P.B. Sawant, J.
1. The victim of the accident in the present case was a boy of 11 years, the accident having taken place at about 7.30 p.m. on 8-9-1972 on R.A. Kidwai Marg, Bombay, in a locality which is popularly known as Wadala. The victim Mohamed Rafiq Haji Umar (hereinafter referred to as 'Mohamed') along with his cousin, witness Anis had boarded a passenger bus belonging to the B.E.S.T. at Kidwai Nagar bus-stop. The bus was crowded, hence both the boys had to contend themselves with standing accommodation. Anis who was aged 13 years had got into the bus before Mohamed and was therefore standing ahead of Mohamed. Mohamed was behind him and was standing in the passage at the tail-end which was near the doorway. Behind him was a seat on which the passengers were sitting. After the bus left Kidwai Nagar bus-stop, it did not stop at the next bus-stop which was the T.B. Hospital stop and headed towards Sewri Railway Station bus stop. It appears that while it was on its way to the railway station bus-stop, the driver of the bus applied the brakes suddenly with the result that the passengers in the bus were jolted. Mohamed who was holding the upright bar lost his grip over it, lost his balance and tumbled down the steps of the bus on to the road. His cousin Anis gave an alarm. There was also a commotion amongst the passengers. The bus was therefore stopped. Anis went and informed Mohamed's father, Mohamed's house being only some distance away from the spot of the accident. Mohamed who was in a semi-conscious state complained of giddiness and injuries to his head.
2. On the same night at about 8.30 p.m., he was carried to the K.E.M. Hospital in a semi-conscious condition. The injury which was noted at the time of his admission to the hospital was a large haematoma on the right parietal occipital region. From 8-9-1972 to 15-9-1972 Mohamed remained in the semi-conscious condition. He was discharged against medical advice from K.E.M. Hospital on 15-9-1972 and admitted on the same day to the Bombay Hospital. On the next day i.e. 16-9-1972 he was operated at the Bombay Hospital for insertion of a V.A. Shunt and was diagnosed as having aqueduct stenosis. The operation was performed by witness Dr. Daftary. When he was discharged from the said hospital on 9-10-1972 the shunt was operating well and his condition was satisfactory.
3. On 13-11-1972 he had to be taken to the Bombay Hospital again as he relapsed in a drowsy condition occasionally. On 15-11-1972 the inserted V.A. Shunt was repaired. The shunt underwent repairs on two further occasions and he continued to remain in the hospital till 3-2-1973 when he was discharged. It is during this period in the hospital, that a remark was made for the first time in the medical papers that Mohamed had a large head. This fact has to be noted at this stage since it has an important bearing on the arguments advanced at the bar as to the cause of his eventual death.
4. After his discharge from the Bombay Hospital on 3-2-1973, Mohamed was taken to the K.E.M. Hospital where he remained till 26-2-1973. During this stay in the K.E.M. Hospital, witness Dr. Maskati examined him for his eye-sight and found that there was damage to Mohamed's optic nerve and the eye-sight was impaired. Hence on 5-3-1973, he was taken to the Nair Hospital where Dr. Vengsarkar examined him. He was discharged from the Nair Hospital on 10-3-1973 and his ailment was diagnosed as 'hydro-cephalus with aqueduct stenosis'.
5. He was examined again at the Nair Hospital on 23-3-1973 by Dr. Vengsarkar. Thereafter on 22-7-1973, he was taken to the Bombay Hospital once more and Dr. Ginde operated him there, on 31-7-1973 for converting the V.A. Shunt into a V.P. Shunt. He also used a new valve. This operation proved at least for the time being useful and Mohamed was discharged from the hospital on 11-8-1973 after recovery. His eye-sight however did not recover and he continued to suffer from the said defect till the end.
