G.R. Shetty and Another vs Unnikrishna Nair and Others

G.N. Sabhahit, J.—This appeal by the owner and insurer of the lorry bearing No. MYE 3251 is directed against the judgment and award dated 19.4.1977 passed by the Claims Tribunal, N. Kanara, Karwar in Misc. Case No. 24 of 1973 on its file awarding compensation of Rs. 22,000- to the claimant fixing the liability at the rate of 30% and 70 per cent between the bus and the lorry.

It is the case of the Petitioner that on the night of 3/4.5.1973, he was traveling in the bus bearing No. MYX 6927 of the first Respondent from Mudbidre to Hubli. The bus was being driven by the second Respondent-driver. At about 12-15 a.m. on 4.5.1973 near Karki, on the National Highway, the lorry bearing No. MYE 3251 which was coming from the opposite direction belonging to the 4th Respondent which was being driven in a rash and negligent manner by the 5th Respondent brushed by the side of the bus, as a result of which the claimant was severely hurt on his elbow which got fractured. Hence, he claimed compensation of Rs. 1,53,000-. At the time of the accident, he was aged about 21 years and was studying in the 3rd year B.E. class of the Karnataka Regional Engineering College, Surathkal and that as a result of the injuries sustained by him, his right hand became practically incapacitated. He is not in a position to bend his right hand properly. As the result of the incapacity, he is not in a position to realize his aspiration to take Post-Graduate Degree in Mechanical Engineering and, thus secure a lucrative job fetching Rs. 1,000/- per month to start with.

Out of the compensation claimed, Rs. 10,000/-are claimed as compensation on account of his inability to participate in games, sports and for loss of amenities He has claimed Rs. 5,000/- towards pain and suffering. The claim was resisted by the Respondents denying that the accident was the result of the rash and negligent driving of the bus or lorry. Alternatively they contended that the compensation claimed was exorbitant. The owner and driver of the bus asserted that the accident was the result of the rash and negligent driving of the lorry whereas, the owner and driver of the lorry asserted that the accident was the result of rash and negligent driving of the bus. From these pleadings, the following issues were raised by the Tribunal:

(1) Whether the applicant proves that the accident in question was the result of the negligence on the part of the opponent No. 2 and opponent No. 5, the drivers of the bus and the truck respectively ?

(2) Whether the applicant proves that he has sustained the injuries alleged by him ?

(3) What compensation, the applicant is entitled to and from which of the Respondents ?

During, hearing, the claimant examined himself and two witnesses. As against that, the contending Respondents examined R. Ws. 1 and 2. Claimant also got marked Exhibit P-l to P-71.

The Tribunal, appreciating the evidence on record, held under issue No. 1 that the accident was the result of rash and negligent driving of the bus as well as the truck in the proportion of 30 per cent and 70 per cent. In that view, the Tribunal awarded a total compensation of Rs. 22,000 to the claimant apportioning it in the proportion of 30 per cent and 70 per cent fixing the liability at 30 per cent on the bus and 70 per cent on the truck. Aggrieved by the said judgment and award, the owner and insurer of the truck have come up in appeal before this Court.

The learned Counsel appearing for the Appellants vehemently contended that the Tribunal failed to notice that there was contributory negligence on the part of the claimant also inasmuch as he was resting his hand on the window-sill which gave the injury. Hence, he submitted that to that extent the compensation awarded should be reduced. As against that, the learned Counsel appearing for the claimant argued supporting the judgment and award of the Tribunal.

The sole question, therefore, that arises for our consideration in this appeal is-

Whether the Tribunal was justified in holding that there is no contributory negligence on the part of the claimant himself ?

It is laid down in the case of Smt. Sushma Mitra Vs. Madhya Pradesh State Road Transport Corporation and Others, that it is a matter of common experience that passengers who sit adjoining a window very often rest their arm on the window-sill by which act the elbow projects outside the window. The driver of the bus must have these passengers also in contemplation while overtaking or crossing another vehicle on the road, he must not come too close to the vehicle that is overtaken or crossed and must leave sufficient gap between the vehicles to avoid injury to these passengers. The driver of a vehicle coming from the opposite direction owes a similar duty while crossing a passenger bus.

Thus, simply because, the passenger was resting his arm on the window silly for taking a nap as he was traveling in the night by the bus, it cannot be said that there is any contributory negligence on the part of the passenger-the claimant in this case. The modern trend in deciding negligence as stated by Clerk & Lindsell on Torts, 12th Edition, Page 711 reads:

There has also been a tendency in recent years to stress the fact that the reasonable man will not assume that other people will always act carefully and will therefore be prepared for lapses and unreasonable acts on the part of others. This might be a reaction to the ever increasing tempo and consequent dangers of modern social and industrial life.

In fact, the House of Lords, in the case of London Passenger Transport Board v. Upson (1949) A.I.I.E.R. 60 has observed thus:

A driver is not of course, bound to anticipate folly in all its forms, but he is not entitled to put out of consideration the teachings of experience as to the form these follies commonly take.

It is for these reasons, that the High Court of Madhya Pradesh has ruled that it is a part of the duty of the drivers while overtaking or crossing, another vehicle to see that sufficient distance is left between the vehicles so that they are not likely to hurt any passenger who may be putting his hand on the window-sill. In the instant case, both the drivers have committed breach of this rule of prudence. But, the driver of the lorry actually came on his wrong side and brushed against the body of the bus. That being so, the Tribunal has tightly fixed the liability of the bus at 30 per cent and the liability of the truck at 70 per cent. We find no reason to interfere as it is properly done.

In the result, therefore, the appeal fails and is dismissed. No costs.