P.D. Desai, J.
Paras 1-4 x x x x
5. It would be convenient first to deal with the question of contributory negligence. The Tribunal having assessed the evidence reached the conclusion on the question of contributory negligence an the strength of the reasoning briefly indicated hereafter.
6. It was an undisputed fact that the claimant received the injury because a portion of the body of a truck coming from the opposite direction dashed against his elbow. The elbow was Protruding to the extent of nearly 6' from the window. The conduct of the claimant in resting his arm on the window and in allowing it to Protrude from the window to the extent indicat6d above itself amounted to negligent and even a rash act. irrespective of whether he was warned by the conductor or the driver not to do so since the road in question even according to the claimant. was narrow and vehicles were approaching from the opposite side. No Prudent or reasonable man could have acted in such a manner under such circumstances. That apart, in the instant case there was reliable evidence to show that repeated warnings were given to the claimant by the conductor and by the driver not to protrude his arm outside the window and since the claimant ignored the warnings the negligence in the main was attributable to the claimant and the negligence of the driver of the bus was comparatively such less. The driver of the bus, however. could not wholly escape the charge of negligence because the road admittedly was a single lane road. there were vehicles coming from the opposite side, the time when the accident took place was dusk or sun set time. the vehicle driven by the driver was a Passenger bus and the truck was coming from the opposite direction in high speed. Under such circumstances. it was the duty of the driver of the bus to take his vehicle to the extreme and on the correct side of the road preferably on the shoulder portion of the road and to reduce the speed considerably. The bus was driven at the relevant time at the speed of 40 to 45 Kilometers per hour near the midline on a narrow road and the evidence of the driver did not disclose that he took the precautions to reduce the speed of the bus still further or to move on to the shoulder Portion of the road, although he had seen the oncoming truck traveling at a high speed. To the aforesaid extent, therefore. the driver was not careful and cautious and the care exercised by ban was not of the degree required in the particular facts of the case. The driver too was. therefore. negligent. The negligence or rashness on the Part of the driver of the truck also was imputable to the driver of the bus in the sense that the two drivers were jointly and severally liable to the claimant. On the overall facts and circumstances of the case. the negligence attributable to the claimant was required to be assessed at 50% and the compensation payable to him was required to be reduced to that extent.
7. The question which requires consideration is whether the aforesaid approach and reasoning and conclusion of the Tribunal on the question of negligence are just. Proper and legal. The legal position in this behalf is wellsettled and we might make reference to on1y one decision which is very apposite.
8. In Chaturji Amarji v. Ahmad Rahimbux.. 19 Gui LR 850: (1979 Cri LJ 107) the facts were that the claimant was traveling by a S. T. bus which was plying an a 12 feet wide road with a shoulder of 5 feet on each side. The claimant was occuping one of the rear seats and he had rested his right arm on a window railing. A truck approached from the opposite direction and when the vehicles passed each other the claimant's fore-arm was severed from the Point of the elbow joint. The Tribunal found that the accident happened because of the rash and negligent driving on the part of the drivers of both the vehicles and that the claimant was not guilty of any contributory negligence. Two appeals were preferred against the said award. One of the appeals was preferred by the owner, driver and insurer of the truck and the other by the State Transport Corporation. The case of the appellant in each appeal was that there was exclusive negligence on the Part of the claimant which resulted in the accident and that there was no negligence on the Dart of either driver. This Court rejected the contentions advanced in the appeals and held that the accident had occurred because of rash and negligent act of the drivers of both the vehicles. The primary facts which were relied upon in reaching the aforesaid conclusion were that the impact which had resulted W severance of the fore-arm must have been a very forceful one. that the impact must have been nearer to the elbow joint (within 3'' on either side of the joint). that the vehicles were driven on a narrow road on which the drivers of both the vehicles were expected to proceed with extreme care and caution and at slow speed and that if the vehicles had slowed down and proceeded after keeping good distance between the two vehicles. the accident would never have happened. in the opinion of this Court prima facie, negligence of the drivers of both the vehicles was obvious from the aforesaid Primary facts and once those Primary facts were held proved the issue of negligence was required to be decided in the claimant's favour unless those who resisted the Inference led evidence to provide some answer which was adequate to displace the prima facie evidence. Those who were in control of the injurious agency and the surrounding circumstances had the duty to establish. once those primary facts were proved, that in all the circumstances , which they knew or , ought to have known they took all proper steps to avoid danger and once they failed to prove that they were required to be held to pay damages to the claimant. Having made the aforesaid preliminary observations this court proceeded to make the following pertinent observations on the correct criterion to be adopted in cases of such nature (at p.112) :
'The correct criterion in such cases is first to find out as to whether it is a case in which arm or any Part of the body of a Passenger travelling by the bus was Protruding unreasonably and whether such an act on the part of the passenger was fraught with danger, and lastly. whether a conclusion was inevitable that he received the injury as a result of his own lack of care and Positive negligence on his part SecondIy a question may also be asked as to whether the accident resulting in the injuries to the Passenger was the result of contemporaneous negligence on the part of the Passenger as well as the driver or drivers of the vehicles concerned. In this connection. it has to be borne in mind that primarily the drivers owe a duty of safety to such Passengers winch consists of driving the vehicles slowly with care and caution. While crowing each other and not to bring their respective vehicles very closer to each other so that any such Passenger who is sitting with his arm or any Part of his body resting on the window-sill or the window-rail or sitting in such a way that it protrudes therefrom. does not get hurt when the vehicles cross each other.'
