1. By means of this First Appeal, the owner of the offending vehicle has questioned the correctness of the judgment and order passed by the Motor Accidents Claims Tribunal of Sabar Kantha at Himatnagar on 13th May, 1982 in M.A.C. Petition No. 360 of 1981.

2. The facts giving rise to the present appeal may be summarised thus:

Respondent No. 1 herein in the company of his cousin had been to village Bavasar on 19th March, 1981. They wanted to go to village Nana Chakla therefrom. They thereupon boarded one S.T. bus plying between Himatnagar and Punsari. It bore R.T.O. registration No. GTH 5319. Respondent No. 2 herein was at the steering at the relevant time. In the course of its journey at about 7.30 p.m. in the rim of village Modhuka, Taluka Prantij, it met with an accident with one bullock-cart coming from the opposite direction. The bullock-cart carried in it some corrugated iron sheets. Respondent No. 1 herein was occupying the right side window seat at the relevant time. As a result of the accident, the corrugated sheets in the bullock-cart came on his right hand crushing his ring finger and last finger and also causing injuries in his palm. The driver of the S.T. bus did not bring it to a halt even on occurrence of this accident. Instead he carried his bus ahead. He, however, reported the accident to the Police Station. The report was entered only in the Register known as 'Janva Jog Yadi'. No investigation into the cause of accident was made nor any panchnama was drawn. Respondent No. 1 herein was carried to the Civil Hospital at Himatnagar. He was given treatment thereat. He thereafter filed his claim petition in the Motor Accidents Claims Tribunal of Sabar Kantha at Himatnagar claiming damages in the sum of Rs. 40,000/- from the driver and the owner of the bus in question. It came to be registered as M.A.C. Petition No. 360 of 1981. The claim was, however, reduced to Rs. 25,000/- later on The appellant herein filed its written statement and resisted the claim petition on several grounds. Respondent No. 2 herein adopted that written statement by filing his purshis. Since the claim was to the tune of Rs. 25,000/- it was ordered to be decided on affidavits. Apropos, the necessary affidavits were filed by the parties. The parties also brought on record certain documentary evidence. The necessary issues were also framed. After hearing the parties, by its judgment and order passed on 13th May, 1982, in M.A.C. Petition No. 360 of 1981, the Tribunal awarded to respondent No. 1 herein the damages in the sum of Rs. 20,000/-. The owner of the bus in question has thereupon preferred this appeal before this Court challenging the correctness of the judgment and order passed by the Tribunal as aforesaid.

3. Mr. Pandya for the appellant has submitted that the Tribunal erred in holding the driver of the bus in question to be rash and negligent at the relevant time. According to Mr. Pandya for the appellant, respondent No. 1 herein was also negligent in allowing his right hand to remain out of the window in a dangling condition, apart from the fact that the bullock-cart driver was equally negligent for causing the accident in question. Mr. Pandya for the appellant has also questioned the correctness of the assessment of damages made by the Tribunal. As against this, Mr. Nanavati for respondent No. 1 has tried to support the judgment and order of the Tribunal under challenge in toto.

4. The Tribunal has found the driver of the bus also negligent in driving his vehicle at the relevant time. The bullock-cart driver was also found negligent. The Tribunal has apportioned the negligence equally between the two drivers. The evidence on record does not call for any interference in this finding of the Tribunal so far as the driver of the bus in question is concerned. The Tribunal has found that the road on which the accident took place was a kacha one. Its width was found to be about 15 to 16 ft. It was about 7.30 p.m. and as such it would be somewhat dark needing the headlights of the bus to be on. The Tribunal also found that the dazzling headlights might have caused the animals drawing the cart to go wayward. The driver of the bus in question has in his affidavit merely rested content with a mere assertion that he was driving his vehicle at a normal speed. In fact looking to the width of the road and looking to the fact that it was a kacha road, on spotting the bullock-cart coming from the opposite direction, he ought to have slowed down the speed of his vehicle so as to avoid any kind of brushing of the cart with the bus or vice versa. The duty which a bus driver is required to discharge in such circumstances is laid down in the Division Bench ruling of this Court in the case of Gujarat State Road Transport Corporation v. Keshavlal Somnath Panchal 1982 ACJ (Supp) 377 (Gujarat). As held therein, the driver has to be careful and cautious about the safety of the passengers travelling in the bus and he should see to it that his vehicle does not come quite close to any vehicle coming from the opposite direction. It has further been held therein that, if some passenger is found resting his arm on the window projecting his elbow to a certain extent, it is all the more his duty to see that the oncoming vehicle does not come too close to his vehicle so as to cause any injury to the elbow projected out of window by that passenger. The affidavit of the driver in the instant case does not disclose that he took such care and caution on finding the bullock-cart coming from the opposite direction. His affidavit does not disclose that he slowed down his vehicle to a considerable extent so as to avoid the coming of the opposite direction vehicle too close to the bus in question.

