IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.04.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.No.1181/2003 The Managing Director Tamil Nadu State Transport Corporation Limited Coimbatore Appellant/2nd Respondent Vs 1.K.V.Ajeezkumar alias Azee Ist Respondent/Petitioner 2.M.Muthusamy-Given Up IInd Resondent/1st Respondent Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 14.9.2001 made in MCOP.No.224/1998 by the learned Sub Judge (MACT) Bhavani, Erode. For Appellant : M/s.Rajnish Pathyil For Respondent : Mr.P.P.Shanmugasundram-R1 R2 given up JUDGEMENT This Civil Miscellaneous Appeal is filed by the Tamil Nadu State Transport Corporation Limited against the Judgement and Decree dated 14.9.2001 made in MCOP.No.224/1998 by the learned Sub Judge (MACT) Bhavani. 2. On 17.9.1997 at about 11.00 am, the 1st Respondent/claimant was travelling in the bus bearing Reg.No.TN-38- N-0184 belonging to the Appellant Corporation from Palani to Coimbatore enroute Pollachi. When the bus was proceeding near Thippampatti, the bus driver swerved down the bus and hit the lorry which was crossing it, due to which, the right hand of the claimant, who was seated in the rear seat near the window, was fully severed, causing permanent disability to 85 per cent. Hence, the claimant filed the above claim petition, claiming a compensation of Rs.5,00,000/- under various heads before the Tribunal. 3. The Appellant in his counter filed before the Tribunal has stated that the claimant was negligent projecting his hand outside the window of the bus and there was no negligence or carelessness on the part of the driver of the bus and as such, no liability could be fastened on the driver of the bus. The Tribunal held that since the bus was driven without leaving space while crossing another vehicle in a negligent manner, the accident https://hcservices.ecourts.gov.in/hcservices/ had occurred and therefore, held that the bus driver was negligent and holding so, awarded a sum of Rs.4,43,600/- as total compensation with interest at 9 per cent from the date of the claim petition till the date of realization. As against the same, this Civil Miscellaneous Appeal has been filed by the Tamil Nadu State Transport Corporation Limited. 4. This court heard the submissions of the learned counsel on either side and also perused the materials placed on record. 5. The Tribunal has analysed the evidence and rejected the contention of the Transport Corporation that the claimant was liable for contributory negligence, as he projected his hand outside the window of the bus. 6. Mr.G.Muniratnam, the learned counsel for the Appellant contended that the Tribunal failed to consider the evidence of RW.1, the driver of the bus and erred in fastening the entire liability on the part of the driver of the bus. 7. On the other hand, Mr.P.P.Shanmugasundaram, the learned counsel for the 1st Respondent/claimant has submitted that it is the duty of the driver of the bus to take reasonable precaution in driving the vehicle on the road and no negligence can be inferred on the part of the claimant simply because he rested his elbow on the sill of the window of the bus. The learned counsel would rely on the decision of the Kerala High Court rendered in the case of O.Mammachan Vs. KSRTC and another (1994-ACJ-1262) and the decision of this court in the case of The Managing Director, Tamil Nadu State Transport Corporation Limited, Villupuram Vs. Dr.S.Rajendran (2007-1-TNMAC-412) and submit that no contributory negligence could be attributed on the part of the injured even if it is held that he travelled in the bus keeping his hand on the sill of the window. 8. In O.Mammachan Vs. KSRTC and another (1994-ACJ-1262) it is held as follows:- "9. On contributory negligence, Hals-bury'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." 10. 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 foresee- https://hcservices.ecourts.gov.in/hcservices/ ability of harm to others, so contributory negligence requires the foreseeability 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. 11. 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. 12. Applying the principles laid down by House of Lords it follows that appellant has behaved in a manner like most of the other passengers. It cannot be said that he has behaved in a negligent manner. The injuries noticed by the medical officer were on the left humerus. It is thus clear that appellant had not stretched his arm outside the bus window whereas he had only placed his elbow on the window-sill for a comfortable sitting. In the circumstances it cannot be said that appellant was negligent. The plea of contributory negligence has to be considered on the facts and circumstances of each case. Negligence could have been attributed provided a passenger has outstretched his arm while the bus was in motion and the arm has come into contact with another bus or any other object. The accident in this case happened while the bus was crossing another bus. The injuries were sustained by the elbow hitting against an electric post on the left side of the road. It is thus evident that there was no sufficient gap between the body of the bus and the electric post. In other words, the bus was taken along the extreme left side too close to the electric post. The driver has not bestowed sufficient care to see that the bus is not taken to the extreme left side. He should have foreseen the possibility of the elbow of a passenger sitting on the left side being hit by contact with the electric post. The finding of the Tribunal that the claimant was guilty of contributory negligence is, therefore, unsustainable. 