R.L. Khurana, J.
1. This appeal has been directed against the award dated 18.12.1990 of the Motor Accidents Claims Tribunal, Chamba, whereby compensation of Rs. 1,07,000/- was awarded in favour of the respondent, hereinafter referred to as 'the petitioner'.
2. The petitioner on the relevant date was travelling from Banikhet to Bathri by Himachal Road Trans. Corpn. bus bearing registration No. HIC 306. One Bir Singh was the driver of the bus at the relevant time. When the bus reached near Patna curve at about 6.15 p.m., it met with an accident due to rash and negligent driving on the part of the driver, as a result of which the petitioner sustained injuries to his right arm. The petitioner was given first aid at Bathri Hospital and thereafter referred to District Hospital, Chamba, for further management. At the District Hospital, the right arm of the petitioner had to be amputated above the elbow joint. The petitioner, accordingly, approached the Motor Accidents Claims Tribunal, Chamba, seeking compensation of Rs. 3,00,000/-for the bodily injuries sustained by him. The petitioner at the relevant time was about 27 years of age and working as a mason. The permanent disability sustained by the petitioner due to amputation of his right arm above the elbow joint has been assessed at 75 per cent.
3. The petition was resisted by the Himachal Road Transport Corporation and the driver, hereinafter referred to as 'the respondents'. The accident and the resultant injury suffered by the petitioner was admitted. Rash and negligent driving on the part of the driver was denied. While the driver in his separate reply has not given any explanation with regard to the cause of accident, the respondent H.R.T.C. has come up with the explanation that 33 KV transmission line, which was being installed, had suddenly fallen on the road and in order to avoid any major disaster, the driver had turned the bus towards the hillside. It was further pleaded that the bus never struck against the hill and that the petitioner sustained injuries since he was keeping his arm out of the window, the same had struck against the hill, whereby he sustained the injuries.
4. The learned Tribunal upon consideration of the material placed before it came to the conclusion that the accident, in which the petitioner had sustained the injuries, was as a result of rash and negligent driving on the part of the driver of the bus. The petitioner had not contributed to the negligence. The learned Tribunal, accordingly, awarded compensation of Rs. 1,07,000/- to the petitioner for the injuries sustained by him.
5. Feeling aggrieved by and being dissatisfied with the amount awarded by the learned Tribunal, the respondent H.R.T.C. has come up in appeal before this Court, challenging the findings of the learned Tribunal on the question of negligence as well as the quantum of compensation assessed.
6. We have heard the learned Counsel for the parties and have gone through the record of the case.
7. As stated above, the accident has not been denied by the respondent. While the case of the petitioner is that the accident was as a result of the rash and negligent driving on the part of the bus driver, the respondent H.R.T.C, the owner of the ill-fated bus, has come up with the explanation that at the place of accident 33 KV transmission line was being installed by the State Electricity Board, when all of a sudden, the transmission wire had fallen on the road. The driver of the bus in order to avoid any serious disaster due to the falling of the live transmission wire, had turned the bus towards the hill. It has further been averred that the bus never struck against the hill. The right arm of the petitioner which he was keeping outside the window had struck against the hill, thereby causing injuries to the petitioner. Respondent driver of the bus has only denied the rash and negligent driving on his part and has not offered any explanation as to the cause of accident.
8. It is well settled that the driver of the vehicle involved in the accident is the best person to explain the circumstances under which an accident has taken place. In the present case, as stated above, no explanation has been offered by the respondent driver as to the cause of the accident. He has, for the first time, while appearing as RW 1, offered the explanation with regard to the cause of accident that on seeing a live transmission wire falling on the road, he had turned the bus towards the hillside and that the arm of the petitioner happened to strike against the hill.
