Nirmal Singh vs Haryana Roadways and Others

V.S. Aggarwal, J.—This is an appeal filed by Nirmal Singh S/o Santokh Singh, hereinafter described as "the appellant", directed against the award of the Motor Accident Claims Tribunal, Kurukshetra, dated 19.3.1987. By virtue of the impugned award, learned Tribunal dismissed the application filed by the appellant seeking compensation.

The appellant is a carpenter. On 20.8.1995 he was travelling in a bus of Haryana Roadways bearing registration No. HYR 6711. The bus was going towards Pehowa. The appellant was occupying one of the seats on the back side of the bus and was sitting next to the window. When the bus reached near village Thyol at about 2.30 p.m., a car come in front of the bus. Meanwhile a truck also came from the opposite direction. The driver of the bus applied brakes and took the vehicle towards his left. In the meantime, the hind portion of the bus hit with the truck. The right elbow of the appellant was fractured. The driver of the bus took the appellant to the hospital at Pehowa. Thereafter, the appellant was referred to hospital at Karnal. The sister of the appellant was also travelling in the bus. The appellant claimed compensation of Rs. 1,10,000/- from the respondents for the rash and negligent driving of bus by Des Raj, driver of Haryana Roadways Bus. He claimed that his monthly income was Rs. 1,500/-. His one arm has been disabled.

Needless to state that in the reply filed, the respondents contested the application. It was averred that it was the exclusive fault of the appellant because he had taken out his elbow outside the window. The fault could be of the truck driver. The bus was being driven at a very slow speed.

Learned Motor Accident Claims Tribunal framed issues and with respect to issue No. 1, the Tribunal returned the finding that driver of the bus while driving the bus cannot notice each and every passenger who has taken out his limb outside. It is not the fault of the driver and, therefore, there was no rash or negligent act on the part of Des Raj driver. Keeping in view the said finding, the appellant was held not entitled to any compensation. The claim petition was accordingly rejected.

Aggrieved by the same, the present appeal has been filed. At the time of arguments when the case was listed, none appeared on behalf of the respondents. It is very unfortunate that pertaining to an accident of more than 13 years ago when the appeal is listed, none appeared on behalf of the respondents. Obviously no adequate care is being taken'' to defend the litigation for and on behalf of the respondents. Since it was an old appeal, it was wholly unnecessary to relist it again for arguments. In these circumstances, the Court did not have the advantage of hearing the respondents counsel.

The main question appealed has been that Des Raj was driving the vehicle in a rash and negligent manner. There was no controversy that at that time he was discharging his official duty. The reasoning, as noted above, of the Tribunal has been that the driver of the bus could not know while driving the bus as to if any passenger is protruding his arm outside. It was the negligence of the appellant himself.

Nirmal Singh appeared as PW1 and stated that the bus driver had applied the break and had taken the bus towards his left. In doing so, the hind portion of the bus had hit the truck. His right elbow was fractured. At that time the bus was trying to overtake a cart. He denied that at that time his elbow was outside the bus or it was exclusively his mistake. Manjeet Singh, PW3, a co-passenger, has also supported the version of the appellant. As against this, the driver of the vehicle Des Raj, RW1, stated that the appellant was travelling in the bus. He was occupying a rear seat and has placed his arm outside the widow. There were two rods fixed in the bus to avoid passengers to take out their limbs outside the body of the bus. When the truck passed the bus. its body struck against the protruding arm of the appellant. It was fractured. Thus, it is established even from the statement of Des Raj that the right elbow of the appellant was fractured while Des Raj was driving the vehicle. On the other side a truck was seen coming and Des Raj was taking the bus towards left side. It must follow that the bus was very close to the truck as a result of which this accident took place.

Can under these circumstances it be held that it was negligence on the part of the appellant himself or it was that of respondent Des Raj driver of the bus ? It is common knowledge that passengers travel in the bus with their elbows resting on the window-sill. It is not proved on record that there is any prohibition against it. Keeping in view the same, the appellant cannot be held to have failed to use reasonable care for his safety.

On contributory negligence, Halsbury''s Laws of England, 3rd Edn., Vol.28, p.90, states thus :

" A person is guilty of contributory negligence if he ought reasonably to have foreseen, if he did not act as a reasonable prudent man, he might hurt himself, the plaintiff is not usually bound to foresee that another person may be negligent unless experience shows a particular form of negligence to be common in the circumstances. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is at best a matter of doubt, the defendant alone is liable."

The standard of care expected of a person in such circumstances is what a reasonable man would have done. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseenability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man, he might hurt himself in doing a particular act.

House of Lords while considering the question of reasonable care held in A.C. Billings and Sons Ltd. v. Riden (1958) AC 240 thus :

" But in considering what a reasonable person would realise or would do in a particular situation, we must have regard to human nature as we know it, and if one thinks that in a particular situation the great majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way. A reasonable man does not mean a paragon of circumspection."