6. In the meanwhile on March 8, 1973, Mohamed through his guardian and father, witness Haji Umar, filed an application for compensation against the B.E.S.T. before the Accidents Claims Tribunal, claiming damages of Rs. 65,300/- consisting of special damages of Rs. 15,300/- on account of the medical expenses incurred till that time and general damages of Rs. 50,000/-. The Tribunal gave its award on 23-1-1976 holding that the applicant had failed to prove negligence on the part of the B.E.S.T. and dismissed the application. Mohamed preferred the present appeal against the said order and was pending in this Court for final hearing when further unfortunate developments occurred which are also the subject matter of the present appeal. These developments were:
On 24-4-1980, Mohamed became suddenly unconscious and was admitted in that condition to the Jaslok Hospital. At the time of his admission, the diagnosis made was that he was suffering from hydro-cephalus. He was operated there on the same day for repairing the shunt which was inserted in 1973. With this operation, he regained consciousness two days later i.e. on 26-4-1980 and continued in that condition till 3-5-1980 on which day his general condition became poor. He was transferred to the K.E.M. Hospital on the same day. We are informed at the bar that this was because there was a temporary failure of electricity at the Jaslok Hospital. At the K.E.M. Hospital, he was kept under observation upto 14-5-1980. The diagnosis of his ailment made there was hydro-cephalus with secondary ailment of aqueduct stenosis. On 14-5-1980 he was operated at that hospital for repairing the shunt when it was noticed that the ventriculo end of the shunt was blocked by brain matter. The brain matter was cleared and the fluid started flowing freely. On the next day i.e. 15-5-1980, the tube and the chamber of the ventriculo end of the shunt were replaced, and Mohamed regained consciousness. He was then removed to the Bombay Hospital on 24-5-1980, and on 25-5-1980 an operation was performed for replacement of the entire shunt. On 30-6-1980 the replaced V.P. Shunt was repaired by another operation. However, his condition became poor on 7-7-1980 and he expired on 20-7-1980. The cause of his death mentioned in the medical case papers is 'hydro-cephalus with raised intracranial tension'.
7. Thereafter an application was made to this Court in the present appeal by the parents of Mohamed viz. witness Haji Umar, the father and Rahimabai Haji Umar, the mother of Mohamed for bringing them on record as the heirs of Mohamed to prosecute the present appeal. By an order dated 2-12-1980, the application was allowed and that is how the present appeal is being prosecuted by Mohamed's parents. It has to be mentioned that the appellants after coming on the scene have not sought to amend the quantum of the original claim. They have also not asked for compensation on account of loss of consortium. On the other hand, the nature of the claim has remained the same namely general damages due to the estate of the deceased on account of the pain and suffering undergone by him and the special damages on account of the medical expenses incurred till the date of his death.
8. It may further be mentioned that it appears that before the Tribunal although medical witnesses Dr. Daftary and Dr. Maskati were examined, by consent the case was referred to Dr. H.M, Dastur, a Neuro Surgeon and the parties had agreed to abide by his opinion. The following four questions were addressed to him:
(1) Whether the applicant is having congenital abnormality since his birth (See the abnormal size of the head recorded in examination on first admission). Hello!(2) If the answer to (1) is in the affirmative, was such congenital abnormality aggravated by trauma resulting in aqueduct stenosis?
(3) Whether the applicant was operated thrice for revision of V.A. Shunt?
(4) Whether the Shunt operations were necessitated because of the applicant not following the instructions such as (i) to turn the position to sides every two hours; (ii) pump the valve off and on; and (iii) other medicines as prescribed in the discharge card dated 9th October, 1972 of the Bombay Hospital (Exh. C), when discharged from the hospital?
His opinion on the said questions were as follows:
Upon chronological perusal of these papers I find that within 8 days of the accident, in the presence of returning consciousness and speech, gross hydro-cephalus with aqueduct stenosis was diagnosed and the shunt operation performed. This period is too short for such advanced abnormalities to occur and I must conclude that these abnormalities were present before the accident. In the K.E.M, Hospital case paper 5181 of 3-2-1973 an identical opinion is expressed in two places.
Head circumference is 22-1/2 inches, abnormally large for his age.
I do not think the congenital abnormality was aggravated by the trauma resulting in aqueduct stenosis. More likely it was already present.
There were multiple revisions of the V.A. Shunt, This is not unusual.
Non-compliance with instructions to pump the shunt in my experience has been the cause of shunt failure. Patients have been brought to me in a very drowsy or unconscious state and immediately after pumping the shunt they have woken up, to the astonishment of parents, and walked home. Some parents find it very difficult to learn to perform this manoeuvre in the proper manner, or do it as frequently as is required.
