U.P. State Road Transport ... vs Ram Bhani
2017 Latest Caselaw 3635 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 75 of 2006
 

 
Appellant :- U.P. State Road Transport Corporation
 
Respondent :- Ram Bhani
 
Counsel for Appellant :- Samir Sharma,Dinkar Mani Tripathi
 
Counsel for Respondent :- Ajay Kumar Maurya
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the U.P. State Road Transport Corporation (hereinafter referred to as the corporation) against the award dated 7.10.2005 passed by the Motor Accident Claims Tribunal, Jaunpur in MACP No. 176 of 2003. It is an injury case. Under an interim order of this Court, entire decretal amount stands deposited with the Tribunal. Half of that amount would have been released in favour of the claimant respondent, in terms of that order and balance would be lying in a term deposit.

According to the claim case, on 29.6.2003, the claimant was travelling on a bus of the corporation bearing registration no. UP 65-R/3597 from Jaunpur to Varanasi, when at about 5:00 pm, the said bus grazed (on right hand side of the driver of the bus) with an on coming truck. It was then stated, in that accident the claimant suffered injuries caused by the metal sheet of the bus body that cut through the claimants right hand above the elbow, resulting in amputation of his right hand.

In the claim proceeding, the corporation disputed the negligence attributed to the driver of the bus and pleaded negligence of the claimant as the cause of accident. It stated, the claimant had been warned, both by the conductor, driver as also some co-passengers of the bus to keep his hand and head inside the bus but that the claimant did not pay heed to the advice and warning thus given to him.

The Tribunal then framed issues as to the cause of accident and also as to negligence if any of the claimant.

The Tribunal took note of the evidence led by the corporation wherein the conductor and the driver of the bus, both stated, before the accident occurred, the claimant had been found to be repeatedly putting his head and hand out of the window to spit. Also, it was stated, he was asked refrain from doing so but he did not heed to repeated warnings given to him and therefore, the corporation was not liable for compensation.

The Tribunal found, claimant suffered injuries on account of the truck having grazed the bus of the corporation in which the claimant was travelling. This accident resulted in injuries to the claimant and another passenger Ramdhani who was sitting near the claimant. Therefore, the Tribunal decided the issue of negligence in favour of the claimant and against the corporation.

Learned counsel for the corporation submits, the award of the Tribunal is perverse. According to him, the negligence was of the claimant as he put his hand out of the window of the bus, despite being warned. According to him, the corporation stood absolved in so far as it stood established, the driver, conductor and co-passengers of the claimant had warned the claimant to keep his hand inside the bus.

First, though the driver and conductor of the bus stated the fact of the claimant having been warned not to put his head and hand out of the window but they admitted the fact of the truck having grazed the bus. Also, undisputedly, the claimant did not suffer any injury to his head and it remained undisputed by the said driver and conductor of the bus that the bus body sheet which got torn off the bus body upon contact made by the truck, cut through the right hand of the claimant above his elbow. Also, it remained undisputed, another passenger Ramdhani who was sitting near the claimant also received injuries in the accident. The corporation has not attributed any negligence to Ramdhani.

Thus, as to facts, it appears claimant did not receive of injuries on account of having stuck out his hand and head out of the window of the bus. Rather, he was seated with hand resting on the window sill when the accident occurred. The truck tore through the bus body and its sheet cut through the right hand of the claimant above the elbow, without the claimant getting a chance to save his hand. The impact appears to have been strong as the passenger sitting near the claimant also received injuries.

It is undisputed case of the corporation, and its witnesses specifically admitted, that the bus of the corporation bearing registration no. UP 65-R/3597 had grazed with an on coming truck, in as much as they stated the said truck had grazed against the bus of the corporation, as the bus of the corporation crossed the truck.

Thus, the claimant suffered accidental injuries resulting in loss of a limb in the motor accident involving physical contact made between the two vehicles.

Physical contact between two vehicles while in motion, coming from opposite directions, on a public road or highway, is neither a normal act nor a risk that a passenger travelling in either of the vehicles may be presumed or assumed to have accepted as a risk inherently involved upon his boarding such vehicle to undertake journey, against a valid travel ticket.

In Municipal Corpn. of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731, the Supreme Court held :

"6. The plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance "negligence" is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn., para 328.) It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn., p. 361.)

7. At this juncture, it is necessary to refer to the "doctrine of last opportunity". The said doctrine is said to have emanated from the principle enunciated in Davies v. Mann1 which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation. [See Davies v. Swan Motor Co. (Swansea) Ltd.2] Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in Volute3 and Swadling v. Cooper4, it is no longer to be applied. The sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party's negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence.

