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Sydney Victor and anr. Vs. Janab S. Kader Sheriff and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. Nos. 433 and 438 of 1969
Judge
Reported inAIR1974Mad344
ActsLaw Reforms (Contributory Negligence) Act, 1945
AppellantSydney Victor and anr.
RespondentJanab S. Kader Sheriff and ors.
Cases ReferredYoginder Paul Chowdry v. Durga Das
Excerpt:
.....we are equally satisfied that the case of the owner of the bus and the insurance company that the head of chandra was projecting outside the window of the bus at the time of the impact is not true and that she should have been having her head well within the bus and in spite of that, she had been injured as a result of the impact between the two vehicles. 1 as well as miss chandra. 1 and miss chandra were sitting close to the last window at the time of the impact, from the very nature of the injury and other circumstances of the case, we are satisfied that she should have been so holding the bar. miss chandra has not been examined before the tribunal below and the explanation is that even by that time when the matter was taken up for trial, she was not well due to the head injury which..........the person is traveling. in any event, we are not in a position to hold that mere gripping of the window cross-bar in a position in which the right thumb was gripping the bar on its outer side would be a negligent act on the part of the injured, especially when the vehicle was on a broad highway and not moving in any crowded place. it cannot be said that p.w.1, the injured, had acted negligently or without due care, merely by gripping the cross-bar of the window when the bus was going in a highroad.12. the learned counsel for the respondents referred to some of the decisions of the courts in england in support of his contention that in this case it must be held that the injured was guilty of contributory negligence. the first case is davies v. swan motor co. ltd., 1949 1 all er 620......
Judgment:
ORDER

1. These two civil miscellaneous appeals arise out of two claim petitions in respect of one and the same motor accident. On 7-2-1967, at about 5-30 p.m. there was a collision between the bus bearing registration No. MDJ 3705 and the lorry bearing registration No. MSW 234 near milestone 43 in Madras-Bangalore Road. In that accident, Mrs. Sydney Victor, a school teacher at Madras, and Miss Chandra, a girl aged about 16 years, who were two of the passengers, traveling in the bus, were injured. On behalf of Mrs. Sydney Victor, M. O. P. 54 of 1967 was filed and on behalf of Miss Chandra M. O. P. 53 of 1967 was filed before the Motor Accidents Claims Tribunal, Chingelput. In the two petitions, the owner of the bus was impleaded as the first respondent, the owner of the lorry was impleaded as the second respondent and the Insurance Company which is common to both the vehicles, was pleaded as the third respondent. The Tribunal held that the accident was as a result of rash and negligent driving of the lorry MSW 234, that the two injured, viz., Mrs. Sydney Victor and Miss Chandra were entitled to compensation of Rs.8,000 and Rs.25,000 respectively, but both of them were guilty of contributory negligence, so much so, the quantum of compensation so arrived at was reduced by 50% in each case. The result was, Mrs. Sydney Victor was granted an award for only a sum of Rs.4,000 and Miss Chandra was given only Rs.12,500. In these two appeals, the two respective injured question the finding of the Tribunal below regarding the alleged contributory negligence on their part. Therefore the main question would be whether the two injured or either of them were guilty of contributory negligence.

2. That the driver of the lorry MSW 234 drove his vehicle rashly and negligently and brought about the accident is not in dispute now. However, the order to appreciate the contention regarding the question of contributory negligence on the part of the two injured, the facts relating to the accident have to be stated. The bus in question was traveling from Vellore towards Sriperumbudur in the Bangalore-Madras road. A party of ten persons had boarded this service bus at Vellore, and the two injured, Mrs. Sydney Victor and Miss Chandra, were two members of the above said group of ten. The road runs east to west and the bus was proceeding from west towards east. The time was then about 5-30 p.m. The lorry in question came from the opposite direction. A bullock-cart was going ahead of the lorry. The lorry overtook the bullock-cart when the bus was approaching the spot from the opposite direction and in that process went to the offside of the road. Because of the broadness of the road, there was no head-on collision between the lorry and the bus in spite of the lorry going to the offside of the road. The two vehicles were passing each other, but while so passing, the right side cabin portion of the lorry hit against the rear portion of the right side of the bus. Mrs. Sydney Victor, who has given evidence as P.W. 1 (hereinafter referred to as P.W. 1) was sitting in the last but one seat, which seat was facing the rear. She was sitting close to the window of the bus. Miss Chandra (she has not given evidence) was sitting just opposite to P.W.1, i.e., in the last seat which is facing the front and she was also close to the window. As it was that part of the bus, viz., rear portion of the right side of the bus where the two injured were sitting which was hit by the lorry, they were injured. P.W. 1's right thumb was completely severed. She had not received any other injury. Miss Chandra had received injuries on her head and there was fracture of the frontal bone.