9. Dr. Dastur was not examined before the Tribunal to test his opinion and the Tribunal on the basis of the said untested opinion, held that the injury sustained were not the direct result of the accident and dismissed the application for claim. Since we were of the view that the said untested opinion was not clear and satisfactory and had left some vital points unanswered and since there were further developments in 1980 resulting in additional medical expenses and the death of the victim, by our order dated 12-6-1985 we decided to record additional evidence in the matter. Accordingly, the further evidence was taken which forms part of the record. The evidence includes the testimony of Dr. Daftary who had performed the initial operation and who is examined on behalf of the appellants and of Dr. Ramani, who is examined by the respondents as an expert witness. For deciding the appeal we will have to scrutinize this evidence as well.
10. The preliminary objection which has been raised on behalf of the B.E.S.T. to the maintainability of the appeal at the hands of the parents is based upon the contention that the cause of action for compensation for the pain and suffering of Mohamed died with Mohamed and his parents cannot claim compensation on that account. We find no substance in this contention for the following reasons:
In the first instance, Section 306 of the Indian Succession Act, 1925 provides that all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
Section 110-A(1)(b) of the Motor Vehicles Act, 1939, then provides that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made where death has resulted from the accident, by all or any of the legal representatives of the deceased. Reading the two provisions together and taking the facts and circumstances of the present case into consideration, it will have to be held that the prosecution of the appeal by the parents is legal and valid. It is not disputed before us that the parents are the legal representatives of the deceased Mohamed and if it is held as we will show hereafter that his death had resulted from the accident, then the parents will undoubtedly be entitled to maintain an application and therefore the present appeal for claiming compensation as they have done.
11. We are fortified in this view by two authorities. In Piriska Rozario v. Ford Foundation : AIR1969Cal394 , repelling the very same contention, the Division Bench of the Calcutta High Court has observed that the maxim 'action personalis moritur cum persona' although an ancient English maxim and a part of the English common law, is no part of our law except to the extent that it has been recognised by statutes in this country. In the absence of any statutory provision or any established law or usage in this country recognising the sams, the courts here are entitled to invoke and apply the underlying principles of any part of the English common law, only when they are in consonance with justice, equity and good conscience. The maxim in question has been criticised, even in England, as harsh, unconscionable and unjust. In these circumstances, it cannot be applied as part of the Indian law on principles of justice, equity and good conscience. The maxim has been recognised only to a limited extent as found in Section 306 of the Indian Succession Act. We have adverted to the provisions of the said Section 306 and have pointed out the limited extent to which it has been statutorily applied. Admittedly the present case is not covered by the said limitation.
12. In Ranchhodbhai Somabhai v. Babubhai Bhailalbhai 1982 ACJ (Supp) 548 which is the decision of the Gujarat High Court, it appears that the claim for compensation was made by the legal representatives of the deceased on the ground also of pain, shock and suffering undergone by the deceased as a result of the injuries, before he died. No specific claim in that behalf was made under that head. However, the court held that the award of compensation for the pain, shock and suffering undergone by the deceased could legitimately be made and quantified the amount having regard to the duration, nature and extent of the pain and suffering.
13. This discussion should therefore conclude the respondents' contention that after the death of Mohamed, the cause of action did not survive.
14. As stated earlier, the aforesaid conclusion would be valid only if it is proved that the death was not on account of the accident. The evidence on record shows that the deceased Mohamed had received a head injury on account of the accident. The case papers of the K.E.M. Hospital prepared on 8-9-1972 viz. the date of the accident, show that when he was admitted to the hospital he was in a semi-conscious condition and he had suffered a large haematoma on the right parietal occipital region. The case papers of September 15, 1972 prepared in the Bombay Hospital further show that when the very first operation was done on that day for the insertion of the shunt, it was noticed that Mohamed had suffered a depressed fracture in addition to the haematoma. During his stay in the hospital, further, it was noticed that his left side was affected. The medical opinion on record shows that if there is a head injury on the right, the left side of the body is affected. This evidence on record therefore more than establishes that Mohamed had sustained a head injury as a result of the accident. The next question is whether the head injury suffered by him in 1972 was the cause of his death in 1980.
