F.A.O.NO.409 OF 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO.409 OF 2010(O&M) Date of decision:17th August, 2010 Bharti Lal and another .......Appellant Versus Smt. Phooli Devi and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. R.S.Mamli, Advocate, for the appellant. Mr. D.K.Dogra, Advocate for respondent No. 6. Mr. Pankaj Mehta, Advocate, for respondent No. 5. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The appeal is filed at the instance of the owners of the jeep that was involved in a collision with an 'Esteem' car owned by respondent No. 4 before the Tribunal. The claimants were passengers in the jeep. The contention in the claim petition was that the drivers of both the vehicles were equally negligent and caused the accident. At the trial, it was elicited that the driver of the jeep was proceeding towards Hisar and he took a sudden turn at Matana road when he dashed against the 'Esteem' Car resulting in death and injuries to the passengers in the 'Esteem' F.A.O.NO.409 OF 2010(O&M) 2 Car and casualties to the passengers of the jeep as well. Rashness is attributed to the driver of the jeep that he did not stop the vehicle when the police signaled him to stop at the Bhuna junction and he started driving faster and suddenly turned from the main road, without waiting for the on coming traffic to pass and thereby caused the accident. The driver of the jeep was himself examined and he had a different version to give. Although he admitted that he did not stop his vehicle when the police signaled him to stop, according to him the accident happened only when the tyre of the Esteem car burst and swerved to the right and hit against the jeep. The car owner was also examined in this case who gave evidence to the effect that the accident took place on account of the fact that the jeep was being driven at high speed and when it was noticed that police jeep was also chasing the jeep driven by the first respondent, he stated that the vehicle suddenly took turn at the road junction and therefore, it hit against the front right side of the 'Esteem' Car. He completely denied the fact that there was any bursting of the tyre and that on account of the same the car suddenly swerved towards the right and hit the jeep. 2. The Tribunal on consideration of the respective evidence held that the police case had been registered only against the driver of the jeep and that showed that it was the driver of the jeep who was responsible. He also reasoned that the jeep did not stop in spite of the police signaling it to stop and therefore, he must have driven the vehicle very fast and in a rash F.A.O.NO.409 OF 2010(O&M) 3 manner. On the facts spoken to by the driver of the jeep that the collision was the result of the sudden bursting of the tyre of the Esteem Car, the Tribunal had documentary evidence placed before it through motor mechanic's report that the tyre of the Esteem Car burst at the relevant time of the accident. The report itself was not challenged but the Tribunal observed that it was not in evidence whether the tyre burst before the accident or after the accident. It still found that there was nothing to show that the owner of the 'Esteem' Car did not keep the tyre in a good condition and therefore, it could not be stated that there was any negligence on the part of the owner of the 'Esteem' Car. 3. In the manner in which the Tribunal has referred to the fact of the tyre burst, I find some admitted facts were not properly appreciated. There was a definite evidence through a driver of the jeep that the tyre burst first and therefore, it was the Esteem Car swerved to the right and dashed against the jeep. If the owner of the Esteem Car had given evidence about either the condition of the tyre by its proper upkeep or that the tyre burst only after the accident then it could have been possible for the Court to see that it was not the tyre burst which was cause for the accident and that it was only the negligent act of driving the jeep that was responsible for the accident. On the other hand, the owner of the Esteem Car was not prepared to state the truth before the Court. He was clearly lying when he said that all the tyres were in good condition. He had, therefore, something to hide. When the collision had taken place it ought to have been F.A.O.NO.409 OF 2010(O&M) 4 the result of the car swerving to a right. The collision could still have been averted, if the jeep did not turn suddenly at the place of accident and if he had exercised caution. The Tribunal was justified in its conclusion that the driver of the jeep must have driven the jeep very fast at the time because there was a police vehicle on chase. The accident could not have taken place unless it had been contributed in some way by the negligent act of the driver of the Esteem Car. The principal cause for the accident I would still state was only on account of a rash driving of the jeep and the sudden turning to the right I would therefore, apportion the liability for the accident as 75:25 between the owner of the jeep and the owner of the 'Esteem' Car. The liability of the respective owners and the insurer shall therefore, be apportioned in the above proportion of 75:25. 4. Learned counsel also contends that the interest awarded by the Tribunal is 9% per annum from the date of filing of the petition till the realisation of the entire amount and I do not want to make any modification in the interest given by the court below. It is also contended by the learned counsel for the appellant that they had already disposed of the jeep to the first respondent before the Tribunal who was the driver himself. It may not be merely statement or the affidavit at the Appellate Court . If such a contention had not been urged and proved at the trial, it shall not be permitted to be taken now. The appellants cannot transfer the liability to the driver of the jeep if ownership to the vehicle was not a point in issue or dispute at the F.A.O.NO.409 OF 2010(O&M) 5 Tribunal, it cannot survive for the consideration at the appellate court. 5. The appeal is allowed in part by apportioning the liability to the owner of the jeep determined by the Tribunal to the extent of 75% and the remaining 25% shall be borne by the owner of the Esteem Car and who in turn shall stand to be indemnified by the New India Assurance company arrayed as respondent No. 6 in the Appellate Court. The appeal is allowed to the above extent. [K.KANNAN] JUDGE 17th August, 2010 Shivani Kaushik