3. In the claim petitions it has been alleged that the driver of both the vehicles were rash and negligent in driving their respective vehicles. But there was nothing to show that the bus driver drove his vehicle either rashly or negligently. That is the finding of the Tribunal below and that is accepted by all the parties. As we said, the further finding of the Tribunal that the lorry driver drove his vehicle in a rash and negligent manner in that he went to the off-side of the road when there was traffic from the opposite direction and brought about the accident, is also accepted by all the parties. But the owner of the lorry and the Insurance Company have successfully contended before the tribunal below that P.W.1 and the other injured, Miss Chandra, were guilty of contributory negligence. Their case is that while P.W.1 had been holding the cross-bar of the window of the bus with her right hand. in which process her right thumb was outside the bus, Miss Chandra was resting her head over the window bar of the bus, so much so the head was projecting outside the window and that these acts on the part of the respective injured amounted to contributory negligence on their part. This has been accepted by the Tribunal below. First of all, we have to see what happened factually.

4. From the evidence on record, we are satisfied that P.W.1 had, as a matter of fact, been holding the cross-bar of the window in the bus with her right hand and the right thumb should have been gripping the cross-bar on its outer side. We are equally satisfied that the case of the owner of the bus and the Insurance Company that the head of Chandra was projecting outside the window of the bus at the time of the impact is not true and that she should have been having her head well within the bus and in spite of that, she had been injured as a result of the impact between the two vehicles. P.W.1(one of the injured) and Jacob Anandaraj (P.W.3) are the two persons who speak about the accident on behalf of the claimants. Doraiswami (R.W.1) the driver of the bus, and Akbar Hussain (R.W.2) the conductor of the bus, have given evidence on behalf of the respondents. The driver of the lorry had been prosecuted for an offence under Section 338, I.P.C. and he had admitted guilt before the Criminal Court and he had been fined. But subsequently he died and so he was not available when the matter came up for trial before the Claims Tribunal.

5. P.W.3 was one among the group of ten which was traveling from Vellore in that bus. He is related to P.W.1 as well as Miss Chandra. This witness was seated in the long seat running to the length of the bus on its left side. So he was facing south while the bus was moving eastwards. P.W.1 who was sitting in the last but one seat, was facing west (while the bus was moving east. As we said earlier, P.W.1 and Miss Chandra were sitting close to the last window at the time of the impact, from the very nature of the injury and other circumstances of the case, we are satisfied that she should have been so holding the bar. P.W.3 is the person who gave the report about the accident as per Ex. A-3. In that report he has categorically stated that P.W.1 had been holding the cross-bards of the window of the bus with her right hand P.W.1 had no other injury except the severing of the right thumb. It appears to us that because P.W.1 was gripping the cross-bar of the window with her right hand, (though her left hand would be the one nearer to the window than the right hand), the right thumb should have been on the outer side of the bar and when the cabin portion of the lorry hit against the bus, particularly at the rear portion of the right side of the bus, the right thumb of P.W.1 which was on the outer side of the cross-bar had been completely severed. As a matter of fact P.W.3 says in chief-examination itself that P.W.1's thumb was picked up from the road. That could have been so, only if the right thumb was on the outer side of the cross-bar. Otherwise, there is no chance of the thumb being not only completely severed but also falling outside the bus.

6. However, the case of the owner of the lorry and the Insurance Company that Miss Chandra was having her head in such a position so that part of it was outside the window, is wholly unacceptable. The window has admittedly three cross-bars with an interval of 4 inches from each other. That means, the cross-bars would be covering for one foot from the lower edge of the window. The gap between the third (topmost) cross-bar and the top of the window is said to be 12 inches. It is contended on behalf of the owner of the bus and the Insurance Company that Miss Chandra ought to have been resting her head over the third cross-bar so that her head had been protruding out through the one foot inter-space between the third cross-bar and the top of the window. We are of the opinion that it would be wholly impossible for any one to put out the head through the above interspace while sitting in the seat, considering the height of the top of the window in relation to the seat. If one has to put his or her head outside through the interspace between the third cross-bar and the top of the window, we think he or she has to stand and while sitting in the seat of the bus the head cannot reach the position to rest over the third cross-bar. This apart, there is no acceptable evidence to show that Miss Chandra had been resting her head over the third cross-bar and thereby protruding her head outside the window. Miss Chandra has not been examined before the Tribunal below and the explanation is that even by that time when the matter was taken up for trial, she was not well due to the head injury which she had received. Her father has given evidence as P.W.4. But he was not one of the persons who traveled in the bus at the time of the accident. He speaks only about the nature of the treatment given to his daughter and her condition. P.W.1 and 3 are not in a position to say how exactly Miss Chandra came to be injured on her head in the accident.

