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Rehana Rahimbhai Kasambhai Vs. the Transport Manager, Ahmedabad Municipal Transport Service, Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 267 of 1972
Judge
Reported inAIR1976Guj37
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantRehana Rahimbhai Kasambhai
RespondentThe Transport Manager, Ahmedabad Municipal Transport Service, Ahmedabad and ors.
Appellant Advocate R.K. Abhichandani, Adv.
Respondent Advocate G.N. Desai and; V.S. Mehta, Advs.
Cases ReferredRanjit Sinah v. Meenaxiben. (supra
Excerpt:
motor vehicles - quantum of damages - section 110b of motor vehicles act, 1939 - three factors should be considered while granting damages - personal suffering and loss of enjoyment of life - actual pecuniary loss resulting in expenses reasonably incurred by plaintiff - probable future loss of income by reason of incapacity or diminished capacity to work - in case of female claimants court must also look towards her matrimonial aspect. - - from her and though she saw that the sad bits was coming in front of her on the wrong side she thought that the bus would take the right side of the road but after a few minutes she found that the bus continued to rush towards her at the same speed. it is the case of the appellant that before the accident she was able to take 'part in sports, and.....t.u. mehta, j.1. this appeal arises out of the appellant's petition before the motor accidents claims tribunal, ahmedabad. for getting the compensation of rs. 17,700/- on account of the injuries received by her as a result of collision with a passenger bus belonging to the ahmedabad municipality on 22nd july, 1968. on maninagar-vatva road between uttamnagar and prakashnagar bus stops in the evening at about 5.20 p. m. the learned judge of the tribunal having dismissed the appellant's claim petition, the appellant-petitioner has preferred this appeal. the petition was registered before the said tribunal as application no. 15/69.2. the facts of the case are that the appellant-petitioner is studying in school and is residing with her parents at isanpur. at the time of the accident she was of.....
Judgment:

T.U. Mehta, J.

1. This appeal arises out of the appellant's petition before the Motor Accidents Claims Tribunal, Ahmedabad. for getting the compensation of Rs. 17,700/- on account of the injuries received by her as a result of collision with a passenger bus belonging to the Ahmedabad Municipality on 22nd July, 1968. on Maninagar-Vatva road between Uttamnagar and Prakashnagar bus stops in the evening at about 5.20 p. m. The learned Judge of the Tribunal having dismissed the appellant's claim petition, the appellant-petitioner has preferred this appeal. The petition was registered before the said Tribunal as application No. 15/69.

2. The facts of the case are that the appellant-petitioner is studying in school and is residing with her parents at Isanpur. At the time of the accident she was of 16 years of age and was studying in 9th Standard. She was usually going to her school and returning home on cycle. On the day of the incident after her school hours were over she was returning home and proceeding from Jawahar Chowk to Uttamnagar. At that time one municipal transport bus which was driven by the original opponent No. 3, Davabhai Chhaganji, was found corning from the opposite side from Uttamnagar bus stand. According to the petitioner appellant the said bus was being driven with an excessive speed and was running on its wrong side. The story of the appellant is that when she first saw the bus, it was at a distance of about 40 ft. from her and though she saw that the sad bits was coming in front of her on the wrong side she thought that the bus would take the right side of the road but after a few minutes she found that the bus continued to rush towards her at the same speed. The appellant says that thereupon she apprehended danger to her life and thought that the bus was likely to hit her. The appellant further claims that she was going on the left extremity of the road. Beyond this road was a kutcha strip of road which was full of pits and some cement concrete machine was also lying there. The appellant says that therefore it was not possible for her to go further on her left, with the result that she took a decision to swerve towards her right hand side, presuming that she would be able to, bye-pass the bus safely as the bus was rushing towards her left hand side. However, according to, the appellant, even the driver of the bus swerved his vehicle towards the same side with the result that her cycle collided with the left hand front bumper and wheel of the bus. The appellant's cycle was entangled in the bumper of the bus and she herself was thrown away on the kutcha road on her right hand side at a distance of about 10 ft. from the place of collision. Immediately thereafter the bus stopped. The appellant says that after being thrown away she was rendered unconscious.

