D.H. Shukla, J.
1. These four appeals arise out of a common judgment of the Motor Accident Claims Tribunal, Rajkot District, Rajkot, in Claims Cases Nos. 37/76, 38/76, 39/76 and 40/76 wherein the learned Tribunal awarded compensation of Rs. 93,200/- to the claimant in claim Case No. 37/76, a sum of Rs. 9,990/- to the claimant in claim Case No. 38/76; Rs. 7436/- to the claimant in claim case No. 39/76 and Rs. 9,990/- to the claimant in Claim case No. 40/76.
2. Having been aggrieved and dissatisfied with the aforesaid judgment and award of the Tribunal, the Gujarat State Road Transport Corporation has filed these appeals.
3. Out of the aforesaid for claim cases, claim case No. 38/76, Claim Case No. 39/76 and Claim Case No. 40/76 involved, relatively speaking, smaller amounts of compensation then in claim case No. 37/76 wherein the compensation awarded is Rs. 93,200/-. It may be stated at the outset that Mr. D.K. Trivedi, the learned Advocate for the appellant (original opponent No. 2) did not touch the small claim cases, but concentrated his attack only on claim case No. 37/76 (First Appeal No. 637/78). Accordingly, we shall also deal with First Appeal No. 637/78 exhaustively, leaving the rest as not pressed.
4. The facts to the claim Cases may shortly be slated as under:
The appellant Shri Digvijaysinhji Pratapsinhji of Wankaner along with three other inmates in the car, namely Abdul Karimmiyan Ummarmiyan [claim, Case No. 38/76], Kantilal Devchand Mehta [Claim Case No. 39/76] and Allarakhan Mamad [Claim Case No. 40/76] were proceeding from Wankaner in a motor car bearing No. GJR 2484 and were proceeding to Yeraval as the appellant Shri Digvijaysinhji has to attend a meeting of Gujarat Agro Corporation of which he was the Chairman. The appellant was driving the car and Kantilal Devchand Mehta was sitting in the front seat by his side. Abdul Karimmiyan and Allarakha Mamad occupied the rear seat in the car. The car reached the Highway at a distance of about 2 k.m. away from Gondal City. It was proceeding on the left hand side of the road. The State Transport Bus, bearing GTE 4511 proceeded from Gundala side and was proceeding across the intersection of the road to go in the direction of Gondal. The unfortunate accident occurred on the intersection of the roads at about 2 p.m. on 28.11. 1975. It transpires from the evidence that the car-driven by the appellant hit the rear left side of the bus, near the entrance for the passengers to get in the bus. All the four inmates of the car received injuries in verying degrees. The appellant Digvijaysinhji received serious injuries which included a fracture of the skull bone.
5. All the appellants alleged in their respective claim petitions that the accident occurred due to the sole negligence of the driver of the State Road Transport bus. Khimjibhai Bhurabhai Bharwad, respondent No. 2, herein.
6. The appellant alleged that respondent No. 2 drove the bus in high speed and in disregard of the traffic rules. He did not stop the bus at the bump situated at some distance away from the intersection on the Gundala Gondal Road. It was the duty of the bus driver, it is alleged, to have stopped the bus altogether and to have entered the intersections only after the car which ran on the High way had passed by. The bus driver drove the bus hazardously and with fast speed attempted to cross the intersection of the roads in which process the appellant inevitably met with the accident despite all attempts on his part to stop the car.
7. The respondents by their respective written statements in claim petitions contested the respective claims of the appellants before the Tribunal. It is admitted that the respondent No. 2 Khimjibhai was driving the S.T. Bus scheduled from Upleta to Rajkot. viz: Charakhadi and Gondal at the relevant time, and was proceeding from Gundala to Gondal, but he contended that he was driving the bus at a slow speed and that he had slowed down the speed of the bus when he reached the intersection. He further contended that he had stopped the bus at a distance about 87 feet away from the intersection of the roads where there was a caution sign and also at a distance of 33 feet from the intersection of the roads where there is bus. He then verified from all the directions as to whether any vehicle was proceeding on the Highway. He found the road clear and then cautiously proceeded to cross the intersection after blowing the horn. At that time, the appellant, Digvijaysinhji drove his car at a high speed from Rajkot side towards Jetpur side. He drove his car in a rash and negligent manner and failed to take proper care and caution. As a result, his car dashed 'against the left rear side of the bus. His car could not be stopped by him although he applied the brakes from a distance of about 80 feet from the place of the impact. In the submission of the respondent No. 2 the accident was the result of the sole negligence of the appellant. The respondent No. 2 further submitted that because of a sudden heavy impact of the collision of the car with his bus, he got perplexed of lost control over the bus, as a consequence of which the bus proceeded on the wrong side of the road and stopped at a distance of about 112 feet of the Highway. It is contended, in the alternative, that the accident could not have occurred without the contributory negligence of the appellant, Digvijaysinhj.
8. In all the Claim Petitions, the Tribunal raised issues all of which are not necessary for discussion in these appeals. It was not seriously contended by Mr. B.K. Trivedi that respondent No. 2 was negligent in driving the S.T. Bus., but he seriously contended that the appellant Digvijaysinhji was guilty of contributory negligence. In his submission, the Tribunal has misread the evidence and has failed to appreciate the situation and photography of the place of accident as well as the question of timing in regulating the speed of the vehicle by both the drivers, with the result that it has completely erred in exonerating the appellant Digvijaysinhji, from all blame. As a matter of fact, the entire attack of Mr. Trivedi was on his aspect of the matter. We propose to deal with this aspect of the matter in detail and shall discuss the question from all possible angles.
