FAO No.2758 of 1998 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2758 of 1998 Date of Decision. 28.09.2010 Oriental Insurance Company Limited, through Sh. S.M. Garg, Manager, its duly constituted attorney Regional Office, Sector 17-D, Chandigarh ......Appellant Versus Krishna widow of Bijender son of Jagdish Parshad and others .....Respondents Present: Mr.Inderjit Sharma, Advocate for Mr Pradeep Bedi, Advocate for the appellant. Mr. Akshay Kumar, Advocate for respondent Nos.1 to 5. Mr. J.S. Maanipur, Advocate for respondent No.6. None for respondent Nos.7 to 10. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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 insurance company is on appeal challenging liability on the ground that the person that died was a pillion rider in a motor cycle and the policy was an Act Policy and consequently there was no liability for the representative of pillion rider. 2. The accident as per the version of the claimant took place when the deceased was travelling as a pillion rider in a motor cycle owned by the insured and the motor-cyclist got hit from behind by the bus. When the deceased fell down, the bus driver himself transported the deceased person to the hospital and he died in the evening. The accident as resulting from the bus belonging to the FAO No.2758 of 1998 -2- Haryana Roadways and making a collision from behind was spoken to by PW2, who claimed that he was a witness to the incident. A complainant had been given immediately after the accident where also the negligence had been attributed to the driver of the bus. A case had been registered for offence under Section 304A of the Indian Penal Code against the driver and the case was reported to be pending at the time of trial before the Tribunal. 3. Before the Tribunal, the driver of the bus gave evidence to the effect that the motor-cyclist had taken liquor and the accident had taken place only by the negligence of the motor-cyclist. Two passengers in the vehicle also gave evidence to the effect that the driver was very careful in his driving. The Tribunal accepted the defence version and held that the accident took place only by the negligent act of the driver of the motor cycle. The finding, in my view, is absolutely perverse. The Tribunal has allowed itself to be swayed by the fact that the driver of the bus had the civic sense to take the deceased to the hospital and get him admitted. It was no holy act; it was a statutory duty. The Tribunal did not examine the fact that the deceased was hit from behind and the vehicle that collides any other vehicle going in front presents a res ipsa loquitur situation. A driver of a bus, who is careful in his driving, could never have hit a person going in front. The impact must have been so serious as to result in fatal injuries. The fact of registration of FIR implicating the driver of bus and that the driver was charge-sheeted also shall be taken as corroborative piece of evidence with the version given by PW2. The Tribunal must have seen that the accident was the result of the negligent driving of the driver of the FAO No.2758 of 1998 -3- bus, Mahavir and ought to have found the respondents No.2 and 3, who are the General Manager and the Collector of the Haryana Roadways respectively as answerable to the claims of the claimants. 4. Although no appeal has been filed by the claimants or by the owner of the motor cycle, I would invoke the power of Appellate Court under Order 41 Rule 33 to find that even in the appeal filed by the insurer, the decision has to be held in favour of the driver of the motor cycle by vacating the finding of his guilt and casting the responsibility wholly on the driver of the Haryana Roadways bus for the accident and make the State Government as financially liable to satisfy the award. 5. The award of the Tribunal is set aside in so far as it casts the liability on the owner of the motor cycle and the insurer. The same is substituted by a liability on respondents No.2 and 3 before the Tribunal, who are arrayed as respondents No.7 and 8 in the appeal. 6. The appeal by the insurance company is allowed but the liability to satisfy the claim shall be borne by the respondent Nos.7 and 8 as mentioned above. If there has been any recovery already by the claimants from the insurance company, it is needless to state that the recovery will be made by the insurer against the State itself and not against the claimants. (K. KANNAN) JUDGE September 28, 2010 Pankaj*