Bishan Narain, J.
(1) This is an appeal by the Punjab Government and by its employee Natha Singh from the decree of the trial Court awarding Rs. 5,557-5-6 with proportionate costs to Guran Wati for injuries caused to her on the ground that these injuries caused to her on the ground that these injuries were caused by the negligence of Natha Singh, who at the time of the accident was driving the bus of the Punjab Government as its employee.
(2) This accident took place on the morning of 20-6-1952, at about 7-15 A.M., when the plaintiff was travelling in the Government bus. She boarded the bus at Lohgarh bus stand. It was going to Putli Ghar, Amritsar. Soon after leaving Lohgarh, the bus had to cross Rego bridge. To cross the bridge, the bus had to ascend and then get on the level road for 100 yards before descent. The level portion of the bridge is divided by iron railings in two equal parts. There is one way traffic on this bridge and the level portion of each part is 15 feet 11 inches. The span of a bus is 7 feet while that of a rickshaw is 3 feet or 31/2 feet. The accident took place, according to the driver, when the bus was about to cross the rickshaw. These facts are not denied.
(3) The Plaintiff's case is that at the time of crossing the rickshaw the bus crashed against the railing and her right arm came between the bus and the iron railings and thus got injured. The iron railings consist of an iron wall. As a result of this impact the Radius and Ulna bones of her arm in the upper one-third portion were fractured. There was a fracture at the lower end of the Ulna also. The right Ulna was found to be bruised and swollen. The plaintiff states that her middle fingers of the injured arm were also involved in the accident. She remained in V. J. Hospital, Amritsar, from 20-6-1952 till 19-7-1952. After discharge from the hospital, she continued the treatment at home. As a result of this treatment two of these fractures have united but not the one on the upper part of the Ulna. The learned Advocate-General did not challenge the plaintiff's case relating to the extent of her injuries and the result of the treatment and, therefore, these may be taken as established.
(4) The plaintiff filed the present suit for recovery of Rs. 10,000/- on the ground that these injuries were caused by negligent driving of Natha Singh. The defendants denied the driver's negligence and further pleaded that the plaintiff was guilty of contributory negligence. The trial Court held that the driver was negligent and that the plaintiff was not guilty of contributory negligence. It then allowed Rs. 1,557-5-6 as expenses incurred by the plaintiff for medical treatment and award Rs. 4,000/- on account of the mental shock and bodily pain borne by her. The Government has appealed for dismissal of the suit while the plaintiff has filed cross-objections for increase of the amount for mental shock etc., from Rs. 4,000/- to Rs. 6,000/-.
(5) The learned Advocate-General urged three points before us: (i) the driver of the omnibus was not negligent, (ii) the plaintiff was guilty of contributory negligence, and (iii) compensation decreed is excessive.
(6) I take up the question of driver's negligence first. The accident took place at about 7-15 in the morning of the 20th June when there was very little traffic on the bridge. The road is 15 feet 11 inches wide and there is only one way traffic on it. Therefore, there was no traffic coming from the opposite side. Sohan Singh D.W. 3, who drives buses on this road, has stated, and rightly stated, that the road is wide enough there to enable a bus to cross a cycle-rickshaw. The accident took place on the level road at its extreme right. The trial Judge on inspection of the spot found that a bus when nearest to the dividing wall must leave a space of 4 to 5 inches between itself and the wall. The plaintiff received injuries because her right arm was caught between the bus and the wall. The driver states that the accident took place when he was turning towards the right to cross a cycle-rickshaw which was going ahead of him and that at that time he was travelling at 5 or 6 miles an hour.
At that time it was broad daylight and the rickshaw must have been visible to him since some time before he chose to turn to the extreme right to cross it. Dwarka Dass P.W. 19, whose presence in the bus is admitted by the learned Advocate-General, has stated that at the time of the accident the driver pulled the brakes and as a result the passengers got a jolting. Khushi Ram P.W. 15 also deposes to this effect. The bus, according to Khushi Ram, traveled rubbing past the iron wall and this must have been so because otherwise the plaintiff could not have received the injuries that she did. The driver, when in the witness-box, made no attempt to explain why he had to turn to the extreme right to the extent as to rub against the partition wall nor why the passengers got a jolt at that time. There is no reliable evidence as to the speed of the bus at the relevant time but I am convinced that it was much more than 5 to 6 miles an hour as deposed to by the driver because other-wise this accident in this way at that time could not have taken place. It is, therefore, clear that the driver Natha Singh put the passengers in a perilous position by going to the extreme right of the road to overtake a cycle-rickshaw and by striking the iron wall or by travelling along it.
(7) The learned Advocate-General argued that the driver was not guilty of negligence because he had successfully negotiated the bus by saving the cycle-rickshaw without causing any damage to the vehicle. There is no doubt that the rickshaw was not affected in any way by the accident. it is, however, not known if the bus had been damaged and if so to what extent. The Government sold the bus before evidence in the present case was recorded and therefore, it was not possible to find out the extent of damage if any to the bus. In any case, the fact that neither rickshaw nor the bus was damaged does not necessarily mean that the driver was not negligent nor that the plaintiff did not receive injuries because of his negligence.