3. The appellant has produced the evidence of one Thakorbhai Somabhai Barot, whose deposition appears at Ext. 53. It is said that this witness was one of the passengers travelling in this bus Evidence reveals that this passenger immediately got down from the bus, and with the help of another passerby named Kantibhai Purshottanabhai Patel, Ex. 55, took the appellant to L. G. Hospital, Maninagar. The appellant was treated at the hospital where it was found that the tibia and fibula bones of her, left leg were fractured. The fracture was thereafter reduced by the doctor on 24th July. 1968. The doctor also took two X-ray pictures of the said fractured bones. The appellant was thereafter discharged from the hospital on 26th July, 1968. However, the appellant continued to receive pain and felt that she was not cured. She was, therefore, shown to another Orthopaedic Surgeon Dr. Mahendra Trambaklal Mehta, whose deposition appears at Ex. 57. This doctor is working as Honorary Surgeon in Civil Hospital and has also his private clinic at Khanpur. He examined the appellant on 12th August. 1968, when he found that the wound on the tibia was discharging pus and, was in septic condition. This doctor again took X-ray Pictures. He removed the plaster and dressed the wounds. He further found that the fracture of the bones had not united. On 20th March. 1970, he again examined the appellant and found that the left leg of the appellant was disabled permanently to the extent of 12 %, on account of the thickening of the bone at the site of the fracture. Ultimately the left leg of the appellant was shortened by half an inch with the result that she had got a permanent limp. Thus according to this doctor, the appellant has got a permanent disability to the extent of 12% in her left leg.

4. It is found that the appellant was totally disabled for about six weeks during which time she could not attend her school. It is the case of the appellant that before the accident she was able to take 'part in sports, and being a good sports girl. she took part in the sports competition for running, hopping and kho-kho and also secured prizes on some occasions. However, on account of the injury which she has received, she is not now able to pursue any of these games. She is not able to run on account of the limp and though previous to the incident she sometimes used to walk the distance between her house and her school, she is now required to go to the school only by bus. In her deposition, the appellant claims that now on account of her permanent disability she is not able to walk at a stretch for more than 20 to 25 minutes because if she tries to walk, she gets pain. She further deposes that she can climb the stairs very slowly and feels ashamed on account of her limping gait.

5. The case of the appellant thus is that she got the above referred injury on account of the rash and negligent driving of the bus by its driver. The father of the appellant one Rahimbhai Kasambhai, whose deposition appears at Ex. 71, has deposed that there is scarcity of good boys in his community and the difficulty in obtaining a suitable match for the girl has now increased on account of the permanent limp which the appellant has got due to this accident.

6. The appellant has produced evidence to show that she spent Rs. 2,700/- for her treatment. She has therefore claimed this amount and has further claimed Rs. 15,000/- for pain and suffering as well as for loss of earning and diminution of her value in the matrimonial market.

7. As against the above the case of the respondent the Transport Manager, Ahmedabad Municipal Tranpt. Service, is that the accident has occurred not an account of any negligence of the driver of the bus, but on account of the negligence of the appellant herself. The case of the respondent is that the driver of the bus was going on the correct side of the road and with a moderate speed because it was the time when there were many school children on the road going home after the school hours. It is further pleaded an behalf of the respondent that though the appellant was going on her cycle on the correct side of the road when the bus came nearer to her, she suddenly took a turn towards her right hand side with the result that the driver of the bus swerved his bus towards his right hand side in order to save the appellant. However, in spite of the utmost care the driver of the bus could not escape from the collision with the result that the cycle driven by the appellant collided against the left hand side of the fore-wheel of the bus, and the appellant received the injuries in question According to the respondents, therefore, this accident would not have occurred had the appellant not preferred to swerve to her right hand side and had preferred to go straight on her own side.