9. In order to appreciate the question of respective liabilities of the drivers of the two vehicles, it is necessary to have a clear picture of the photography of the scene of incident. The learned Advocate for the appellant Mr. Shah, submitted for our perusal a sketch of the plea of incident which we direct to be kept on record of this matter. From the perusal of the sketch the following relevant outline emerge. The State Highway No. 8B runs north south, Rajkot being in the North and Jetpur being in the South. This road is about 34 feet wide. This Highway is crossed by a public road proceeding from Gundala to Gondal, Gundala being in the west and Gondal being in the east. Gundala-Gondal road is about 10 feet wide. At a distance of about 87 feet, there is a caution board and at a distance of 33 feet from the intersection there is a bump. The car driven by the appellant Digvijaysinhji was running on the National Highway, wherein the bus was proceeding on a smaller road running from Gundala to Gondal. The accident occurred on the intersection itself of the two roads, the place of impact being nearer the eastern edge of the Highway. As a result of the collision, the bus was driven apparently without any control, with the result that it landed 112 feet away from the place of impact. It stopped in the east north corner of both the roads.
10. Having read the topography of the place of impact, we shall first consider the Panchnama (Ex. 39) proved by Manjibhai Mohanbhai (witness No. 1 for the claimants, Ex. 37)., There is no dispute before us about the correctness of the contents of the Panchnama. The Panchnama discloses the details about the scene of incident which we have discussed above from the perusal of sketch. We will not, therefore, repeat the same details. It is found from the panchnama that there were wheel marks of the car stretching about 80 feet from the place of impact. These wheel marks are found on the Highway i.e. Rajkot-Jetpur Road. The wheel-marks are found about 4 feet away from the left hand edge of the Highway. On the question of contributory negligence, much was made by Mr. Shah, the learned Advocate for the Respondent No. 1, that these wheel-marks indisputedly proved that the appellant Digvijaysinhji was driving his car on the correct side of the road and that he had applied his brakes about 80 feet away from the place of impact. It is also disclosed by the Panchnama that there were no wheel-marks so far as the bus driven by the respondent No. 2 is concerned. It is also disclosed by a panchnama that as a result of the forceful collision, the front of the car had totally turned and that when the panchnama was drawn it was found stationed in the northern direction of Rajkot, the side opposite from there in which it was running when the accident occurred. The panchnama further discloses the details about the damage to the car into the discussion of which we need not enter as Mr. Trivedi did not contend about either the factus of damage to the car or the details of damage to the car as avarred by the appellant Digvijaysinhji in his claim petition.
11. Having considered the sketch as well as panchnama (Ex. 39) we shall now proceed to consider the evidence of the appellant Digvijaysjnbji, which is at Ex. 40. The relevant part of his evidence discloses that he was driving his fiat car to go to Veraval. By his side was sitting Kantilal Devchand (P.W. 9) Exhib. 140). and the rear seat was occupied by Allarakha Mamad (P.W. 6 Ex. 74) and Abdul Karimmiyan Ummarmiya (P.W. 5 Ex. 73). Digvijaysinh has further stated that he was driving his car on the left hand side of the Highway at a speed of 65 kms. per hour. We may state at this stage that this statement of Digvijaysinhji does not appear to us to be correct, considering two facts, namely that the car could not be stopped in time to prevent collision even though the brakes were applied from a distance of 80 feet and the impact was no great that the front of the car turned in the opposite direction. One who has even a little experience of driving a car would immediately realise that the speed of 65 kms. per hour is so moderate that a driver would be able to control his car efficiently and would be able to stop it immediately the moment the brakes are applied. So far as the conduct of Digvijaysinhji is concerned, therefore, we must express our doubts in respect to the credibility of his statement as to the manner of his driving. Digvijaysinhji has further stated in his evidence that he had seen the bus proceeding from the Gundala side when his car was about 100 meters away from the intersection of the roads. When he saw the bus for the first time, the bus itself was at a distance of about 200 to 250 meters from the intersection of the roads. There is an important statement made by him in his examination-in-chief that in view of caution board and the bump on the road on which the road was proceeding, he thought that the bus would stop before entering the Highway, but when the bus did not stop, he at once applied the brakes, but by that time the bus reached the Highway and as it was driven a high speed, the application of the brakes had no effect and the accident occurred. Digvijaysinhji submitted that the driver of the bus did not apply the brakes. This is his version of the accident. We have read the cross-examination of Digvijaysinhji expecting that the relevant questions would have been asked to him so far as his contributory negligence is concerned. We have, however, found that the cross-examination on this point is very inadequate.
12. The other occupants of the car are examined. Abdul Karimmiya Umarmiya has supported Digvijaysinhji. The evidence of this witness and that of the other two witnesses, Allarakha Mamad and Kantilal Devchand does not need any elaborate discussion as they have supported Digvijaysinhji as they naturally would. It is not surprising that these witnesses have supported Digvijaysinhji, but what adds to our difficulty is that their cross-examination also do not throw any light so far as the conduct of Digvijaysinhji is concerned. Abdul Karimmiya is not as had a single question so far as the manner of the driving is concerned. He is only asked a question that the bus was being driven slow and the car was being driven fast. Similarly, the cross examination of Allarakha Mamad and Kantilal Devchand does not help us to determine the respective liability of both the drivers.
13. In view of this difficulty, we have read the version of the accident given by the driver Khimji Bhura (witness No. 1 for the opponents. Ex. 147) very carefully. Khimji Bhura has stated that he was driving the bus at the relevant time on the road running from Gundala and was proceeding towards Rajkot. He has specifically stated that there is a speed braker alias bump on the road before the intersection of the roads and that he had stopped the bus before crossing the bump. He then stated that he saw on both the sides of the road before proceeding further, and sounded the horn and had slowly proceeded to cross the intersection. He has further stated that when the accident occurred he had almost crossed the Highway and the car collided with the left-hand rear said of the bus. Sudden and heavy impact made him nervous, with the result that he lost control over the bus which then ran irregularly and stopped in a field situated by the side of the road. In his cross-examination, he has stated that he had seen the Fiat car from a distance. In his cross-examination, he reiterated that he had made the bus dead stop at the bump and then had proceeded in a low gear. He has candidly admitted that after crossing the bump he had not applied the brakes. He has also candidly admitted that he knew that under the traffic rules it was his duty to allow the vehicle passing on the Highway first before he would cross the intersection. He was cross-examined about his statements made before the police, but these alleged contradictions are not proved.
