http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: KARNATAKA STATE ROAD TRANSPORT CORPORATION

       Vs.

RESPONDENT: K.V. SAKEENA & ORS.

DATE OF JUDGMENT:       15/03/1996

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (3) 446        JT 1996 (4)    32  1996 SCALE  (2)845

ACT:

HEADNOTE:

JUDGMENT:                             WITH   CIVIL APPEAL NO.102/92, 103/92, 104/92, 105/92 & 106/92                       J U D G M E N T BHARUCHA, J.      This is an appeal by special leave against the judgment and order  of a  Division Bench of the Karnataka High Court. The  Division   Bench  was  hearing  appeals  against  three judgments delivered  by the Motor Accidents Claims Tribunal, Bangalore, arising  upon six  claim  petitions.  Four  claim petitions were  filed  to recover compensation for the death of four  persons and  two for  injuries sustained.  The four deceased and  two injured  persons were  passengers in a bus owned by the Karnataka State Road Transport Corporation, the appellant, when it was involved in an accident at 10.30.p.m. on 6th May, 1987, on the Bangalore-Mysore road. The accident occurred when  the bus  hit a  truck trailer coming from the opposite direction.  Upon the  trailer was  mounted  a  rear dumper, (the rear dumper is a vehicle used to carry and dumo earth from its rear end.) Subsequent to the collies, the bus moved 150  feet, collided with a tree on the eft of the road and turned  turtle. The bus driver was among those who died. The Tribunal  came to  the conclusion that it the bus driver alone who  was negligent.  It rejected  the contention  that there was  any negligency  on the  part of the driver of the truck. Before  the High  Court, as  before us, it was not in dispute that the driver of the bus was negligent, but it was canvassed on  behalf of  the Corporation  that the driver of the truck  had by his negligence contributed to the accident and that  the liability  to pay  compensation was  joint and several and  should be  apportioned in  accordance with  the degree of  their respective  negligee. The  High Court found against the Corporation.      The  road  upon  which  the  accident  took  place  was straight. It  was 24  feet wide  and on  either side had mud shoulders approximately  8 feet  wide. The truck trailer was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

12 feet wide. The dumper upon it was 15 feet wide so that it protruded beyond  the width of the trailer by one and a half feet on either side. The dumper weighed 25 tonnes. The truck was travelling  slowly, at a speed of about 5 kms. per hour. The bus, coming in the opposite direction, was speeding.      Reliance was  placed before  the High  Court and before this Court upon a notification dated 7th March, 1987, issued by the  Government of Karnataka under the provisions of Rule 341  of  the  Karnataka  Motor  Vehicles  Rules,  1963.  The notification  permitted   the   Haulpak   35T   Rear-Dumpers described in  its Schedule  belonging to  M/s. Bharat  Earth Movers Limited  to ply  in  public  places  subject  to  the conditions  therein   stated.  The  Schedule  mentioned  the serial, chassis,  engine and  transmission  numbers  of  six Haulpak 35  T Rear  Dumpers. The  conditions also  indicated that the  notification applied  to the plying of the dumpers themselves upon  public roads and not to their carriage upon other vehicles;  as for  example, the  first condition  said that only  an empty  vehicle should  be transported  and  it should not  carry any load over and above its own weight. We agree with  the High  Court that  this notification  had  no application to  the transport  of the  dumper on  the  truck trailer which was involved in the accident.      Learned counsel  for  the  Corporation  then  drew  our attention   to Rule  331 of  the  Karnataka  Motor  Vehicles Rules, 1963.  We must  say that it does not appear that this rule was  pointed out  to the  High Court. The rule provides for the  protection of loads on motor vehicles. Sub rule (2) thereof states,  "No person shall drive, and no person shall cause or  allow to  be driven,  in a  public place any motor vehicle which  is loaded  in a manner likely to cause danger to any  person or in such a manner that the load or any part thereof or  anything extends : (1) laterally beyond the side of the  body or  beyond the vehicle plane in prolongation of the side  of the  body.......". The  dumper, as the Tribunal has recorded upon the basis of evidence, protruded on either side of  the truck to an extent of one and a half  feet. The manner in  which  the  dumper  was  being  transported  was, therefore, in clear contravention of the rule. It could have been so  transported only  with permission,  and subject  to such conditions  as were specified, under sub-rule 3 of Rule 331, which reads thus :      "(3) The  District Magistrate  with      the  concurrence  of  the  Regional      Transport Authority may be order in      writing exempt  any  motor  vehicle      for  such   purpose  and  for  such      period,   and   subject   to   such      conditions as may be specified from      any or  all of  the  provisions  of      this rule." No such permission was brought on record.      The High  Court and  the Tribunal placed great emphasis on the  fact that the truck was being driven very slowly and on the  correct side  of the  road. Considering  that it was carrying a  weight of  25 tonnes,  the truck  could not have proceeded other than very slowly. It will be remembered that the trailer  was 12  feet wide  and the  dumper protruded on either  side   by  one  and  a  half  feet.  Even  assuming, therefore, that  the truck  was being  driven on the extreme left of  the tarred  road, it  was occupying  thirteen and a half feet  of its  twenty-four  foot  width,  and  for  this purpose we  assume that the one and a half foot over-hang of the dumper  on the  left was  over the mud shoulder. It will also be remembered that the accident occurred at 10.30 p.m.,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

