M. Jaganathan vs Pallavan Transport Corporation Ltd.

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 below only on the basis of no fault liability. The claim was for Rs. 6 lakhs. 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.

1a) According to the claimant, there was a traffic jam due to some procession at the above said place and the bus stopped as a consequence in the above said place and the conductor himself asked the passengers, who wanted to get down in the next bus stop viz., Parrys Corner, to get down in the said place itself. Further, according to the claimant, pursuant to the said suggestion of the conductor, just like certain other passengers including P.W. 2, he also get 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 yet 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:

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/-.

The learned counsel for the appellant submits that though the place at which the injured got down was not a bus stop for the above said bus, in question, the said appellant and certain other passengers including P.W. 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 in the next bus stop, 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 decisions in The N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others, Venkataswami Motor Service P.N. Palayam Vs. C.K. Chinnaswamy and Others, Gujarat State Road Transport Corporation v. Keshavial Somnath Panchal ( 1982 A.C.J. (Suppl.) 377 (DB) (Gujarat) and Mrs. Sydney Victor v. Janab S. Kadar Sheriff (1974 ACJ 318 (DB) (Madras)=87 L.W. 365). He also pointed out that in Ex.P 5 first information report, 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 above said 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 to decisions, Viz. 1982 ACJ (Supp.) 377 and Sydney Victor and Another Vs. Janab S. Kader Sheriff and Others,

Then, coming to the quantum of compensation, he drew our attention to the various heads of compensation, under which the entire compensation of Rs. 6 lakhs 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 4-1/2 months between 25.6.1990 and 10.11.1990 (as the injured was a railway employee) and was able to join 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 encased at the time of his 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 for the respondent reiterated the reasoning of the tribunal below, through he could not very much seriously canvass the correctness of the above referred to 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 labor, 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 insured''s earning capacity has not lessened even after the accident, there cannot be any compensation for 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 above said place, which is not a bus stop for the above said 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 in the next bus stop, is to get down even at the proceeding 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 must 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 o6f the claimant that the conductor of the above said bus himself asked the passengers including the injured to get down at the above said place even though it is not a bus stop. No doubt, this version has not been accepted by the conductor, who gave evidence, as R.W. 1.

Anyway, in the above said light, we shall now see the relevant decisions. In Smt. Sushma Mitra Vs. Madhya Pradesh State Road Transport Corporation and Others, 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 passengers. While driving he must have the passengers in contemplation and he must avoid acts or commissions 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.

(Emphasis supplied)

A Division Bench of Gujarat High Court in 1982 A.C.J. (Supp.) 377 (Supra) dealt with a case, where 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 this body protruding reasonably from the window did not receive injury when it crosses an oncoming vehicle and his duty was more than administering a mere warning. In this context, the relevant observation 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 maneuver 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 passengers that might be resting on the window of the bus or projecting there from to a reasonable extent is also avoided.

In the above Gujarat decision, it was also held that there was no contributory negligence on the part of the above said 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 and Another Vs. Janab S. Kader Sheriff and Others, 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 cross-bar, the injured did not show lack of reasonable care for her own safety and the fact that the injured had gripped the cross-bar and 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 endangers the safety of the person concerned, if the vehicle was not moving only in a broad highway, for in such a highway is no reasonable possibility of any other vehicle coming very close to the vehicle in which the person is traveling. In any event, we are not in a position to hold that mere gripping of the window cross-bar 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 P.W. 1 the injured, had acted negligently or without bar of the window when the bus was going in a highroad.

Further in 1989 ACJ 371 (supra), 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 foot board 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 above said passengers jumped from the running bus. However, the further evidence is that eye witnesses who were passengers of the bus shouted to the driver to stop the bus. In the above circumstance, it was held that the crew of the bus were 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 passengers 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 or 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 above said ingress or egress is at the rear entrance of the bus. Anyway, the point to be emphasized is that even though in the above said Venkataswami Motor Service P.N. Palayam Vs. C.K. Chinnaswamy and Others, the deceased got down from the bus in 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. Vs. M. Karumai Ammal and Others, ) also we find the following observation, though it is not a case of the deceased or injured in any way violating any laws:

Accidents 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 1992-2-L.W. 533 (supra). The relevant observation therein is as follows:

When once it is accepted by R.Ws. 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 R.Ws. 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 P.W. 3, is mere 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 above said bus stopped, was not a bus stop for the said bus, the bus actually stopped at the above said place due to the traffic jam. P.W. 1, the injured gave evidence in Chief-examination thus:

Further even in cross-examination he said thus:

Thus, it appears that even the suggestion to P.W. 1 in cross-examination was that before the above said 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 above said place, asked the passengers going to Parry''s corner to get down in the above said place itself, the relevant evidence in chief-examination by P.W. 1 is as follows:

No doubt, in this context it must be stated that P.W. 1 in cross-examination deposed that after he thus fell down, the bus did not move even a foot. But, R.W. 1, the conductor in the regard deposed that after the injured fell down, the bus moved for about 15 feet and then stopped. In this regard, the version of R.W. 1 should receive greater weight since at the movement 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 R.W. 1, deposed in Chief-Examination that at the above said place he asked the passengers not to get down, he deposed in cross-examination thus:

Taking into account the entire evidence also, we have only to held 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 at the accident. In this connection, P.W. 3, the doctor''s evidence in chief-examination is as follows:

In cross-examination he deposed thus:

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 to 10.11.1990. Further, P.W. 1''s evidence is that he was on medical leave for 7-1/2 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:

In the claim petition, the above said claim of Rs.6 Lakhs is computed as follows:

(a) Loss of earning from 21.6.1990 to 20.121990 (anticipated)

(b) Partial loss of earning from to

(c) at the next rate of Rs. 2,000-00 per month::

Rs.

12,000-00

(d) Transport to Hospital a day/week: :

Rs.

1,000-00

(e) Extra nourishment

Rs.

5,000-00

(f) Damage to clothing and articles: Dress Materials damaged :

Rs. 250-00

(g) Others

Cost of medicines purchased for treatment: :

Rs. 3.750-00

ii. Labour, pain and sufferings put on by the members of the family in attending to the petitioner. :

Rs. 53,000-00

iii. Mental agony, torture and humiliation to the petitioner because of amputation

Rs. 75,000-00

(h) Compensation for pain and suffering :

Rs. 1,00,000-00

(i) Compensation for

continuing or permanent disability if any

Rs. 2,00,000-00

(j) Compensation for the loss of earning power :

Rs. 1,50,000-00

(Rupees Six Lakhs) Total

Rs. 6,00,000-00

Learned counsel for the respondent no doubt submits that the above said 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 annually 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 above said 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/- 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.