14. The Tribunal had held the bus driver liable for negligence and has completely exonerated Digvijaysinhji. He has relied upon two factors in doing so. The driver of the bus did not abide by the traffic rules and drove the bus at a fast speed, even while crossing the intersection. He has laid more emphasis upon the allegation of the claimant that the bus driver did not stop the bus before crossing the bump and the Highway. In his view if Digvijaysinhji felt that the bus would stop before crossing the Highway, he would be justified in doing so. Secondly, the Tribunal relied upon the averment made by Digvijaysinhji and supported by a panchnama that he had applied the brakes at a distance of about 80 feet from the place of impact. He also considered the stopping of the bus at a distance of 112 feet of the road as an evidence to suggest that the bus was being driven very fast.
15. The above factors led the trial judge to exercise Digvijaysinhji altogether.
16. We are in agreement with the Tribunal in so far as it held the bus driver guilty of negligence which cultimated in the occurrence of the accident. Although Khimji Bhura has stated that he had stopped the bus at the bump and had then driven the bus in a low gear and had looked on both the sides before he entered the intersection, nevertheless he cannot be exonerated from his liability for the accident. Even if we assume Khimji Bhura has stated to be true, his liability would nonetheless arise. Assuming that he had stopped the bus at the bump and had attempted to cross the intersection in low gear, his duty to drive carefully does not end there. Bus duty lay in the judgment as to whether it was reasonably prudent for him to cross the intersection having seen the car coming across the Highway. He admits to have seen the car which was quite at a distance when he first saw it, and then it was his duty to so regulate his bus that no collision would take place. The accident occurred at about 2.00 p.m. and at a place where there was no obstruction to visibility on both the sides of the road and all round. We do not so much emphasse upon the fact that he should have under the traffic rules allowed the car to pass by. Mr. Shah, appearing for Digvijaysinhji had laid great emphasis on these traffic rules. In the first place, there is no data for us to assume that the concerned traffic rules applied, since the Highway concerned was not designated as a 'main road, the provisions of Section 77 of the Motor Vehicles Act. The traffic rules, all said and done, are not the sole determining factors, for determining the liability of the driver of a vehicle for negligence. One may have observed all the traffic rules and nevertheless under the circumstances of a case he may still be held liable for negligence. Assuming that Khimji Bhura had taken all the precaution which he was required to take under the traffic rules, he was still negligent in taking the risk of crossing the intersection in the face of a car moving fast across the Highway. Under such circumstances, the basic question is whether there was any error of judgment on the part of the driver of a vehicle, and in our opinion, there was clearly an error of judgment on the part of the driver of the bus is crossing the intersection. The driver is correctly held liable for negligence by the Tribunal.
17. However, we do not accept the conclusion reached by the Tribunal so far as the liability on the part of Digvijaysinhji is concerned. We have considered the photography of the place of collision and have referred to the relevant part of the panchnama. Keeping both of them in view, we now propose to discuss the conduct of Digvijaysinhji. As pointed out by us above, we are not prepared to accept the statement of Digvijaysinhji that he was driving his car only at the speed of 65 kms. per hour. We have given our reasons above for thinking that he must have been driving the car at a speed much higher than that. The very intensity of the impact and the dire consequences that followed speak eloquently about the speed of the car. The impact was so violent that the face of the car turned in the contrary direction, the doors of the car were flung open and Digvijaysinhji were thrown out from the car. What must have been the intensity of the impact which brought about such disastrous consequences Can we imagine these consequences to have followed if the car was run at a speed of 65 kms. per hour It is also to be remembered and althroughout to be borne in mind that the accident occurred at 2.00 p.m. There was no obstruction to the visibility. Digvijaysinhji saw the bus from a distance of about 300 feet (100 meters). Accoding to Digvijaysinhji, the bus was never halted and it althroughout ran at a high speed. If that was so, can Digvijaysinhji be reasonably justified in expecting that the bus driver would halt the bus therefore he entered the intersection. Even though Digvijaysinhji saw the bus while the car was at a distance of 300 feet from the intersection, he applied brakes only from a distance of 80 feet from the place of collision. If he saw the bus coming across at a full speed, why did he not regulate the speed of the car from the moment he saw the car What did he do till he travelled over 200 feet and then suddently thought to apply the brakes while it was only 80 feet away If he could not avert the collision although he applied the brakes from a distance of 80 feet, what should be the speed of the car Why do we always think of the speed of the bus alone and not of the car Why do we always think of the conduct of the bus driver in not abiding by the traffic rules and conveniently forget the failure on the part of Digvijaysinhji to drive the car with such reasonable care as would avert the accident It was repeatedly submitted before us that Digvijaysinhji is a man of status. But we expect from such a man of status all the more sense of responsibility. We do not overlook the car driver's negligence, and in fact we have agreed with the Tribunal in holding him liable for negligence. But, with respect, we are certainly not in agreement with him when he exonerates Digvijaysinhji altogether. True, Digvijaysinhji applied brakes. Thus he was justified in relying upon the care on the part of the bus driver. But the question about his negligence does not end here. So far as Digvijaysinhji is concerned, the questiofn requires consideration that after he saw the bus being driven at a full speed from a distance of 300 feet, what did he do, and what should he have done. There was no other vehicle except these two vehicles on the respective roads. Is it not expected of a responsible gentleman like Digvijaysinhji that he should have kept his eye upon the motion of the bus and should have regulated his car accordingly May be that he applied his brakes from a distance of 80 feet. This is not the sole factor to exonerate him. We can also ask a question why did he not apply the brakes earlier or why did he not slow down the speed of the car after having sighted the bus so as to be able stop it completely in good time May be that the bus driver did not halt before crossing the intersection as he should have done, but if he did not stop and Digvijaysinhji saw that he did not, why did he himself not stop his car in time. If he could not do so why could he not do so if he had sighted the bus while he was 300 feet away from the intersection Was it because he was driving at an excessive speed The following passage from Salmond on the Law of Torts, Sixteenth Edition, Pages 533 and 534 is very opposite under the circumstances of the present case:
In many cases the plaintiff is entitled to assume that there is no danger. He is not to anticipate and provide for the possible negligence of the defendant but is entitled to take it for granted that the defendant has done all things rightly and carefully. If an accident happens in such a case, the defendant will not hear to say that the plaintiff might have avoided it by care, because no such care was obligatory on him. There is in general no duty to anticipate that another will be negligent, and to avoid the effect of that negligence by anticipation.... Yet there are some cases where a prudent can guard against the possible negligence of others when experience shows such negligence to be common, experience shows this to be particularly common on the highway. A driver is not bound to anticipate folly in all its forms, but he is not entitled to put out of consideration the teachings of experience as to the form those follies commonly take. So a driver entering a light-controlled crossing with the green light in his favour is not entitled to assume that no other driver will enter against the red light. He is still obliged to keep a reasonable look out commensurate with the circumstances existing at the time although his duty is not so erroneous as if the crossing was uncontrolled. L.P.T.D. v. Upson (1949) A.C. 155:173, Doyle v. B.F. Murrey Ltd. (1967) I.R. 390.