8. Ex. 69 is the panchnama of the place of the incident. This panchnama was prepared a few hours after the incident and was over at about 8.00 p. m. The panchnama reveals some very significant facts which are very much material for appreciating the disputed points in this case. We shall, therefore. shortly narrate these facts. The road where the accident occurred is asphalted and the asphalted area of the road is of 20 ft. in width. The bus was going from south to north and the appellant was coming on her cycle from north to south. At the time of the panchnama the bus was facing towards north-east. Since the bus was going from south to north its left hand side was the western side of the road, while the left hand side of the appellant, who was riding on her cycle was the eastern side of the road, Now the panchanama shows that when the same was prepared, the left hand side of the front wheel of the bus was 8' 8' away from the western border of the asphalt road. while its right hand side front wheel was 4' 6' away from the eastern side of the road. The width of the bus was 7' 6'. So far as the rear two wheels are concerned, the, left hand side rear wheel of the bus was 6' 11' from the western edge of the road while its right hand side rear wheel was 6' 6'' from the eastern edge of the road. This position of the bus makes it clear that at the time of the panchnama it was lying occupying the major portion of the eastern half of the road which means that at that time it was occupying a substantial portion of its right hand side of the road. The accident is said to have occurred at a place which is about 2' away from the western half of the road from the position of the left hand side fore-wheel of the bus. It is an admitted fact that on both the sides of the road there were kutcha strips on which Pedestrians could walk.

9. Apart from the deposition of the appellant-petitioner we have, also got in evidence the deposition of appellant's above referred witness Thakorbhai Somabhai Barot, Ex. 53. Since this witness was one of the passengers travelling in the bus and since he has deposed to some very material facts relating to this case, it would be necessary to narrate at this stage the nature of the evidence given by this witness. The witness says that he boarded this bus from Isanpur at 5.10 p. m. and occupied a seat near the rear door of the bus on its left hand side. He deposes that the road from Isanpur upto Uttamnagar is a kutcha road and when the bus was passing on this kutcha road it gave a lot of jerks with the result that he found it uncomfortable to sit. He, therefore, got up from his seat and preferred to stand catching hold of the ceiling bar of the bus to avoid jerks. The witness says that the bus did not stop at Uttamnagar bus stand and continued to run at an increased speed when it came on the pucka road from the Uttamnagar bus stand. He further deposes that after coming on the pucka road, the bus was found running on the wrong side of the road i.e., the eastern side keeping a distance of 5 to 6 ft. from the eastern boundary of the road. At this time the Pedestrian traffic of students was already on the road going from Prakashnagar side to Uttamnagar side. The witness thereafter claims that since he was standing, he could observe the movement on the road from wind screen of the bus. At that time he saw the appellant coming in front of the bus on her cycle which was driven by her on the correct side of the road i.e., on the eastern side. At that time the distance between the bus and the appellant was about 30'. The witness could not see anything further, but within a second or two he heard a clashing sound and immediately thereafter found that the bus had stopped. He at once got down from the bus and found that the cycle of the appellant had got entangled in the front portion of the bus. Many other passersby thereafter collected and as already noted above, the witness took the girl with the help of other witness Kantilal Purshottamdas to L. G. Hospital at Maninagar. This witness supports the appellant in her story that the kutcha portion of the road on its eastern side was full of pits and mortar as well as one cement concrete machine as some construction work was going on nearby.

10. The learned Judge of the Tribunal has disbelieved evidence given by the appellant and the above referred witness principally on one ground, namely, that the position of the bus after the accident which is revealed by them is not consistent with the position of the bus which was found at the time when the panchnama Ex. 36 was made. This is clear by reference to paragraphs 16 and 17 of his judgment. On behalf of the appellant it was contended that the learned Judge has very lightly brushed aside the evidence of the girl and her witness merely because the position of the bus soon after the incident as described by them is not found to be in harmony with the position mentioned in the panchnama. The discussion which follows shows that this grievance of the appellant is quite justified.

