Prabhakar vs Bharat Co-operative Transport Society Ltd. and Others

J.S. Verma, J.—This is an appeal by the claimant Prabhakar u/s HOD of the Motor Vehicles Act against dismissal of his entire claim for compensation arising out of a motor accident.

The claimant Prabhakar aged about 33 years was employed as a teacher in the Education Department of the State Government and was posted at Madhyamik Vidyalaya, Tanodia, tehsil Agar, district Shajapur. His montly salary then was Rs. 241/-. The claimant was going to Ujjain on 11-4-1971 in bus No. M. P. E. 1650 to appear at the M.A. (Final) examination in Economics which was to commence from 13-4-1971. This bus was owned by Respondent No. 1, driven by Respondent No. 2 Abdul Gafoor and was insured with Respondent No. 3 at the relevant time. The claimant was sitting in this bus behind the driver in the 4th row near the window. The bus had left Agar for Ujjain and when it was a few, miles from village Ghosla, it met with an accident.

At that place, there were three bullock carts on the left of the road going in the same direction. The bus driver over-took two of them, but the third turned towards its right before it could be over taken. The driver suddenly swerved the bus further towards its right to avoid a direct impact with the bullock cart and then brought it back on the road. According to the clai-ment, this sudden swerve of the bus resulted in a branch of tree breaking and hitting his right elbow within the bus. On the other hand, the Respondents contend that the claimant was sitting with his right elbow on the window sill with the result that the branch of the tree hit his right elbow. There is no dispute that the injury sustained by the claimant was serious which has resulted in his right arm below the elbow being rendered useless. The claimant was present in person at the hearing and he showed to us the condition of his right arm, which below the elbow is a useless appendage. Thus, permanent disability of the claimant to this extent is not in dispute. On the pleadings, the dispute between the parties is only with regard to the speed at wich the bus was travelling and the place where the claimant had placed his right elbow.

The Tribunal came to the conclusion that the bus was being driven at a speed of 40 to 50 kilometres per hour, at the time of the accident, which could not be called excessive or rash in the circumstances of the case and that the accident was not caused as a result of the rashness or negligence of the bus driver. Consequently, it was held that the claimant was not entitled to get any compensation. The Tribunal has, however, held further that in case the claimant was entitled to get compensation, the amount of Rs. 7,500/- was reasonable and just compensation in the present case. On these findings the claim has been dismissed. In the present appeal by the claimant, the claim for the compensation is confined only to Rs. 7,500/-.

The first question for our consideration is regarding the alleged negligence of the bus driver. Abdul Gaffoor (D.W.I), the bus driver has admitted that he had seen the bullock carts from a distance of 1 or 1 1/2 furlongs he was driving the bus at 25 to 30 Kilometres per hour when he first saw the bullock carts and that he continued to drive the bus at the same speed even while overtaking the bullock carts without reducing the speed of the bus towards its right had dashed against a tree on the right edge of the road the berms i.e. kachcha portion of the road were 3 feet wide on either side of the tarred road it was not possible for him to stop the bus when the bullock cart turned towards its right and that the bus could be stopped at a distance of 4 to 5 feet when travelling at 10 to 15 kilometres per hour. Gopal (D.W.2) who was also a passenger in the bus states on his estimate that the bus was travelling at a speed of 30 kilometres per hour at the time of the accident. It is clear from the statement of the driver himself that he did not reduce the speed of the bus at any point of time after sighting the the bullock carts from a distance of 1 or 1J furlongs till the accident took place. Being the driver of that bus, his statement that the bus when travelling at the speed of 10 to 15 kilometres per hour could be stopped within 4 to 5 feet, is also significant to prove the condition of the bus. There is no other evidence to suggest to the contrary pointed out to us. Janmejai Soni (P. W. 4) and Ismail (P.W. 5) are two other witnesses, who were passengers in that bus. Janmejai Soni (P.W. 4) had taken the claimant to the Hospital after the accident. This witness states that the bus had stopped at a distance of 50 to 60 paces after the place of the accident. There is no cross-examination of the witness on this point. He further states that a piece of the bone of the claimant''s right arm about 2\\" to 3" long had broken and it fell within the bus and the same was carried by him and given to the doctor in the hospital in the hope that it may be of some use. He further states that there was blood on the trunk of the tree with which there was impact of the bus on its right side. According to him the bus was travelling at a very fast speed and his estimate of the speed is 60 to 70 kilometres. Ismail (P.W. 5) had boarded the bus at Agar and was sitting on the seat behind the driver. According to him, the bus stopped at a distance of 40 paces from the point of accident. He has not been cross examined on this point. He also states that the tarred portion of the road was not wide enough for the bus to over take the bullock carts without going down on the kachcha portion or the berm. Sewaram (P.W. 6) was the Station House Officer of the Police Station, Ghatia, who had inspected the spot and registered an offence after report of the accident was lodged at the Police Station. He states that one bullock had also received injuries. He has not been cross-examined on this point. Thus, in addition to the facts admitted by the bus driver, the further facts proved are:?The bus could be stopped only at a distance of at least 40 paces i.e. about 60 feet beyond the place of accident. The impact of the bus with the tree was so great that a piece of bone measuring 2\\" to 3" of the claimant''s right elbow had broken and fallen within the bus. One bullock of the bullock cart also received injuries so that the driver could not totally avoid impact with the cart, the bus having hit the bullock towards its left and the tree towards its right and that only half the road was covered by the bullock cart which had turned towards its right. It is common ground that there was no other traffic within sight at the time of the accident. It is on these facts that the question of negligence has to be determined.