18. One more factor which we must bear in mind and which the Tribunal seems to have failed to observe is that the impact of the car was on the left rear side of the bus. In the ambalance of mind as to whether the bus driver would stop the bus or not, Digvijaysinhji appears to have gone on running the car at the same speed till he found at last that if the car was not stopped the accident would occur. All the witnesses on the point have stated that Digvijaysinhji applied brakes with full force. The Tribunal has also relied upon this fact. What is forgotten is that the sudden application of full brakes became necessary for Digvijaysinhji because he had committed an error of judgment in continuously relying upon the bus driver to halt the bus before entering the intersection. He regulated the speed of his car after he first sighted the bus, even the full application of brakes would not have become necessary. The sudden application of full brakes on the part of Digvijaysinhji thus indicates that Digvijaysinhji was guilty of ill-timing the application of brakes. It is very important to bear in mind that Digvijaysinhji was not taken by a surprise about the oncoming bus. On the side of the bus driver as well as Digvijaysinhji, therefore, the determinative factor for negligence is an error of judgment. In our opinion, it is this error of judgment which constitutes negligence on the part of both of them. Both, were expected to be prudent drivers, and both of them failed the test.
19. In view of the above discussion, it is not possible to hold Digvijaysinhji completely blameless for the unfortunate event that occurred. He must be held liable for contributory negligence in the occurrence of the accident. We, therefore, set aside the finding of the Tribunal on this point.
20. The next question will be to degreefally apportion the liability of the bus driver and Digvijaysinhji. Both the vehicles were in motion and each of the drivers, therefore, should have exercised prudent care to avoid the accident. However, the liability for accident is not equal. The bus driver must be held liable to a greater extent because he was driving a passenger bus and he should have remained conscious althroughout, to see that the passengers reached their destination safely. The bus driver is liable to a greater extent also because he was proceeding from a smaller road and it was his bounded duty to ensure himself about the safety of the highway which he was to cross. On the other hand, Digvijaysinhji did make a serious and sincere attempt to avoid the accident, although belatedly. The ends of justice would be served if we apportion the liability, under the circumstances of the case, in the proportion of 2/3rd for the bus and 1/3rd for Digvijaysinhji.
21. The next consideration which we now enter into is the quantum of damages. The claimant Digvijaysinhji has totally claimed damages to the extent of Rs. 95,000/- inclusive of both general and special damages.
22. In his petition, he has claimed Rs. 20,000/- as general damages for extreme pain and suffering which he had to undergo and for the disability to small and taste food, impaired hearing etc. We shall consider these heads of damage first.
23. The Tribunal has observed in his judgment that an amount of Rs. 20,000/- would not be sufficient compensation as the general damages. He has, however, not stated as to what would be the appropriate sum of damages which can be awarded to Digvijaysinhji as general damages. We must here point to it that the Tribunal has considered the question of compensation in an unsatisfactory manner. It has not specifically stated as to what it would allow as general damages and what damages it was allowing as special damages. . We are, therefore, compelled to consider this question more fully in the light of the evidence on the record of the case.
24. Digvijaysinhji has stated in his evidence that as a result of the accident, his olfactory nerves and his sense of taste are affected. He cannot smell the food nor does he have the taste of it. His power of hearing is also effected. In his examination-in-chief he has further stated that after he took the medical treatment of Dr. Jos Dese and others, his sense of taste has improved by 75 per cent, but there is no improvement in his sense of smell. He has further stated that he has recovered the ability to hear, but there is constant whistling in the ears. He was advised by Dr. Dass that for the recovery of the sense of smell, it was necessary for him to take medical aid from outside India. He accordingly went out of India to take medical aid and he has claimed special damages on that count.
25. In support of this statement about the disability to smell and to taste, he has produced the certificate of Dr. Joe Dese. Dr. Dese has certified by his certificate dated 21-4-1976 to the effect that Digvijaysinhji who sustained a head injury from a car accident on 28th November, 1975 had to have a temporal decompression at the Jaslok Hospital under the care of Dr. B. Dastur and himself and has regained most of his damages sense organs, like hearing balance and partially the sense of taste. His sense of smell, however, has not returned at all. He has further stated in his certificate that it was not possible for him to do any surgical operation for such a loss. Dr. Ugo Fisch of Zurich, a Heuro-Otologist should be consulted if any surgical procedure could help to restore his sense of smell.
26. Dr. H.M. Dastur, Neuro Surgeon, has also certified by his certificate dated 27.4.1976 (Ex. 53) that Digvijaysinhji had a head injury on 28.11.1975 in which he lost his sense of smell. He has also advised Digvijaysinhji to consurt Dr. Ugo Fisch of Zurich. This disability is further supported by the letter which Dr. Joe Dess wrote to Dr. Ugo Fisch dated 25.4.1976.
