IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CIVIL MISC. APPEAL No. 191 of 1997 RAJASTHAN STATE ROAD TRANSPORT CORPORATION V/S RAJENDRA SINGH & ANR Date of Judgment : 16.4.2009 HON'BLE SHRI N P GUPTA,J. Mr. DHIRENDRA PANDEY for Mr. BS BHATI, for the appellant Mr. BHARAT SHRIMALI & Mr. SHAMBHOO SINGH, for the respondent BY THE COURT: This appeal has been filed by the owner, the Rajasthan State Road Transport Corporation, against the award of the Motor Accident Claims Tribunal, Sirohi dated 7.9.96, decreeing a claim for a sum of Rs.1,73,000/- for personal injuries. The necessary facts are, that the claimant Rajendra Singh was travelling on the fateful day in the Corporation's bus No.2432 from Abu Road to Sirohi. On the way near Kivarli, one truck grazed against the bus, as a result of which his right hand was injured. He sustained compound fracture, ring finger and middle finger were amputated. It was pleaded that the bus was being driven at a fast speed and negligently, on account of which the accident occurred. A total compensation of Rs.12,31,000/- has been claimed. The claim was contested by the Corporation. The stand taken was that the accident occurred on account of negligence of the truck driver only, inasmuch as, the bus was being driven at a reasonable speed, and on the correct side, and an unknown truck came from opposite direction, and grazed against the bus and ran away, wherein there is no negligence of the bus driver. The injured was carried to Abu Road Hospital. FIR was lodged in the Police Station by the driver of the bus, against the truck driver, and in that FIR, during investigation, the claimant gave his statement to the Police, wherein also he attributed negligence to the truck driver only. It was also pleaded that the claimant had kept his hand protruded out side the window, and it was only on that count, that he received injuries, otherwise no other passenger got injured. Thus, the claimant himself was negligent in sustaining the injuries. Nature of the injuries, and consequences were also disputed, and it was pleaded that only superficial minor injury was sustained. The learned Tribunal found it to be a case of composite negligence of the bus driver and truck driver, and held, that in such case, the claimant can lodge claim against any of the joint tort feasors. Regarding the hand of the claimant, being protruding out, it was found, that since the bus driver had seen the truck from a distance about 500 fts., he should have kept sufficient distance to allow clear passage to the truck. Thus issue No.1 regarding negligence was decided in favour of the claimant. Deciding issue No.2, the learned Tribunal assessed a sum of Rs.11,500/- to be payable for the medical expenditure, for 2 which documents have been produced by the claimant. Likewise, Rs.1500/- have been awarded as transportation expenditure for which also documents are there, and assessed the loss of income at Rs.1,35,000/-, treating the claimant to have suffered 50% disablement of permanent nature. Then Rs.15,000/- has been awarded as general damages. Thus, a total award of Rs.1,73,000/- has been passed. Arguing the appeal it was contended by learned counsel for the appellant, that the finding of the learned Tribunal on the question of negligence is bad, inasmuch as, as is clear from Ex.D1 and D6, which are the statements of the claimant and Inder Singh, recorded during investigation on FIR, that the accident occurred solely on account of negligence of the truck driver. FIR in this regard was also lodged by the bus driver, not only that, since accident was due to the fault of the truck driver, the bus driver immediately chased him upto Mawal, but he could not be caught. Copy of the FIR is produced as Ex.43. It was also contended, that even from the evidence of the claimant, the negligence has not been established. On the other hand, the driver of the bus has appeared as N.A.W.1, who has clearly explained, that he was driving the bus on the correct side, and at a slow speed, and that the truck driver came at a fast speed, and went away, grazing rear part of the bus, and has also proved the site plan, and site inspection note. Then the Investigating Officer, Ranjeet Singh has also been examined by the appellant, who has clearly proved, that the accident, according to him also, occurred on account of negligence of the truck driver, but F.R. had 3 to be given because the truck driver could not be identified and located. Thus, according to the learned counsel, the finding on issue No.1 is bad, and the claim is liable to be dismissed. The other submission made is, that in any case, since it is clear on record, that it was the claimant, who kept his hand protruding outside the bus, and that is the sole reason, on account of which the accident occurred, otherwise notwithstanding the truck grazing against the bus, no injury would have been received by the claimant. In such circumstances, according to the learned counsel, the claimant is also guilty of contributory negligence. In this regard reliance was placed on the judgments in Girish Transport & Anr. Vs. Pedro Salvador & Ors., reported in 1988(1) ACJ 509, and Trilok Chand Vs. Purshottam & Ors., reported in 2007(4) ACJ 2473, both being Division Bench Judgment of Bombay and M.P. High Courts respectively, wherein in identical circumstances, the victim was found to be guilty of contributory negligence, and the contribution of the victim was assessed at 25%. On that basis, it