1. This is an appeal under Section 110-D of the Motors Vehicles Act against the award if damages by the Motor Accident Claims Tribunal.
2. On June 17, 1960, Shrimati Krishna Wanti, respondent was traveling in D.T.U. Bus No Dlp 257 on route No.10 at about 3-30 P.M. On New Link road a cart full of long loges of wood. which are usually of used as rafters under the roofs and also for the construction of sheds. was going ahead of the bus. These longs were protruding our of the cart. The driver of the bus. while trying to overtake this cart acted rashly and negligently at a high speed. He swerved the bus so suddenly at a high speed that one of the loss of wood hit the arm of there respondent who was sitting next to the window on the left side of the bus and injured her. she got compound fracture of her left arm bones in addition to other bruises all over. She was taken to Sir Ganga Ram Hospital where she was admitted for treatment and had to incur heavy expenses. she filed an application under Section 110 of the Motor Vehicles Act claiming compensation to the tune of Rs. 25,000/- This application was resisted by the appellants. It was averred that she had placed her a elbow outside the window of the bus in spite of the warning of the conductor and it was for that reason that the accident took place resulting in the further of her hand. The liability to pay any compensation was also disputed.
3. The following issues with which I am now concerned were farmed by the Tribunal:
'3. whether the accident was due to the contributory negligence of the appliance?
4. whether the injuries were sustained by the applicant due to rash and negligent driving of the bus by respondent No. 3?
5. To what amount of compensation if any the applicant is entitled?
4. The learned Tribunal came to the conclusion that the accident had taken place because of the rash and negligent deriving of the bus and not because of the contributory negligence of the applicant. A sum of Rs.2150/- was awarded as compensation.
5. The learned counsel for the appellant. contends that there was no negligence the part of the driver of the bus. he also submits that but for the respondent keeping her elbow on the window of the bus in spite of the directions to the contrary. there would have been no accident and so she was not entitled to any damages.
6. It is not disputed that the respondent was traveling in the bus of the appellant on the date and the time if question. it is also not disputed that at the time of the accident the bus was overtaking a cart full of logs of wood which were protruding our of the cart and it was because of one of the logs hitting the extended elbow that the accident took place.
7. The only question to be decided is whether the respondent was negligent In putting her elbow on the window of the bus and that the driver owed on duty to her safety in that situation.
8. The appellant produced Shri Dharam Pal. Traffic Inspector to prove that there were painted instructions on the bus prohibiting the passenger from putting their arms outside the bus. Prem Singh. conductor of the bus in question also corroborated the Traffic Inspector. He also stated that when the bus reached Teliwara he found that the arms of several passengers were outside the windows and so he asked them to keep their arms inside. They obeyed the instruction and kept their arms inside. Again when the bus reached Passenger he again asked the passengers to keep their arms inside and again they obeyed. One of the passengers. who was keeping her arm outside. was the respondent and had not obeyed the instructions.
9. Krishan Lal. driver of the bus stated that he had noticed the cart with the log but the had overtaken it after finding that he could easily overtaken it. finding that he could easily overtake it.
10-13. The respondent in her statement denied that the conductor had warned the passengers at any stage of their journey that they should keep their hand inside the bus. She also stated that she was illiterate and so could not a say whether there was any warning painted on the bus directing the passenger not to protrude their arms outside the bus. the learned Tribunal on the assessment of the aforesaid evidence came to the conclusion that it could not be believed that the conductor would keep on warning the passengers to keep her hand inside the bus. He also disbelieved the conductor about the fact of his having warned the respondent in particular o keep her arms inside. Since the respondent was illiterate. the existence of the painted instructions in the bus. according to the learned Tribunal did not make difference.
14. It is the duty of the driver of the public buses to taken all steps. which a person of ordinary prudence would taken to ensure the safety of the passengers. The driver of the bus in question cannot be a said to be unaware of the fact that the passengers were in the habit of putting their hands outside the bus. He could thus foresee that while overtaking a moving cart of the would not leave sufficient space between the a cart the bus,. these was likelihood of the passenger arms being injured. The respondent had elbow on the window while sitting in the bus. This cannot be said to be negligent way off setting. On the other hand it may be called a slightly more comfortable way of sitting. The driver having noted the protruding wooden logs should have ensured a sufficient a space between the bus the a cart while overtaken it. In case he found that the oncoming traffic a did not permit him of the much space. it was his duty no to risk overtaking the cart. The driver thus was rightly held negligent in overtaking the cart which resulted in injuries to the respondent.
15. The Punjab High court in a Bench decision in State of Punjab v. Smt. Guran Wanti, observed:
'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 a cannot be said to have failed to use reasonable care for her safety by resting below on the window' .It was also held: 'At the time of the accident the plaintiff was traveling in the bus as a passenger. She had a right to expect to be carried safely to her destination. of 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 rick shaw. It is not usual for a bus to travel on the extreme right of the road. In the present case the driver a has done so. It is thereforee for him to give reasonable Explanationn 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 Explanationn forthcoming on this record. It was the duty of the defendants to take reasonable care that the passengers traveling in the bus do not receive Injuries during the journey. To achieve this object it is necessary for the driver to be no the look out of any possible obstruction on the road to even in the air and to taken 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 case. and thereforee it must be held that there was negligence'.
16. The learned counsel for the appellants could not seriously challenge the amount of the compensation awarded to the respondent. she had been an indoor patient of Sir Ganga Ram Hospital and had paid the expenses. Since she could not produce the necessary receipts. She had not been able to use her arm for a period of three months and had been is grant agony and pain and for that a sum of Rs. 1,500/- was allowed as general damages. Rs.500/- were allowed toward her medical expenses and Rs. 150/- towards wages of the servant for a period of three months which she was forced to engage.
17. The result is. the appeal fails and is dismissed with costs.
18. Appeal dismissed.