7. R. Ws. 1 and 2, the driver and the conductor of the bus, have tried to make out that Chandra was having her head over the cross-bars and the head was protruding out. The evidence of R.W.1, the driver, has to be completely eschewed regarding this aspect because it is impossible for him to have noticed how exactly the victim was sitting at the time of the accident. As a matter of fact, he himself had conceded in cross-examination that he did not see how Miss Chandra was having her head at the time of the impact. R.W.2 being the conductor of the bus, would have naturally been in a rear part of the bus and there is the possibility of he having noticed how the passengers in the rear portion of the bus were sitting at about the time of the accident. Even so, his evidence that Chandler was leaning on the window and her head was protruding outside partly and she was dozing, cannot be accepted. In cross-examination, this witness stated that he cannot say how many among the passengers were dozing. He also stated that the window has three cross-bars with an interval of 4' from one another and that the top of the window will be about 12' over the top bar. But the witness pretended that he cannot give the height of the lower edge of the window over the seat level. The lower edge of the window itself should be high enough from the seat level so that the three cross-bars would be a complete protection preventing any head being protruded out in the sitting posture. Perhaps realizing this, the witness was not prepared to give the height of the lower edge of the window from the seat level. It appears to have been suggested to this witness that in the sitting posture the head cannot be rested over the top cross-bar and there would be no occasion for the head protruding out. Curiously, the witness has stated that the head can go out in between the bars (though the intersperse between the bars is only 4 inches.) The learned counsel appearing for the contesting respondents wants to construe this answer of R.W. 2 as referring to the intersperse between the top cross-bar and the top of the window. But we cannot import something which is against the answer of the witness. The witness has categorically stated that a head can go out in between the bars, and not in between the top bar and the top level of the window.

8. It appears to us that even if Miss Chandra had been dozing while traveling her head should have been resting only against the cross-bar of the window and it could never have been over the top cross-bar protruding out partly. That R.W.2 and R.W.1 are highly interested witnesses is evident from their own answers. It is to be noted that the owner of the bus had also been impleaded as a respondent in the claim petitions, and the claimants made no difference between the owner of the bus and the owner of the lorry in respect of their claims. Therefore R. Ws. 1 and 2 who are the employees of the owner of the bus, are prima facie interested witnesses. That apart, both of them have been made to say that the two victims came to be injured entirely due to their negligence. These two witnesses would not even apportion the blame between the injured and the lorry driver. They would through the entire blame on the injured. This is obviously because of the fear that if they did not say so, the first respondent of the petitions might also be made liable for compensation.

9. It is also significant to note that the theory that Miss Chandra was having her head over the top cross-bar protruding the head partly outside the window, is an afterthought, for such a case has not been suggested either to P.W.1 or to P.W.3.

10. Admittedly broken glasses were found inside the bus. There is no clear evidence as to how glass pieces were so found. P.W.6, the Sub-Inspector of Police, who investigated the accident and ultimately charged the lorry driver for an offence under Section 338, I.P.C., has not thrown any light on this aspect. The Motor Vehicles Inspector, who inspected the two vehicles has not been examined before the Claims Tribunal. It is suggested through the evidence of R.Ws.1 and 2 that the glass pieces found would have been due to the breakage of the glass panes of the bus. But there is no evidence that there were glass panes for the windows of the bus. Under such circumstances, one wonders whether the glass pieces might not be that of the rear-view mirror of the lorry which is likely to have been projecting on its right side. It is quite possible that this rear-view mirror, which is a projection, protruded into the bus when the two vehicles collided. Even otherwise, it is not impossible that some other protruding object of the lorry hit Chandra on her head. Anyway from the evidence on record, it is impossible to hold that Miss Chandra was having her head partly outside the window. Under such circumstances, the question of contributory negligence does not arise at all in the case of Miss Chandra. Therefore the question is whether P.W.1 was guilty of contributory negligence in as much as she was holding the cross-bar with the right hand in such a position that her right thumb was gripping the bar on its outer side.

