VEENA KUMARI KOHLI Vs. PUNJAB ROADWAYS AND ORS.

JUDGEMENT

(1.) THIS order will dispose of First Appeals from Orders Nos. 33, 39, 40, 41, 42, 43, 46, 78,'9 and 80 of 1963. These are cross -appeals, four by the State and six by different claimants.

(2.) THE accident occurred on the 23rd of September, 1960, between a car No. PNF 5370 and bus belonging to the Punjab Roadways No. PNJ 6441, on the crossing of the road from Pathankot to Jullundur and the by -pass connecting the Grand Trunk Road between Ambala and Amritsar. The by -pass has been built recently to divert the Grand Trunk Road from the main city. The car was going from Ludhiana to Amritsar and the bus was coming from Pathankot to Jullundur and there was a head -on collision. The bus hit the car in the middle, overturned the car and pushed it to the ditch where it also over -turned along with the car. As a result of this accident, the driver of the Car, Vijay Singh and out of the occupants. Harpal Singh Thapar, Gaya Parshad, a lawyer's clerk and Mr. Sham Krishna Kohli, Advocate were killed. Sat Pal Singh only got injuries. Claims were made on behalf of these persons as follows:

(3.) MR . K.S. Kawatra, learned Counsel for the Punjab Roadways, has relied on the testimony of R. Ws. 3, 4, 7, 10, and 11 as to exactly what happened before the collision. I have gone through their testimony and I am not at all impressed with their statements. In my opinion, the safest evidence to rely upon is the testimony of the Head Constable, who was traveling in the bus and who saw exactly what happened and he has not tried to favour either the driver of the car or the driver of the bus; and his testimony has a clear ring of truth. His testimony also finds ample corroboration from the plan. What appears is that neither the driver of the bus nor the driver of the car were sure as to the speed of one another and thought that they would clear one another but miscalculated. Therefore, in that respect, both were equally negligent. But what turns the scales of negligence against the driver of the bus more is the fact that he had entered the main highway which was twice the size of the road from which he was entering but he did not slacken his speed and even after seeing the car,, he did not apply his brakes ; and also the fact that the car had practically crossed the bus because the bus hit the car right in the middle. The further fact, that the speed of the bus was tremendous, is borne out by this that the car was pushed by the bus for a distance of about 69 feet where it ultimately turned. So far as the speed of the car is concerned, it had no adverse effect on the bus because the bus did not overturn at the point where both the vehicles collided with one another. As a matter of fact the car did not proceed an inch further after the collision. But the bus was at such a speed that it dragged the car all along the road where both the bus and the car ultimately overturned. Then a telegraph pole could not check the speed of the bus and had to give way to it. If the testimony of the Head Constable and what is disclosed by the plan is kept in view, there can be no manner of doubt that the principal negligent party is the bus driver ; and I am not agreeing with the Tribunal that both ware equally negligent. Mr. Kwatra states that both the roads are main roads. That may be so or may not be so. But the fact remains that the road on which the car was proceeding, was definitely the bigger road. The second contention of Mr. Kwatra is that according to Rule 7 of the Tenth Schedule of the Motor Vehicles Act, 1939, the car driver had to give way to the bus. That presupposes that the car driver had sighted the bus much earlier. The possibility of the matter is that the bus had sighted the car earlier than the car had sighted the bus. Therefore, no benefit can be derived from Rule 7. The view, I take of the matter, is that while entering the main road it was the duty of the bus driver to stop ; but he did not stop nor did he slacken the speed. There is a further fact that the driver had been warned about the inherent dangers of this crossing. That is clear from the testimony of S. Raghbir Singh, R.W. 6, the General Manager of the Punjab Roadways ; whereas there is no evidence that the driver of the car had been on this road previously or was aware of the inherent dangers of this crossing. In this view of the matter the negligence should have been fixed 75 per cent of the bus driver and 25 per cent of the car driver. I accordingly modify the decision of the Tribunal on this count and assess their respective negligence as under: