Accident--Negligence—Head on collision--Mere failure to avoid the collision by taking some extraordinary protection does not by itself constitute contributory negligence.

Mrs. Anita Chaudhry, J:- These are seven appeals and two revisions filed by SBI General Insurance Company Limited and three appeals filed by the claimants against the award dated 30.4.2016 passed by the Motor Accident Claims Tribunal, Amabla arising out of an accident which occurred on 31.3.2015.

2. The students and staff members of SDDI Global College were proceedings in their college bus bearing registration No. HR-68A-2180 driven by Pawan Kumar. At about 7.30/8.00 A.M. when the bus was near Rajpura on Saha-Shahzadpur Road, a dumper/tipper bearing registration No. HR-37C-8635 driven by Rohit Kumar came from the opposite direction. Pawan Kumar slowed his bus and came to the extreme side of the road as he noted the dumper coming to the wrong side of the road but it struck against the bus at a very high speed. The tipper was loaded with mud. All the passengers in the bus sustained grievous injuries and some of them died on the spot. Some of deaths took place on account of suffocation as the mud flew into the bus after the window panes were shattered. The FIR was registered against Rohit driver of the tipper on the statement made by Vikas Choudhary. The claimants filed several claim petitions alleging that the accident had occurred on account of rash and negligent driving of the tipper driver.

3. The Tribunal consolidated all the matters and disposed of all the claims vide a common award placing the liability for payment of compensation upon both the drivers holding both the drivers to have contributed equally. It accepted the statement of the driver of the tipper who had stated that the bus driver could have avoided the accident had he been in control of his bus. It is this finding which has been disputed by the insurance company of the bus.

4. I have heard counsel for the parties at great length and have gone through the record.

FAO Nos. 4978, 4979, 4980, 4988, 5226, 5227 and 5228 of 2016

5. The submission on behalf of the SBI General insurance Company Limited is that the liability could not have been placed on them as the entire fault was of the tipper driver. The counsel has submitted that the accident had occurred in morning around 7.30 A.M. and medical report of the tipper driver was produced before the Tribunal and it was found that he was drunk. The counsel referred to the FSL report. The counsel further submitted that the claimants were seeking compensation from the tipper driver and had alleged that he was at fault but the Tribunal called for criminal file and went through the photographs and accepted the statement of the tipper driver and highlighted some contradictions in the statement of the claimants and apportioned the liability equally among both the insurance companies which is illegal and should be set aside. The counsel had further submitted that the police had prepared a site plan which is available on the record and it can be seen that the bus was on its own side and towards the edge of the road at the time of accident and the tipper/dumper coming from the opposite direction came to the wrong side all of a sudden and in front of the bus and toppled over and mud flew into the bus causing suffocation leading to deaths. It was urged that the plea taken by the tipper driver was that another vehicle had come from the side road and was entering the main road and in order to avoid an accident, the tipper driver had to swerve and the accident occurred. It was urged that it is the tipper driver who came to the wrong side and it was head-on collision between the bus and the tipper and it was not a case of contributory negligence and no issue was framed nor any evidence was led by the tipper driver. It was urged that except the bare statement of the tipper driver that another vehicle had come from the side road, there was no evidence to support him and the Tribunal had wrongly disbelieved the statement of t