15. On this point we have the opinion of at least three medical men, two of them viz. Dr. Dastur and Dr. Ramani, being experts and one of them i.e. Dr. Daftary being the surgeon who had operated the deceased. The admitted facts on record show that when Mohamed was admitted to the K.E.M. Hospital first time on the date of the accident (8-9-1972), nothing was noted about the size of his head. So also when he was discharged from the Bombay Hospital on 9-10-1972 after the insertion of the V. A. Shunt and after the diagnosis of his ailment as aqueduct stenosis, nothing abnormal was noticed about his head. It was only some time during his stay in the Bombay Hospital from 3-12-1972 to 3-2-1973 i.e. nearly three months after the date of the accident, that it was noticed that he had a large head. In other words, the evidence shows that the deceased did not have an abnormal head at the time of the accident or at least for a month thereafter. The second fact that emerges from the medical evidence on record is that Mohamed had a defect known as aqueduct stenosis which in non-technical terms means a narrow passage in the brain for the flow of fluid. However there is no evidence either way to connect the aqueduct stenosis with the semi-conscious state of the deceased into which he had relapsed after the accident. According to Dr. Ramani, the deceased had an arrested hydro-cephalus i.e. accumulation of excess fluid. However, again there is nothing on record to suggest that the arrested hydro-cephalus by itself was responsible for the semi-conscious state in which the patient was found at the time of the accident. What is however on record is that on account of the accident, the deceased had gone in to a semi-conscious state and an operation was performed on 16-9-1972 for insertion of V.A. Shunt, admittedly to relieve the brain of the excess fluid which is what hydro-cephalus is. Thereafter in all four operations had to be performed during the period of about ten months from the date of the accident i.e. 8-9-1972 to 31-7-1973, the first three for the repair of the shunt and the last one for its replacement by the V.P. Shunt and for the insertion of a new valve. The object of all these operations was to ensure the smooth flow of the fluid. In other words, the medical evidence on record of the first phase which lasted till 11-8-1973 when the deceased was discharged from the Bombay Hospital, shows that the deceased had suffered from hydro-cephalus on account of the head injury and it was to relieve the deceased from the hydro-cephalus that the insertion, repair and the replacement of the shunt became necessary. Dr. Daftary (Exh. 1) stated in his deposition before the Tribunal on 27-2-1975, that at that time the shunt was working but he could not say that it would work in future. According to him further, if the shunt failed and was not replaced, the patient would get headache and ultimately he would die. In other words, the shunt was only an artificial device inserted to ensure the smooth flow of the fluid in the brain and the insertion of the artificial device became necessary obviously on account of the accident. This is because there is nothing on record to show that before the accident, the patient had ever become semi-conscious or unconscious. Although therefore the patient had the defect of the aqueduct stenosis in the language of Dr. Daftary or of the arrested hydro-cephalus in the language of Dr. Ramani, there is nothing to show that this defect had ever landed him in the condition to which he was led by the accident. It is because the accident made him unconscious that admittedly the shunt had to be inserted. There was no guarantee that this artificial device would last life-long and would not fail at any time. This is clear from the evidence of Dr. Daftary. In other words, the patient was forced to have recourse to the artificial device because of the accident and the life of the device could not be guaranteed. If this is so and if ultimately the second phase in 1980 developed on account of the failure of the said artificial device which failure ultimately led to his death, then according to us there should be no difficulty in holding that it was the accident which was the cause of his death notwithstanding the fact that as many as seven years had elapsed after the shunt was inserted and before the patient succumbed.
16. That it is the failure of the shunt which made the deceased unconscious on 24-4-1980 can hardly be doubted in view of the medical evidence on record. The case papers of the relevant period from the Jaslok Hospital show that Mohamed was brought to the hospital in an unconscious condition on 24-4-1980, and there, an operation had to, be performed on the same day for repairing the shunt since its chamber had collapsed. After the repair of the shunt, Mohamed regained consciousness on 26-4-1980 and remained in good condition till 3-5-1980 on which day his general condition became poor and he was transferred to the K.E.M. Hospital. He was under observation there till 14-5-1980 and the observation showed that he was suffering from hydro-cephalus, the secondary cause of it being aqueduct atenosis. When the operation was performed on him on 14-5-1980, it was found that the ventriculo end of the shunt was blocked by brain matter. It had therefore to be removed to clear the flow. On the next day i.e. 15-5-1980, the tube and the chamber of the shunt was replaced and thereafter the deceased regained consciousness. He was then taken to the Bombay Hospital on 24-5-1980 and on 25-5-1980 again the entire shunt was replaced by performing another operation. This new shunt also failed to perform its function properly with the result that on 30-6-1980 it had to be repaired. Even this repair proved useless and the condition of the patient started deteriorating from 7-7-1980. Ultimately the patient died on 20-7-1980. The case papers note the cause of his death as hydro-cephalus with raised intra-cranial tension. This medical history of the patient during the second phase from 24-4-1980 to 20-7-1980 therefore shows unmistakably that it was the failure of the shunt and its improper functioning which caused the hydrocephalus and the raised intracranial tension which ultimately claimed the patient. In other words, it is the malfunctioning and the failure of the artificial device the insertion of which was necessitated by the accident which ultimately claimed the life of the deceased. If this is so, it cannot seriously be suggested that the cause of death was not the head injury received in the accident.
