M. Jaganathan vs Pallavan Transport Corporation Ltd.

A. Abdul Hadi, J.—The claimant, who is the injured in the motor accident that took place on 21.6.1990 is the appellant in this civil

miscellaneous appeal against the compensation of Rs. 12,000 granted by the Tribunal only on the basis of no fault liability. The claim was for Rs.

6,00,000.

The injury sustained by the appellant has resulted in the amputation of his left leg above the knee. The injury was sustained when he was getting

down from the respondent''s bus from the front entrance of the bus and at a place, which was not a bus stop for the said bus. The bus was

proceeding from the Flower Bazaar Police Station towards Parrys Corner in George Town, Madras. -A. According to the claimant, there was a

traffic jam due to some procession at the abovesaid place and the bus stopped as a consequence at the abovesaid place and the conductor himself

asked the passengers, who wanted to get down at the next bus stop, viz., Parrys Corner to get down at the said place itself. Further, according to

the claimant, pursuant to the said suggestion of the conductor, just like certain other passengers including PW 2, he also got down towards the end,

but, even before he could get down completely, the driver moved the bus and that is why he (injured) fell down and the left front wheel of the bus

ran over him and, therefore, when he was subsequently taken to the hospital, his leg had to be amputated.

On the other hand, the case of the respondent is that the bus did not stop at the above said place, but was only moving slowly and the

conductor did not ask the passengers to get down at that place and et the injured got down from the moving bus at that place, which was not a bus

stop with reference to the said bus. So, the contention of the respondent Corporation is that the claimant alone was negligent and not the bus

driver.

On the above negligence aspect, the Tribunal below has found that the claimant alone was negligent and not the driver of the bus. In this regard,

the relevant observations of the Tribunal below are as follows:

(Omitted as in vernacular)

While holding so, the court below did not go into the question of quantum of compensation as claimed by the claimant, but only granted the no

fault liability compensation of Rs. 12,000.

Learned counsel for the appellant submits that though the place at which the injured got down was not a bus stop for the abovesaid bus in

question, the said appellant and certain other passengers including PW 2 got down from the bus at that place only because the bus stopped there

due to traffic jam and the conductor asked the passengers, who wanted to get down at the next bus stop, to get down at the said place itself. In

this connection, to contend that in such a situation, there was no negligence on the part of the injured and that the negligence was only on the part

of the driver of the bus, learned Counsel for the appellant relies on the decision in Managing Director, Thanthai Periyar Transport Corporation Ltd.

Vs. N. Hussain Mohideen, ; Southern Motors v. C. Sivajothiammal 1982 ACJ (Supp) 85 (Madras); N.K.V. Bros. (P) Ltd, v. M. Karumai

Ammal 1980 ACJ 435 (SC); Venkataswami Motor Service v. C.K. Chinnaswamy 1989 ACJ 371; Gujarat State Road Transport Corporation v.

Keshavlal Somnath Panchal 1982 ACJ (Supp) 377 (Gujarat); and Sydney Victor v. Janab S. Kadar Sheriff 1974 ACJ 318 (Madras). He also

pointed out that in the first information report, Exh. P-5 which was recorded within ten minutes of the accident on the same day (21.6.1990), the

complaint given is that the bus stopped at the abovesaid place and then only the passengers including the injured got down. Learned counsel for the

appellant also submits that there could be no contributory negligence also on the part of the injured. In this regard, he relies on two of the above

referred decisions, viz., Gujarat State Road Trans. Corpn. v. Keshavlal Somnath Panchal (supra) and Sydney Victor v. Janab S. Kadar Sheriff

(supra).

Then, coming to the quantum of compensation, he drew our attention to the various heads of compensation, under which the entire

compensation totalling Rs. 6,00,000 has been computed, as shown in the claim petition. He also points out that initially the injured was in the

General Hospital between 21.6.1990 and 25.6.1990 and was subsequently in the Railway Hospital for about 4''/2 months between 25.6.1990 and

10.11.1990 (as the injured was a railway employee) and was able to join the duty only on 20.2.1991. He also submits that even though he was

getting the original salary even after the accident, on that account he lost the medical leave, which could have been encashed at the time of the

retirement. He also points out that the injured was admittedly aged 45 on the date of the accident and his basic salary was Rs. 1,400 in the

Railways as a technician.

