1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 is by the unsuccessful claimant in Misc. Case No. 5 of 1971 on the file of the Motor Accident Claims Tribunal, Bijapur District.
2. The claimant (appellant) was a student of B.Com., class and was also employed apparently on a part-time, basis as a clerk in some business firm. It would appear that he was in the habit of visiting the samadhi of one Pandit, which was situated on an approach road adjoining Bijapur-Gulbarga road. On 3-12-1970 the claimant was cycling along the said road at about 7.30 a.m. for the purpose of visiting the said 'samadhi'. The metal or asphalted portion of that road used by the vehicles was about 10 feet in width. When he was cycling along that road on the left side and when the concerned approach road leading to the samadhi was still some way ahead he took a turn to the right side of the road, soon after a lorry passed him. Apparently he had not seen the bus belonging to the Karnataka State Road Transport Corporation (K. S. R. T. C.) bearing No. MYF 5824. After he reached the right side of the road the bus in passing him is alleged to have brushed against the claimant, and stopped about 3 feet away from the place where he had fallen. As a result of this accident the claimant received a serious lacerated wound on the left foot and sole. It was seen, after the accident, that the chain of the cycle of the claimant had snapped. The claimant was detained in the hospital as an inpatient from 3-12-1970 to 16-2-1971. In the course of his treatment several X-rays were taken of the foot and it was seen that no fracture of the bone had occurred. There were however, one or two operations of skin grafting on the site of the injury. After he was discharged from the hospital on 16-2-1971 he continued to attend the hospital for dressing for sometime thereafter. In view of these circumstances the claimant had to forego the taking of his annual examination besides losing his part-time job. For all these reasons he preferred a claim for a sum of Rupees 8,715/-, which was inclusive of the expenses incurred by him, compensation payable for pain and suffering and loss of remuneration on account of the loss of his job. He, however, has claimed some compensation regarding his inability to take the annual examination also.
3. The owner of the bus, the Insurance Department and the driver have resisted the claim before the Tribunal. Their case is that the accident was not the result of any negligent driving of the bus but, on the other hand, the claimant himself fell off his cycle and the injury was a result of such fall. It is also contended that the cyclist was clearly negligent in taking a sudden turn to the right side of the road without properly looking behind for any other vehicle. The Insurance Department (K. G. I. D.) asserted that the vehicle of the KSRTC had not been insured with it and therefore no liability could be foisted on it. The driver of the vehicle also took the stand that neither he nor the vehicle was responsible for the accident. The Tribunal, after considering the facts and circumstances of the case, as disclosed by the evidence adduced, came to the conclusion that the injury caused to the claimant was not the result of any accident arising from the negligent driving of the bus. It also concluded that the accident must have taken place as alleged on behalf of the KSRTC and its driver, that is, that the claimant himself out of sheer fright must have fallen off his cycle resulting in the injury complained of, and not as a result of any grazing of any part of the bus against the leg of the claimant. The Tribunal, however, while examining the question of what may be regarded as contributory negligence by the claimant-cyclist came to the conclusion that the claimant had contributed more to the accident than the vehicle driven by the third respondent, in that he was not justified in taking a sudden turn to the right side at the spot of the accident without taking due precautions to watch for the other traffic on the road. It, therefore, rejected the claim of the claimant-appellant. There is, however, not much discussion in the award under appeal, relative to the quantum of compensation payable to the claimant in the event of the acceptance of his claim for compensation. It is this award that is challenged in this appeal by the claimant.
4. Before us the name of the third respondent, namely, the driver, has been deleted from the record at the instance of the appellant. In so far as the other two respondents are concerned, they have not chosen to get themselves represented in this appeal. Hence this appeal is disposed of after hearing the counsel for the claimant-appellant alone.
5-8. (After narrating the evidence of P. Ws. 1 to 3 examined on behalf of the claimant and that of the driver of the bus examined on behalf of the respondents, the judgment proceeded as follows:--)
9. On an assessment of all the evidence adduced, the Tribunal has observed thus:
'The Driver, it appears had a look on the road and seeing the claimant-petitioner swerving the bicycle towards right had suddenly applied brakes, but unfortunately before it was brought to a stand still it had knocked down the petitioner. As stated by the petitioner if the vehicle had dashed against him or his bicycle coming with speed or with severe force, then either the petitioner would have sustained injuries on the right side of his leg or other parts of the body, or he would have been thrown off on the road with his bicycle. But admittedly, no such thing took place, On the other hand, he sustained injury, on the other side of Ms body i.e., on the left foot. In the circumstances, of the case, therefore the possibility of he having sustained that injury as a result of some part of the bicycle coming in contact with that part of the body or some other object on the ground hitting against his left leg due to fall, cannot be ruled out. As suggested in the cross-examination of the claimant-petitioner the possibility of he being nervous and himself falling down from the bicycle sustaining that injury even as a result of the sudden breaking of the chain of the bicycle cannot be ruled out. So, it appears the driver could not be blamed of any act of negligence or rashness on his part..........'