17. However, in spite of this clear medical evidence on record, it was s ought to be argued by Mr. Agarwal on behalf of the respondent B.E.S.T. that since the patient had gone home from the Bombay Hospital on 11-8-1973 after recovery on the conversion of the V.A. Shunt into a V.P. Shunt, it will have to be held that the development seven years thereafter had nothing to do with the accident as such, and therefore the death cannot be connected with the head injury sustained in the aceident. He submitted that the failure of the shunt after a lapse of seven years could have been on any count and cannot necessarily be connected with the accident. According to us this contention ignores the primary fact viz. that the shunt itself had to be inserted on account of the head injury received in the accident. Had the deceased not received the head injury in the accident, there would have been no need to insert the artificial device like the shunt. If there was no shunt, there was ne question of its failure and the resultant hydro-cephalus on account of the failure of the device. It is immaterial that the shunt failed after seven years. It was likely to fail any time. It would have failed even earlier. Dr. Daftary's evidence given in 1975 had itself made it clear that although the shunt was working then, it was not possible to say that (sic) would work in future also. In other words, the working of the shunt (sic) uncertain and its failure at any time was expected. Hence we will have hold that in the present case the death was the direct result of the he injury received in the accident.
18. In this connection we may also point out that Dr. Ramani, the expert witness of the respondent began his evidence with the statement that in the present case the head injury was not the cause of hydro-cephalus According to him, the medical case papers showed that the deceased was cured both of the head injury as well as of the hydro-cephalus. However, he admitted that the cure of hydro-cephalus was on account of the insertion of the shunt. The reason given by him, further, for his opinion that in the present case the head injury was not the cause of the hydro-cephalus was that it takes three weeks for a head injury to cause hydro-cephalus and in the present case the hydro-cephalus was noticed on 15-9-1972 i.e. within a week of the accident. However, in his cross-examination he admitted that the patient had what is known as the arrested hydro-cephalus and to a question whether the arrested hydro-cephalus would be aggravated by the head injury or not he answered in the affirmative. He also stated that the head injury can cause a substantial rise in the intracranial pressure. Therefore even assuming that the deceased had an arrested hydro-cephalus, since there is nothing on record to show that prior to the head injury, he had ever suffered from hydro-cephalus, it will have to be held that the hydro-cephalus that he suffered from was on account of the head injury. One more reason which Dr. Ramani has given for not connecting the head injury with the death on account of the hydro-cephalus in the present case is that according to him the history of the patient showed that he had developed some sort of an infection like encephalitis of the right side of the brain which had caused paralysis of the left side of his body and also a deterioration in the general condition of the patient resulting in death. In his cross-examination he admitted that from 24-4-1980 i.e. the first day on which the second phase developed till his death on 20-7-1980 the patient had come to semi-consciousness several times and was responding to command. He also further admitted that in the entire medical case papers of the patient, there was no opinion expressed anywhere that the patient was suffering form encephalitis. He further admitted that the only symptom of encephalitis in the present case was unconsciousness when the patient was admitted to Jaslok Hospital and that there would be no hydro-cephalus immediately resulting in intra-cranial pressure if the patient was suffering from encephalitis. He also admitted that there will be no hydro-cephalus overnight. The medical case papers on the other hand show that immediately on admission the patient had hydro-cephalus. He further admitted that if the cause of unconsciousness is found to be hydro-cephalus, then the case that it was on account of encephalitis has to be ruled out. He also admitted that if the patient had lost his consciousness due to encephalitis, he would no regain the same even if the intracranial pressure was relieved. The case papers in the present case show that on 29-4-1980 the patient had regained consciousness. He was also talking, answering questions and obeying commands. He was making normal movements of his limbs and was asking for his mother, and wanted himself to be fed by her. Admittedly this was after the shunt was repaired on 24-4-1980 relieving the intracranial pressure. Therefore the fact that in the present case the malady was hydro-cephalus and not encephalitis is borne out by the evidence of Dr. Ramani himself. As regards his opinion that the death was not on account of the head injury because hydro-cephalus was already relieved by insertion of the shunt, we have already dealt with this aspect and have shown how the hydro-cephalus was caused on account of the failure of the shunt.