On the other hand, learned Counsel or the respondent reiterated the reasoning of the Tribunal though he could not seriously canvass the

correctness of the above referred two decisions cited by learned Counsel for the appellant. No doubt, he also submits that at worst, the court

could only hold contributory negligence on the part of the injured. On the question of quantum of compensation, he points out that the sum of Rs.

75,000 claimed for mental agony, torture and humiliation of the claimant because of the amputation, is very high. Likewise, he also points out that

Rs. 53,000 claimed for labour, pain and suffering put up by the members of the family in attending to the claimant is also high. He also points out

that since the injured''s earning capacity has not lessened even after the accident, there cannot be any compensation for the loss of earning power,

which was claimed at Rs. 1,50,000.

In this connection, learned Counsel for the appellant points out that it must be noted that the future earning capacity of the injured has been very

much affected because of the amputation of the left leg.

We have considered the rival submissions. Though the passengers of the bus are not expected to get down from the bus at any place other

than a bus stop and in that sense the injured and the alleged other passengers who got down from the bus, as stated above, may be said to be

negligent in getting down from the bus at the abovesaid place, which is not a bus stop for the abovesaid bus, it cannot be denied that when the bus

stops particularly due to traffic jam in view of procession, etc., the tendency of many of the passengers, who have to alight at the next bus stop, is

to get down even at the preceding nearby place, where the bus stops due to the traffic jam. In such or similar circumstances it has been held in

several decisions that the conductor and the driver just be careful and they have a duty towards the passengers in not allowing them to be injured in

any way. No doubt, in the present case, evidence also has been let in on the side of the claimant that the conductor of the abovesaid bus himself

asked the passengers including the injured to get down at the abovesaid place even though it is not a bus stop. No doubt, this version has not been

accepted by the conductor, who gave evidence as RW 1.

Anyway, in the abovesaid light, we shall now see the relevant decisions. In Sushma Mitra v. M.P. State Road Trans. Corporation 1974 ACJ

87 (MP), a Division Bench of the Madhya Pradesh High Court has observed as follows:

It cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of the passengers. While driving he must

have the passengers in contemplation and he must avoid acts or omissions which can reasonably be foreseen to injure them and in deciding what

acts or omissions he should avoid, he must bear in mind the normal habits of passengers. 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 and, therefore, while overtaking or crossing another vehicle on the road he must not come too close to

the vehicle that is overtaken or crossed and he must leave sufficient gap between the vehicles to avoid injury to these passengers.

A Division Bench of Gujarat High Court in Gujarat State Road Trans. Corpn. v. Keshavlal Somnath Panchal 1982 ACJ (Supp) 377 (Gujarat),

dealt with a case, here a passenger of a bus rested his elbow on the window-sill of the bus and the elbow protruded from the window to the extent

of about 6 inches only, though the driver and conductor repeatedly warned the said passenger not to rest the elbow in such a fashion. When the

truck coming from the opposite direction injured the passenger''s elbow it was held that the bus driver alone was negligent because it was his duty

to take precaution to ensure that a passenger sitting with his body protruding reasonably from the window did not receive injury when it crosses an

oncoming vehicle and his duty was more than just administering a mere warning. In this context, the relevant observation made is as follows:

The question which was to be considered in such a case is whether the protrusion of the arm from the window was to an unreasonable extent and

whether the act was so obviously fraught with danger that no reasonable or prudent man would consider it safe to act accordingly on the facts and

in the circumstances of the case. Besides, the driver of a public vehicle must have such passengers in contemplation and he owes a duty of safety to

such passengers which consists of driving the vehicle slowly with care and caution, at least when another vehicle is seen approaching from the

opposite direction and while crossing such vehicle, it is his duty to so manoeuvre his own vehicle that not only any contact with the body of the

approaching vehicle is avoided but any contact between the oncoming vehicle and any part of the body of any passenger that might be resting on

the window of the bus or projecting therefrom to a reasonable extent is also avoided.

In the above Gujarat decision, it was held that there was no contributory negligence n the part of the abovesaid injured passenger. The relevant

observation in this regard is as follows:

There is no question here of attributing any negligence to the claimant, having regard to the limb or part of the body involved and the extent of

projection thereof outside the window.

