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Prem Devi Vs. Harbhajan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1(1984)ACC136
AppellantPrem Devi
RespondentHarbhajan Singh and ors.
Cases ReferredChaturji Amarji and Ors. v. Ahmad Rahimbux and Ors.
Excerpt:
- .....vehicle or building herein lies the main question which arises in this appeal.2. the claimant smt. prem devi while travelling on the bus pnd 4040 which was on its way to beas from kapurthala, suffered an injury on her left arm resulting in the amputation thereof, when on reaching village gadana, it struck against a stationary bus. this happened on october 27, 1974.3. the claim for compensation put in smt. prem devi was negatived by the tribunal holding that there was no negligence of the bus driver in this accident as the accident had occurred on account of smt. prem devi having her arm projecting outside the bus. this was indeed the case of the respondents, namely that smt. prem devi had suffered the injury as her arm was projecting outside the bus, when the bus struck against the other.....
Judgment:

S.S. Sodhi, J.

1.Is a passenger travelling in a bus with his/her arm projecting outside the body of the bus, while resting it on the window thereof to be denied compensation for the injuries caused to such arm by the bus not leaving sufficient space while crossing or going past a vehicle or building Herein lies the main question which arises in this appeal.

2. The claimant Smt. Prem Devi while travelling on the bus PND 4040 which was on its way to Beas from Kapurthala, suffered an injury on her left arm resulting in the amputation thereof, when on reaching village Gadana, it struck against a stationary bus. This happened on October 27, 1974.

3. The claim for compensation put in Smt. Prem Devi was negatived by the Tribunal holding that there was no negligence of the bus driver in this accident as the accident had occurred on account of Smt. Prem Devi having her arm projecting outside the bus. This was indeed the case of the respondents, namely that Smt. Prem Devi had suffered the injury as her arm was projecting outside the bus, when the bus struck against the other bus.

4. A similar situation arose in Sushma Mitra v. M.P. State Road Transport Co. 1974 A.C.J. 87, where it was observed :

It cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of passengers. While driving the must have the passengers in contemplation and he must avoid acts or omissions which can reasonably be foreseen to injure them and in deciding what acts and omissions he should avoid, he must bear in mind the normal habits of passengers. It is a matter of common experience that passengers who sit adjoining a window very often rest their arm on the window-sill by which act the elbow projects outside the window. The driver of the bus must have these passengers also in contemplation and therefore, while over-taking or crossing another vehicle on the road he must not come too close to the vehicle that is overtaken or crossed and he must leave sufficient gap between the vehicles to avoid injury to these passengers. The driver of a vehicle coming from the opposite direction owes a similar duty while crossing a passenger bus. He too must have in contemplation passengers sitting near the windows of the oncoming bus who may have their hands resting on the windows, and in crossing the bus he must not only avoid contact with the body of the bus but he must also avoid coming in contract with the elbow of any passenger that may be resting on the window and projecting outside the body of the bus. He must, therefore, take precautions to move to his rear side and leave sufficient gap for preventing any mishap.

This view was approved and followed in Chaturji Amarji and Ors. v. Ahmad Rahimbux and Ors. 1980 A.CJ. 368. The position in law thus being as set out above, there can be no escape from the conclusion that the accident here must be attributed wholly to the rash and negligent driving of the bus driver.

5. Faced with this situation, counsel for the respondents sought to resist the claim for compensation on the plea that compensation had already been paid to the claimant in full and final settlement of her claim in respect of this accident and she was thereby debarred from preferring any claim here. The amount in this behalf, it was said had been paid to the husband of the claimant. This plea was specifically controverted in the replication filed by the claimant, where it was stated that she had never received any amount nor had she consented to any such payment. It was further stated therein that her relations with her husband were strained.

6. In appeal it was conceded by the counsel for the respondents that there was no material on record to suggest any authority in the husband to compromise this matter on behalf of his wife Prem Devi. In her evidence, Prem Devi categorically stated that her relations with her husband were strained and that she had never authorised her husband to compromise this matter nor had she received any money under any such compromise. A.W. 8 Harbans Lal also corroborated the statement of Prem Devi that her relations with her husband were not cordial. R.W. 3 Baldev Raj no doubt deposed to the contrary by stating that there were normal relations between husband and wife, but a reading of his testimony would show that he had no special means of knowing what the state of relations were between Prem Devi and her husband. This being the state of the evidence on record, the claim for compensation put forth by the claimant cannot be denied on any such plea.

7. The question that now arises for consideration is with regard to the amount payable as compensation for the injury suffered by the claimant. As has been mentioned earlier, the left arm of the claimant from the shoulder had to be amputated. Prem Devi was only 40 years of age at the time of the accident. She has three minor children to look after. She also deposed that she used to do sewing and her earnings from this source were Rs. 7/- to 8/- per day. It was the testimony of A.W. 3 Ishar Dass and A.W. 4 Tek Chand too, that sewing was a source of earning for Prem Devi.

8. The loss of an arm does indeed constitute a grave disability. It would undoubtedly hamper a house-wife in carrying out her normal duties as such, and in the case of Prem Devi all the more so, when she has three minor children to bring up. Besides this there is also the loss of income from sewing. Loss of an arm is certainly a disability in sewing. Finally, there is compensation payable to her for the pain and suffering caused to her as also the loss of amenities of life.

9. By the very nature of things there can obviously be no precise yard-stick to measure the compensation payable to the claimant here. Having regrd, however, to the totality of the circumstances of the case, in the light of the evidence on record, a sum of Rs. 30,000/- is hereby awarded as compensation to the claimant Prem Devi for pain and sufferings, loss of amenities of life and permanent disability and loss of income. The claimant shall be entitled to the compensation awarded along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. The liability of the respondent-insurance company shall, however, be limited to Rs. 5,000/- while that of the other respondents shall be joint and several and shall extent to the entire amount awarded.

This appeal is consequently hereby accepted with costs. Counsel's fee Rs. 300/-.


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