27. Besides this disability, Digvijaysinhji also suffered a serious injury consisting of the fracture of the skull. This had been supported by the certificate of Dr. I.J. Rathod, Consulting Surgeon, dated 3.4.1976. The details about this injury are to be found in the claim petition, the deposition of Digvijaysinhji and other documentary evidence on the record of the case. For brevity sake, we are not reproducing here the details of the injuries which were specifically suffered by him. We have specifically borne in mind the prolonged suffering which Digvijaysinhji had to suffer on account of the head injury and the consequent treatment he was compelled to. take preliminarily at Rajkot and thereafter at the Jaslok Hospital. We have also borne in mind the period of hospitalisation as well as the operations which he had to undergo. We have further borne in mind that he suffered in his sense of taste, but that painful aspect is redeemed by his recovery to the extent of 75%. However, he has lost his sense of smell. That is indeed a considerable disability from which Digvijaysinhji suffers and it seems threatening that that disability may last for the rest of his life. Besides there is whistling in the ears which should be quite a nuisance to him. Since there is no further apportionment on these different grounds of pain and suffering on the one hand and permanent disability on the other, we are compelled to consider both of them together in one bracket. Digvijaysinhji, the claimant has claimed in his petition as amount of Rs. 20,000/- on this common ground and it appears that the Tribunal allowed it, although it considered that a larger amount was justified. On the consideration of the question from different angles, we are of the opinion that the Tribunal was right in observing that a larger sum is justified on this count.
28. Before we came to the conclusion that R. 20.000/- as compensation would be adequate on this ground, we tried to look for the authorities, but the learned Advocates on the rival sides could not submit any opposite authority to guide us. While reading 'Kemp & Kemp. The Quantum of Damages, volume 2, Personal injury Reports', we have come across the following at page 5601 thereof:
The appropriate sum by way of general damages in 1968 for a combined loss of the sense of smell and taste was paid to be around 2,000--for loss of the sense of smell alone, without further injuries to be considered, not less than 1,000 was appropriate; Per Sache I.J. in Kearns v. Higgs and Bill Ltd. 1968 112.S.J. 252.
In Keams' case, the plaintiff who aged 27, was employed in the building industry. His nose was broken causing a partial obstruction of the nose and a complete loss of his sense of smell. He returned to work after 3 weeks but was able to do only light work and was put on the job of a tea-boy. He had slight dizziness for a time. He had had headaches for 41/2 years since the accident, but these were likely to improve rapidly once the action was over. Some slight improvement in the nosal obstructions was expected as time went on. The loss of sense of smell would be permanent, but he still had his sense of taste. 'The court of appeal increased Rees J's. award of 850 general damage to 1,500. For Diplock II. J. : 1300 to 1,400 was a proper figure for the loss of sense of smell and associated disabilities of the nose. To that must be added 100 to 200 for the headaches for 41/2 years.' SACHS L. J-observed as under:
In all cases of this type there is ample room for differences in view, not only as to the aggregate amount which should be awarded, but as to way in which that aggregate should be made up if one aggregated the amounts respectively to be allocated to the individual injuries. For myself, I am always very reluctant to divide up the aggregate in any way which should seek to appear to provide a yardstick for future cases, because each case depends so much on its own facts. In the end, one has to do one's best to try and find out what is the appropriate compensation for the particular injuries to the individual man, and the same injuries say affect individuals quite differently.
29. In reaching the amount of compensation, we have borne in mind the factors which we have enumerated above. The fracture of the skull appears to have been well united and there is no future difficulty in that regard. Sense of taste is also recovered to the extent of 75% and in all probability it may still recover further in future. The factors which, however, go to determine the compensation for general damages is the factum of the sufference on account of fracture of the skull, partial recovery of the sense of taste, no recovery of the sense of smell and whistling sound in the ears. For the loss of sense of smell and the associated injuries 1300 to 1400 were considered adequate in 1968. To this must be added the inflationary trend of price rise on the one hand and on the other we must consider the different standards of life between U.K. and India. For the loss of smell alone, without further injuries to be considered 1000 was considered appropriate in 1968. That would be round about Rs. 15,000/- which we consider adequate in this case, considering the present value of Indian currency as compared to the English currency. For the other injuries we can put the compensation at about Rs. 15,000/- and the total compensation would be in the neighbourhood of Rs. 30,000/-. Although the claimant himself has claimed Rs. 20,000/- on this account in his petition, we allow him a global sum of Rs. 30,000/- on the count of general damages, because that would in our opinion, meet the ends of justice.
30. Next comes the consideration of general damages claimed by Digvijaysinhji on the count of loss of business. Digvijaysinhji states in his evidence that the construction of a theatre had to be stopped on account of the accident which he suffered and he suffered a loss of Rs. 10,000/- on that count. He has also claimed Rs. 2,500/- on the count that he could not attend his agriculture. He had also claimed Rs. 1800/- for the expenses of the driver, but the Tribunal did not allow that amount in the absence of any actual amount proved to have been spent. It has, however, allowed the claim of Digvijaysinhji for Rs. 10,000/- and Rs. 2,500/- respectively on the grounds stated above. We are of the view that these amounts of compensation are wrongly allowed. There is no evidence whatever that Digvijaysinhji suffered a loss of Rs. 10,000/- and Rs. 2,500/- on the counts stated by him. There is also no evidence that the construction work could not have proceeded but for the presence of Digvijaysinhji and how a loss of Rs. 2,500/- was suffered for want of his attention on agricultural operations. In our opinion, therefore, we cannot allow compensation to Digvijaysinhji for these amounts of Rs. 10,000- and Rs. 2,500/-.
31. Then comes the question of special damages. Digvijaysinhji has claimed, totally speaking, Rs. 49,959.62 as special damages for the medical treatment as well as for the expenses which he had to incurin obtaining the medical treatment in India and abroad and for damage to the car.
32. Digvijaysinhji has produced vouchers for his claims for special damages made by him. These have been exhibited so far as the treatment which he was required to take abroad. Digvijaysinhji has produced the certificate of experienced doctors, namely. Dr. Joe Dese and Dr. H.M. Dastur. Mr. D.K. Trivedi did not question before us either the genuineness or the reasonableness of them claim and therefore we allow the claim of Rs. 49,959.62 as special damages and for easy calculation we round up it at Rs. 50,000/-.