9. Admittedly, the petitioner was sitting on a seat on the right side of the bus. It is also not denied that at the place of the occurrence, the hill is located towards the right side of the road, while one proceeds from Banikhet to Bathri. Therefore, it is evident that the driver had taken the bus from the left side of the road to the right side of the road, whereby the accident had taken place. Even if it be assumed that the driver had seen a live transmission wire falling on the road, the best course for him was to have immediately stopped his bus It is in the statement of the driver as RW 1 that he had seen the transmission line falling from a distance of five to six feet. It is not the case of the driver respondent that he had no opportunity of stopping the bus immediately on seeing a live transmission line falling on the road. Another inference which can be drawn from the facts and circumstances of the case is that the bus was being driven by the driver respondent at a very high speed and due to such high speed he was unable to stop the bus and, therefore, was forced to take the bus towards the wrong side of the road when it happened to strike against the hill, thereby causing injuries to the petitioner. The negligence on the part of the driver respondent is, therefore, writ large.
10. It was vehemently argued by Mr. Sharma, learned Counsel for the respon dent appellant, that the petitioner himself is guilty of contributing negligence, inasmuch as he was keeping his arm out of the window while travelling in the bus. There is no merit in the contention of the learned Counsel.
11. In Chaturji Amarji v. Ahmad Rahimbux 1980 ACJ 368 (Gujarat), where the claimant was travelling by a State Transport bus being plied on a 12 feet wide road, while resting his right arm on the window railing, had sustained injuries due to the grazing of the two vehicles, while crossing each other, the High Court of Gujarat came to the conclusion that the accident was as a result of the rash and negligent driving on the part of the drivers of the two vehicles and that the claimant was not guilty of any contributory negligence. While coming to the said conclusion it was observed that 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. It was further observed that 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 of the vehicle concerned.
12. In State of Haryana v. Ram Pal 1989 ACJ 726 (P&H;), it has been held as under:.It is now well settled that no contributory negligence can be attributed to a passenger travelling in a bus or car, if he happens to have his arm on the window. There is no rule or law which bars passengers from putting their arms on the window and indeed the common experience is that this is often seen to be done. There is a duty of care that the driver of a motor vehicle owes to persons travelling in it and this duty extends to ensuring that such persons are not put in jeopardy because their arms are resting on the window...
13. To the similar effect it has been held in the Delhi Transport Undertaking v. Krishnawanti 1972 ACJ 423 (Delhi) and Andhra Pradesh State Road Trans. Corporation v. Dodda Somayajulu Sitaramamurty 1982 ACJ 44 (AP).
14. Therefore, considering the entire facts and circumstances of the case, we hold that the learned Tribunal has arrived at the correct conclusion that the accident in which the petitioner had sustained the injuries was as a result of the rash and negligent driving on the part of the driver of the bus and that the petitioner was not guilty of any contributory negligence.
15. Coming to the question of quantum of compensation assessed by the learned Tribunal, it is significant to note that the petitioner at the relevant time was of about 27 years of age. He was working as a mason. The petitioner as PW 4 has stated that he was earning daily wages of Rs. 60. According to the respondent, the wages of a mason, as per the Government rates at that time, was Rs. 28/- per day. The learned Tribunal has arrived at the conclusion that the petitioner was earning Rs. 800/- per month. Taking the permanent disability at 75 per cent, the loss in earning capacity of the petitioner has been arrived at Rs. 500/- per month, that is, Rs. 6,000/- per annum.
16. Taking into consideration the age of the petitioner at the relevant time, the learned Tribunal applied the multiplier of 15 and assessed compensation under the head loss of future income at Rs. 90,000. The Tribunal has further awarded compensation of Rs. 2,000/- towards medical expenses and Rs. 15,000/- as general damages for pain, shock, suffering and loss of amenities of life. Total compensation, thus awarded, comes to Rs. 1,07,000/-.
17. We do not find that the method adopted by the Tribunal in arriving at the quantum of compensation is, in any way, wrong. The learned Tribunal has correctly arrived at the monthly income of the petitioner and on the basis of the permanent disability sustained by the petitioner, has rightly held the loss of future income at Rs. 500/- per month. The compensation, therefore, awarded by the Tribunal cannot be in any manner said to be on a higher side. The compensation awarded, in our opinion, is just and reasonable.
18. No other point was urged before us.
19. As a result, the present appeal fails and the same is accordingly dismissed with costs which are quantified at Rs. 2,200/-.