11. The Tribunal below seems to have thought that as passengers are not expected to put any part of their body outside the window, P.W.1 was guilty of contributory negligence in having her right thumb outside the window of the bus, But we are of the view that on the proved facts there is no contributory negligence on the part of P.W.1. It is true that but for P.W.1 holding the cross-bar in such a position that her right thumb was gripping the bar on its outer side, she might not have been injured. But the question is whether her having the right thumb in that position has been part of the cause of the accident. In this case, there was undoubtedly impact between the two vehicles and such impact would have happened even if P.W.1 had not been gripping the cross-bar in the way in which she did. Of course, if the thumb was not gripping the bar on its outer side, perhaps it would not heave been cut off in the process of the two vehicles colliding with each other. Under such circumstances, we have to see whether the injured can be said to be negligent before ever considering whether she was guilty of contributory negligence, reducing the liability of the wrong-doer. It is true that putting out the hand or any part of the body outside a fast-moving vehicle would be a negligent act, particularly if the vehicle is moving in a crowded place. In a busy city where there is heavy traffic, it would certainly be highly dangerous to put out the hand or arm or other part of the body so as to be projecting outside the moving vehicle. Even such putting out a part of the body outside the moving vehicle may not be an act which endangers the safety of the person concerned, if the vehicle was not moving in a crowded place but it was moving only in a broad highway, for in such a highway there is no reasonable possibility of any other vehicle coming very close to the vehicle in which the person is traveling. In any event, we are not in a position to hold that mere gripping of the window cross-bar in a position in which the right thumb was gripping the bar on its outer side would be a negligent act on the part of the injured, especially when the vehicle was on a broad highway and not moving in any crowded place. It cannot be said that P.W.1, the injured, had acted negligently or without due care, merely by gripping the cross-bar of the window when the bus was going in a highroad.

12. The learned counsel for the respondents referred to some of the decisions of the courts in England in support of his contention that in this case it must be held that the injured was guilty of contributory negligence. The first case is Davies v. Swan Motor Co. Ltd., 1949 1 All ER 620. That was a case where an employee of the Swansea Corporation was, contrary to regulations, riding on the steps attached to the offside of a dust lorry belonging to the said Corporation. An omnibus which was overtaking the above dust lorry came into collision with the lorry and then the employee who was standing on the steps of the dust lorry was hit and he received injuries from which he died. It was held that though the driver of the omnibus was guilty of negligence, the deceased man was guilty of contributory negligence resulting in apportionment of liability under the Law Reforms (Contributory Negligence) Act of 1945, which is in force in England. The court of Appeal held that the deceased by standing where he did on the lorry was in breach of a duty which he owed to the driver of the omnibus, not to render more difficult the passing of the lorry by the omnibus, and so increase the risk of collision and therefore there was contributory negligence on the part of the deceased. It was also pointed out in that case that in order to constitute contributory negligence it was sufficient to show that there was a lack of reasonable care by the deceased for his own safety. This decision would not help the respondents in the present case. As we pointed out it is not possible to hold that by merely gripping the window cross-bar of the bus, the injured showed a lack of reasonable care for her own safety. Further the fact that P.W.1, the injured, was gripping the window cross-bar had nothing to do with the actual collision between the two vehicles and surely it cannot be contended that by so gripping the cross-bar. P.W.1 had made it more difficult for the lorry driver to pass the bus without the risk of collision with it.

13. Nance v. British Columbia Electric Rly. Co., (1951) 2 All ER 448 is a case where the deceased cross the road which was a slippery due to ice and he was run over by a motor vehicle. The Court of Appeal, British Columbia took the view that there was contributory negligence, and reduced the quantum of compensation payable by the defendant. On further appeal by the widow of the deceased, the Privy Council restored the finding of the jury in the trial court holding that there was no contributory negligence. This decision would certainly not help the respondents.

14. Harris v. Toronto Transit Commission, 1968 ACJ 264 is a decision by the Supreme Court of Canada. That was a case where a boy sitting in a bus projected his arm outside the bus in spite of warning and as the bus went close to a roadside pole the arm of the boy hit against the pole and it was crushed. That part of the bus where the boy was putting out his arm did not actually come into contact with the pole, but only the rear corner of the bus grazed the top of the pole which was set in the side walk near the curb. The Supreme Court of Canada held that the driver of the bus was negligent in the driving of the vehicle in as much as he drove it too close to the pole, but the boy was guilty of contributory negligence in as much as he had put out his arm and only by that act the accident had happened. It is significant to note that the area of the window though which the boy had put out his arm did not come into contact at all with the pole. It is only because the boy had put out his arm to a considerable length outside the bus, it hit against the pole and thereby there was injury to the arm. It was, under those circumstances held that the boy was guilty of contributory negligence. This again would not help the respondents in the present case.