In arriving at the above conclusion the Tribunal, in our view, has clearly overlooked certain facts available in the evidence. They are:
(i) that the claimant had crossed over to the right side of the road before the accident occurred:
(ii) that both the bus and the claimant were moving in the same direction; and
(iii) that the accident occurred on the right side of the road.
It is plain to us from these circumstances that the left side of the claimant's body was towards the bus and not the right side. Therefore, if the injury were to be found on the left leg of the claimant, it could be clearly attributed to the grazing of some part of the bus in question unless it can be shown that the claimant fell on his left side after the bus had passed him. It is seen from the evidence on record that the bus was stopped about 3 feet away from the place of accident and that being so he could not have fallen on his left side in such a short space of time as is expected of a bus to take while covering a distance of about 15 to 20 feet which was the gap between the truck and the bus which was available to the claimant to take a turn to the right. We are conscious of the fact that it is possible for a cyclist situated as the claimant at the time of accident was, to have fallen himself against the bus out of fright or some sudden mishap to the cycle. But if really he had fallen as envisaged by us, it would not be a case of mere foot being injured, and in all probability the entire left side of his body would have suffered grievous injuries. We are, therefore, satisfied that the claimant did not fall off his cycle by himself as suggested on behalf of the defence, but that the accident must have happened as spoken to by the claimant himself by the grazing of some part of the bus against his left foot. In such a situation the fact that the chain of the cycle had been snapped would not appear to be of any consequence, as, in our view, if the bus had grazed the claimant on his left foot it must have affected the left pedal of the cycle also. It may be because of such an impact that the chain must have snapped. It is also significant in this connection to note the concern betrayed by the driver after he found the claimant injured on the road-side. If really his case was true it was no part of his duty to have requested the inmates of another bus to let down and take the injured to the hospital at Bijapur. It seems to us that this conduct in some measure supports the case of the claimant that he was in fact hit by the bus moving in the same direction. We are not therefore in agreement with the reasoning and the conclusion of the Tribunal in the passage extracted above. The Tribunal after concluding that the cyclist himself is to be blamed for the accident observed thus in continuation of the passage reproduced earlier:
'Further, as stated by the petitioner if the driver was driving the vehicle with more speed or without care and caution, then the accident would have been still more severe in nature than what it was. The claimant-petitioner might in all probability have been run over and crushed down under the heavy vehicle and not merely injured on the left side of the foot. Thus, from the evidence placed on the record, it appears to me that the negligence on the part of the claimant-petitioner himself has contributed more to the accident than the want of due care and caution on the part of the driver of the vehicle,'
It seems to us that the conclusion of the Tribunal as regards the contributory negligence on the part of the claimant is sound having regard to all the facts and circumstances of the case. It is clear from the evidence that the claimant who was going all along on the left side of the road suddenly swerved to the right side of it and, as soon as he reached the right side of the road, this accident took place. This circumstance would show that the claimant had hardly enough time and opportunity to take a turn to the right side of the road before he was hit by the bus. This circumstance would also probabilise the version of the driver of the bus that he was following a truck within 15 to 20 feet of it and he had hardly time to apply the brakes to avoid the accident. We are not inclined to accept the evidence of the claimant that he took a turn and he had looked behind and did not see any vehicle at a distance of about one furlong. If really this version was true, the bus could not have reached the place of accident before he could swerve from the left side of the road to the right. It is, therefore, to be inferred that he was negligent in taking a turn as he did, which resulted in the accident. But that is not to say that the driver of the bus should be completely exonerated from any blame. The fact that the cyclist was going along the right side of the road is no ground for a driver of a bus to ignore the safety of other users of the road. It seems to us that although he was able to stop the bus within a distance of about 3 feet he should also have taken the precaution of not following the truck just within 15 or 20 feet of it. We are, therefore, clearly of the view that the driver of the bus had also contributed to the accident, by his negligence.