This question has been considered by this Court as early as 1960 in the case of State of Punjab and Another Vs. Guranwanti, . It was held that it is well known that often passengers travel with their elbows resting on the window of the car, it cannot be held in these circumstances that those passengers were guilty of negligence. Madhya Pradesh High Court also considered the said controversy in the case of Sushma Mitra v. M.P. State Road Transport Corporation and Ors. 1974 A.C.J. 87. In the cited case, the appellant was a passenger in a bus. She was resting her elbow on the window-still. A truck was coming from the opposite direction. While crossing the bus, the truck hit the elbow of the appellant. It was held that it was not a case of contributory negligence and in this regard it was observed in paragraph 10 of the judgment as under :-

".......When the vehicles comes so close while crossing each other as to injure the elbow of the plaintiff, it must be inferred in these circumstances that both the drivers or one of them was guilty of negligence in coming too close while crossing each other. What were the factors that led to the accident were in the special knowledge of the two drivers. The circumstances, therefore, call for an explanation from them and if they fail to place the relevant facts before the Court, adverse inference must be drawn against them."

Similarly, Gujarat High Court in the case of Chaturji Amarjit and Ors. v. Ahmad Rahimbux and Ors. 1980 A.C.J. 368 was concerned with a similar proposition. The passenger was resting his elbow on the window-still. A truck was coming from the opposite direction. The bus and the truck grazed each other. Forearm of the passenger was severed. It was held that the driver of the bus even was liable and could not escape liability to pay damages. Kerala High Court in the decision rendered in the case of Beeravu Vs. K.K. Damodaran and Others, took the same view where left hand of the passenger was injured when the bus hit against an electric post. The defence was as in the present case that the injured had placed his hand outside the bus. It was held that it was the duty of the driver to ensure sufficient space between the bus and the other object. The findings returned in paragraph 6 of the Judgment are as under :-

"The driver of the bus must ensure sufficient space between the bus and other objects. A passenger cannot be held guilty of contributory negligence when in the normal practice any portion of his body is outside the bus, even in case it is taken for arguments sake that the claimant put his hand on the side window of the bus."

Another Bench of this Court in the case of Prem Devi v. Harbhajan Singh and Ors. (1984) 86 P.L.R. 459 took the same view where almost on identical facts when passenger was resting her hand on the window-sill the bus grazed against the stationery bus, it was held that the driver of the bus was negligent because he did not leave sufficient space between the bus and the other vehicle or the object.

In these circumstances, keeping in view the settled principle that has been referred to in various precedents above, it is clear that respondent Des Raj who was the driver of the bus did not leave enough space between the vehicle that he was driving and the truck. Because of grazing, right elbow of the appellant was fractured. The driver was driving the bus negligently and it is because of his negligence that the accident took place. The blame cannot now be placed on the appellant. The findings of the learned Tribunal in this regard, therefore, cannot be sustained.

At this stage, reference with advantage well be made to the statement of Dr. R.K. Goel, RW2, who is the Block Medical Officer, P.H.C., Pehowa. He stated that when the appellant was brought to him for medical examination and treatment, he had told him that he had suddenly been injured and nobody is responsible for it. This statement so made by the doctor Goel is inconsequential because, firstly, the attention of the appellant was not drawn towards it, and, secondly, because of the finding arrived at on the basis that even on the facts stated by Des Raj it was apparent that he was negligent in driving the vehicle.

The only question that survives for consideration is as to what compensation, if any, the appellant is entitled to recover. The appellant''s version was that he was earning about Rs. 1400-1500/- per month as a carpenter and now he is unable to do his work. He spent about Rs. 12,000/- to 14,000/- on his treatment and Rs. four to five thousand on special diet. He had engaged a servant at Rs. 400/- per month to look after him. Dr. P.K. Bhatia, PW1, had stated that the appellant had suffered a disability of 28%. There is a deformity in 4th and 5th finger. As regards the joint of elbow, the same is to improve with the passage of time.

There is nothing on the record to show that appellant has not spent about Rs. 12,000/- on his treatment and Rs. 4,000/- for his extra diet. He is thus entitled to Rs. 16,000/- in this regard. The statement of the appellant that he has engaged a servant at Rs. 400/- per month is not believable because the appellant is not totally handicapped. The said claim is disallowed.

As regards other compensation, because of deformity in the fingers and the joint of the elbow it is obvious that appellant will not be able to carry out his work as carpenter as promptly as before. There will be reduction in his efficiency though he can carry on his work with some difficulty. There would be loss of earning to the extent of about 50% of the amount he used to earn earlier. Therefore, taking stock of the said fact, Rs. 44,000/- appears to be adequate compensation in this regard.

For these reasons, the appeal is allowed and award of the Tribunal is set aside. The appellant is awarded compensation of Rs. 60,000/- (Rs.16,000/- + Rs. 44,000/-) Respondent Des Raj and Haryana Roadways would be liable to pay the same. The appellant would be entitled to interest at the rate of 12% per annum from the date of application till final payment is made.