9. This Court then referred to an earlier decision in Manaji Thavraji v. Kanaiyalal Vadilal Shah. First Appeal No. 74 of 1969 decided by D. A. Desai. J. (as he then was) on February 2. 1973. It was a case in which the claimant-passenger. was sitting with his hand Protruding out of the window of a bus In which he was travelling and has received injury when another vehicle coming from the opposite direction passed grazing. In that case it was. held that when the claimant was resting his hand on the window and the hook of the oncoming vehicle caused injuries to him. it could not be said that the injuries were suffered by him by his keeping his-hand on the window. This Court next referred to the decision of the Madhya Pradesh High Court in Sushma Mitra v, M.P. State Road Transport Co.1974 Acc CJ 87 : (AIR 1974 Madh Pra 68) which also was a case in winch a Passenger was resting his elbow on the window-sill of the bus in which he was travelling and a truck came from the opposite direction and while crossing it hit against the right hand elbow of the Passenger. The following observations from the said decision were extracted-: (at p. 70 of AIR)
'It cannot be disputed that the driver of a bus which carries Passengers owes a duty of care for the safety of passengers. While driving he must have the passengers in contemplation and he must avoid acts 'or omissions which can reasonably be foreseen to injure them and in deciding what acts or omissions he should avoid. he must bear in mind the normal habits of passengers. It is a matter of common experience that passengers who sit adjoining a window very often rest their arm on the window-Sill by which act the elbow projects outside the window. The driver of the bus must have these Passengers also in contemplation and. therefore, while over taking or crossing another vehicle on the road he must not come too Close to the vehicle that is overtaken or crossed and he must leave sufficient gap between the vehicles to avoid injury to these, Passengers. The driver of a vehicle coming from the opposite direction owes a similar duty while crossing a Passenger bus. He too must have in contemplation passengers sitting near the windows of the oncoming bus who may have their hands resting on the windows. and in crossing the bus he must not only avoid contact with the body of the bus but he must also avoid coming in contact with the elbow of any passenger that may be resting on the window and projecting outside the body of the bus. He must, therefore take precautions to move to his rear side and leave sufficient gap for preventing any mishap.'
This Court ultimately found. In the light of the aforesaid tests. that the Tribunal was Justified in reaching the conclusion that there was no negligence on the part of the claimant and that. the accident had occurred because of rash and negligent act of the drivers of both the vehicles.
10. The decision in Chaturji's case (1979 Cri LJ 107) (Guj) in our opinion. would clearly. indicate that the general reasoning and approach of the Tribunal in the instant, case is not in accord with the well-established principles and criteria to be followed in cases like the present one. The Tribunal's finding that the conduct of the claimant in resting his arm on the window and in allowing it to protrude from the window to the extent of 6' itself amounted to a negligent and even a rash act, irrespective of whether he was warned by the conductor or driver not to do so would appear to be wholly unsustainable. As observed in Sushma Mitra's case (AIR 1974 Madh Pra 68) passengers who sit adjoining a window very often rest their arms on the window-sill or on the window-railing in such a manner that the elbow is projected from the window to some extent. The mere -fact that the arm of a passenger rests on the windowsill or on a window-railing adjacent to his seat and even protrudes to some extent from the window cannot. therefore. by itself be considered to be an uncommon act per se involving lack of care or prudence. The question which has to be considered in such a case is whether the protrusion of the arm from the window was to an unreasonable extent and whether the act was so obviously fraught with danger that no reasonable or prudent man would consider it sale to act accordingly on the facts and in the circumstances of the case. Besides, the driver of a public vehicle must have such passengers in contemplation and he owes a duty of safety to such passengers which consists of driving the vehicle slowly with care and caution at least when another vehicle is seen approaching from the opposite direction. and while crossing such vehicle, it is his duty to so manoeuvre his own vehicle that not only any contact with the body of the approaching vehicle is avoided but any contact between the oncoming vehicle and any part of the body of any passenger that might be resting on the window ' of the bus or proiecting therefrom to a reasonable extent is also avoided. The duty in such cases consists in taking precaution to ensure that a passenger. who is sitting with his arm or any other Dart of his body resting on the window - sill or the window rail or in such a way that it reasonably protrudes therefrom does not receive any injury when the vehicle crosses an oncoming vehicle and for that purpose he is expected to drive the vehicle in such a manner as to leave sufficient space between the two vehicles Similar is the duty owed by the driver of the vehicle coming from the opposite direction while crossing a passenger bus.