which would  mean that  both the bus and the truck had their headlights on.  The Tribunal  has held  that "the bus driver was  not  justified  in  hitting  the  bulldozer......".  It appears, therefore, that what the bus hit was the protruding portion of  the dumper. The effect of a speeding bus hitting the protrusion  of equipment  that weighs  25 tonnes  is not difficult to imagine.      The evidence  of the driver of the truck is that he had put red  lights and  flags  on  either  side  of  the  truck trailer. The  claimants’  witnesses  do  not  speak  of  the existence of  red lights  or flags.  The Mahazar and the FIR also do not mention them. It appears to us that, but for the protrusion of  the dumper  from the  bed of the trailer, the bus and  the truck  would have  safely passed by each other. The protrusion  of the  dumper beyond the bed of the trailer was,   clearly, not  highlighted. Given the glare of blazing hacadlights, the  bus driver,  at the  speed at which he was travelling, did  not realise  that there  was  a  protrusion beyond the  bed of the trailer as massive as of a dumper and collided with  it. The  collision,  necessarily,  had  grave consequences. The  driver, sitting  at the very front of the right of  the bus, would have  taken the full impact and may well have  died on  the spot.  It is, at any rate, more than likely that  he would  have  been  rendered  unconscious  or incapacitated and  that the  progress of  the bus  150  feet thereafter until it hit tree was unguided.      The High Court noted that the front of the bus had been badly damaged as a result of its collision with the tree. It noted that  a report  before it spoke of a side panel of the bus and  its supporting  angles being torn, but it commented on the fact that the report did not say that it was the side panel on the right hand side of the bus. If in this accident a side panel of the bus was torn, there can be no doubt that it was  the right  hand side panel for it was the right hand side of  the bus  which came into contact with the dumper on the truck  trailer. It may well be that some or even many of the injuries sustained by the passengers of the bus were the result of  its collision  with the  tree, but  it cannot  be forgotten  that   its  collision   with  the  tree  was  the consequence of  its earlier  collision with  the dumper upon the truck trailer.      In the  circumstances, while thee is no doubt about the negligence of  the bus  driver and  his contribution  to the cause of  the accident,  the driver  of the truck  cannot be absolved. He was driving late at night a truck trailer which bore upon  it very  heavy machinery that protruded one and a half feet  on either  side of the bed of the trailer and the protrusion was  not clearly  marked out  by  red  lights  or reflectors thereon  for oncoming vehicles to plainly notice. The carriage  of the  dumper upon the trailer in this manner was in  breach of  Rule 331  of the Karnataka Motor Vehicles Rules, 1963. In our view, the sum total of this is, plainly, negligence.      Learned counsel  for the  insurer of  the truck trailer submitted that there was no evidence to show that the dumper had projected laterally from the bed of the trailer. We have already drawn attention to the fact that the Tribunal has so held; in its words : "As admitted by RW1 lorry driver, width of the bulldozer was 15’ width of the lorry was 12 feet, and on either side do edges of lorry bulldozer was protruding to an extent of one and a half feet." It was submitted that the driver of  the trailer  had taken  all precautions by way of showing red  lights and  flags.  Here  also  we  have  drawn attention to  the evidence.  In this regard the Tribunal had this to  say :  "RW1 is  said to have rushed to the spot and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