11. The first and the most pertinent question which requires close consideration is whether the appellant is right when she asserts that the driver of the bus was going with an excessive speed. So for as the question of speed is concerned we are satisfied that the circumstances of the case lend sufficient corroboration to the evidence given by the petitioner and her witness Thakorblia. The deposition of the driver Dahyabhai Chhaganji, appears at Ex. 74. In his deposition he asserts that he was going with a moderate speed and ' when he first noticed the appellant coming on her cycle, there was a distance of 30 to 35 feet, between her and the bus. He then deposes that when the distance between the bus and the appellant was about 10 to 15 ft., the appellant took a sudden turn on her right hand side, and seeing this he applied brakes to his vehicle and simultaneously swerved his vehicle towards his right hand side, He however could not save the collision because the appellant's cycle dashed against the front left hand side of the bus. He further deposes that even after he applied the brakes the bus proceeded further by about 5 ft. This portion of the deposition of the witness makes it clear that he applied brakes to his vehicle at a distance of 20 ft. from the place where it ultimately stopped. Now if the vehicle was going with a moderate speed, it is difficult to believe that even after the application of the brakes it could drag on up to a distance of 20 ft. This fact therefore supplies very inherent evidence about the speed with which the vehicle was driven at the relevant time. Here it should be noticed that even the driver admits that many school children were going on the road at the relevant time. It is, therefore fairly clear that the road was congested with pedestrian traffic most of whom were school children. In these circumstances the driver of the bus was expected to drive his vehicle in such a manner that it could be taken into control within a fraction of a moment. But this he has not been able to do. In our opinion, this particular fact gives good deal of credence to the appellant's evidence as well as the evidence supplied by her witness Thakorbhai Barot, both of whom say that the bus was being a driven with excessive speed. As a matter of fact, we find nothing in the evidence of Thakorbhai Barot to show that he is in any manner interested in siding with the appellant. The fact of the matter is that the appellant belongs to a Mohmedan family, while Thakorbhai is a Hindu. Apart from the fact that both of them are residing at the same suburb. there is absolutely nothing to show that Thakorbhai Barot has got any special reasons to depose falsely as regards the speed of the bus. In our opinion, therefore, the appellant has produced satisfactory evidence that the bus was not going with the speed which was normal considering the fact that the road was full of the traffic consisting of school children.

12. So far as the side on which the driver was driving his bus is concerned. we are of the opinion, that a mere look at the position of the bus, as described in the panchnama is sufficient. We have already described that when the panchnama was prepared, the bus was lying much on its wrong side i.e., on the eastern side of the road. It occupied a substantial portion of the eastern side. Now it is no doubt true that exactly at the moment of the impact the driver of the bus seems to have swerved his vehicle more towards his right hand side i.e.. the eastern side of the road. It is for this reason that the front portion of the bus is slanting more towards the eastern side. When a vehicle is swerved towards a particular side by the operation of the steering wheel, the front wheels would be affected first but the rear wheels would change their side only after the vehicle travels a little towards the swerved side. Therefore the correct position of the bus when it was running towards northern side would be suggested properly by the position of the rear side of the bus. Even this position shows that the vehicle was more on its wrong side than on its correct side because the left rear side of the vehicle was hardly 6' 11' from the western border of the road and the right rear wheel was 6' 6' away from the eastern border of the road. Considering the fact that the width of the bus was 7' 6' it follows that the bus occupied 14' 5' of the whole road which is of the width at 20 ft. From these facts therefore it is clear that the driver of the bus was driving his vehicle not on its correct side. These facts, therefore, give sufficient corroboration to the appellant and her witness Thakorbhai Barot, who definitely deposes that the bus was going on its tight hand side.

13. The above discussion shows two very important facts namely. (1) that the driver of the bus was driving it on the incorrect side and (2) that he was driving it at a more than normal speed which was expected on a road congested with the traffic of school children. If these two facts are now taken into account, with a view to appreciate the appellant's story one would not find it difficult to believe that the appellant had sufficient reasons to believe that the bus was direct 17 coming on her. Here one very important fact which should be noticed is that even according to the driver of the bus, the appellant we coming from the opposite side on the eastern portion of the road. In other words, the appellant was driving her cycle on the correct side. Now it is an admitted position that at a particular point she took a sudden turn. The question is why she did so. It is an admitted position that there were no cross roads at the place where the accident occurred and in ordinary course the appellant had absolutely no reason to take sudden turn towards Right hand side. Had she no reasons to apprehend that she would be crushed by the on coming bus towards her there was no necessity for her to take the turn towards her right hand side. This inherent circumstance of the case therefore gives good deal of credence to the appellant's story that she had to take turn towards her right hand side an account of her apprehension that if she did not do so, she would be crushed by the on coming vehicle. We therefore find that the learned Judge of the Tribunal was not justified in discarding the evidence offered by the appellant on this point. We are of the opinion that the appellant was speared on account of rather rash and negligent driving of the bus and it was an account of this scare that she took the decision of swerving her cycle towards her right hand side. These facts are, therefore in our opinion, sufficient to come to a conclusion that the root and the main cause, of this accident was the rash and negligent driving of the bus.

