Shamsher Bahadur, J.
1. What should provide an object lesson for drivers of motor vehicles is well illustrated by the mishap which is the subject-matter of these four petitions of revision which would be disposed of by this judgment.
2. In the morning of 20th of September, 1959, at about 7.30 A.M. the Fiat Car PNT No. 2951 was proceeding in the direction of Karnal on the Grand Trunk Road, driven by Dhaunkal Singh P.W. Two persons were sitting in the front with the driver while three were sitting in the rear including Hardev Krishan sitting on the extreme right. The car was proceeding at a speed of 30 to 35 miles an hour on the Naugaza bridge, which is at a distance of 9 miles from Ambala Cantonment. The width of the bridge is 22 feet. Two trucks were coming from the opposite direction, one followed by the other. Taran Parkash was driving the truck in the front while Om Parkash was shortly behind driving the second truck.
The truck driven by Taran Parkash was going at a speed of 15 to 20 miles an hour and had covered two-thirds of the length of the bridge when the accident occurred. Considering the width of the bridge neither of the two drivers exercised the caution which they might have. The truck of Taran Parkash struck the right rear window of the car which was then pushed on and within a few yards the second truck which was coming behind struck it again, this time hitting both the front and the back of the right side and inflicted injuries on Hardev Krishan which resulted in his death.
3. The drivers of both the trucks were prosecuted under Sections 304A/279/338, Indian Penal Code. The learned Magistrate convicted Taran Parkash under Section 304A of the Indian Penal Code and sentenced him to rigorous imprisonment for a term of two years and a fine of Rs. 2,000/-. Half the fine, if realised, was to be paid to the legal heirs of Hardev Krishan. Likewise, Om Parkash, the driver of the second truck, was similarly sentenced and fined and again half the fine was to be paid to the legal heirs of Hardev Krishan. Two separate judgments were written by the learned Magistrate, but the learned Sessions Judge in disposing of the two appeals preferred by the two drivers confined the discussion of both the appeals in one judgment.
The learned Judge upheld the conviction under Section 304A of the Indian Penal Code but reduced the sentence of imprisonment to six months and also the fine to a sum of Rs. 1,000/-. Taking account of the fact that Dhaunkal Singh's car was badly damaged he directed that out of the fine, if realised, a sum of Rs. 700/- in each case, aggregating to Rs. 1,400/- should be paid to him. The heirs of Hardev Krishan being comparatively well off in the opinion of the learned Sessions Judge were left to pursue their remedy in the Civil Court.
4. Against the order of the learned Sessions Judge, four separate petitions have been filed in this Court. Criminal Revision No. 1184 of 1960 has been filed by Taran Parkash, Criminal Revision No. 1233 of 1960 by Om Parkash. Darshna Devi, widow of Hardev Krishan has filed Criminal Revision No. 1488 of 1960 in regard to the order passed by the Sessions Judge in Taran Parkash's case and the second petition by her against the order in respect of Om Parkash is Criminal Revision No. 1497 of 1960. This judgment will dispose of Criminal Revision Nos. 1184, 1233, 1486 and 1497 of 1960.
5. About the facts there is not much dispute, Great stress has been laid by the counsel for the petitioners that Dhaunkal Singh, who is the owner of the Fiat car was driving his companions to Saharanpur who had to do some business there in the day and had to return in the evening. The suggestion is that the car was over-loaded and Dnaunkal Singh was in a hurry. On his own showing, Dhaunkal Singh was driving at the speed of 30 to 35 miles per hour on a bridge two-thirds of whose length had been traversed by the trucks who were coming from the opposite direction. The situation required some care on the part of Dhaunkal Singh considering that the width of the bridge is only 22 feet, and a truck and a small car could pass each other with safety at a low speed.
5-a. The other point which has been canvassed at great length by Mr. Sibal, the learned Counsel for Taran Parkash and Mr. Sawhney who has argued the case on behalf of Om Parkash is the respective liabilities of the petitioners for the accident. Whereas Mr. Sibal states that the evidence-adduced in the case of Taran Parkash shows that the impact of the first truck with the car did not result in any damage to the vehicle or injuries to Hardev Krishan, it is submitted by Mr. Sawney that the evidence is equally clear in the case of Om Parkash that the damage had been already-caused by the first impact.