10. We have earlier observed that the Tribunal had not computed the compensation payable to the claimant in the event of his success in the claim. On behalf of the appellant, it is submitted by Shri S. D. Chhatre, learned counsel, that this Court itself, on the evidence available, can determine the same without remitting the case to the Tribunal for such determination. We therefore, proceed to determine the compensation payable. It is in evidence that the claimant was drawing a salary of Rs. 75 per month from his part-time job. There is also some evidence to show that even after the accident between the months of December, 1970 and April 1971 some amounts have been disbursed by his employer, apparently to meet his medical expenses. We shall however take no account of it as the witness who has spoken to this fact is rather vague on the point that such sum had been paid as salary and not as an advance to be recovered later as a debt. It is also in evidence that the claimant secured alternative employment in April 1972 with the Canara Bank. There is also some material to show that the claimant had to attend the hospital even after his discharge for the purpose of dressing of his wounds. It is therefore reasonable to presume that the claimant had been deprived of the opportunity to earn in his then employment for a period of about six months from 3-12-1971. We say so only because there is no material to show that the claimant made any sincere or honest attempt to secure alternative employment throughout the period between the date of his discharge and the date of his re-employment in April 1972. We are, therefore, of the view that the claimant should be compensated for the loss caused on account of non-receipt of his salary. This sum would accrue to a sum of Rs. 450.
11. The next item relates to the amount expended by him towards medical treatment. The claimant has sworn to the fact that he had spent Rs. 800 on that score. It is difficult to accept the version of the claimant that the vouchers in support of such an expense had been lost. However, it cannot be denied that he must have spent some amount towardshis treatment. Having regard to the period and the nature of the treatment undergone by him, we think it reasonable to determine the same at half the amount claimed by him. This amount would be Rs. 400.
12. It is not clear from the evidence whether the claimant had claimed any specific amount on account of pain and suffering undergone by him on account of the accident. In our judgment, any determination of the loss on this account is more or less conjectural in character. Although in the claim application the petitioner has claimed a sum of Rs. 5,000 under this head, he has stated nothing about it in the evidence. All the same, we are of the view that it cannot be gainsaid that when a person undergoes hospitalisation for a period of 2 1/2 months, accompanied with skin grafting, he would have undergone mental agony and physical suffering. Having regard to all these circumstances, we think a notional sum of Rs. 500 should be awarded under this head.
13. But the above conclusion of ours relative to the quantum of compensation is not conclusive of the question arising before us. We have already pointed out that the accident was a result of negligence contributed by both the parties. It is well-settled that in a case for damages where it is found that the claimant or the plaintiff had contributed to the accident, such a circumstance should go in mitigation of the damages payable as compensation to him. It is also well-settled that if an apportionment of compensation involving contributory negligence is impossible, on the material placed before the court, the plaintiff should fail. This is the position emanating from the common law of England and followed in our country, before the enactment of Law Reform (Contributory Negligence) Act of 1945 by the Parliament of United Kingdom. In so far as the law in India is concerned no enactment similar to the aforesaid one has been brought to our notice. However, it is sufficient to refer to an enunciation in Nani Bala v. Auckland Jute Co. Ltd. : AIR1925Cal893 which sets out, in our view, if we may say so with respect, the correct position in regard to apportionment of compensation in cases involving contributory negligence. The passage runs thus :
'Now, the doctrine of contributory negligence is well settled, although the meaning of the term not infrequently is clouded by the language in which the doctrine is couched. Where the negligence of the plaintiff, or that of the defendant is the sole cause of the accidentthe matter is free from doubt. But difficulty may arise where the accident is caused partly by the negligence of the plaintiff and partly by that of the defendant. In such circumstances it becomes the duty of the Court to endeavour to ascertain whether the negligent act or omission of the plaintiff, or that of the defendant, was the cause of the accident. If the Court finds itself unable to discover to what extent the negligence of the plaintiff or that of defendant contributed to bring about the accident, the defendant is entitled to succeed for in pari delicto potior est conditio defendantis. On the other hand, 'though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could, in the result by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him'. (per Lord Penzance, Radley v. L. & N. W. Rly. Co., (1877-1 AC 754))..................'
14. Coming now to the facts of the instant case we are of the view that both the driver of the bus and the claimant have equally contributed to the accident by their negligence. The compensation payable to the claimant and computed as above has to be reduced by 50% (half). The aggregate amount of compensation arrived at earlier is Rs. 1,350 and half of that sum would be Rs. 675. The claimant is entitled to this sum (Rs. 675).
15. As a result of the above discussion, the appeal is partly allowed to the extent indicated above. It is now conceded that the Government Insurance Department (2nd respondent before the Tribunal) would not be liable as the vehicle in question had not been insured with it. We have earlier observed that the third respondent, driver, had been given up by the claimant-appellant. Therefore, there will be an award in a sum of Rs. 675 only, with interest at 6 per cent, per annum computed on the said sum for the period between the date of the application (15-4-1971) and the date of payment. In view of the circumstances pointed out by us, this amount shall be payable by the first respondent K. S. R. T. C. only.
16. As regards costs, we think it proper to direct the parties to bear their own costs throughout.
17. Appeal partly allowed.