33. Digvijaysinhji is thus totally entitled to recover a sum of Rs. 80,000/-inclusive of the general and the special damages. However, we have held him liable to the tune of 33 per cent for contributory negligence and the amount of compensation will, therefore, have to be slashed down accordingly by a, sum of Rs. 26,660/- (approximately). The result would be that Digvijaysinhji would be entitled to recover a sum of Rs. 53,340/- and Rs. 53,500/- as compensation. First Appeal No. 637/78 is thus partially allowed. The award of the Tribunal is modified and it is held that the appellant.
34. Digvijaysinhji is entitled to claims 53,500/- (instead of Rs. 93,200/-awarded by the Tribunal) with interest at the rate of 6 per cent per annum on Rs. 53,500/- from the date of the petition till realisation. The parties shall bear the proportionate costs.
35. We do not find any substance in the State Appeals bearing First Appeals Nos. 638/78, 639/78 and 640/78. Apart from the fact that the compensation awarded in these three matters is, relatively speaking, smell the compensation cannot be assailed on any ground, and in fact it was not assailed by Mr. D.K. Trivedi. Hence, these three appeals are dismissed with costs.
J.P. Desai, J.
36. I have had the advantage of reading the judgment prepared by my learned brother Shukla J. I am entirely in agreement with the conclusions reached by my learned brother on the question of negligence of the bus driver, contributory negligence of the orig. applicant driving the car (respondent No. 1 Digvijaysinh in First Appeal No. 637 of 1978) as well as the amount of compensation arrived at as well as the extent of negligence and contributory negligence on the part of the two drivers. But I would like to give some additional reasons of my own only so far as the question of contributory negligence is concerned.
37. The evidence of original applicant Digvijaysinh who was driving the car is recorded as witness No. 2 on behalf of the original applicants at Ex. 40. He says that when the car was about 100 meters away from the intersection he saw the bus at a distance of about 200 to 250 meters from the said intersection. Applicant Kantilal who was also in the car has given evidence at Ex. 140 and he states that the car was about 1-50 yards away from the intersection while the bus was about 200 yards away from the intersection when it was first seen. Allarakha Mamad, Ex. 74, states that when they saw the bus, it was about 200 feet away from the intersection, while the car was about 100 meters away from the intersection. The say on this point is thus conflicting. But we may only take into consideration the evidence of Digvijaysinhji Ex. 40 because he was driving the car and he was the best person to say something on this aspect. Now, if we accept his say about the distance of the bus as well as the car from the intersection at the time he saw the bus for the first time, then we have to take it that when the car was about 300 feet away from the intersection, the bus was about 600 to 700 feet away from the intersection. The Car was being driven at a speed of about 60 to 65 Kilometres per hour as per the say of Digvijaysinh. Let us take it for the present that it was so. The bus had to travel a distance of about 600 to 700 feet before reaching the intersection and that too after passing over a bump which was about 87 feet away from the intersection. If we believe the say of Digvijaysinh, then we have to take it that the bus travelled a distance of about 500 feet during which period the car travelled a distance of only about 200 feet because it is the say of Digvijaysinh that when the bus arrived near the bump, the bus-driver did not stop the bus, and, therefore, he started applying brakes. According to him, he started applying brakes from a distance of about 80 feet from the intersection. There were also marks of application of brakes on the road from the intersection as per the say of the panch and the panchnama and there is no dispute about the same. It is difficult to believe that the bus would travel a distance of about 500 feet during which period the car would travel only a distance of only 200 feet. It is not improbable that the car may be far away from the intersection when the bus was sighted by the applicant Digvijaysinh, but with a view to show that the bus-driver was driving the bus at a very excessive speed so as to travel this distance even within a period of shorter than a car would travel, he has deposed that when the car was about 100 meters away, the bus was about 200 to 250 meters away, if the applicant Digvijaysinh had seen the bus when the car was away from the intersection at a long distance, then he was expected to slow down the speed so that there was no danger of any colluision between the vehicles at the intersection. A question was put to Digvijaysinh Ex. 40 whether he was talking with other occupants of the car and he replied that he did not know. It is pertinent to note that he did not flatly deny the suggestion
38. The car was proceeding on the national highway which is about 24 feet broad, while the bus was travelling by aside road which is about 10 feet broad. There is nothing on record to show that the national highway has been designated as main road. In view of this Regulation No. 7 of the 10th schedule to the Motor Vehicles Act, 1939 will not apply. But still, however, the national highway being a major road as compared to the side road, the driver of the bus which was approaching the intersection from the side road was expected to allow vehicles on the major road to pass first. Even the driver Khimji Bhura. Ex. 147, admits this 'position. Regulation 6 of the 10th Schedule to the Motor Vehicles Act, 1939 says that the driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner and shall not enter into such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon. This applies to even vehicles passing on major roads. The driver of a vehicle passing on a major road cannot thus proceed towards the intersection without having an eye on the other vehicles entering the intersection from a side road.
39. Even in Halsbury's laws of England, 3rd Edition, Vol. 28., it is observed at page 68, para 67, as follows:
There is an obligation to take special care at cross roads. The driver of a vehicle which approaches a major road from a side road ought to give way to traffic on the major road, but the driver of a vehicle on the major road is not absolved from the duty of taking care to avoid collision with a vehicle emerging from a side road.
