JAIBIR Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) All the appeals are at the instance of the owner of an unlicenced mechanical contrivance called toka challenging the liability cast on him for an accident that took place in a collision with a bus belonging to the Haryana Government. The bus was overloaded admittedly as spoken to by the driver of the bus and the toka was equally so. On account of the collision, two passengers were injured, one passenger died and the vehicle was wholly damaged. The Tribunal found that a driver of the toka who had no business to put the vehicle on road and as a person who did not have a driving licence to even drive a motor vehicle ought to take the responsibility and no part of blame can be attributed to the driver of the bus. In my view, the reasoning is competely wrong. If there were two vehicles on road and it was admitted that there was a collision then the person who caused the collision must take the responsibility. As far as the passengers of the toka are concerned, it is a case of composite negligence and they are entitled to make the claim against any one of the tort feasors. Even assuming for arguments sake that there is 99% negligence on the part of the driver of the toka and there was a infinitesimally a small percentage of negligence of the driver of the bus, it will still qualify for composite negligence that will allow for the passengers or representatives of the persons to proceed against any one of the tort feasors who in this case is the owner and driver of the bus. I, however, hold that the driver of the toka and driver of the bus constributed to the accident in equal maner. The award passed against the owner of the toka was clearly wrong and the claimants above had an effective remedy by making the State transport bus itself as respondent for satisfying the claims.

(2.) All the awards passed against the owners making him liable to pay the compensation to the claimants are modified to allow for a liability of the State also to be fastended jointly along with the owner of the toka so that the claimants, if they have not realized the amount, shall be at liberty to realize the same against the State. I will make no modification with reference to the dismissal of the claim by the owner of the toka, for he was putting on road a dangerous mechanical contrivance that could assure no safety to itself or to passengers carried thereon.

(3.) The counsel for the State sought the liability to be apportioned between the owner of the toka and the State. The State will be at liberty to seek for contribution on equal basis from the owner of the toka after satisfying the award if they have not been already been satisfied.