9. The evidence in the present case indicated that the bus grazed the speeding lorry all of a sudden and the bus driver swerved the vehicle and in the said process, the right arm of the https://hcservices.ecourts.gov.in/hcservices/ claimant, who was seated on the rear seat next to the window, got severed and the severed part of the hand fell on the road. RW.1 the bus driver has stated that the claimant, who was having his hand folded, suddenly projected his hand outside the window, which resulted in severing of his hand. But, according to the claimant, he was resting his elbow on the sill of the window and suddenly when the bus swerved, his arm got severed. It could be straight away said that there is no evidence to show that any precaution to the effect that passengers should not keep their hands outside the window was administered to the passengers at the time of the accident or prior to the accident. Even other wise, it is the duty of the driver to leave a sufficient space, while overtaking or crossing any vehicle keeping in view that it is not uncommon that the passengers some times keep their hands on the sill of the window. So it cannot be said that the claimant has attributed to the negligence, which ultimately resulted in the accident. It is the responsibility of the driver alone to drive the vehicle safely taking all precautionary measures to carry the passengers to the destination safely. He has to avoid excessive speed, follow traffic rules, have a good look out and anticipate certain contingencies, like, cattle straying on the road, public crossing the road suddenly, if it is a residential locality, etc. The driver had to take reasonable precautions like an ordinary prudent man to ensure the safety of the passengers. He cannot shirk his responsibility and escape award of damages. 10. In APSRTC Vs. Dodda Somayajulu Sitaramamurty (1983-ACJ- 44-AP), the Division Bench of the Andhra Pradesh High Court, has observed that it is not uncommon that the passengers who travel by buses rest their elbows on the window frame of the bus and no negligence can be inferred on the part of the passengers on that account. Similar view has been taken by a Division Bench of the Madhya Pradesh High Court in Sushma Mitra Vs. M.P. State Road Trasnport Corporation (1974-ACJ-87) and a single Bench decision of the Punjab and Haryana High Court in State of Haryana Vs. Ram Pal (1989-ACJ-726-P&H). Therefore, merely because the claimant was resting his elbow on the sill of the window, it cannot be said that he contributed to the accident. The Tribunal after analysing the evidence rightly held that there was no contributory negligence on the part of the claimant and the same cannot be interfered with. 11. As regards the quantum of compensation, the claimant stated that he was working in a bakery shop and was earning Rs.5000/- p.m. He had stated that he had 15 years of experience in the said field. His evidence was corroborated by PW.3, the proprietor of the bakery shop to the effect that the claimant was working in his bakery from January 1997 and was earning Rs.3,500/- to Rs.4000/- p.m. Taking the oral evidence into consideration, the Tribunal fixed the monthly income at Rs.2500/-. The claimant has sustained 85 per cent disability due to the loss of right arm, which is spoken to by the Doctors PWs.4 and 5. It is to be pointed out that with one hand off, the claimant cannot perform his duties in the bakery shop with the normal speed, ease and efficacy. No doubt, pecuniary compensation is generally worked out on the basis https://hcservices.ecourts.gov.in/hcservices/ of the loss of expected future earnings, but at the same time, relevant fact that the injured has been disabled to a larger extent and his permanent disability is about 85% is a factor which cannot be lost sight of. Since the claimant was aged 24 years at the time of the accident, the Tribunal has correclyyty applied the multiplier of 17. Thus, the Tribunal taking 85 per cent permanent disability, arrived at the loss of earnings at Rs.4,33,500/- (Rs.2500 * 12*17*85/100) and the same is just and fair compensation and cannot be interfered with. Further, Tribunal has awarded Rs.10,000/- for pain and suffering and Rs.100/- towards X-ray bill and the same are confirmed. 11. In the result, this Civil Miscellaneous Appeal is dismissed. The claimant is entitled to withdraw the award amount after giving credit to the amount already withdrawn by him with interest 9 per cent p.a. from the date of the claim petition till the date of realization. No costs. Srcm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: The Sub Judge (MACT) Bhavani + 1 cc to Mr. P.P. Shanmugasundaram, Advocate SR No.28730 + 1 cc to Mr. Rajnish Pathiyil, Advocate SR No.25976 KJI(CO) SR/17.5.2011 CMA.No.1181/2003 https://hcservices.ecourts.gov.in/hcservices/