(8) At the time of the accident the plaintiff was travelling in the bus as a passenger. She had a right to expect to be carried safely to her destination. If the driver had been careful then in the ordinary course of things he would not have taken the bus to the extreme right of the road even to avoid a rickshaw. It is not usual for a bus to travel on the extreme right of the road. In the present case the driver has done so. It is, therefore, for him to give a reasonable explanation of the occurrence otherwise it must be held that he was guilty of negligence (vide Austin v. Great Western Railway, (1867) 16 LT 320, approved in Halliwell v. Venables, (1930) 143 LT 215).
There is no such explanation forthcoming on this record. It was the duty of the defendants to take reasonable care that the passengers travelling in the bus do not receive injuries during the journey. The achieve this object it is necessary for the driver to be on the look out for any possible obstruction on the road or even in the air and to take reasonable steps to avoid the obstruction without causing any injury to the passengers (vide Radley v. London Passenger Transport Board, (1942) 1 All ER 433). In my opinion, the defendants in the present case failed to take this care and, therefore, it must be held that there was negligence.
(9) There is another way of looking at the matter. When a driver finds a conveyance ahead of him then it is his duty to keep his own car well under control to avoid doing injury to the other car or to the passengers travelling in his car. If the conveyance ahead does not move and leave a passage for him to cross, then he must slacken the speed or must stop his car to avoid the danger of a collision. In my view if a driver does not take this precaution then he is acting negligently. In the present case Natha Singh had seen the rickshaw going ahead of him. There was no other traffic at that time. He should have waited for the rickshaw to give him the required passage. This he did not do and in my view thus acted negligently.
(10) For these reasons I am of the opinion that the defendant-driver was guilty of negligence in the present case as he had failed to take the necessary precaution to avoid injury to the plaintiff.
(11) This brings me to the appellant's second point. It was urged on their behalf that the plaintiff was guilty of contributory negligence because she was travelling with her elbow resting on the window instead of on the rest below the window provided for the purpose. The evidence of both the sides shows that at the time of the accident both her arms were inside the bus. The plaintiff's evidence is that she was holding fruits in right hand while the defendants evidence is that she was caring a handkerchief in that hand. It is, however, common ground that after the accident the fruits as well as the handkerchief were found lying inside the bus. It must be held that the plaintiff's right hand was inside the bus at the time of the accident. The elbow even if slightly outside the bus could not cause the injuries suffered by the plaintiff. The trial Judge went to the spot and tried to get the scene of the accident re-enacted. He then came to the conclusion that the injuries in question could be caused only by the jolt-received by the passengers.
It appears to me that the sudden jolt threw the plaintiff's arm outside the body of the bus and it got involved between the iron wall and body of the bus. In these circumstances, it is impossible to hold that the plaintiff was guilty of contributory negligence. The sudden swerve of the bus to the extreme right by the action of the driver had nothing to do in the present case with the plaintiff's conduct. It is well known that often passengers travel with their elbows resting on the window of the car. There is no prohibition against it. the plaintiff at that time of the morning considering the state of traffic cannot be said to have failed to use reasonable care for her safety by resting her elbow on the window. This contention of the appellants, therefore, also fails.
(12) The last contention of the appellants relates to quantum of damages. The trial Court awarded Rs. 4000/- as compensation for mental worry and physical pain suffered by the plaintiff. The learned counsel for the appellants was unable to criticise the award of this amount on any ground whatsoever. Considering the standard of life maintained by the plaintiff and her husband, I do not consider this amount to be excessive at all. Moreover it is essentially for the trial Court to determine the amount of damages and the appellate Courts generally do not interfere with the amount so awarded unless in determining this amount the trial Court has failed to notice any principle on which such amount is to be fixed. The learned Advocate-General was unable to indicate violence of any such principle in the present case. This award of Rs. 4,000/- by the trial Court must, therefore, be affirmed.
(13) The trial Court has also awarded Rs. 1,557-5-6 as medical expenses incurred by the plaintiff. The learned Advocate-General conceded that the plaintiff was entitled to get medical expenses. He, however, urged that although the trial Court had found that the plaintiff had failed to prove payment of certain amounts to Doctor Parkash Chand for his visits and for supply of medicines yet the learned trial Judge has allowed Rs. 300 under this heading. I see no ground to interfere with this award. The failure to prove the payment of this amount does not necessarily mean that no payment at all was made and the Court awarded Rs. 300 as a reasonable expenses. No exception to this approach to the case can be taken in the appellate Court. The wages paid to maid servants engaged by the plaintiff to look after he injured arm. The learned counsel for the appellants argued that it was unnecessary luxury. I do not think so. Her arm could not be used and considering her standard of life she found it was only natural that she should engage extra servants to administer to her arm and to do work which she was unable to do on account of the injury to her arm. I, therefore, decline to interfere with the award of this amount also. Rs. 60 have been allowed for X-rays. This award is obviously just.
(14) The result is that this appeal fails and is dismissed with costs.
(15) The cross-objections were not pressed. The are dismissed. The parties will bear their own costs of these cross-objections.
I.D. Dua, J.
(16) I agree.
(17) Appeal dismissed.