prepared the  sketch as per Ex.R2 and he is said to have not found any  flags fixed  on  the  protruded  portion  of  the bulldozer carried  in the  lorry. This  fact is  disputed by RW1. He  states that  he had  kept red  lights and  flags on either side  of the lorry. None of the witnesses examined on behalf of petitioner ever speak about existence of red flags or lights.  Mahazar does  not make  anything clear about the existence of  red lights  or flags either side of the lorry. Similarly, FIR does not say about existence of such flags or red lights."  We are,  therefore,  unable  to  accept  these submissions on behalf of the insurer of the truck trailer.      The question  then arises as to the proportion in which the driver  of the  truck contributed,  by reason  of  their negligence, to  the accident  and how  the liability  to the claimants should be apportioned between them.      Learned counsel  for the Corporation drew our attention to the  judgment of the Court of Appeal in Rouse vs. Squires and others,  1973 All  about 10.30  p.m. on  a frosty  night Allen was  driving an  articulated lorry  along a  motor-way when, because  of his  negligence, it skidded, ‘jack-knifed’ and ended  up blocking  the slow  and center  lanes  of  the carriageway. A  car  travelling  behind  collided  with  the lorry. Its  rear lights  remained on. Rouse saw the accident and drove his lorry safely past. He then parked and returned to render help. Another lorry, driven by Franklin, pulled up some 15  feet short  of Allen’s  lorry.  Franklin  left  his headlights on purposely to illuminate the broken down lorry. Finally,  some  five  to  ten  minutes  after  the  original accident,  Squires   arrived  on   the  scene   driving  his employers’s lorry  at a fast speed. He did not realise, when he first  saw the  vehicles some  400 yards  away, that they were stationary  and that  two lanes of the carriageway were obstructed. Eventually,  at a  distance of some 150 yards he applied his  brakes but,  because of  the frosty surface, he skidded. His  lorry collided  with the  rear  of  Franklin’s lorry and  pushed it forward with the result that it knocked Rouse down  and caused  him fatal  injuries.  Rouse’s  widow obtained damages against Squires in respect of his negligent driving and,  in third  party proceedings,  Squires  claimed contribution from  Allen and  his employers  in  respect  of Allen’s negligence.  The trial  judge  dismissed  the  claim holding that   Squires  was wholly to blame for the accident since the  broken down  lorry was adequately lighted and, if Squires had  kept a  proper look-out,  he would have seen it some 400  yards away  thereby giving himself sufficient time to take  avoiding  action.  Squires  appealed.  Cairuns,  LJ observed :      "If a driver so negligently manages      his  vehicle  as  to  cause  it  to      obstruct the highway and constitute      a  danger   to  other  road  users,      including those who are driving too      fast or  not keeping a proper look-      out,  but  not  those  obstruction,      then the  first driver’s negligence      may be  held to have contributed to      immediate cause  was the  negligent      driving  of   the   vehicle   which      because  of  the  presence  of  the      obstruction  collides  with  it  or      with some  other  vehicle  or  some      other person.  Accordingly, I would      hold in  this case that Mr. Allen’s      negligence did  contribute  to  the      death of Mr. Rouse.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

