K.N. Singh, J.
1. This appeal is directed against the judgment of the Motor Accidents Claims Tribunal, Sharanpur, dated 10-2-1978, dismissing the appellant's claim petition filed under Section 110-A of the M. V. Act.
2. Ramesh Kumar Awasthi appellant was travelling by a bus bearing No. USK 9724 on 14-9-1975 from Meerut to Rishikesh. When the bus reached a place between Police Station Manglaur and Muzaffarnagar another bus bearing No. UST 9091, coming from the opposite direction and proceeding to Meerut, grazed against the body of the bus in which the appellant was sitting. By the impact of the grazing of the bus the window glass was smashed and the appellant's right hand was cut and slit from above the right elbow joint. He was removed to the Military Hospital, Roorkee for treatment. Both the vehicles belonged to the U. P. State Road Transport Corporation. The appellant filed a claim petition under Section 110-A of the M. V. Act claiming a sum of Rs. 1,30,037.50 paise as compensationand damages. The U. P. State Road Transport Corporation, hereinafter referred to as the Corporation, resisted the appellant's claim on the ground that the drivers of the two vehicles were not guilty of any rash and negligent driving, instead the appellant received injuries and lost his limb on account of his gross negligence in keeping a part of his arm outside the window while the vehicle was in motion. The appellant himself contributed to the accident and as such he was not entitled to any compensation or damages.
3. The Tribunal, on the pleadings of the parties, framed the following three issues :--
1. Whether the petitioner suffered injuries due to negligent and rash driving of motor vehicles Nos. USK 9724 and UST 9091, as alleged?
2. Whether the petitioner suffered injuries for the reasons of his own negligence? If so, its effect?
3. To what amount, if any, is the petitioner entitled as compensation?
On issues Nos. 1 and 2 the Tribunal recorded finding that the drivers of the two buses were not negligent, instead the accident occurred on account of the appellant's own negligence as he was protruding a part of his right hand outside the moving vehicle. On issue No. 3, the Tribunal held that the appellant was not entitled to any amount of compensation, but in the alternative it recorded a finding that the appellant had incurred a sum of Rs. 3000/- towards medical expenses and he was entitled to that amount. He would have been further entitled to a sum of Rs. 25,000/- for the injury and mental torture and physical pain suffered by him, if the drivers of the two buses were found negligent. Thus in all the appellant would have been entitled to a sum of Rs. 28,000/-as damages, but since the negligence of the drivers of the buses was not established the Tribunal dismissed the Claim Petition in its entirety. Hence this appeal by the claimant.
4. Sri Vineet Saran, learned counsel for the appellant, placed his case in a succinct manner. He urged that the accident occurred on a plain road in the country-side where there was no heavy traffic and as such the drivers of both the buses were guilty of gross negligence. The driver of a bus carryingpassengers is under a duty to drive the vehicle in a manner as to ensure safety of the passengers. Both the drivers violated this salutary rule in not maintaining sufficient distance between the two buses at the time they crossed each other. The appellant was not guilty of contributory negligence by merely placing his hand on the window sill of the bus, as it is common practice for passengers, who get seats besides the window to rest their hand on the window sill. The appellant's act in placing his hand on the window sill was quite natural, it cannot be said to be an act of negligence. The Tribunal committed error in rejecting the appellant's claim. Sri S. K. Sharma, counsel for the respondent, U. P. State Road Transport Corporation, urged that a person who himself does not care for his own safety is not entitled to any damages for the injuries received by him. Since the appellant was guilty of contributory negligence he was not entitled to any damages and the Tribunal rightly rejected the claim petition.