A Division Bench of this Court also held in Sydney Victor v. Janab S. Kadar Sheriff 1974 ACJ 318 (Mad), that there was not even

contributory negligence on the part of the injured claimant in a similar case. The said case related to collision between bus and lorry and the injured

passenger of the bus was gripping the window cross-bar. In such a position her right thumb was outside the cross-bar. The reasoning of the court

for holding that there was no contributory negligence is that by merely gripping the window crossbar, the injured did not show lack of reasonable

care for her own safety and the fact that the injured had gripped the crossbar had nothing to do with the actual collision. The relevant observation

of the Bench is as follows:

It is true that putting out the hand or any other part of the body outside a fast moving vehicle would be a negligent act, particularly if the vehicle is

moving in a crowded place. In a busy city where there is heavy traffic, it would certainly be highly dangerous to put out the hand or arm or other

part of the body so as to be projecting outside the moving vehicle. Even such putting out a part of the body outside the moving vehicle may not be

an act which endangers the safety of the person concerned, if the vehicle was not moving in a crowded place but it was moving only on a broad

highway, for in such a highway there is no reasonable possibility of any other vehicle coming very close to the vehicle in which the person is

travelling. In any event, we are not in a position to hold that mere gripping of the window crossbar in a position in which the right thumb was

gripping the bar on its outer side would be a negligent act on the part of the injured, especially when the vehicle was on a broad highway and not

moving in any crowded place. It cannot be said that PW 1, the injured had acted negligently or without due care, merely by gripping the cross-bar

of the window when the bus was going on a highroad.

Further in Venkataswami Motor Service v. C.K. Chinnaswamy 1989 ACJ 371 a learned Judge of this Court was dealing with a case where a

lady passenger was alighting from the front exit of the bus and her one foot was on the footboard and other on the road when the conductor gave

whistle and the driver moved the bus and she was knocked down and dragged along by the body of the bus and sustained fatal injuries. There was

no bus stop at the place of accident therein and the abovesaid passenger jumped from the running bus. However, the further evidence is that

eyewitnesses who were passengers of the bus shouted to the driver to stop the bus. In the above circumstances, it was held that the crew of the

bus was negligent for the accident which occurred at a place where the bus had stopped, though it was not a bus stop. The relevant observation

therein is as follows:

But the fundamental duty of both the driver as well as the conductor is to verify specifically whether any passenger is getting into the bus or getting

down from the bus before actually the bus is moved from the bus stop where it is stopped, irrespective of the fact whether that place of stopping is

a bus stop or not.

We may however point out here that this observation would be more appropriate, particularly in the case of conductor, since the driver as such

may not be able, by himself, to verify every time whether any passenger is getting into the bus or getting down from the bus before actually the bus

is moving from the place where it has stopped, particularly when the abovesaid ingress or egress is at the rear entrance of the bus. Anyway, point

to be emphasized is that even though in the abovesaid case the deceased got down from the bus at a place, which is not a bus stop, the court held

on the facts of the said case, that there was negligence on the part of the driver of the vehicle in question.

In N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal 1980 ACT 435 (SC), also we find the following observation, though it is not a case of the

deceased or injured in any way violating any laws:

Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely

because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly

reasonable.

A learned Judge of this Court dealt with a case more or less similar to the present facts in Managing Director, Thanthai Periyar Transport

Corporation Ltd. Vs. N. Hussain Mohideen, . The relevant observations made therein are as follows:

When once it is accepted by RWs 1 and 2 that there was a traffic obstruction and the bus could not enter the bus stand, it is difficult to accept that

the bus was moving slowly, as claimed by RWs 1 and 2. It is common knowledge that even before the bus could enter the Broadway Bus Stand, it

is stopped outside to enable passengers to get down from the bus and in this case, from the evidence, it is clear that the bus had to stop outside the

bus terminus, owing to traffic obstruction in the access road...Thus, on a due consideration of the manner in which the accident took place, the

version given by PW 3 is more probable and acceptable and the Tribunal cannot, therefore, be stated to have committed any error in holding that

the rash and negligent driving of the bus belonging to the appellant, by its driver who had caused the accident, in which the respondent sustained

injuries.

Taking all these decisions into consideration, we are of the view that the Tribunal below erred in holding that the injured claimant alone was

negligent. On the other hand, it should be held that the above bus crew alone was negligent.