    xxx           xxx           xxx      I look  at the  situation  in  this      way.  Of  course  we  do  not  know      exactly  what   happened   to   Mr.      Allen’s  lorry;   but   there   was      nothing to  suggest that he had any      emergency situation  to  face.  For      some  reason  he  had  simply  lost      control of  his vehicle, presumably      by driving  too fast  on  a  frosty      road or  by unwisely  applying  his      brakes. Mr.  Squires has  been held      by the  learned judge (and I do not      query this  part of his finding) to      have been  extremely  negligent  in      that, in  addition to  driving  too      fast, he  failed in  keep a  proper      look-out. But is can be said of his      that  he   did  not   initiate  the      dangerous situation  but failed  to      take adequate  steps to cope with a      situation  that   already  existed.      Through that  failure  he  must  be      held  to   be  the   person  mainly      respondent for this calamity. In my      view the  right proportion of blame      which  should   be   put   on   his      shoulderls  is   75  per   cent  as      agianst 25 per cent on Mr. Allen." Mackenna J. agreed, and said :      "On these  facts I  would hold that      Mr. Allen’s  negligence contributed      to  cause   the   fatal   collision      between   Mr.   Squires   and   Mr.      Franklin. His driving in such a way      that his  lorry ended up across two      lanes of  the roadway was negligent      because of  the risk it created for      other vehicles  travelling  in  the      same direction.  The risk  was that      these other  vehicles might collide      with the  lorry or  might cause  or      suffer damage  in seeking  to avoid      such a  collision. Though this risk      was diminished when the head-lights      of  Mr.   Franklin’s   lorry   were      focused on  the trailer,  it  still      existed to  a  substantial  degree,      and  because   of  it  Mr.  Squires      collided with Mr. Franklin’s lorry.      The case  might have been different      if there  had  been  no  connection      between   Mr.   Allen’s   negligent      driving  and  the  fatal  collision      except  that   it  had  caused  Mr.      Franklin to stop where he did." Buckley, LJ  also agreed, holding that there was no break in the chain  of causation  between Allen’s  negligence and the accident.      We are  in agreement  with the  observations of Cairns, LJ.      The driver  of the  truck trailer  managed it  in a way which caused  it to  occupy atleast thirteen and a half feet of the twenty-four foot wide tarred highway. He carried upon the trailer  at the dead of night a massive protrusion which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

was not clearly marked out. It constituted a danger to other road users,  and it made no difference that hose road users, like the  bus driver,  were driving  fast. The negligence of the driver  of the  truck must  necessarily be  held to have contributed to  the causation  of the  accident, by which we mean not  only the  collision of the bus with the protrusion upon the truck trailer but also its later collision with the tree. The  chain of  events began  with the  bus hitting the dumper projecting  from the  bed of the trailer outward onto the width  of the road and ended with its collision with the tree. But  for the  former collision  the  latter  collision would not  have occurred. The negligence of the truck driver certainly contributed  to the  accident, but we do not think that the  proportion in  which he contributed can be said to be equal to the contribution of the bus driver, which is the submission made  in the  pleadings of the Corporation before this Court. In our view, the proportion of negligence should be 60  per cent  that of the bus driver and 40 per cent that of the  driver of the truck trailer. Had the former not been speeding he would have noticed the bulk upon the trailer and kept prudently away.      Learned counsel  for the  insurer of  the truck trailer submitted that  the conditions  of its insurance policy were breached by  reason of the negligence of its driver. He also submitted that,  in any  event, the  insurer  of  the  truck trailer could  not be made liable for any amount beyond that provided under  the Motor Vehicles Act. Although the plea of the contributory  negligence of  the driver of the truck was taken before  the Tribunal,  the aforesaid  contentions were not raised  and the  insurance  policy  covering  the  truck trailer was  not brought  on record.  It is,  therefore, not possible  to   accede   to   either   of   the   submissions afforestated.      We find  that in  the claim petitions that were decided by the  Tribunal on  30th October, 1988 (out of which M.F.A. Nos.141 and  142 of the 1989 arose before the High Court and Civil Appeals  102 and  103 of 1992 arise before this Court) the Corporation had led no evidence at all. In those matters the liability  to pay  compensation must  remain exclusively that of the Corporation.      In the  result, Civil  Appeals 101,  104, 105  & 106 of 1992 are allowed. The judgment and order under these appeals is set  aside insofar as it holds that the owner, driver and insurer of  the  truck  trailer  were  not  responsible  for payment of  any part of the compensation awarded. The owner, driver and  insurer of  the truck  trailer are  held  to  be liable, jointly  and severally,  to pay  40 per  cent of the compensation.  Having   regard  to   the   fact   that   the compensation has  already been  paid by the Corporation, the Corporation shall be entitled to recover 40 per cent thereof from the owner, driver and insurer of the truck trailer.      Civil Appeals 102 and 103 of 1992 are dismissed.      There shall  be, no  order as to costs in all the Civil Appeals.