5. There is no dispute that the accident occurred on 14-9-1975 as a result of which the appellant's right fore-arm was severed. The relevant question was negligence. Ramesh Kumar appellant examined himself as P. W. 1. He asserted that he was sitting at the rear seat of the bus near the window but he had not kept his hand outside the window. The two buses grazed each other as a result of which his fore-arm was cut near the right elbow and in that process the glass of the window was broken into pieces. Deepak Kumar (P. W. 2) was also proceeding to Rishikesh in the same bus in which the appellant was travelling. He deposed that the appellant had put his elbow on the window sill of the bus and the buses grazed with such an impact that frame of the window was broken and the glass of the window was smashed and Ramesh Kumar's right fore-arm was severed and it fell on the road. The corporation produced two witnesses in support of its case. Satvir Singh (D. W. 1), a passenger travelling in the bus bearing No. UST 9091 which was coming from the opposite direction. In his deposition he stated that a cow had come before the bus and the driver wanted to save the cow and for that purpose he swerved the bus to his left as a result ofwhich the rear of the bus dashed against the rear portion of the bus coming from the opposite direction. On account of the impact the hand of a passenger travelling in the bus was slit and fell on the road. In his cross-examination he conceded that appellant's hand was protruding outside the window. He further conceded that on the date of the accident the driver of the bus had persuaded him to give in writing that the accident had not occurred on account of his fault. The testimony of Satvir Singh does not inspire confidence. Moreover the driver of the bus was not examined to corroborate his testimony. The Conductor of the bus bearing No. USK 9724 in which the appellant was travelling was examined as D. W. 2. He stated that the appellant's right elbow was protruding out when the accident occurred. He clearly stated that at the place of accident the road was wide enough and there was no traffic or curve, the speed of both the vehicles at the time of impact was 25 kilometers per hour. He could not state the manner in which the accident took place or the reason as to why both the vehicles crossed each other at such a close proximity as a result of which the accident took place. This is the entire evidence produced by the parties.
6. On the perusal of the evidence we are satisfied that the appellant had kept his elbow on the window sill when the accident occurred. It was the duty of both the drivers to ensure safety of the passengers and for that purpose they should have taken care to leave sufficient space between the two vehicles at the time of crossing each other. The story introduced by Satvir Singh (D. W. 2) that the accident occurred as the driver of the bus coming from the opposite direction wanted to save a cow is a cock and bull story. No evidence has been produced to prove that story. The driver's evidence would have been the best evidence to prove the circumstances which led to the accident but he was not produced. The drivers of the two buses were employees of the Corporation and they were best persons to state the truth about the accident but they were not produced for the reasons best known to the Corporation. The two drivers had special knowledge of the manner in which the accident took place and the reason for the two buses crossing each other with such closeness as to cause the accident. The Corporation did not produce them. Consequently, the irresistible conclusion is that if they had been produced their testimony would have gone against the case set up by the Corporation. It is well settled that if a witness having special knowledge of the facts is withheld it is legitimate to draw an adverse inference against that party. In our opinion, the two drivers were best persons to explain the circumstances which led to the accident and since the Corporation did not produce them we have to proceed on the assumption that the accident occurred on account of their negligence. Moreover, the fact that the two buses plying on a wide road, crossed each other so closely without there being any justification for the same itself proves the negligence of the two drivers.
7. The legal position is clear that ii 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.
8. In Radley v. London Passenger Transport Board, (1942) 1 All ER 433, a boy was a passenger on the top of an omnibus, while the bus was proceeding along a country road, its upper part brushed against the branches of a tree overhanging the road and some of the windows were broken a splinter of glass penetrated the boy's eye which injured him. Upholding the infant's claim for damages Kings Bench Division held that a prima facie case of negligence against the defendant Transport Board was established. The Court held that it was the duty of the driver to keep a look out for such over-hanging branches and when they are of a kind liable to do damages he must exercise care in avoiding them or in meeting them at such a speed that the likelihood of damage is negatived. In Baker v. Market Harborough IndustrialCo-operative Society Ltd. (1953) 1 WLR 1472, collision between two other vehicles proceeding in opposite directions occurred in the centre of a straight road during the hours of a darkness and both the drivers were killed. An inference was drawn that both the drivers were guilty of rash and negligent driving. Lord Denning observed :
'If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape simply because the court had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence, the result must be the same. In the absence of any evidence enabling the court to draw a distinction between them, they must be held both to blame, and equally to blame.'
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).