14. But the case is not concluded here. We find that even if the appellant had a reasonable apprehension that on going further on her own side she was likely to meet with the collision against the oncoming bus, swerving towards the right hand side was not the on1y course open to her. The position of the bus even after the accident shows that had the appellant stopped at the place where she had the real apprehension, no accident could have occurred. In our opinion, therefore, the appellant has definitely taken a wrong decision in swerving her cycle towards the right hard side. Again it should be noticed that the road was strewn with the pedestrain traffic of school boys who were going home. The appellant says that she thought that if she took a turn towards her right hand side, she would be able to save herself from the collision with the bus as the bus was going on the wrong side. In other words she expected the bus to pass without any collision on the eastern side of the road. It is apparent that this decision of the appellant was not only wrong but was highly risky. She by her action appears to have added to, the mess which was already created by the driver of the bus by taking his vehicle on the wrong side. Of course, the driver of the bus seems to have swerved his vehicle more towards the eastern side of the road and but for this action of the driver it was likely that the girl would have been crushed under one of the wheels of the bus. But the fact remains that the appel1ant could have avoided all this had she preferred to stop on her own side instead of going towards the wrong side. We find therefore that this is a case where the appellant has contributed to a certain extent to the unfortunate accident.

15. In view of these findings, the question which now arises to be considered is whether the appellant can be said to be in any manner responsible for the accident and if so whether the respondents can avoid the responsibility which would arise in torts. This is more or less a legal question which we shall briefly discuss.

16. In a long series of decisions this court has been right1y guided by the view that those who are moving with heavy and mechanically operated vehicles in road traffic bear a greater responsibility not on1v towards the pedestarians and cyclists but also towards equally heavier and speedier vehicles and should, therefore, drive their vehicles in such a manner that they can stop them and take them into control within a fraction of a moment to avoid a collision. The driver of such a vehicle should always be on a proper look out and watch the road behaviour of all the pedestrians and vehicles moving an the road.

17. But this does not mean that the pedestrians cyclists and others who use a public road owe no duty to themselves and others moving on the road. They can't afford to be heedless and careless to the traffic rules. and can't always get rid of their responsibility by throwing the whole blame on the driver of a heavier vehicle. In the traffic jammed roads of a city like Ahmedabad this point cannot be over emphasised. It can be broadly stated that when on a public road two parties are so moving in relation to each other as to involve the risk of collision, each owes to the other a duty to move with due care, and try his best to avoid a collision. This would be true whether both are moving with vehicles heavier or lighter or one is moving in a vehicle and the other on foot. Pedestrians also owe a duty to the traffic and more often an undisciplined 'jav' walker's contribution to an accident is no smaller than that of a speed intoxicated driver of an automobile. It is therefore necessary to emphasise that a disciplined traffic behaviour on a public road is a sine qua non of the personal safety of all who use that road.

18. It is here that the law on contributory negligence assumes great importance. At Common Law in England once the practice was that if you prove that the victim of an accident who brought an action in tort was partly responsible for the unfortunate accident, then he could recover nothing by way of damages. An earlier decision in Butterfield v. Forrester, (1809) 11 East 60 is an illustration on the point. There the defendant had erected an Obstruction in the highway and the Plaintiff rode against it and got himself hurt. The plaintiff was found riding without reasonable and ordinary care. The jury gave a verdict for the defendant and the same was upheld. Lord Ellenborough, C. J., observed 'one person being at fault does not dispense with another's using ordinary care of himself'. Thus though the defendant was found to be a tortfeasor, the plaintiffs contribution to the tort wholly absolved him from damages. A rigid application of this rule obviously resulted in harsh arid inequitable treatment of those whose contribution to the wrong was less but whose loss and suffering was great. The courts therefore introduced the rule of 'last opportunity' which enabled a plaintiff to recover notwithstanding his negligence if it was found that the defendant had the last opportunity to avoid the accident. The case of Davies v. Mann (1842) 10 M & W 546 is an instance on this point. There the plaintiff fettered the fore feet of his donkey and negligent1y turned it loose on the highway Defendant. driving his wagon and horses faster than he should have done, collided and killed the donkey. Though the plaintiff had contributed to the negligence by turning out the donkey loose on the highway, the defendant was held liable for damages because by exercise of ordinary care at the last opportunity he could have avoided the consequences of plaintiff's negligence. House of Lords approved of this Principle in Radley v. L. & N. W. Rlv (1876) 1 AC 754 (759). This rule of 'last opportunity' was extended to 'constructive last opportunity' in British Columbia Electric Railway v. Loach, (1916) 1 AC 719 :(AIR 1916 PC 208).