15. Rajammal v. Associated Transport Co. 1970 ACJ 44 is a judgment of this court rendered by Venkataraman J. There, in a lorry which was loaded with iron rods, the deceased was sitting over the rods. The rods slipped and the deceased also slipped and fell down, ultimately resulting in his death. Undoubtedly, in that case, the deceased had taken a very dangerous position and had acted without reasonable care for his own safety. That cannot be equated with the present case of the injured just gripping the window cross-bars.

16. Yoginder Paul Chowdry v. Durga Das, 1972 ACJ 483, is a decision of the Delhi High Court where it was held that the pedestrian who crossed the road all of a sudden and was hit by a moving vehicle was guilty of contributory negligence. If a person crosses the road all of a sudden when the vehicle is very close and thereby he is hit by the vehicle, the entire blame cannot be thrown on the driver of the vehicle. In fact, in certain circumstances, the entire blame may be on the person who crossed the road all of a sudden and the accident might occur without any rashness or negligence on the part of the driver of the vehicle. Therefore that case decided by the Delhi High Court is of no help at all to the respondents herein. We hold, therefore, that P.W.1 is not guilty of contributory negligence.

17. The further question is, what is the amount of compensation payable to the respective injured. The Tribunal below has fixed the compensation payable to P.W.1 at Rs.8,000 and that Miss Chandra at Rs.25,000 but reduced it to half on the ground of contributory negligence. Even though we hold that there was no contributory negligence on the part of the injured, the respondents are entitled to support the final finding of the Tribunal that P.W.1 was entitled only to Rs.4,000 and Miss Chandra was entitled to only Rs.12,500 as compensation on other grounds. On a careful examination of the evidence on record, we are of the view that the assessment by the Tribunal below of the total compensation payable to P.W.1 at Rs.8,000 and that to Miss Chandra at Rs.25,000 is too high and that the same should be reduced to Rs.5,000 and Rs.15,000 respectively. It is no doubt true that P.W.1's right thumb has been completely severed. But the Tribunal itself has found that the injury had not incapacitated P.W.1 to such an extent that she cannot earn in the future. She was a teacher getting Rs.125 per month as salary. Apart from that, she had been earning Rs.30 to Rs.35 per month by way of private tuition, as per her evidence. It is not a case where due to this injury the employer discharged her from service. According to her own evidence she herself resigned the job of teacher in the Radhakrishna Higher Elementary School, Madras. She had not explained as to why she so resigned. She has admitted that even after the accident she is giving private tuition to students, even though she has not stated how much she is earning by private tuition after the accident. She was aged 54 years on the date of accident. The Tribunal below has awarded a total sum of Rs.7760(rounded to Rs.8000) and considering the above facts, we think the total compensation has to be reduced to Rs.5,000.

18. Coming to the compensation payable to Miss Chandra, no doubt she had received a serious injury on her head which involved the fracture of the frontal bone. But fortunately the injury has not caused any permanent disability though it is stated that it had left a permanent scar which disfigures the face of the girl. Dr. Ramamurthi (P.W.5) of the Government Hospital, Kancheepuram, was the person who examined Miss Chandra in the first instance and he issued the wound certificate Ex. A-7. He has not spoken to the injury and the nature of the same in his evidence. Only the medical certificate has been marked through his evidence. P.W. 4 the father of the girl, said that Miss Chandra was treated as an in-patient in the Kancheepuram hospital for 15 days and then she was having treatment as an out-patient for one week at Royapettah Hospital and further one week at Stanley Medical College Hospital. He further stated that even after such treatment Miss Chandra was complaining of headache and also had been fainting often. It is also his evidence that her facial beauty is affected and she has become ugly and that she could not continue her studies. Before us it was stated by the learned counsel for the appellant that now Miss Chandra is not having any complaints of headache or fainting and she is quite all-right. This is all the material that we have. Considering the fact that the injury has fortunately not caused any permanent disability, we think the total compensation fixed as Rs.25,000 by the Tribunal below is too high and that sum of Rs.15,000 would be the proper compensation payable to her.

19. Accordingly, the two civil miscellaneous appeals are partly allowed and there will be an award for a sum of Rs.15,000 in M. O. P. 53 of 1967 (C. M. A. 438 of 1969) and that for a sum of Rs.5,000 in M. O. P. 54 of 1957 (C. M. A. 433 of 1969), which amounts are payable by the Insurance Company, the 3rd respondent. There will be no order as to costs in either of the appeals.

20. Appeals partly allowed.


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