11. In the instant case, the finding of the Tribunal is that the elbow of the claimant was Protruding from the window to the extent of about 6' only. It is difficult to hold that such protrusion of the elbow from the window was per se unreasonable or hazardous or fraught with danger on a road whose total width was 25 feet inclusive of shoulders of 5 feet on each side of the road. It is not possible, under such circumstances, to attribute any negligence to the claimant-passenger. The established facts on record, on the other hand. lead inevitably to the conclusion that the negligence was on the Dart of the bus driver or, at the highest, on the Dart of the bus driver and the driver of the oncoming truck. At the time of the accident, the bus was admittedly being driven at the speed of 40 to 45 kilometres per hour. The road on the spot where the accident occurred was straight and the traffic coming from the opposite direction was clearly visible. According to the bus driver's own version, five or six trucks had passed by the place of accident before the truck by which the claimant was injured approached from the opposite direction. The truck was seen by him from a distance of about two to 'three miles. The bus was near the midline of the road and even assuming that it was on the correct side of the road. there is no evidence to suggest that it was taken to the extreme and on the correct side of the road in order to avoid any injury being caused to any passenger who might have rested his hand or any other part of the body on the window-sill or window-rail or who might have projected the elbow to some extent from the window. In fact. the passenger bus and the oncoming truck crossed each other at such close distance that less than 6' space was left -between the two. This is obvious because unless the distance was less than 6'. , no injury could have been caused to the claimant on the facts and in the circumstances of the case. And a very important circumstance against the background of which the aforesaid facts are to be appreciated is that the hour of the accident was 7-30 P. M. in the month of Mav when ordinari1y sun set time would be 7 to 7-15 P. M. To drive the vehicles so close1v at such an hour would be a negligent act especially when one of the vehicles was a passenger bus. It would thus appear that the Tribunal erred in law in holding in the instant case, on the basis of the reasoning set out above. that there was contributory negligence on the Dart of the claimant in so far as he allowed his hand to rest on the window in such a wav that the elbow protruded from the window to the extent of 6'.
12. We must mention one more circumtance at this stage. though we are not prepared to accept it on an analysis of evidence. as would be indicated later. It was the case of the bus driver and also of other witnesses examined on behalf of the owner of the bus that the fact that the claimant had rested his arm on the window and that his elbow was Protruding from the window was known to the bus driver who had warned the claimant repeatedly. If this evidence is to be accepted, then it must be found that the degree of duty of care owed by the bus driver was still greater and that it did not consist merely of administering the warning. The 6se is not one of a driver having merely in contemplation a Passenger sitting adjoining a window whose normal habit it is to rest. his arm on the window-sill in such a manner that the elbow proiects outside the window. It is a case where the driver knew that there was in the bus a Passenger who had not only rested his arm on the window but had also protected it outside the window to a certain extent. In such a case. in addition to administering the warning the duty of care owed by the bus driver to the Passengers in general and to the particular Passenger in question required of him to drive the bus slow1v on the correct side and preferably away from the midline of the road, especially when the road was straight and wide enough to Permit manoeuvrability and the approaching vehicle was clear1v visible from a lone distance. We find. however that the bus was driven at the speed of 40 to 45 kilometres Per hour that it was an or near the midline of the road. that the distance between the bus and the oncoming vehicle at the Point of impact was less than 6'' and that the bus driver is not shown to have attempted to take the vehicle to the extreme end on the correct side of the road. There is no evidence to establish either that it was not possible for him to take the vehicle to the extreme end for certain reasons beyond his control. It would thus appear that even if we had accepted the evidence led on behalf of the owner of the bus with regard to the driver having been aware of the claimant resting his arm on the window in such a manner that the elbow was projected from the window and the claimant having been warned with regard to the same. we would have still unhesitatingly come to the conclusion that the driver of the bus could not escape liability for negligence. We have only incidentally mentioned this aspect because as will presently appear. we are, not at all prepared to accept the material evidence on this point.
13. In our opinion on an overall assessment of the entire evidence on record and on the primary facts emerging therefrom the conclusion as to negligence on the Part of the bus driver and may be on the Dart of the driver of the oncoming vehicle is fully established. There is no question here of attributing any negligence to the claimant, having regard to the limb or part of the body involved and the extent of Projection thereof outside the window. the contrary conclusion of the Tribunal is wholIy vitiated.
14 to 34. x x x x x
35. Ordered accordingly.