19. This rule of 'last opportunity' obviously failed to give an equitable treatment to the parties concerned because it was based on an illogical postulate that in every case the person whose negligence came last in time was solely responsible for the damage. It took no account of the partial contribution to the unfortunate accident by the other party. Therefore the view taken by House of Lords in Admiralty Commrs. v, S. S. Volute, (1922) 1 AC 129 became a landmark in the law relating to contributory negligence as it was held in that case that even where the defendant's negligence is subsequent to that of the Plaintiff, the plaintiff's negligence is still contributory to the accident if there is not 'a sufficient separation of time, place and circumstance' between Plaintiff's negligence and defendant's negligence to make the latter the sole cause of it. Following observations of Viscount Birkenhead. L. C., in that case are described by Viscount Finlay as 'a great and permanent contribution to our law on the subject of contributory negligence and to the science of jurisprudence':

'Upon the whole, I think' said Lord Birkenhead, 'that the question of contributory negligence must be dealt with somewhat broadly and upon commonsense principles as a jury would probably deal with it. And while no doubt, where a clear line can be drawn, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together and the second act of negligence is so much mixed up with the state of things brought about by the first act that the party second1y negligent, while not held free from blame ............ might, on the other hand invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution.'

This view, which has since received statutory recognition in Law Reform (Contributory Negligence) Act, 1945, in England, has done away with some of the artificiality of the old law according to which the plaintiff lost his case on proof of the slightest contribution by him to the accident. In words of Lord Porter in Boy Andrew (owners) v. St Rognvald (owners), 1948 AC 140 at P. 155 the new rule required that 'each problem should be approached broadly avoiding the fine distinctions which were apt to be drawn when some slight act of negligence on the part of the plaintiff might defeat his claim altogether.'

20. My learned brother had an opportunity to touch this subject in L. I. C. v. L. R. of deceased Naranbhai, : AIR1973Guj216 . Speaking about the rule of 'last opportunity' he has observed as under at page 935 = (at p. 223 of AIR) of the report:

' After the decision in the Volute, (1922) 1 AC 129 and Swadling v. Cooper, 1931 AC 1, the doctrine fell into disrepute and was superseded by the simple test: What was the cause, or what were the causes of the damage Therefore, even where the plaintiff contributed some negligence under the developed common law he recovered reduced damages even though he had last opportunity of avoiding damages. The learned Judge also pointed out at page. 323 that there was a fallacy in this doctrine because as a proposition of law it could never be supported by saying that negligence which created a dangerous obstruction ceased as soon as the driver of the oncoming vehicle saw it. That view could not be accepted because the plaintiff's negligence in leaving the obstruction was a continuous negligence, which continued after the oncoming driver saw it. The learned Judge pointed out that another test of contributory negligence of legal duty is as fallacious as that test of last opportunity because the real question is not whether the plaintiff was neglecting some legal duty but whether he was acting as a reasonable man with reasonable care. Speaking, therefore, generally, the learned Judge observed at page 326, that the crucial questions in road accident cases are: (1) what faults were there which caused the damage (2) what are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault?'