8. Though the driver may not have been in this case wholly responsible for the accident, as contended, from the mere fact that the victim acted in contravention of a traffic regulation alone, complete immunity from liability of the driver or the appellant Corporation for the accident so as to disown totally the responsibility to compensate the injured or dependants of the victim cannot be accorded also. Merely because there may have been a breach of any traffic regulation, in the absence of concrete, clinching, positive and legally acceptable material to fix the sole responsibility for the accident only on such injured/victim, which is conspicuously absent on the facts and circumstances of this case, the liability of the appellant Corporation, though to what extent, remains to be considered further. Even according to the stand of the Corporation, the victim was seen by the driver from a distance of about 30 ft and the vehicle was moving at a snail's pace. If that be so, it is not understood as to how it became totally impossible for the driver to avoid the accident has not been substantiated by proper evidence. In fact the High Court has noticed that there was ample scope for avoiding the collision between the cycle and the bus. The evidence on record also establishes that the bicycle was thrown to a distance of 4-5 ft. Before taking the turn, the horn was found not blown by the driver. The application of the brakes and the incident of collision between the cycle and the bus seem to have been almost simultaneous. The stand of the Corporation that the bus had come to a halt much prior to the incident of the collision is not acceptable and though has been rightly rejected by the Tribunal and the High Court, the infirmity in their orders also lay in rejecting the plea of contributory negligence completely. The Tribunal as well as the High Court ought to have appropriately apportioned the negligence keeping in view the materials placed on record and properly balancing rights of the parties".

(Emphasis supplied)

Then in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, (2002) 6 SCC 455, the Supreme Court held as below :

"9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of the defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of a defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley v. Austrust Ltd.1 is worthy of quoting:

"A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."

10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling v. Cooper2 AC at p. 9 Lord Hailsham said: (All ER p. 260 D-E)

"Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence. The plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances."

11. It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as a result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the respondents to contend that the driver of the car was trying to overtake a truck which was going ahead of the car. The appellant car driver had also pleaded that the truck driven by the second respondent was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three-feet width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the second respondent almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellant's failure to swerve to the extreme left of the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the second respondent, the truck driver had no case that the appellant was negligent".

(Emphasis supplied)

Then again Ramesh Kumar Awasthi Vs The Collector reported in AIR 1982 (All) 425 was a case of loss of fore arm of the passenger claimant travelling in a bus. In that case, the claimant had rested his forearm on the window sill of the bus and he suffered the injury as the bus he was travelling in grazed against an on coming bus. A division bench of this court held as below :

"7. The legal position is clear that it is the duty of the driver to drive the vehicle in such a manner as to safeguard the safety of the passengers. If two vehicles while crossing each other graze their bodies without there being any justification for the same, a presumption about the negligence of the drivers would arise. Both the drivers should have realised that if the two vehicles cross each other in speed without leaving sufficient space between them the safety of the passengers would be jeopardised. It was the duty of both the drivers to ensure safety of passengers.

9. It is a matter of common knowledge that passengers sitting near the window rest their hand on the window sill specially when on a long journey in the country-side. The driver of a bus carrying passengers on long journeys is expected to have knowledge of this fact. The drivers of the two buses were bound to take precaution against the possibility that while grazing each other some person might be placing his hand or elbow on the window sill. Since the two vehicles came too close to each other resulting into accident without there being justification for the same it has to be presumed that the drivers had failed to take reasonable care for the safety of passengers and therefore they were negligent. In Jamnagar Motor Transport Union v. Gokaldas Pitambar's L.Rs. (1966 Acc CJ 42) the Supreme Court in a similar situation where the two buses grazed while crossing each other held that both the drivers were negligent. The view that we are taking has been taken by various High Courts in a number of cases. Reference may be made to State of Punjab v. Smt. Guranwanti (AIR 1960 Punj 490), Sushma Mitra v. M.P.S.R.T.C (1974 Acc CJ 87): (AIR 1974 Madh Pra 68), Delhi Transport Undertaking v. Krishnawanti (1972 Acc CJ 423): (AIR 1973 Delhi 196) and General Manager State Road Transport Corpn. v. Krishnan (AIR 1981 Kant 11 : 1981 Acc CJ 273)".

Applying the aforesaid principle, to the facts of this case, there appears no doubt the accidental injuries were suffered by the claimant due to negligence of the driver of the bus of the corporation and not the claimant himself.

In so far as a defence has been raised by the appellant based on the statement made by the driver and conductor of the bus as that the negligence was of the on coming truck (that is other vehicle), looked at from the point of view of the injured passenger/claimant, it is a case of composite negligence. The award made by the Tribunal against the corporation cannot be said to suffer from any infirmity. The claimant is well entitled to compensation from the corporation.

In view of the above, award does not suffer from any infirmity. The appeal lacks merits and dismissed.

Remaining amount lying deposited with the Tribunal shall now be released in favour of the claimant respondent expeditiously within a period of three months from today.

Order Date :- 25.8.2017

Mini