FAO No. 384 of 1992 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 384 of 1992 Date of decision January 21, 2011 Bihari Lal and another ....... Appellant Versus Smt. Nirmala and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. IPS Doabia , Advocate for the appellant. Mr. Neeraj Khanna , Advocate for Mr. Ravinder Arora, Advocate for respondent No.7. Mr. Harsh Aggarwal, Advocate and Mr. Aseem Aggarwal, Advocate for respondent No.8. None for respondent Nos. 1 to 6 and 9 to 11. **** 1. Whether reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest? Yes K. Kannan, J (oral). 1. Learned counsel appearing on behalf of the appellant it is pointed out, has been elevated to the Bench of this Court. Mr. IPS Doabia, Advocate is present in Court with the file. I have urged him to assist me in disposal which he has done willingly. FAO No. 384 of 1992 2 2. The appeal is at the instance of the owner of the truck in which the deceased was travelling. The bus which was said to have been driven in a rash and negligent manner hit the truck from the rear side, as a result of which, the axle broke and the passenger in the truck fell down. At that time another bus of Haryana Roadways passed the road and had crushed the deceased to death. The truck onwer's contention that no portion of negligence could be attributed to him and that the deceased fell out of the truck only by the negligent act of driver of bus No.HYX 2425, disbelieved. As a matter of fact the said bus was not made a party in the proceedings. 3. While apportioning the liability, the Tribunal held liable the driver of the truck and the bus of Haryana Roadways in the ratio 1:2. I do not find any error, for, as far as the deceased or his representatives, it was a case of composite negligence and it should have been perfectly tenable for the claimants to file a case against any one of the tort feasors. In the absence of the owner and driver of the other bus said to have resulted in the accident in the first place, there shall be no point to re-appraise the case on the issue of apportionment when the owner of the other vehicle was not a party. The award is upheld for apportioning the liability in the manner it was done and if at all the appellant is aggrieved that yet another bus that was said to have hit the truck as responsible for the accident, it will be left to the liberty of the owner to approach by means of independent suit for contribution, if he is so advised. As far as the claimants are concerned, the award is just and it would not require any interference. The appeal by the owner of the truck is also dismissed with liberty that if such a suit were instituted, the fact of pendency of the proceedings could be stated for exclusion of time for deciding on the issue of limitation. This observation does not mean acceptance of any claim by the owner of the truck that the other bus FAO No. 384 of 1992 3 bearing registration No.HYX 2425 was indeed responsible for the accident in an independent action. This contention cannot be urged now in appeal when the owner of the bus is not even made a party in the appeal. The liability has to be borne only by the appellant and the Haryana Roadways bus and the insurer in the ratio already apportioned in the award. The appeal is dismissed. (K. KANNAN) JUDGE January 21, 2011 archana