In that case there was no question of contributory negligence of the victim of the accident because the question was regarding the contribution made by the joint tortfeasors. This court has, however, given an indication in the above quoted observations that if a finding of contribution to the wrong by the victim of the accident is reached, the next question is regarding the apportionment of damages in proportion to the contribution made by each party to the accident. In yet another case viz. Ranjit Sihgh v. Meenaxiben (1972) 13 Gu.1 LR 662 question of contributory negligence was raised and reliance was placed upon certain observations made by Rajasthan High Court in Kotah Transport Ltd. v. Jhalawar Transport Service to the effect that if the proximate cause of the injury was the negligence of both the plaintiff and the defendant, the injury, should be allowed to rest where it lay and plaintiff could not recover anything. Speaking about this my learned brother observed:

'It is not necessary for us to pronounce on the correctness of the ultimate ratio of this decision as to whether in case of contributory negligence the doctrine of apportionment should be applied or not, and whether on such assumption of any identification between the cyclist and the victim any such plea of contributory negligence could be urged in such case.'

This court found as a fact in the above case that there was no contributory negligence on the part of the applicant. In view of such a finding. there was no necessity of applying doctrine of apportionment in that case. In the instant case, the question regarding application of that doctrine does arise and we have no hesitation in applying the same in cases of contributory negligence even though we in our country have got no statute such as Law Reform (Contributory Negligence) Act 1945 of England as this power is implied1v vested in the Tribunal by the Parliament by creating a duty to award a just compensation under our Act.

21. Shri Abhichandani who appeared for the appellant-petitioner however, contended that the facts of this case do not warrant any finding that the appellant has contributed anything to this accident. According to him the appellant was faced with dilemma whether to go on her right side or to go on her left side, and since this dilemma was a result of the rash and negligent act of the driver of the bus she could not be saddled with any liability arising out of contributory negligence even if she is found to have taken a wrong decision. In support of this contention he relied upon the following observations found in Winfield and Jolowicz on Tort at Page 114, 9th Edition:

'Where the defendant's negligence has put the plaintiff in a dilemma, the defendant cannot escape liability if the plaintiff, in the agony of the moment, tries to save himself by choosing a course of conduct which proves to be the wrong one, provided the plaintiff acted in a reasonable apprehension of danger and the method by which he tried to avoid it was reasonable. '

The learned author seems to have taken these observations from Glanville William's book on 'Tort and contributory negligence'. We find that these observations do not apply to the facts of the present case. They would apply only if it is found that the method which the appellant adopted to avoid the danger was a

reasonable one The question is whether this method was a reasonable one. It was not difficult for the appellant to take a decision to stop at the place where she first apprehended danger in stead of going on her wrong side to invite further danger. All that was expected of the appellant was that she should not have failed to take reasonable care of her own safety. It is found that by taking her cycle on the wrong side of the road, she put her own safety to a greater jeopardy. As observed by Lord Denning in Jones v. Livox Quarries Ltd (1952) 2 QB 608 at p.615, a person is guilty of contributory negligence if he ought reasonably to have

fore seen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. Here the appellant has obviously failed to take into account the possibility of the driver of the bus and other pedestrians to be careless and even purplexed if she took her cycle on the wrong side of the road. In our opinion, therefore, the appellant has not taken proper care, by swerving her cycle on her right hand side and, therefore,we conclude that she has definitely contributed to this accident.

22. The question is to what extent she has made this contribution. Answer to this question is necessary because the damages which would eventually be awarded to the petitioner would stand reduced in proportion to her contribution to the accident. The English Judges who are required to make such an apportionment are expected by Section 1(1) of the Law Reforms Act of 1945 to reduce the damages, in case of contributory negligence,, 'to such extent as the court thinks just and equitable having regard to claimant's share in the responsibility for the damages'. They have, broadly speaking, accepted two principal criteria of 'responsibility'. They are (1) causation and (2) culpability. (Vide Davies v. Swan Motor Co., (1949 ) 2 KB 291. 326 per Denning, L. J.. Stapley v. Gypsum Mines Ltd (1953) AC 663, 682 per Lord Reed; the Miraflore (1967) 1 AC 826 at p. 845 Per Lord Pearce). In other words the chain of causation which led to the accident and want of reasonable care which the claimant failed to exercise, if appreciated in a comprehensive and integrated manner would provide a good guide on the question of apportionment. Winfield has summarised this point in the following words:

'The result is, therefore, that there is no single principle for the apportionment of damages in cases of contributory negligence and certainly no mathematical approach is possible. No doubt the extent of the plaintiff's lack of care for his own safety must be a major factor in all cases, but the court is directed by the statute to do what is 'just and equitable'. The matter is thus one for the discretion of the court and, though the discretion must be exercised judicially, it is both unnecessary and undesirable that the exercise of the discretion be fettered by rigid rules requiring the court to take some aspects of the given case into account and to reject others.'