19. The medical evidence on record also shows that the deceased had suffered a loss of eye-sight on account of the head injury. Witness Dr. Maskati (Exh. 3) who was examined before the Tribunal has stated that the deceased was admitted to the K.E.M. Hospital on 3-2-1973 and was discharged on 26-2-1973. The patient was referred to him for ophthalmic examination during this period. His ailment was poor vision and on examination, he was found to have by lateral optic atrophy. This meant that the nerve of the eye was not functioning. The witness gave the patient the necessary treatment and examined him again on 22-4-1974. At that time it was found that the vision in the right eye was finger counting at 3 metres, and in the left eye finger counting at 6 inches. The witness had also examined him a day before his deposition viz. on 10-3-1975 and had found that the vision of the patient was reduced to 2 metres in the right eye and with glasses, at one foot in the left eye. The earlier examination was without glasses. He also gave his opinion that the eye-sight was beyond improvement even by operation and the vision would deteriorate further. He stated that in the medical parlance, the limited vision was called blindness. He also opined that the visional defect can arise due to aqueduct stenosis on account of the pressure on the optic nerve. He further stated that besides the aqueduct stenosis there can be other reasons as well for the optic atrophy. The evidence of the deceased when he was alive and examined before the Tribunal on 22-7-1975, shows that he was studying in the 4th English Standard at the time of the accident. After he recovered from the accident, he attended the schools for some time but since he was unable to see properly, the principal advised him to leave the school. His school reports which are on record, show that in the 1st, 2nd and 3rd Standard, he was an above average student but had to discontinue the school in the 4th Standard because of his blindness after the accident. This evidence on record was not seriously challenged on behalf of the respondents. It will have therefore to be held that the cause of the blindness of the deceased was also the injury suffered in the accident.
20. That takes us to the next question viz. whether it could be said that in the present case there was any negligence on the part of the bus driver and in any case whether there was any contributory negligence on the part of the deceased. While advancing his arguments on the point, Mr. Agarwal for the respondents, submitted that admittedly the deceased was standing in the doorway or near about it. The evidence of the bus conductor shows that the road was straight and there was not much of a traffic. The bus conductor has also deposed that no brakes were applied. The accident is supposed to have taken place near about the residence of the deceased which was in between the T.B. Hospital bus-stop and the Sewri Railway Station bus-stop. There is therefore every likelihood, argued Mr. Agarwal, that the deceased had tried to jump from the bus before the bus could come to a halt at its stop and it is in this process that he might have met with the accident. In the first instance, the evidence of the deceased as well as his companion Anis viz. that the bus was crowded and there were at least seven to eight passengers standing in the passage has gone unchallenged. The further fact that the deceased and his companion were standing at the end of the bus near the doorway and that the deceased was the last of the standing passengers has also gone unchallenged. It is also not disputed that the place where the deceased was standing was meant for the standing passengers. There is further no evidence on record to show that the deceased was attempting to get out or jump out of the bus while the bus was in motion as suggested by Mr. Agarwal. Admittedly, the conductor was somewhere in the middle of the bus facing the driver and could not have known of the developments at his back. It is only when Anis and other passengers raised an alarm that he gave a signal to the driver to stop the bus and the bus came to a halt. In these circumstances, the version that the deceased was probably trying to get out of the bus by jumping or otherwise is obviously only a surmise. Secondly, the deceased himself has stated that he was holding the upright bar and there were also some passengers sitting behind him. Had it not been for the sudden jolt and were it only an imbalance caused by the normal motion, it stands to reason that the passengers sitting behind would certainly have tried to help him maintain his balance. The very fact however that the deceased was thrown out of the bus shows that the jolt must have been quite a severe one. There is further nothing on record to show that the deceased had not taken the ordinary precaution of holding on to the bar to maintain his balance as standing passengers are expected to do. For all these reasons, we are of the view that the contention that there was no negligence on the part of the bus driver or that there was a contributory negligence on the part of the deceased has to be discarded. The owner of a travel-bus who invites passengers to travel on his vehicle for hire or reward is under an obligation to take all precautions to carry the passengers safe to their destination. He takes the risk of accidents to the passengers resulting from their exposure to the hazardous situations. As has been pointed out above admittedly the passengers were permitted to stand even near the doorway. The respondents had therefore taken the risk of the passengers falling from the bus through the doorway on account of losing their balance due to a jerk or otherwise. This is exactly what seems to have happened in the present case. That normally accidents of this nature do not occur is no excuse when they do occur. The risk of such accidents occurring is always there and the owner of the vehicle must be fastened with the knowledge that such risk is always involved. In the absence of any evidence to support the negligence of the victim, on the facts and circumstances of the case we will therefore have to hold that it was the negligence on the part of the respondents which resulted in the accident in question.
