The last opportunity rule, which held that the party who had the last opportunity to avoid an accident is solely responsible for it, is obsolete and has been abolished by the Law Reform (Contributory Negligence) Act, 1945.

JUDGMENT :

1. Two motor cycles, one driven by Mohinder Kumar Bagai (hereinafter called the Plaintiff) and the other by Brij Mohan Sawhney (hereinafter referred to as the Defendant) collided on 26th February, 1950, at about 6.30 P.M. near the circus around Gol Dak Khana and in a suit for recovery of damages to the tune of Rs. 10,000/- instituted by the Plaintiff, the trial Judge finding that the accident was due to the negligence of the Defendant Las awarded a decree for Rs. 5,686/6/- in favour of the claimant. From this judgment and decree the Defendant has filed an appeal which is R.F.A. No. 10-D of 1955 while the Plaintiff-Respondent has preferred cross-objections for raising the decrial amount by another Rs. 2,000/-. This judgment will dispose of both the appeal and the cross-objections. It may be added that the plaint was amended to include the National Fire and General Insurance Company Ltd., as Defendant No. 2. The decree was awarded against both Brij Mohan Sawhney and the Defendant-company and the appeal has been argued by Mr. F.C. Bedi for both the Appellants.

2. Though the essential facts immediately preceding the impact are disputed, it is agreed between the parties that the motor cycle of the Defendant had emerged from the circus in the direction of Havelock road going towards Birla Mandir. At a very short distance from the circus, in the direction of Birla Mandir is Market Road which joins the Havelock Road. The Plaintiffs motor cycle was coming from the Market Road towards Havelock Road. The collision took place just a few feet from the junction of the Havelock Road with market Road in the direction of Gol Dak Khana. Whereas it is the Plaintiff's case that the point of impact was at place marked (4) in Exhibit P.B., according to the Defendant it was at point (3) which is just on the edge of the road, Point (4) is actually a little removed from the middle of the road towards point (3). The whole area of controversy in this appeal hinges on the question where the impact took place. It is not denied by the Defendant that to turn to Market Road from Havelock Road which he intended he should have kept on his left side and taken a turn much later than he actually did. In taking the turn where he did, the Defendant says that he wanted to make a short cut. Though this initial negligence is admitted on the part of the Defendant, it is submitted by his learned Counsel Mr. Bedi that the Plaintiff having known that the Defendant had actually turned, the objective being an entrance on the Market Road, the Plaintiff should have foreseen the possibility of collision and should have himself taken a turn towards the right to avoid it.

3. The Plaintiff's case, on the other hand is that the negligence throughout had been that of the Defendant and he never had an opportunity to avert the accident which was due solely to the flagrant breach by the Defendant of the traffic rule of keeping to one's side.

4. In order to solve the problem about the place of impact, it is essential to refer to the evidence of Seargent Mohni P.W. 2, who reached the place of accident on the 27th of February, 1950. He prepared his own site plan which is Exhibit P. 4 and is not very much different from Exhibit P.B. He found signs of impact at the point marked 'X' on plan Exhibit P. 4 which is practically identical with the place marked 4' in Exhibit P.B. The width of Havelock Road is about 30 feet and the distance between 'X' and the nearest pavement is about 10 feet. He has deposed about the normal traffic rule that a person "coming on the right should keep to his left and give way to the oncoming traffic when turning right". Plainly, it was the duty of the Defendant in such circumstances to give way to the Plaintiff whose motor cycle he saw coming from the direction of the Market to the Havelock Road Before I deal further with the evidence of Seargent Mohni, I may point out to the testimony given by the Defendant himself as D.W. 5. He asserted that in crossing H