If we look to the facts of this case in the light of the chain of causation, we find that initially it was the negligence of the driver of the bus which frightened the appellant to take a particular decision. It was as a result of this negligence in driving the bus which induced the appellant in taking a wrong decision of going to the wrong side. Here it should be noticed that at the relevant time, the appellant was, hardly of 16 years of age. A girl of her age would surely not possess the matured and full thinking which could be expected of a person of an advanced age. Under the circumstances, we do not find ourselves in agreement with the learned Govt. Pleader that even if it is believed that this is a case of contributory negligence, the appellant's contribution to the accident should be assessed at 50%. In our opinion if an integrated and comprehensive view of caution and responsibility is taken it cannot be said that the appellant has contributed anything more than 25% to the unfortunate accident.

23. This brings us to the question as regards the quantum of damages. So far as the question of damages is concerned the law is quite settled so far as this court is concerned. We would only point out to the decision given by this court in Ranjit Sinah v. Meenaxiben. (supra) where the whole point is discussed at length in Paras. 5 to 7 of the reported judgment. In cases of personal injury, general damages can be given under three heads namely:

(1) Personal suffering and loss of enjoyment of life:

(2)

(3) Actual pecuniary loss resulting in any expenses reasonably incurred by the plaintiff; and

(4)

(5) The probable future loss of income by reason of incapacity or diminished capacity for work.

(6)

So far as the female claimants are concerned one question which every court should never fail to take into consideration is whether the accident has resulted in any injury which would diminish her prospects in the matrimonial market. In Ranjit singh v. Meenaxiben, the claimant had lost one of her hands as a result of the accident. This court has extensively discussed how a loss of this type would result in permanent incapacity in case of a female who is expected to run her household. It is held in that case that under the head of personal suffering and loss of enjoyment alone the compensation of the sum of Rs. 10,000/- would be justified. For this proposition the court has relied upon various awards, English as well as Indian. given by different Judges. We see no reason to depart from this reasoning so far as this case is concerned. Therefore, under the head of personal suffering and loss of enjoyment of life, we find that the appellant is entitled to get the compensation of Rs. 10,00/- Under the second head the damages can be awarded for the Pecuniary loss in form of expenditure which the claimant is required to incur on account of the nature of the defect resulting from injury. No such damages are proved in this case. And hence nothing is awardable under this head. So far as the third head is concerned, the question is what would be the probable future loss of income, by reason of incapacity or diminished capacity for work. The appellant is a young girl of 16 to 17 years of age. She has to pass the whole of her life with a limp in one of her legs. Obviously her matrimonial prospects have been substantially impaired. She is taking education in school and there is no reason not to believe that by the course of time she would have been able to acquire the earning capacity which would be just sufficient to maintain herself and her family. She is also found to be a sports girl but as a result of the injury which she has received. she is unable to pursue the sports of her choice. This would be a permanent handicap to her in future life and would result in the deprivation of the ordinary enjoyments of life. Taking therefore all these facts into consideration, we are of the opinion that under the third head, she should be awarded the compensation of Rs. 7.500/-. Over and above this, the claimant is entitled to special damages of Rs. 2,700/- actual1y spent after medical treatment. The Tribunal has rightly held this expenditure as Proved.

24. Thus the total amount of compensation which the appellant is found entitled to get is of the amount of Rupees 20,2001/- Reducing this compensation in proportion to the contribution which she has made to the extent of approximately 25 %. we are of the opinion that the appellant should be awarded the compensation of Rs. 15,000/-. This Appeal is accordingly allowed with costs throughout and with interest on the above referred amount of Rs. 15,1000/- from the date of the original petition to the date of payment at the rate of 6%. The award Passed by the learned Judge of the Tribunal is accordingly set aside and the appeal is accordingly allowed.

25. Appeal allowed.


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