40. The discussion made above will go to show that though there was an obligation on the part of the bus driver to allow the car to pass first, there was equally an obligation on the part of the original applicant Digvijaysinh who was driving the car to bring his vehicle within controllable speed at crossing. The original applicant Digvijaysinhji who was driving the car was thus supposed to take special care at cross-roads and he was not absolved of his duty to take care merely because he was entering the crossing from a major road. The evidence of Digvijaysinh Ex. 40, shows that he applied brakes only when the car was about 80 feet away from the road intersection. His evidence shows that the car was being driven at a speed of 65 km. per hour at that time. Now, so far as the speed of a light vehicle like a car is concerned, no limit is prescribed in the 8th Schedule to the Motor Vehicle Act, 1939 but for a heavy vehicle like bus, the speed limit is prescribed at 60 km. per hour, even while approaching the intersection. He was required to decrease the speed and bring the car within controllable speed particularly when he had seen the bus approaching the road intersection from the side road. Digvijaysinhji should have done so more particularly because his evidence shows that he expected that the bus driver will decrease the speed of the bus and he will stop near the bump as there was a sign board to do so, but the bus driver did not do so. He could also have visualized that the bus driver was not decreasing the speed even while approaching the road intersection and bump. In such circumstances, he was expected to decrease the speed and regulate in such a manner that he could stop the car within a very short distance, if necessary. His own evidence shows that the car was being driven at such speed that even after application of brakes and that too with sufficient force, as stated by him and the witness, the car could not be stopped even upto 80 feet resulting in this unfortunate incident. The evidence also shows that the car was being driven on the left side of the road which was 24 feet broad and that the car dashed against the rear left portion of the bus near the entrance meant for passengers for boarding the bus. This shows that the bus had already entered the road intersection and even passed the centre of the cross-roads and was about to leave the road intersection and at that time the car entered the intersection and dashed against the bus. This clearly shows that the original applicant Digvijaysinhji did not take necessary precaution as expected from him while approaching and entering the road intersection.
41. In the case of Kasturi Gal v. Prabhakar 1970 A.C.J. 1, a Division Bench of the Madhya Pradesh High Court has observed that drivers must bring their vehicles within controllable speed at the crossing. In the case of Oil Mohmad v. Keith Murphy and Anr. 1970 A.C.J. 141, the High Court of Singapore also made similar observations. The said High Court observed that drivers are supposed to take special care at cross roads and a driver is not absolved of his duty to take care merely because he enters the crossing from a major road.
So far as this Court is concerned, I have not been able to trace any reported decisions, but there are two unreported decisions, which have a bearing on the question of negligence and/or contributory negligence on the part of the drivers of vehicles approaching a road intersection. A Division Bench of this Court heard First Appeal No. 415 of 1969 Prafullaben Jitendrabhai Gajjar v. The Ahmedabad Municipal Corporation and Anr. with First Appeal No. 428 of 1969 Ahmedabad Municipal Corporation v. Prafullaben Jitendrabhai Gajjar and disposed of both the appeals by a common judgment. The decision was rendered by the Division Bench on 24-12-1971. First Appeal No. 415 of 1969 was by the original claimants for additional amount of compensation, while First Appeal No. 428 of 1969 was filed by the opponent--Ahmedabad Municipal Corporation owing the bus being aggrieved by the decision of the Tribunal that the bus driver was also negligent. The contention of the Ahmedabad Municipal Corporation was that the bus driver was not at all negligent but only the scooter driver was negligent. A contention was raised on behalf of the original applicant that the driver of the scooter had first entered the intersection of the roads and he was already about to cross the intersection and at that point of time the bus had dashed against the scooter and, therefore, the accident was caused solely by the negligence of the driver of the bus. It was, on the other hand, contended by the learned Advocate on behalf of the Corporation that there was a breach of Regulation 7 of Tenth Schedule to the Motor Vehicles Act, 1939 on the part of the driver of the scooter and that he was not for proper look out while crossing the intersection and, therefore, he was solely negligent and there was no negligence on the part of the bus-driver. It was contended by the learned Advocate on behalf of the claimants that the bus driver had 'last opportunity' to avoid the accident and, (therefore, he alone must be held responsible for the accident. The Division Bench observed while considering this contention that the rule of 'last opportunity' relied upon by the learned Advocate was evolved by the Judges to modify rigour of the original common law principle that where the plaintiff was guilty of contributory negligence, he would not be entitled to say damages because either he got all or nothing, but not pro-ten to. It appears that the doctrine of 'last opportunity' was applied in the case of Davies v. Mann 10 M and W 546 because clearly a line could be drawn between the negligence of owner of the static donkey on the road and the negligence of the driver of the vehicle. This Court after referring to the said decision observed that this doctrine of 'last opportunity' cannot be helpful where no line can be drawn in the context of fast moving vehicles where it is only a question of split second. The House of Lords in Admiralty Commissioners v. S.S. Volut 1922(1) A.C. 129 has brought out this distinction in the classic propositions of Viscount Birkenhead L.C. and observed that 'the question of contributory negligence must be dealt with somewhat broadly and upon common-sense 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 secondly negligent while not held free from blame under the Bywell castle Rule, night, on the other hand, invoke the prior negligence as being part of the cause of the collision so as to make it case of contribution. The House of Lords in Swadling v. Cooper 1921 A.C. 1(10) considered the rule of 'last opportunity' and pointed out that where there was a substantial interval of time, the rule in Davies case would be applicable but could not apply to other cases in which negligence of the parties was contemporaneous or so nearly contemporaneous as to make it impossible to say that either could have avoided the consequences of the other's negligence, and in which, both have contributed to the accident. The rule of 'last opportunity' could not apply specially where the moment of impact was not more than a second, after both the drivers had become aware of their respective positions. The crucial question was as to whose negligence it was that substantially caused the injury. Deaning LJ. in 1949 K.B. 291 Davies v. Swan Motor Co. (Swansea) Ltd. at page 331, while considering the doctrine of 'last opportunity' has observed that as a doctrine of law, the doctrine of 'Last opportunity' was dead long before the Law Reforms Act even though after the last Refrom (Contributory Negligence) Act, 1945, it remained in use by some as a practical test. It was not a principle of law but only the test of causation. It was observed that it was a fallacious test, and after the decisions in 1922-1 A.C. 129 (supra) and 1931 A.C. 1 (Supra), the doctrine fell into disrepute and was superseded by the simple test, what was the cause, or what were the causes of the damages Therefore, in case where the plaintiff contributed some negligence under the common law he recovered reduced damages even though he had last opportunity of avoiding damages. At page 323 it was pointed out that there was a fallacy in doctrine because as a proposition of law it could only be supported by saying that negligences which creed a dangerous obstructions 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. Also in the aforesaid case, another test of 'contributory negligence' breach 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 and with reasonable care.
