D.B Lal, J.:— On 28th November, 1966 serious motor vehicle accident took place in the Hindustan-Tibet Road at about 1 kilometer from Sanjauli towards Lakkar Bazar, Simla as a result of which one Amar Vath Puri was seriously injured and iubsequently died in Snowdon Hospital. The claimants alleged that Amar Nath Puri was coming in his own jeep No. DLI-3364 which was driven by Baldev Singh, Driver, and the jeep was going to Dhali. When reached a curve, from the opposite direction truck No. HIM-1904 was coming, loaded with potatoes and the said truck belonged to the Himachal Pradesh Marketing and Development Federation Limited, Dhali (hereinafter to be referred to as the Federation). According to claimants the truck of the Federation struck against the keep which was made to stop by Baldev Singh. The result was an unfortunate accident so much so that the jeep was thrown sack to about 8 feet and struck against a milestone. Amar Nath Puri was sitting on the front seat and he fell down on the road and received serious internal injuries. He was removed to the Hospital, but died hours thereafter. The widow Mrs. Urmila Kumari and her two minor children claimed compensation to the tune of Rs. 50,000/- and the same was allowed by the learned Motor Accident Claims Tribunal. The case of the Federation was that the truck had actually stopped upon seeing the jeep and Baldev Singh, driver of the jeep, was rash and negligent inasmuch as he nevertheless proceeded on with a high speed and collided against the truck. It was denied that the jeep had stopped upon seeing the truck. As such, according to the Federation, Kishan Dass driver of the truck was neither rash nor negligent and the Federation was not liable to pay any compensation.

2. The learned Tribunal decided in favour of the claimants and awarded the compensation. The Federation has come up in appeal in this Court.

3. It was for the claimant-respondents to prove rash and negligent conduct of Kishan Dass driver of the truck. The learned Tribunal has taken pains to set down the law regarding negligence. Verily, negligence consisted in omitting to do something which ought to have been done either in a different manner or not done at all. Where there is no duty to exercise, care negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which could be reasonably foreseen to be likely to cause physical injury to persons.

4. The degree of care required, of course, depends upon the facts in each case. Therefore what is to be seen in the instant case is, whether the drivers of the two vehicles as reasonable men could have regulated their conduct so as to avoid the accident, and if so, in what manner they should have regulated their conduct. If the fault lies with Baldev Singh the driver of the jeep, he was guilty of rash and negeligent act rather than Kishan Dass the driver of the truck. In that contingency the Federation will not be liable to compensate the claimants.

5. The learned Tribunal considered the evidence adduced by the respondents and in regard to eye witnesses Prithi Chand (AW. 7) and Suresh Nath (AW. 8) a clear finding was given that they were not sitting in the truck at the time of the accident and hence their version could not be believed. I too subscribe to the opinion expressed by the learned Tribunal. If the statements of these two witnesses were discarded, I was left with no version as regards eye-witness account, and hence under order, 41, Rule 27 of the Civil Procedure Code, I sent for the two drivers Kishan Dass (C.W 1) and Baldev Singh (C.W 2) and recorded their statements. A perusal of their statements has changed the entire complexion of the case.

6. As to topography of the accident, there appears to be no doubt. The photographs Exs. A.W 5/1 to AW. 5/4 besides the photographs Exs. P. 5, P. 6 and P. 7, coupled with the statements of the witnesses Haveli Ram (AW. 1) the Sub Inspector of Police who reached the spot after the occurrence; Des Raj Head Constable (AW. 5) who went to the spot on 29.11.1966 and took the photographs Ex. AW. 5/1 to AW. 5/4; Mohan Lal (AW. 3) who reached the spot on 1.12.1966 and took the photographs Exs. P. 5, P. 6 and P. 7; and Hari Chand (AW. 6) the retired engineer who prepared the site plan Ex. PC on 30.11.1966, leave no doubt that the truck was negotiating a curve towards the right and in that process was taken naturally towards the right and that the jeep was standing at about 8 ft. embedded in a milestone. There was space of nearabout 14 ft. on the left side of the truck, while a space of 3 to 4 ft. was left towards its right side and so the jeep could not have passed from that side. The jeep was on the edge of the road towards its left side when it jumped back and embedded itself in the milestone. The width of the road was about 25 to 28 ft. According to Des Raj (AW. 5) if the truck had stopped on the middle of the road, no vehicle could have passed from its left or right side. But in the instant case, the truck was towards its right side, leaving a space of 14 ft. towards its left and a truck, what to say of a jeep, could easily pass from its left side. The crux of the matter lay as to whether the truck was stopped before the accident. For this, the statement of Kishan Dass (C.W 1) was that he had stopped the truck upon seeing the jeep at about 100 yards' distance as the road was straight and the visibility was clear. Baldev Singh (C.W 2) also admits that the road was straight and he could see the truck from 50 ft. According to both these witnesses, the truck was negotiating a curve while the jeep had already negotiated a curve 20 ft. behind and had come on the straight road. Baldev Singh (C.W 2), however, denied that the truck had stopped and rather asserted that he had stopped his jeep which in fact is denied by Kishan Dass (C.W 1). But in his Police statement (Ex. CW. 2.A) recorded immediately after the occurrence Baldev Singh did state that the truck had stopped and that he could not stop his jeep and the collision took place. The witness was confronted with his police statement, and his explanation, that in fact he gave no statement but the police wrote down a version which he signed, cannot be accepted to be true. Thus the cumulative statements of Kishan Dass (C.W 1) and Baldev Singh (C.W 2), the two drivers leave no doubt that the truck had stopped on the road and it was the jeep which was coming—may be with a speed—and collided against the truck. According to Kishan Dass (C.W 1), even Baldev Singh (C.W 2) acknowledged immediately after the accident that the brakes of the jeep were defective and he was proceeding to Dhali for the repair of the vehicle. At any rate, Baldev Singh (C.W 2) has not denied that fact in his own statement. Even the learned Tribunal held as below:—