It is quite true that Ram Murti and Dhaunkal Singh support to some extent the contentions raised on behalf of the two petitioners. In the first case these witnesses stated that the impact was caused by the second collision with Om Parkash's truck while the first impact did not result in any substantial damage either to the car or to its inmates. In the case of Om Parkash, however, these very witnesses have deposed that the damage to the vehicle and the injuries to Hardev Krishan were the result of tile first impact and not the second. The evidence of Jiwan Lal, however, who was also an inmate of the cur is quite clear that the damage wrought by the first impact was slight and the second one resulted in the damage to the car and the fatal injury to Hardev Krishan.
I do not feel called upon to discuss the evidence in detail. This has been done by the lower appellate Court who has very carefully appraised the statements made by the witnesses, the site plans prepared of the place of occurrence, the photographs and the other circumstances. To complete the narrative, I may mention that subsequently a car coming from the direction of Ambala with the Rajmata of Patiala in it took back the injured persons to the hospital where they were attended. The drivers of the trucks thought it fit to go and lodge a report giving their own version of the incident at Shahabad. The statement of Jiwan Lal P.W. was recorded at the hospital at 10-30 A.M. on 20th of September, 1959 and the Sub-Inspector sent this to Police Station Shahabad for registration. Dhaunkal Singh, who was also badly injured, and Hardev Krishan along with Ram Murti and Birkha Ram were removed to the Civil Hospital by the Rajmata.
In the report lodged by Taran Parkash it was stated that the driver of the car was driving his vehicle very rashly and when it got out of control its right mudguard struck the truck. A statement of Om parkash to the same effect was also recorded. Hardev Krishan succumbed to his injuries in the hospital on 21st of September, 1959.
6. In my opinion, the death of Hardev Krishan was caused by the rash and negligent acts of both the convicted petitioners. If Dhaunkal Singh was driving at a high speed, it was incumbent on Taran Parkash who was driving a truck to exercise great prudence and caution. As observed by Lord Dunedin in Fardon v. Harcourt Rivington (1932) 146 LT 391 at p. 392.
if the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precaution.
According to the findings of the Courts below, the danger became apparent at once when Dhaunkal Singh's Car was observed or must have been observed by the first petitioner. Either or both of them should have slowed down but the contributory negligence of Dhaunkal Singh, cannot exonerate Taran Parkash from his liability in the circumstances of this case. The impact which was the result of rashness and negligence of Taran Parkash brought about a situation in which the second vehicle driven by Om Parkash wrought greater damage to the car and caused fatal injury to Hardev Krishan. The plea of inevitable accident raised by Mr. Sawhney is not sustainable for the simple reason that the car driven by Dhaunkal Singh, and admittedly on the left, could have been and indeed must have been observed by Om Parkash who like Taran Parkash should have been alive to the potential danger and it was incumbent on him to have slowed his vehicle. There is evidence, though no finding to this effect, that the second truck which was laden was actually trying to overtake the first one which was empty.
7. It has been strenuously urged before me that on a reasonable calculation the fault in the present instance lay with Dhaunkal Singh as the two truck drivers were driving bigger vehicles at a slower speed than the Fiat car. The accident in this case speaks for itself and looking at the photographs one is not left in any doubt that there must have been severe impacts which resulted in such great and extensive damage to the car. The entire right side has been smashed and plastered and it is surprising that only Hardev Krishan received the fatal injuries.
I would accordingly uphold the conviction but taking into account the negligence also of Dhaunkal Singh, I would reduce the sentence of imprisonment to that which has already been undergone by the petitioners. I would maintain the sentence of fine but considering that Dhaunkal Singh, who was driving his own vehicle should not have been lacking in care and caution which the situation demanded, I would make a change in the order regarding the compensation. In my opinion, half the fine should be paid to the heirs of Hardev Krishan as directed by the trial Magistrate.
8. I would, in the result, allow all the four petitions. In petitions Nos. 1184 and 1233 of 1960 the sentence of imprisonment is reduced to that which the petitioners have already undergone, while in petitions Nos. 1486 and 1497 of 1960, I direct that half the amount of fine in each case, when and if realised, should be paid to the heirs of Hardev Krishan and not to Dhaunkal Singh.