respondent to indemnify the owner of the lorry is concerned. Heard the learned standing counsel for the appellant and the learned counsel for the respondents 1 to 4. Notices were sent to respondents 5 and 6. Though notice is served on 5th respondent -APSRTC, none appeared, thus taken as heard the 5th respondent to decide on merits. Since notice returned un -served for 6th respondent/owner of lorry, and no further notice taken, the claim against her is dismissed for default. The dismissal of the appeal against the 6th respondent owner is no bar to the maintainability of the appeal as per the division bench Judgment of the A.P. High Court in M. Chakradhar Rao v. Y. Babu Rao : 2001 (1) ALT 495 (DB) para -12. Thus the appeal is taken up for hearing to decide on merits. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

(2.) THE contentions in the grounds of appeal in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal is erred in arriving at a wrong conclusion in fixing joint liability on the insured and insurer of the lorry as if contributed to the occurrence, though its own finding is against the driver of the bus i.e., 1st respondent of the claim petition. Hence prayed to set aside the joint liability, by fixing the entire liability on 5th respondent -APSRTC.

(3.) FROM the factual matrix of the case on hand, PW 1, who is wife of the deceased, is admittedly not an eye witness. According to her, her brother -in -law informed about the accident. Thereby to speak about the manner of accident, her evidence is not of any help. Coming to PW 2, who is said to be a passerby on bicycle, witnessed the accident and stated that due to rash and negligent driving of the driver of the bus the accident occurred, while both lorry and bus were proceeding in opposite direction and the bus hit the lorry due to which the lorry turned turtle and the deceased succumbed apart from others injured who are traveling in the lorry as workers for loading and unloading of the sand. RW 3 who is a co -worker, also deposed the same, but not regarding the accident surprisingly. Apart from that, if the lorry driver is not responsible for the accident and that it is the bus driver, instead of setting the law in motion by a passerby, the lorry driver should have reported about the incident to the police from the duty bound under the provisions of Motor Vehicle Act 1988. On the other hand, the driver of the bus deposed that the driver of the lorry is at fault and not himself as driver of the bus proceeding with normal speed and there are no grounds for fixing even contributory negligence much less any liability against the APSRTC. The RW 1 evidence discloses that when both the bus and lorry were coming in opposite direction, the driver of the lorry lost control while overtaking the cyclist, who is ahead of it, struck to the right side corner of the bus and took U -turn, resulting the lorry fell down on the road margin. Even from this evidence, it shows negligence of the both drivers, who cannot totally avoid the liability. The crucial documents if at all to establish on the fact in dispute are the scene observation and sketch and the Motor Vehicle Inspector's report. The rough sketch and scene observation report are not filed by any of the parties but for MVI report/Ex. A5, which categorically speaks from its contents that it is a head on collusion and not touching any corner of the lorry by the corner of the bus. Para 8 of the MVI report shows that front portion of the both vehicles were damaged. Further, the accident could not have been occurred much less in the manner it was occurred, unless there being head on collusion. Once it is head on collusion, it is difficult to fix the entire responsibility of negligence on the bus driver alone, when the lorry driver also contributed to it. Having regard to the same, in a case of head on collusion, where the size of both vehicles is almost equal, the liability has to be fixed equally. As such the findings of the tribunal, from the fact of Ex. A1 First Information Report registered against the bus driver and Ex. A5 charge sheet filed against the bus driver in holding the bus driver alone as liable for the entire accident is unsustainable, when above evidence establishes composite negligence of drivers of both vehicles and as a result there was head on collusion; but for to say from FIR and charge sheet against only bus driver indicates his contribution to the accident is a little more, when compared to that of lorry driver.