The Respondents have attempted to take the plea of contributory negligence on the basis that the claimant''s right elbow was resting on the window sill of the bus. Such an argument was negatived by a Division Bench of this Court in Smt. Sushma Mitra Vs. Madhya Pradesh State Road Transport Corporation and Others, . The learned Judge constituting the Division Bench in their separate, though concurring judgment have reached the same conclusion on this point. They have held that the driver of a bus which carries passengers owes a duty of care for the safety of passengers and while driving the bus he must bear in mind the fact that the passengers who sit adjoining a window very often rest their arm on the window sill by which act the elbow projects outside the window and that the driver of the bus must have these passengers in contemplation while overtaking or crossing another vehicle on the road so that he must not come too close to any object and must leave sufficient gap to avoid injuries to these passengers. Thus, even assuming that the claimant was resting his elbow on the window sill, that did not absolve the bus driver of his responsibility and the defence of contributory negligence on this ground is not available to the bus driver.

In Charlesworth on Negligence, fourth edition, at page 93 while dealing with the duty of driver at the time of overtaking, it is stated in para 213 as follows:

In all cases it is the duty of the person overtaking to allow an adequate margin of safety between his vehicle and the vehicle overtaken, and to overtake only when he can do so without causing danger to other traffic.....

Animals should be passed slowly and given plenty of room. The driver should stop if necessary or if signalled to do so.

Further in para 214 with regard to the speed, it is stated as follows:

It is the duty of the driver or rider of a vehicle to travel at a speed which is reasonable under the circumstances. In determining what is reasonable, the nature, condition, and use of the road in question, and the amount of traffic which is actually at the time, or which might reasonably be expected to be on it are important matters to be taken into consideration.

This being the duty of the driver with regard to speed and at the time of overtaking, we have no doubt that the facts of this case disclose the negligence of the bus driver Respondent No. 2. It is a matter of common knowledge that animals on the road do at times turn suddenly so that they have to be passed slowly giving them plenty of room and at a speed which enables the driver to stop, if necessary. Admittedly, in the present case the driver ignored this salutory caution which has to be observed by the driver of motor vehicle passing an animal. The driver on his own admission did not reduce its speed even after sighting the bullock carts from a considerable distance and that too when obstruction in the shape of trees were present on other side. The speed of the bus was undoubtedly not reasonable under the circumstances since it could stop only at a distance of atleast 40 paces i.e. about 60 feet after the impact when the condition of the bus was such that it could be stopped at a distance of 4 to 5 feet while travelling at the speed of 10 to IS kilometres. It is also significant that the bus hit the bullock on its left and the tree on its right so that the driver could not avoid impact on either side. In our opinion, these facts clearly prove the negligence of the driver. In Bingham''s Motor Claims Cases, Sixth edition, relying on the basis of an English decision, which is not available in the Bench Library, at page 46 it is stated as follows:?

The fact that a bus struck a fence after a swerve raised a presumption of the driver''s negligence despite the explanation that the swerve was due to a child''s sudden running across the road.

We are, therefore, of the opinion that the bus driver''s negligence is proved beyond doubt in the present case.

Mr. Garg, however, contends that this was a case of inevitable accident. In Charlesworth on Negligence, Fourth edition, at page 551, it is stated as under:

There is no inevitable accident unless the Defendant can prove that something happened over which he had no control and the effect of which could not have been avoided by the exercise of care and skill.

We have already shown that the accident could be avoided by exercise of care and skill in the present case and it happened on account of the negligence of the driver. There can be no inevitable accident when negligence of the driver is made out. Mr. Garg then relies on Dwarka Nath v. R.S.N. Co. Ltd. A I.R. 1917 P.C. 173 That case is inapplicable. That was a case where action was taken in a sudden emergency on account of fire and it was to meet a situation of extreme peril, in the present case, the situation could be easily foreseen by the bus driver, who shut his eyes to the normal course of events. Mr. Garg also relies on M.S. Srikantaiah v. Hanumanth AIR 1954 Mys. 138 in which reliance was placed on this Privy Council decision. The facts of that case are distinguishable. No space was left on the road for the bus to move when the bullock carts turned across the road and it was no body''s case that the bus was being driven at a high speed. That decision also is inapplicable.

The question now is of the quantum. The appeal is confined only to the amount of Rs. 7,500/- which has been assessed by the Tribunal in case negligence is made out. We do not find any infirmity in this assessment and nothing justifying reduction in the amount is shown to us on behalf of the Respondents. In our opinion, this is the minimum compensation to which the claimant is entitled for the injuries sustained by him.

The result is that this appeal succeeds and is hereby allowed with costs. Counsel''s fee according to schedule, if certified.