42. Lord Du Pareq in 1949 (1) A.E.R. 60 London Passenger Transport Board v. Upson., has pointed out that if the possibility of the danger emerging is reasonably apparent, then to take no precaution is negligence, but if the possibility of danger emerging is only a more possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions. This principle applies to all cases of negligence which consist of omission to take due care for the safety of others. In the aforesaid case, it is also observed that a prudent, man would guard against the possible negligence of others when experience shows such negligence to be common. The driver is never entitled to assume that people will not do what his experience and common sense teach him that they are in fact likely to do.
43. In 1959(3) All England Reports 609 Lang v. London Transport Execulive and Anr. The facts were that a motorcyclist came from a minor side on to a major road and collided at the junction of the two roads with an omnibus which was travelling along the major road. The motor-cyclist was keeled. The traffic on the major road was clearly visible from the side road from a distance of forty yards from the month of the side road. The motorcyclist was travelling at 20 miles an hour along the side road. When he approached the junction, he did not slow down but carried on at the same speed straight out on to the major road. The bus was travelling along the major road at a speed of not more than twenty limes an hour. The bus driver had glanced in the direction of the side road, as was his usual custom, and saw that there was some cyclist moving along it, although he could not identify the cyslist. The driver of the bus did not look into the side road again. In an action brought by the widow of the cyclist, claiming damages from the bus driver and his employers, it was held that the possibility of danger was reasonable, apparent and the bus driver was negligent in not taking the precaution of looking at the traffic in the side road as he approached it to see whether motor-cycle was still moving at 20 miles an hour and obviously in ending to cross major road, the motor-cyclist was held much more responsible for the accident than the bus driver.
44. The Division Bench which decided these appeals, after referring to the above English decisions, also considered the question about the effect of failure on the part of any person to observe any provision of the Motor Vehicles Act. In (1938) 2 All England Reports 115, Joseph Eva Ltd. v. Reeves, Sir Wilfrid Greene, M.R. has pointed out that failure to observe a provision of the Highway Code does not in itself necessarily constitute negligence and that the effect to be given to such failure must necessarily depend upon the circumstances of the case. In the aforesaid case it is pointed out that where the traffic at cross roads is not regulated by a traffic light or the police the regulation 'never overtake at cross roads' is an obvious cannon of good driving, since overtaking at unregulated cross roads necessarily involves a risk to other traffic lawfully on the highway. This principle would apply to the driving regulations contained in Tenth Schedule to the Motor Vehicles Act corresponding to Section 45(4) of the Road Traffic Act, 1930 of England which is as under:
A failure on the part of any person to observe any provision of the Highway Code shall not of itself render that person liable to criminal proceeding of any kind, but any such failure may in say proceedings (whether civil or criminal, and including proceedings for an offence under this Act) he relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.
45. Absence of such a provision in the Motor Vehicles Act would not make any difference, as observed by the Division Bench of this Court while disposing of the above appeals. The infringement of the driving regulations may be relied upon by the claimant to show that the driver omitted to do something which a reasonable driver guided by the driving regulations contained in the Tenth Schedule to the Motor Vehicles Act would not and that he was therefore, negligent, But this prima facie presumption is rebuttable. Another question to be considered is whether the plaintiff Could be entitled to damages if the contributory negligence of the plaintiff is proved. The position of common law before the law Reform (Contributory Negligence) Act, 1946 was passed in England was that the plaintiff would fail if the contributory negligence of the plaintiff was found. However, Section 1(1) of the Law Reforms (contributory negligence) Act, 1945, provides : 'Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the persons suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damages.' Therefore, in English Law, when it is found that there is contributory negligence on the part of the plaintiff, the court would not be prevented from awarding the damages to the plaintiff because of the precedents under the common law. In view of the above provision of law in England, the court can award damages arising out of the negligence of the defendant reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damages. This appears to be well in accord with justice, equity and good conscience, to administer which alone the Court exist. The question will arise whether the Tribunals in India deciding the claims arising out of tortious liability are bound to follow the common law, as it stood before it modification by the law Reforms (Contributory Negligence) Act, 1945 or whether they can take note of the modification of the common law by that Act. The Divison Bench after posing this question observed that apart from the wider questions whether the principles of English Common law are being followed by the Indian Courts on the principle of justice, equity and good conscience, the Tribunals under the Motor Vehicles Act have to award just compensation. The Division Bench further observed that it would, therefore be just and equitable to award compensation for damages arising from negligence of the defendant reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damages.
46. Applying the tests laid down in the above decisions, it is clear that the driver of the bus as well as the original applicant Digvijaysinhji who was driving the car were both guilty of negligence, in that they did not take proper precautions while approaching the road intersection. I, therefore, entirely agree with the conclusion reached by my learned brother that the opponent who was driving the bus was negligent, while the original applicant Digvijaysinhji who was driving the car was also negligent and that the negligence of both resulted in this incident. The opponent who was driving the bus was thus guilty of negligence, while the original applicant Digvijaysinhji who was driving the car was guilty of contributory negligence.
47. So far as the extent of reduction of the damages assessed in favour of the original applicant Digvijaysinhji on account of his contributory negligence is concerned, my learned brother has reached the conclusion that there should be reduction by 33% so far as the amount payable to the original applicant Digvijaysinhji is concerned. The original opponent No. 1, Khimjibhai Bhurabhai who was driving the bus has deposed that he had taken all necessary precautions before approaching the road intersection. It is difficult to accept his say that he had taken all necessary precautions, though it may be that he might have taken some precautions. But the fact remains that he entered the road intersection from a side road inspite of his having seen that a car was proceeding at an excessive speed on the major road, as deposed to by him. Even if he had taken some precautions while approaching the road intersection, he should have stopped the bus and allowed the car to pass first, because the car was a lighter vehicle and was proceeding on a major road while he was driving a bus which was entering the road intersection from a side road and which was again a heavy vehicle. The responsibility is more on the driver of a heavy vehicle as compared to that of a lighter vehicle. The original applicant Digvijaysinhji also did not take necessary precautions before entering the road intersection, as discussed a little earlier. Taking all these factors into consideration, I entirely agree with the conclusion reached by my learned Brother that there should be reduction by 33%, so far as the amount of compensation assessed in favour of the original applicant Digvijaysinhji is concerned.