{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.502/1998 (LUNA RAM & ANR. VS. GORDHAN RAM & ORS.) Date of order : 19.3.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. J.R. Beniwal, for the appellant. Mr. R.K. Soni } Mr. B.K. Bhatnagar } Mr. Rajesh Panwar },for the respondents. The decision rendered in this appeal shall also govern disposal of other connected cross-appeal being Misc. Appeal No.420/98 because both these appeals arise out of one case and relate to same vehicular accident. 2. This is a misc. appeal filed by owner and driver of one offending vehicle (tractor) under Section 173 of Motor Vehicles Act (for short called “the Act” against an award dt.31.3.1998 passed by MACT, Phalodi in Claim Case No.32/96. 3. By impugned award, the Tribunal partly allowed the claim petition of claimant and accordingly awarded to him a total sum of Rs.81,500/- for the injuries sustained by him in vehicular accident. However, the Tribunal while awarding the compensation, held both the { 2 } vehicles responsible for contributing the accident to the extent of 50%. In this view of the matter, the liability was apportioned between the 2 drivers of the vehicle equally i.e. 50% each and in consequence both the sets of Insured, Insured and driver of offending vehicle were made to pay the awarded sum to the claimants. It is against this award, only driver and owner of both the vehicles have filed these 2 appeals. 4. So far as this appeal is concerned (502/98), it is filed by owner/driver of tractor/trolley whereas M.A. No.420/98 is filed by owner/driver of Bus. 5. Facts of the case are these: 6. On 27.4.95, claimant was travelling in tractor/trolley bearing number RJ/19/12/5396. It was being driven by appellant (No.2). It was at that time, the Bus bearing No.RND/1228 came and dashed to tractor. Due to dash, the claimant sustained injuries in his left hand which got crushed and later amputed leaving the claimant to survive only with one right hand at the age of 55 years. It is this event, which gave rise to filing of claim petition by the claimant under Section 166 of the Act against the Insured, Insurer and drivers of both the vehicles involved in the accident causing injuries to claimant, out of which this appeal arises claiming compensation for the injuries sustained by him. It was { 3 } contested by non-applicants. In substance, the defence was that of denying their liability and shifting it on other. In other words, if the case of owner/driver and insurer of tractor was that its driver was not responsible for causing the accident and it was caused due to sole negligence of driver of bus, the case of owner/driver and insurer of Bus was other way. According to them, the accident occurred due to sole negligence of driver of tractor and hence no liability can be fastened on the owner/driver and insurer of Bus. It is this issue which was gone into before the Tribunal on evidence adduced by the parties. 7. By impugned award, the Tribunal allowed the claim petition and accordingly awarded a total sum of Rs.81,500/- to claimant. It was held that accident occurred due to negligence of both the drivers of vehicle involved i.e. Tractor and Bus equally in the accident and hence all have to share the liability in equal terms i.e. 50% qua claimant. It is against this award, these 2 appeals are filed by owner and driver of the vehicles in question being MA No.502/98 and MA No.420/98. So far as claimant is concerned, he has neither filed any cross-appeal nor cross- objection claiming further enhancement in the award of compensation and hence the issue relating to question of quantum of compensation has become final. 8. So the question that remains for consideration in these appeals is whether Tribunal was justified in { 4 } holding both the drivers negligent in equal % in causing accident and if not, can it be held that only one as against the owner was responsible thereby exonerating one from the liability arising out of accident. 9. Learned counsel for the appellants in MA No.502/98 argued that appellants were wrongly held liable to suffer the award whereas learned counsel for the appellants of MA No.420/98 argued that appellants of their appeal were wrongly held liable to suffer the award. As observed supra, it was essentially a fight between the 2 drivers of the vehicle involved in the accident. Learned counsel also took me to the evidence to show as to how the accident occurred and how their clients i.e. driver of their vehicle was not responsible in causing the accident and how the other driver was responsible. 10. In reply, learned counsel for claimant supported the impugned order. 11. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to concur with the finding of Tribunal on the question of negligence and in consequence dismiss both the appeals. 12. It has come in evidence as one can safely record a finding that Bus came from behind and hit the tractor or it hit the tractor while overtaking the tractor. It { 5 } has also come in evidence that bus was running fast whereas the tractor was not giving the side to overtake the bus for going ahead of the tractor despite repeated blowing of horn by the bus driver and asking for side. At least, this much inference can be drawn from the evidence of parties for recording a finding as to in what way the accident must have occurred. 13. In my view, looking to the manner in which the accident occurred, it can be held that both drivers of vehicles were responsible to some extent in causing the accident. In other words, it is not a case where the blame can be put only on one and leave other. If the bus driver was driving fast on a narrow road, then he has to be blamed for his rash driving whereas when tractor was not giving side and was not able to negotiate when bus was trying to overtake then also some blame can be put on tractor driver. 14. I am, therefore, not impressed by submission of learned counsel for both the appellants when they urged for shifting the blame on each other and asking for exoneration of the respective appellants. Having undertaken the appreciation of oral evidence, I am inclined to concur with the finding of Tribunal on this issue. It is in my opinion properly recorded calling no interference. 15. Learned counsel for appellant has placed { 6 } reliance on passage from Salmond's law of Torts and one decision of Supreme Court reported in 2009 AIR (SCW) 1951 (Rajkhowa vs. Paramount Industries) and some more decisions of High Courts on the issue of contributory negligence. I have perused the ratio of the decisions relied on by learned counsel for appellant. Suffice it to say there can not be any quarrel to the proportion of law laid down therein. Rather it binds me. What differs is its application to the facts of each case. In this case, facts are distinguishable and hence law laid down therein may not have its application to allow the appeals. I may however add that principal of contributory negligence was applicable to the case in hand are on evidence it has been rightly applied by apportioning the extent of negligence on the part of each driver of both vehicles involved in accident. I do not consider it proper to interfere in its % which is a matter of discretion, are the same does not seem to be arbitrary in this case. 16. In view of foregoing discussion, I find no merit in both these appeals. As a consequence, the appeal fails and is dismissed. No cost. (A.M.SAPRE ),J. /Anil/