was submitted, that in the present case also even if the quantum is not interfered with, it was required to be proportionately reduced, to the extent of contributory negligence of the claimant. On the other hand, learned counsel for the claimant supported the findings, and submitted, that the claimant had clearly stated that he never gave any statement to the police. Of course FIR was lodged, but then the evidence produced by the claimant on record cannot be 4 brushed aside. Learned counsel invited my attention to the evidence of N.A.W.3 Inder Singh, whose statements have been produced as Ex.D6. This Inder Singh has deposed, that truck was moving in the correct side, the bus driver lost the balance, and the two vehicles grazed. He has stated to be not aware, as to on account of whose negligence the accident occurred. He has also disowned to have given any statement to the police. According to learned counsel, from this also it is clear, that the bus was not being driven with requisite care and caution. Then it was submitted, that as a matter of fact, the hand of the claimant was not protruding out, rather he was holding the pipe inside the bus, and therefore, he cannot be said to be guilty of any contributory negligence. I have gone through the record and have considered the submissions. Of course it is true that after the accident, the bus driver chased the truck driver, by going upto Mawal, but he could not be caught. This is one aspect of the matter, which may indicate that there was negligence on the part of the truck driver in causing the accident, and FIR was also lodged, but then, this circumstance does not negative existence of any negligence on the part of the bus driver either or altogether. A look at Ex.D2 and D3 site inspection note, and site plan respectively, read with the statement of the driver N.A.W.1 Bhima Ram, who has clearly deposed, that Abu Road is towards north, and Sirohi is towards south. Same is the position shown in Ex.D3, and according to Ex.D2, the place of accident is said to be 5 point A, which is western edge of the road. The Investigating Officer Ranjeet Singh has also proved these documents. He has stated, that at the time of site inspection, the bus was not there on the spot, and has also stated, that the place of accident was mentioned to be the one, as shown by the driver of the bus. In my view, if the site plan and site inspection note are properly read, and comprehended, they do clearly negative the aspect about the bus being driven on the correct side, so as to hold, that the bus driver was not negligent at all. May be, that the truck driver was also negligent, but then, from the record it cannot be said, that the learned Tribunal was in error in finding it to be a case of composite negligence. Obviously in the case of composite negligence, the victim can claim compensation from any of the joint tort feasors. Then coming to the aspect of contributory negligence, a look at the injury report Ex.D1 shows, that the victim had received crush injury on right hand, from middle of the forearm to fingers, exposing bone fractured at forearm. It is required to be comprehended, that from the evidence it is clear, that the bus was Express Bus, as contra-distinguished from Deluxe and Super-Deluxe bus, there is nothing to show, that there was any pipe available inside the window of the bus, as well available to be held by the claimant, without protruding his hand out. In such circumstances, unless and until the hand had protruded out, the crush injury in the right hand would not have been received by the claimant. If any injury were to be received 6 by the pieces of glasses, which were broken, that might have caused incised would, or lacerated wound, as the case may be, depending on the object hitting the hand, but receiving of crush injury, does clearly show, that the hand did happen to be crushed by impact of some part of both the vehicles, obviously because the hand was protruding out. In such circumstances, when A.W.2 has deposed, that Rajendra Singh was holding pipe installed in the window, it is obvious, that the claimant was holding pipe available outside the window, and thus, he received injuries. Thus, in my view, the claimant did contribut in his receiving injuries, by keeping his hand protruding out. That being the position, following the ratio in the judgments in Girish Transport’s case and that in Trilok Chand’s case, the contributory negligence of the claimant is required to be assessed at 25%, and is so assessed. Coming to the cross-objections, all that has been contended is, that the assessment of compensation made by learned Tribunal is inadequate. It would suffice to say, that the claimant had deposed to be earning Rs.1000-1500/- on an average per month, and the learned Tribunal had assessed his income at Rs.1250/- per month. Then the amount of expenditure, as evidenced from all the documents, has been awarded taking them on the face value. In such circumstances, it cannot be said that the assessment of compensation is inadequate. Consequently, I do not find any force in the cross-objections. The same are, therefore, dismissed. 7 However the appeal is partly allowed, and the amount of compensation awarded is reduced by 25%, being the extent of contributory negligence of the claimant. Thus the claimant will be entitled to the extent of 75% of the amount awarded by the learned Tribunal. The parties are left to bear their own costs. ( N P GUPTA ),J. /tarun/ 8