21. We will now turn to the question of damages to be awarded in the case. In the original application filed before the death of the victim, the claim for compensation was restricted to Rs. 65,300/-. The claim was under two heads viz. special damages of Rs. 15,300/- and general damages to the extent of Rs. 50,000/-. The Tribunal did not grant any damages since it came to the conclusion that there was no negligence on the part of the respondents. The expenses proved before the Tribunal consist of expenses with and without vouchers. The expenses with vouchers are to the tune of Rs. 10,540/- and without vouchers are of Rs. 3,420/-. In this Court, the vouchers of expenses incurred from 24-4-1980 to 20-7-1980 were proved and they amount to Rs. 21,526.91. Together the total expenses incurred come to Rs. 35,486.90. Out of this only the amount of Rs. 3,420/-is not supported by vouchers. These expenses relate to the payments made to the doctors, nurses and maid servants in the K.E.M. Hospital and the Bombay Hospital and also for ambulances and taxis for carrying the patient from and to the hospitals. They are not seriously disputed. These expenses are expected to be incurred in the ordinary course without vouchers. We see therefore no difficulty in accepting the testimony of the claimant Haji Umar that he has incurred the said expenses. As regards the expenses supported by the vouchers, the same will have to be granted without demur. We therefore find no difficulty in awarding a sum of Rs. 35,486.90 as special damages being the actual expenses incurred for the medical treatment of deceased both in 1972 and 1980.
22. That leaves us with the question of the general damages. The deceased was immobilised at the tender age of 11 and was almost living the life of a jellyfish for as many as seven years. He had become blind and lost the benefit of all normal life. He had to undergo as many as nine operations, the first five during a period of barely 10 months and the next four during the period of three months. There is therefore no doubt that the deceased had to undergo a good deal of pain and suffering during his tender age from 11 to 18 years. He was therefore entitled to be compensated for the said pain, shock and suffering. Taking into consideration all The facts and circumstances we are of the view that a sum of Rs. 25,000/- will be an adequate compensation for his physical and mental agonies. Mr. Agarwal contended that it was not open for the court to increase the amount of special damages from Rs. 15,300/- which were claimed in the original application to Rs. 35,489.90. He submitted that the grant of any amount in excess of Rs. 15,300/- would amount to granting a claim not made in the application. This he submitted was particularly so because the amount was claimed under specific heads. We are not impressed by this argument. In the first instance, it is not necessary that a claimant should claim amounts under particular heads. Secondly, as the facts and circumstances of the case show, expenses of Rs. 15,300/- were incurred till the date the present application was filed i.e. till 8-3-1973. Admittedly, the expense of Rs. 21,526.91 were incurred during the pendency of the appeal. Hence it will be improper to reject the claim for the further expenses merely on the ground that the original amount claimed under this head was only Rs. 15,300/-. So long as the total amount granted by us does not exceed the total amount of compensation claimed in the original application, we see no reason to reject the claim on the hyper-technical ground urged by Mr. Agarwal.
23. In the result, we allow the appeal and direct that a sum of Rs. 35,486.90 plus an amount of Rs. 12,500/- be paid to the appellant-claimant No. 1 and the balance of Rs. 12,500/- be paid to the appellant-claimant No. 2 with interest on the said amounts at 6 per cent per annum from 20-7-1980 which is the date of the death of Mohamed. The respondents will also pay the corresponding costs throughout.