1 1. S.B.CIVIL MISC. APPEAL NO.326/1999. 2. S.B.CIVIL MISC. APPEAL NO.1126/1998. 3. S.B.CIVIL MISC. APPEAL NO.329/1999. 4. S.B.CIVIL MISC. APPEAL NO.342/1999. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. S.B.CIVIL MISC. APPEAL NO.326/1999. Smt.Shanta Bai. VERSUS Sh.Amar Singh & Ors. 2. S.B.CIVIL MISC. APPEAL NO.1126/1998. Smt.Shanta Bai & Ors.VERSUS Sh.Amar Singh & Ors. 3. S.B.CIVIL MISC. APPEAL NO.329/1999. V.G.Dahale. VERSUS Sh.Amar Singh & Ors. 4. S.B.CIVIL MISC. APPEAL NO.342/1999. Kum.Aruna Vansode. VERSUS Sh.Amar Singh & Ors. 13.11.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Vinay Mathur, for the appellants. Mr.Satyendra Sharma, for the respondent-Insurance Co. ***** Heard learned counsel for the parties and perused the award passed by the learned Tribunal. These four appeals have been filed by the claimants whose claim petitions were filed on account of the death of Madhav Prasad, who died in a road accident on 22.10.1994 and the appellant Shanta Bai suffered injuries in the very same accident along with the appellants V.G.Dahale and Kumari Aruna Vansode. The deceased as well as the injured were all traveling in a jeep bearing registration No.RJ-01/C- 1106 which met with an accident while colliding with a truck bearing registration No.HNR-4148 which was being driven by the respondent No.2 and owned by the 2 1. S.B.CIVIL MISC. APPEAL NO.326/1999. 2. S.B.CIVIL MISC. APPEAL NO.1126/1998. 3. S.B.CIVIL MISC. APPEAL NO.329/1999. 4. S.B.CIVIL MISC. APPEAL NO.342/1999. respondent No.1 and insured with the respondent No.3. The claims have primarily been dismissed on account of the evidence on issue No.1 with regard to the negligence on the part of the driver of the truck. The learned Tribunal came to the conclusion that that the accident occurred on account of rash and negligent driving of the driver of the jeep and not on account of the negligence on the part of the driver of the truck. Learned counsel for the appellants submitted that in the instant case, even if it is held that the jeep collided with the truck in question on account of the fact that the driver of the jeep was overtaking a camel cart and collided with the truck coming from the opposite side, nonetheless, it cannot be disputed that there is no evidence from the side of the respondents that the driver of the truck made any effort to avoid collision with the jeep in which the deceased and the injured were traveling. It is submitted that at best it could have been a case of composite negligence on the part of the drivers of both the vehicles. It is submitted that from the evidence on record, more particularly, the site inspection report which has been produced along with the challan papers which were exhibited in the instant case as Exhibit-4, that it does not reveal that the driver of the truck made any efforts to avoid the collision and accident. He submits that so far as the negligence is concerned, if a person fails to take reasonable steps to avoid a collision which the driver is expected to take, then the omission on the part of the driver would amount to negligence. 3 1. S.B.CIVIL MISC. APPEAL NO.326/1999. 2. S.B.CIVIL MISC. APPEAL NO.1126/1998. 3. S.B.CIVIL MISC. APPEAL NO.329/1999. 4. S.B.CIVIL MISC. APPEAL NO.342/1999. Learned counsel for the respondent, on the other hand, supported the judgment of the learned Tribunal and contended that there was clear evidence in the form of admission of the claimants themselves that the driver of the jeep was driving the vehicle at a very fast speed and overtaking the camel cart going ahead of the jeep when the accident occurred with the truck coming from the opposite direction. It is submitted that the learned Tribunal has not committed any error in holding that the driver of the offending vehicle was in any manner negligent in the facts and circumstances of the present case. I have given my thoughtful consideration to the aforesaid submissions. Even if the findings which have been given by the learned Tribunal so far as the manner in which the accident has occurred, a few facts emerge in the present case. When the accident occurred, ahead of the jeep a camel cart was going and just ahead of the said camel cart a truck bearing registration No.GOA- 6244 had been parked partly on the side of the road. This truck has been shown at point 'E' in the site plan (Exhibit-4) partly obstructing the road. I am in agreement with the submissions of the learned counsel for the appellants that it is the duty of the driver on the road to observe the traffic or any obstruction on the road. When there was a truck 4 1. S.B.CIVIL MISC. APPEAL NO.326/1999. 2. S.B.CIVIL MISC. APPEAL NO.1126/1998. 3. S.B.CIVIL MISC. APPEAL NO.329/1999. 4. S.B.CIVIL MISC. APPEAL NO.342/1999. parked on the opposite side of the road and a vehicle was coming from the opposite direction, even if it was being driven on the wrong side, it becomes the duty of the driver who has observed such obstruction ahead of him to have taken precautionary, evasive and preventive action. There is no evidence from the side of the respondents that the driver of the truck took any preventive action to avoid the accident or collision with the on coming jeep. For the aforesaid purpose, even if the site plan (Exhibit-4) is to be seen, then also there were no tyre-marks to suggest that the driver of the truck has applied brakes to stop or even slow down so as to avoid the collision/accident with the on coming jeep. In the facts and circumstances, therefore, the omission on the part of the driver of the truck to take any preventive or evasive action would necessarily lead to the inference of negligence on his part. The finding of the learned Tribunal on the issue No.1 are, therefore, liable to be set aside. However, it is held that it is not a case of negligence on the part of the driver of the truck alone but a case of composite negligence on the part of the drivers of both the vehicles, the jeep No.RJ-01/C-1106 in which the deceased and injured were traveling and the truck No.HNR-4148 with which the jeep collided and the accident occurred. Since this is a case of composite negligence, the choice of the claimants of selecting the respondent 5 1. S.B.CIVIL MISC. APPEAL NO.326/1999. 2. S.B.CIVIL MISC. APPEAL NO.1126/1998. 3. S.B.CIVIL MISC. APPEAL NO.329/1999. 4. S.B.CIVIL MISC. APPEAL NO.342/1999. against whom the claim is to be filed has been well accepted in the case of T.O.Anthony Vs. Karvarnan and Others reported in MACD 2008 (SC) 246 and A.P.S.R.T.C. and Another Vs. K.Hemalatha and Others reported in MACD 2008 (SC) 302. In the facts and circumstances, therefore, to the above extent all these appeals are allowed. Since the learned Tribunal has not given any finding with regard to the assessment of quantum of compensation, all the cases are remanded for the aforesaid purpose to the learned Tribunal. The parties are directed to appear before the learned Tribunal on 16.12.2009. The Registry is directed to return the record along with the copy of this order to the learned Tribunal which shall proceed to decide the claim, as indicated above. No order as to costs. (DALIP SINGH),J. Solanki DS, Jr.P.A.