IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2338 of 1998 (O&M) Date of decision:06.10.2010 Ram Kumar ....Appellant versus Satpal and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Ajit Atri, Advocate, for Mr. Ashit Malik, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The appeal is for enhancement of claim for compensation for an injured, who was riding a motorcycle. The accident arose when it struck against a bus. The complaint had been given by a fellow traveller in the motorcycle attributing the negligence on the part of the driver of the bus. Apart from the evidence of the claimant with reference to the documents that included the FIR and the sketch, the driver of the bus examined himself to explain that the accident took place when the driver of the motorcycle was overtaking yet another vehicle and dashed against the bus on the wrong side of the road. The Tribunal, on the other hand, found, on consideration of the site plan, that the accident had taken place FAO No.2338 of 1998 (O&M) - 2 - on the wrong side of the road for the bus and it found also that the place of impact had been to the wrong side of the bus. It still found the liability to be equal between the driver of motorcycle and bus driver on the ground that the driver of the motorcycle did not have a driving licence and that he had consumed liquor. 2. In my view, both these aspects which were taken as contributing to the accident are not correct. A contributory negligence will be seen in the context of who could have avoided the accident and whether the victim himself had contributed to the accident by his negligent driving. If there was evidence that the driver of the motorcycle had erred in his driving and swerved to the wrong side, then his own lack of experience or the fact that he did not have a driving licence could have been relevant. Same way the fact that he had consumed liquor must have taken his faculty away to an extent that he had strayed from his route to the wrong side of the road to bump into the other vehicle. Once the Tribunal found that the accident had taken place on the wrong side of the road for the bus and the driver of the bus had swerved to the other side, there is no way that the Tribunal could have found that the driver of the motorcycle did not have a driving licence or that he had consumed liquor as contributory to the accident. The issue whether the fact that a person did not have a driving licence could lead to an inference that he had contributed to the extent has come through several decisions of various High Courts in Mohinder Singh Sohal Versus Ramesh Kumar-AIR 1981 P&H 199: 1981 AccCJ 326; Gujarat State Road Transport Corporation Versus Thacker Narottam Kalyanji (2002-2) 41 Guj LR FAO No.2338 of 1998 (O&M) - 3 - 1577: (2000) 3 GCD 1933: 2000 AIHC 3117 (Guj) (DB); Manjo Bee Versus Sajjad Khan-2007 ACJ 737 (MP); New India Insurance Company Limited Versus Dhanpal Singh Panwar-AIR 2007 UTR 18 that have held that mere fact that the driver was driving without licence could not be taken to be proof of negligence. I would reverse, therefore, the finding of contributory negligence in the manner that has been done so by the Tribunal. 3. The Tribunal has awarded a compensation of Rs.80,000/- and provided for a partial abatement of 50% for contributory negligence. I will find the liability for the accident to be 100% on the owner of the bus and make the owner namely the respondents 2 and 3 responsible for the accident and make them liable to pay compensation. The enhancement of compensation shall also bear interest at 6% from the date of the petition till the date of payment. 4. The appeal is allowed on the above terms. (K.KANNAN) JUDGE 06.10.2010 sanjeev