“In my view this part of the statement of AW. 8 that the driver of the jeep had stopped the jeep on seeing the truck is not true.”

7. Therefore, this fact appears to be established that the truck was stopped on the road and it was the jeep which was coming and collided against the truck. In such a situation the amount of care which could reasonably be demanded from the driver of the jeep was, either to have stopped the vehicle or if at all he wanted to cross the truck he could easily do so from its left side. It appears he stuck to his left side and naturally collided against the truck which too had come towards its right side because the vehicle was negotiating a curve, which is clear from the photographs. In such a situation Baldev Singh did not observe that amount of care which he was required to observe in the situation he was placed. He was certainly rash as well as negligent, and the driver of the truck merely because his vehicle had come more towards the right side could not be considered to have exhibited that much negligence which compelled the driver of the jeep to proceed on and collide against the truck. If the defect was there in the brakes and the vehicle was being taken for repairs, some more care was required to be observed on the part of Baldev Singh (C.W 2). The learned Tribunal arrived at its own conclusion taking regard to a certain definite reasoning. It was noticed that the truck was being driven on the wrong side of the road and the regulation regarding driving was not observed by Kishan Dass (C.W 1). Be it as it may, nevertheless, care and caution was required on the part of Baldev Singh (C.W 2) not to have gone and dashed against the standing truck. It was certainly easy for him to have crossed the truck by passing from its left side. Then the learned Tribunal further observed that if for the sake of argument it was accepted that Kishan Dass had parked his truck, he did so in the middle of the road and as such the accident took place. It is prima facie an incorrect finding. The truck was never parked in the middle of the road, but sufficient space was left towards the left-side of the truck so that the jeep could easily pass from that side. Thus the mere fact that the truck was stopped on its right side will not attribute any rash or negligent act on the part of Kishan Dass, especially in the circumstances the two drivers were placed.

8. It was also contended on behalf of the appellant that the deceased jumped out out of the jeep anticipating collision and as a result to that he fell flat on the road and received injuries. From that conduct on the part of the deceased, an element of contributory negligence cannot be inferred. How one reacts at the time of accident, more or less depends upon his reflex-actions. In order to save his own life the deceased naturally took a jump and he could not anticipate at the spur of the moment that his jump and not the collision would ultimately be the cause of his death. In my opinion, whether the deceased took a jump or not it was not an act of contributory negligence but rather an act of saving his own life which he could perform in the circumstances he was placed. There is no question of contributory negligence, and, therefore, the appellant cannot take advantage of that conduct on the part of the deceased.

9. It is evident both the drivers could see each other and the road was straight and in one level. The truck was standing on the road, may be on the wrong side. Baldev Singh (C.W 2) was definitely negligent when he did not stop his jeep or did not negotiate it by going towards the left-side of the truck so that he could easily cross it. I am left with no inference but this that Baldev Singh (C.W 2) driver of the jeep was negligent and Kishan Dass (C.W 1) could not be held to be negligent.

10. It was for the claimant-respondents to prove negligence on the part of the driver of the appellant, and since they have not done so the application is liable to be dismissed for want of cause of action. The appeal is, therefore, allowed and the order of the learned Tribunal is set aside. The Federation. However, no order is made claim-petition shall stand dismissed against as to costs.