On perusing the entire evidence it is clear that though the place at which the abovesaid bus stopped, was not a bus stop for the said bus, the

bus actually stopped at the abovesaid place due to the traffic jam. PW 1, the injured gave evidence in chief-examination thus:

(Omitted as in vernacular)

Further even in cross-examination he said thus:

(Omitted as in vernacular)

Thus, it appears that even the suggestion to PW 1 in cross-examination was that before the abovesaid auto also there was another stationary

vehicle, and the suggestion was not that the road was clear before the bus in question and the bus was actually moving, though slowly.

Then, regarding the other aspect that the conductor, after the bus stopped at the abovesaid place, asked the passengers going to Parrys

Corner to get down at the abovesaid place itself, the relevant evidence in chief-examination by PW 1 is as follows:

(Omitted as in vernacular)

No doubt, in this context it must be stated that PW 1 in cross-examination deposed that after he thus fell down, the bus did not move even a foot.

But, RW 1, the conductor in this regard deposed that after the injured fell down, the bus moved for about 15 feet and then stopped. In this regard,

the version of RW 1 should receive greater weight since at the moment of falling down and getting injured, the injured passenger could not have

correctly watched how far the bus moved after he fell down and got injured.

Further, even though the conductor of the bus as RW 1 deposed in chief-examination that at the abovesaid place he asked the passengers not

to get down, he deposed in cross-examination thus:

(Omitted as in vernacular)

Taking into account the entire evidence also, we have only to hold that the crew of the bus alone was negligent.

Coming to the quantum of compensation, it has to be noted first of all that almost the entire left leg of the claimant has been amputated pursuant

to the injury suffered in the accident. In this connection, PW 3, the doctor''s evidence in chief-examination is as follows:

Omitted as in vernacular)

In cross-examination he deposed thus:

(Omitted as in vernacular)

The injured was initially treated in the General Hospital between 21.6.1990 and 25.6.1990 and, thereafter, in the Railway Hospital between

25.6.1990 and 10.11.1990. Further, PW 1''s evidence is that he was on medical leave for 7''/2 months and if the said medical leave had not been

taken, he could have encashed the said medical leave after retirement. He also deposed thus: Omitted as in vernacular)

In the claim petition, the abovesaid claim of Rs. 6,00,000 is computed as follows:

PART-I

(a) Loss of earning from

21.6.1990 to

20.12.1990 (anticipated)

(b) Partial loss of earning

from ... to ...

(c) at the net rate of

Rs. 2,000 p.m. ... Rs. 12,000

(d) Transport to

hospital

a day/week ... Rs. 1,000

(e) Extra

nourishment ... Rs. 5,000

(f) Damage to clothing

and articles: dress

materials damaged ... Rs. 250

(g) Others

(i) Cost of

medicines

purchased for

treatment ... Rs. 3,750

(ii) Labour, pain

and suffering

put on by the

members of

the family in

attending to the

petitioner. ... Rs. 53,000

(iii) Mental agony,

torture and

humiliation to

the petitioner

because of

amputation ... Rs. 75,000

PART-II

(h) Compensation for

pain and

suffering ... Rs. 1,00,000

(i) Compensation

for continuing

or permanent

disability, if any ... Rs. 2,00,000

(j) Compensation

for the loss of

earning power ... Rs. 1,50,000

----------------

Total ... Rs. 6,00,000

----------------

Learned counsel for the respondent, no doubt, submits that the abovesaid claim of Rs. 75,000 for mental agony, etc., is too high and likewise, Rs.

53,000 for labour, pain and sufferings put on by the members of the family is also high. He also argues that since the injured has been given job in

the Railways even after the accident and the injured is getting pay as usual, he could not claim compensation for the loss of earning power to the

extent of Rs. 1,50,000. We are unable to accept the said counsel''s contention with reference to the abovesaid Rs. 75,000 and Rs. 53,000.

However, we feel that compensation for the loss of earning power in the above circumstances could not be given to the extent of Rs. 1,50,000.

Further on other items also, there is scope for some reduction. Taking an overall view, we feel that ends of justice would be met if as against the

claim of Rs. 6,00,000 a sum of Rs, 4,50,000 is awarded to the injured claimant.

In the result, we award a compensation of Rs 4,50,000 with interest at 12 per cent per annum from the date of petition. Accordingly the

appeal is allowed in part with proportionate costs.