10. We are then faced with the question as to whether the appellant wasguilty of contributory negligence as his right hand elbow was protruding out of the bus and for that reason he was not entitled to any compensation. On the evidence on record it is well established that the appellant was resting his right elbow on the window sill at the time when the accident occurred. Bool Chand, Conductor of the bus has stated that a portion of 2 1/2' of the appellant's right elbow was protruding outside the bus. His statement thus makes it amply clear that the appellant had not taken his arm out of the window, in-stead while resting his hand on the window sill a small portion of his hand 2 1/2' was protruding out of the bus. This is a normal for a passenger who sits on the seat near the window to rest his hand on the window sill. There is no law prohibiting resting of hand on the window sill or protruding small part of the body outside the bus. There is further no evidence on record to show that any signboard was placed in the bus warning the passengers from placing their elbows or hands on the window sill. The conductor also did not state that on seeing the bus coming from the opposite direction he had warned the appellant to keep his elbow inside the bus. In Sushma Mitra v. M. P. State Road Transport Corporation (1974 Acc CJ 87) : (AIR 1974 Madh Pra 68) it was held that the appellant was not guilty of contributory negligence in keeping his elbow on the window sill because it is common practice for the passengers who sit near the window to rest their arm on the window and there was no evidence that the passengers were cautioned not to do so. The Court held that the passenger was not guilty of any contributory negligence. We would like to emphasize that the evidence on record shows that the place where the accident occurred was outside the town and the traffic was not heavy and there was ample space for the two vehicles to pass each other without coming close. If the drivers had taken adequate care for the safety of the passengers the accident could not have occurred in the manner it has happened in the present case. There is also no evidence that the bus coming from the opposite direction blew its horn or that the appellant was cautioned by the conductor or the driver on seeing the bus coming from the opposite direction to remove his handfrom the window sill. The appellant was going on a long journey from Meerut to Rishikesh and in that' process it was quite natural for him to rest his hand on the window sill. It appears that two vehicles were being driven with excessive speed as merely by the impact the appellant's fore-arm was slit and severed instantaneously leaving no time for the appellant to withdraw his hand. These circumstances show that the appellant was not guilty of negligence by placing his elbow on the window sill.
11. In A. C. Billings and Sons Ltd. v. Riden (1958 AC 240) the House of Lords while discussing the question of reasonable care which a person is expected to take observed:
'But in considering what a reasonable person would realize 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.'
Applying the principles laid down by the House of Lords it follows that if most of the passengers behave in the manner as the appellant did, it would not be right to hold that the appellant behaved in a negligent manner. The appellant was not outstretching his arm outside the window. He had merely placed his elbow on the window sill for the purpose of resting his hand. In that process his right hand elbow was protruding outside the body of the vehicle to the extent of 2 1/2' only. By no stretch of imagination it can be said that the appellant was negligent or that he contributed to the accident on account of his negligent behaviour. No doubt it would have been proper or desirable for the appellant to keep his elbow inside the vehicle but absence of propriety or desirability does not lead to negligence. The plea of contributory negligence has to be considered on the facts and circumstances of each case. The drivers of the two vehicles were under a duty to drive their vehicles in such a manner as not to come too close as they should be aware that passengers generally keep their elbows on thewindow sills and if the two vehicles are brought too close without there being any justification for the same, injury may be caused to the passengers. The accident occurred on account of the negligence of the two drivers and not on account of any negligence on the part of the appellant, as he behaved in a manner in which most of the passengers generally behave. The plea of contributory negligence therefore must fail.
12. Learned counsel for the respondent-Corporation placed reliance on a decision of the Supreme Court of Canada in Harris v. Toronto Transit Commission (1968 Acc CJ 264) in support of his contention that the appellant was guilty of contributory negligence. In that case a boy aged 13 years travelling in a bus protruded his arm out from the window. The rear portion of the bus grazed along side with a pole as a result of which the boy's arm was crushed. The boy sued the carrier for damages. The trial court held that the injury was contributed in equal degree by the negligence of the boy and the court of appeal reversed the finding and held that the boy was entirely to blame. On appeal the Supreme Court set aside the judgment of the court of appeal and restored that of the trial court. In coming to the conclusion that the boy also contributed to the accident the Court referred to a bye-law which required the passengers to keep their hand inside and not to protrude any portion of their body outside the vehicle. Since the claimant in that case had violated the bye-law the Supreme Court held that the claimant was guilty of contributory negligence and as such the damages had to be apportioned. The finding with regard to the contributory negligence of the boy was based on the bye-law. There is no such rule or bye-law in the instant case, therefore, the case is distinguishable and it would not be proper to follow the principles laid down therein.
