A bus driver is not negligent if he does not anticipate that a cyclist who is crossing the road will re-cross the road in order to avoid being run over by a truck.

( 1 ) THIS is an appeal against the order of a learned Single Judge of this Court in F. A. O. No. 253-D of 1964 which was decided on October 29, 1971. Unfortunately the respondent is not represented before us by counsel nor has he appeared himself but Mr. Sethi, learned counsel for the appellant, has placed before us all the relevant material.

( 2 ) THE accident which gave rise to these proceedings occurred on January 2, 1961 at about 5. 30 P. M. on the road lying between Pul Bangash on the one side and Teliwara on the other. The respondent came out of a bylane on to the main road with his bicycle accompanied by two persons but it is not very clear from the evidence whether any of the two companions was riding the pillion of the bicycle. The case of the respondent in his own words which are quoted in the judgment of the learned Single Judge is : "when I was in the process of crossing the road and hardly gone 4 or 5 yards, the bus was coming from Pul Bangash side at a sufficient distance from me. The bus had yet to reach the place towards which I was coming. On seeing the bus I stopped going further. I turned my cycle back to the Shivaji Road side. I was about 10 to 15 feet from the footpath inside the road, when I was hit by the bus. " The bus in question belonged to the appellants, Delhi Transport Corporation, bearing registration number DLP. 186 driven by Nawal Singh, driver. The bus was coming from Pul Bangash side.

( 3 ) THE respondent suffered injuries as a result of the impact with the aforeside bus and made a claim of Rs. 40,000. 00 for compensation for injuries suffered as a result of the accident. He alleged that the bus driver was negligent and the accident was as a result thereof. The case of the appellants was that the bus driver was not negligent and that in fact the respondent himself was negligent in that he came on to the main road without taking care as to the traffic and having proceeded a certain distance across the road retraced his steps when he met with the accident although the bus had stopped in time. Several issues were framed by the Motor Accidents Claims Tribunal but only two issues are relevant. Issue No. 4 was whether the accident which resulted in injuries to Shabir Ahmad Khan was as result of negligent driving of the bus by the driver and issue No. 5 was whether the respondent was guilty of contributory negligence and, if so, what was its effect.

( 4 ) THE Tribunal came to the conclusion that the bus driver was not negligent and that the respondent had covered about 20 feet of the road when he returned on seeing the bus. According to the Tribunal, the accident took place only because the respondent got perplexed and instead of going straight came back and was knocked by the front left wheel of the bus. He also found that the driver on seeing the respondent going straight, swerved towards right to avoid an impact but the unfortunate accident occurred because the respondent came back. In conclusion, he held that the respondent had failed to prove any negligence on the part of the driver of the bus. He further held that the accident had taken place because of the respondent s negligence in coming back towards Shivaji Park Road. Upon this finding, the Tribunal stated that "issue No. 5 did not arise. "

( 5 ) IT, therefore, appears that the Tribunal had held that the driver of the bus was not guilty of negligence and that the negligence was on the part of the respondent. In appeal, the learned Single Judge concurred with the finding of the Tribunal that the respondent was negligent but he came to the conclusion that the driver of the bus was also negligent.

( 6 ) THE learned Single Judge gave his own finding in view of the above quoted statement of the respondent that the respondent had in the first instance crossed the major portion of the road and on seeing a truck coming from the opposite side he re-crossed the road resulting in the accident. On this finding the learned Single Judge posed