NATIONAL INSURANCE CO. LTD. Vs. JASBIR KAUR

JUDGEMENT

(1.) All the three appeals are connected. The appeals arose out of a consequential case of death of driver owner of a Maruti Car which collided with the bus belonging to the Punjab Roadways. The court found that the driver of the car and the driver of the bus were equally responsible and after assessing the compensation made a partial abatement of 50% for the negligence attributed to the driver of the Maruti Car but at the same time directed the insurer of the car also to bear the burden of compensation. The insurer's appeal is F.A.O. No. 158 of 1993. The appeal by the State denying the liability is brought through F.A.O. No. 45 of 1993 while the appeal by the claimants for enhancement is F.A.O. No. 1593 of 1992. The accident was spoken to by an eye witness who claims that he was following the Maruti Car and has stated that the bus was being driven in a rash and negligent manner and although there was enough space for the driver of the bus to negotiate without colliding with the bus, the driver of the bus drove negligently to cause the accident. In the course of the cross examination it was elicited through him that the site of collision was almost at the middle of the road. It is contended that the driver of the bus had literally parked the bus on the kacha beam of the road and the accident took place only when the driver of the Maruti car while attempting to overtake a cyclist came to the wrong side of the road and dashed against the bus. There was, according to the State, no negligence on the part of the driver of the bus.

(2.) Counsel for the claimant points out to photographs that showed that there was enough space still on the left side of the road for the driver of the bus to steer without colliding with the car if the bus had been driven carefully. Counsel would point out to the eye witness account which bore out to the falsity of the evidence of the driver of the bus and he would explain that a mere statement that the accident took place almost at the middle of the road ought not to have been taken as constituting as an act of contributory negligence of the driver of the car. He also contended that a heavy vehicle ought to exercise more caution and if only the driver of the bus had been more careful the accident could not have taken place. The State counsel would respond to this argument that the contention that the accident had taken place only when the driver of the car was attempting to overtake a cyclist and going to the wrong side of the road and even the negligence attributed to the driver of the bus by the tribunal must be reversed.

(3.) I am of the view that there had been surely a negligence on the part of the driver of the car and the photographs suggest that it was not a head on collision to apportion the liability equally. It is the right side of the car which had been fully damaged and it is the driver's portion of the bus which has been damaged. With the greater care by either of the drivers the accident could have been averted. I would apply a common sense rule that heavier vehicle ought to exercise a greater circumspection and care in driving the vehicle. I will apportion a large portion of liability on the bus driver and take the level of contribution of the driver of the Maruti car to the extent of 30%. The assessment made at 50:50 shall therefore stand modified as 30:70 between the driver of the car and the driver of the bus respectively.