13. Learned counsel then referred to a decision of the Punjab & Haryana High Court in Punjab Engineering Works v. Waryam Singh (1973 Acc CJ 315) and a decision of Karanataka High Court in Shubhakar Sridhar Shastri v. Mysore S. R. T. Corporation (1975 Acc CJ 50) : (AIR 1975 Kant 73). On a close scrutiny of the two decisions wefind that the facts in the two cases were different than those involved in the present case and these authorities are not relevant for the purpose of deciding the question of contributory negligence.
14. The question then arises as to what amount of compensation and damages the appellant is entitled. On the date of the accident the appellant was aged 26 years. He had passed M.Sc. and obtained good second division having 59-8% marks. He was Cricket Captain of his College. He had good chance of acquiring proficiency in Cricket, on account of the loss of his right fore-arm, he lost all chances of taking part in sports or games. The right hand which plays vital part in one's life was rendered completely disabled on account of the accident. The appellant has stated that he was admitted to hospital where he remained for considerable period of time where operation was performed on his right fore-arm. The Tribunal awarded a sum of Rs. 3000/-towards medical expenses. We do not find any good reason to take a different view. The Tribunal recorded finding that the appellant would be entitled to a sum of Rs. 25,000/- as general damages. Having regard to the facts and circumstances of the case the amount determined by the Tribunal is inadequate. Assessment of damages has to be made on recognised principles. In Hirji Virji Transport v. Smt. Basiran Bibi (1971 Acc CJ 458) a Division Bench of the Gujarat High Court held that in cases of disablement by virtue of loss of limb or any permanent defect compensation goes to a living person and not to the dependent or to the estate of the deceased, and therefore it is an experience of the court that in disablement cases compensation awards are always higher than in cases of death. In H. West and Sons v. Shephard, (1963) 2 All ELR 625 House of Lords laid down principles for awarding compensation for the bodily injury. Their Lordships observed that a bodily injury is to be treated as a deprivation which entitles a plaintiff to the damage and that the amount of damages varies according to the gravity of the injury. The deprivation may bring with it three consequences; loss of earning or earning capacity expenses of having to pay others for what otherwise he woulddo for himself and loss of enjoyment of life or a diminution in full pleasures of living. In considering the deprivation the court should have regard to the gravity and degree of deprivation, that is to say, whether one or more limbs suffered loss, the duration of the deprivation and the degree of awareness of the deprivation. The House of Lords emphasised that in personal injury cases the courts should not award merely token damages but they should grant substantial amount.
15. In the instant case the Tribunal has awarded a total sum of Rs. 25,000/-The appellant suffered physical and mental pain and he shall throughout his life suffer loss of enjoyment of life. There has been diminution in full pleasures of living on account of absence of right fore-arm. He shall suffer throughout his life with the mental torture that he has no right fore-arm and as such he cannot undertake normal avocation of life which he would have taken up if his both hands were in right form. Absence of right fore-arm shall always make a world of difference in his personal life. The appellant has however got an employment on a salary of Rs. 455/- per month. He is doing the work of right hand by his left hand. If the appellant's right hand was in proper form he would have obtained employment at a higher rate, Considering these facts and circumstances we are of the opinion that a sum of Rs. 40,000/- would represent the correct amount of compensation as general damages to the appellant.
16. In view of the above discussion we hold that the appellant is entitled to a sum of Rs. 3000/- towards medical expenses and a sum of Rs. 40,000/- for the loss of his fore-arm and the mental shock and pain and his pecuniary loss for future years to come.
17. In the result, we allow the appeal, set aside the judgment of the Tribunal and allow the Claim Petition and award a sum of Rs. 43,000/- (Rs. Forty three thousand) as compensation and damages to the appellant. The appellant is entitled to interest at the rate of 6% per annum from the date of filing the Claim Petition. He is also entitled to his costs throughout.