The duty of the vehicle driver approaching from a lower level road to ensure the path is clear on the higher level road.

S.S.Sudhalkar, J.

1. This appeal arises out of the judgment/award of the Motor Accident Claims Tribunal (hereinafter referred to as tribunal) in MACT case No. 42 of 1985. The case pertains to an accident which took place on 12.6.1985 at 12.00 noon on the National Highway known as G.T. road. There is a fly bridge on the G.T. road near the place of accident which is at a distance of 1 Kilometer from Ambala Cantt. Shashtri colony falls on the left side while going from Ambala Cantt to Delhi. The bus involved in the accident was being driven by respondent No. 2 at the time of the accident. It was owned by respondent No. 1. It was proceeding from Ambala Cantt bus stand. Pritarn Singh Sethi came on the scooter from Shastri Colony which falls on the left side of the road. He was carrying a pillion rider alongwith gas cylinder. When he reached the main road leading from Ambala Cantt to Delhi, the accident took place. The scooter was completely smashed. Pillion rider Baldev Singh alongwith gas cylinder fell down. However, Prtiam Singh received injuries in the accident and died because of the injuries. The appellants had claimed Rs. 6,49,000/- by way of compensation.

2. The claim was resisted by respondent No. 1 who has filed written statement. Following witnesses were examined from the side of appellants:-

1. PW.1 Ravinder Kaur (wife of the deceased)- appellant No. 1.

2. Baldev Singh, pillion rider (eye witness)

3. From the side of the respondent, driver of the bus Samey Singh was examined. Documents were also produced in this case. Ex.R.1 to Ex.R.5 are the photographs of the place of the accident produced by the respondents. Eight photographs have been produced by the appellants. In addition to this evidence, true copy of the F.I.R. and photo copy of the income tax return has been produced as Ex.A.2 and Ex.A.3.

4. The Tribunal vide its impugned judgment decided issue of rash and negligent driving against the appellants. Through it is said under issues No. 2 regarding compensation that in case issue No. 1 would have been decided in favour of the claimants, they would have been entitled to Rs. 1,53,512/-. However, as issue No. 1 regarding rash and negligent driving was decided against the appellants, the claim petition was dismissed.

5. After hearing the learned counsel for the parties, it is not possible to differ with the findings of the learned Tribunal. Learned counsel for the petitioner has argued that the bus driver was driving the bus at a high speed and he could not control the bus. However, as it seems that the scooterist came from Shashtri Colony which falls on the left hand side. He had come from kacha path from the side of Shashtri Colony which was on a lower level from the road. This being the position, the scooterist must have come at a high speed because he was carrying a pillion rider alongwith gas cylinder and because of the High Way which was on higher level. Considerable momentum must have been acquired by the scooter before it reached High Way, making it impossible to stop after seeing the bus. The photographs produced by the appellants would show that the bus hand gone totally on the right hand side of the road in a kacha portion and the scooter came underneath the bus. This can happen only when the bus driver was required to sewer bus towards extreme right in order to avoid impact with the scooter which was coming from the left side kacha road. It is argued that the bus was being driven fast. Admittedly, the accident had taken place where the fly over ends. Moreover. on a National High Way it cannot be expected that the bus, should go on at carts speed and keep on blowing horn all the time. It is duty of the vehicle driver approaching from kacha path to High Way to see that his path is clear. The position would have been different if the scooterist would have taken turn to the left after coming on the High way but the position shows that he wanted to take turn to the right and for that he had to cross the r