5. So far as the case of contributory negligence on the part of respondent No. 1 herein is concerned, it has to be stated only to be rejected. It appears that no such point was canvassed before the lower Tribunal. Such a case was taken up for the first time by the driver in his affidavit. It appears not to have been pressed much in the course of the hearing of the case. No such point was taken in the written statement filed on behalf of the appellant herein in the proceedings. In that view of the matter, the case of contributory negligence on the part of respondent No. 1 herein can be said to be an afterthought. Besides, the driver of the bus in question has not stated in his evidence that he instructed respondent No. 1 herein to take his hand inside more particularly when he found the bullock-cart coming from the opposite direction. Again, the standard of care and caution to be observed by him in view of the ruling of this Court in Keshavlal Somnath Panchal's case, 1982 ACJ (Supp) 377 (Gujarat), would be all the more and greater on finding that respondent No. 1 herein had his hand in a dangling condition outside the window. His affidavit does not disclose that he took such extra care and caution while crossing the bullock-cart coming from the opposite direction. In that view of the matter, the case set up by the driver for the first time in his affidavit blaming respondent No. 1 herein for his negligence cannot be accepted.

6. There is one more circumstance on record coming in the way of the appellant herein in pressing that point further. Respondent No. 1 herein tendered his affidavit in support of his claim. He gave his version of accident in question. If that was not the correct version, the appellant could have requested the court for cross-examination of respondent No. 1 herein on that point. Nothing of the sort appears to have been done by or on behalf of the appellant before the Tribunal. I am, therefore, of the opinion that the appellant's case that respondent No. 1 herein was himself responsible for the mishap in question cannot be accepted.

7. It is difficult to accept the submission urged before me by Mr. Pandya for the appellant with respect to assessment of the damages made by the Tribunal. It is true that respondent No. 1 did not bring on record any documentary evidence in support of his income from his agricultural work and from his work as mechanic. He did not bring on record any documentary evidence showing that he was in occupation and/or in possession of some agricultural land. It may be noted that he was a young man of 24. He was an able-bodied person. No infirmity in his physique was brought on record which could have incapacitated him from eking out his living. But for the injuries sustained by him as a result of the accident, as an able-bodied person it would not have been difficult for him to earn his livelihood. The disability qua injuries to his two fingers has impaired to a great extent his earning capacity. It is true that the Medical Practitioner has certified his disability to the extent of 10 per cent only. That quantum of disability relates to the body as a whole. The percentage of such disability qua the body as a whole need not be accepted as the disability qua a person's earning capacity. If a stenographer suffers injuries to his fingers, the percentage of disability qua the body may be around 10 per cent but qua his earning capacity it can be around 100 per cent. The reason therefor is quite simple. A stenographer's earning capacity depends upon the use of his fingers effectively and efficiently. In that view of the matter, the disability on account of injuries to the last two fingers suffered by respondent No. 1 herein as a result of the accident will have to be looked from his capacity to earn. As transpiring from the medical evidence on record, he would not be in a position to bend those two fingers of his. He would not be able to have a grip of things with those two fingers of his. The Claims Tribunal has accepted his version of his occupation as an agriculturist. It cannot be gainsaid that the use of hand occupies a predominant place in agricultural operations. With disability on account of injuries to his two fingers, the use of his hand would be impaired to that extent. In that view of the matter, the learned Presiding Officer of the lower Tribunal was right in assessing the disability qua his earning capacity at 33 per cent.

8. The income of respondent No. 1 herein has been assessed only at Rs. 3,000/- p.a. by the lower Tribunal. Such assessment of income by an able-bodied person like respondent No. 1 herein can be said to be quite on the lower side. I find no reason to interfere with such conservative assessment of his income made by the lower Tribunal. It has rightly accepted the loss of income to the extent of Rs. 1,000/- per year on account of the disability resulting from injuries suffered by him as a result of the accident in question. The multiplier of 15 chosen by the Tribunal for assessment of the loss of future income is also found to be conservative. It calls for no interference by this Court in this appeal. The global figure of Rs. 5,000/-selected for the purpose of award of compensation under the head of pain, shock and suffering is also in accordance with the principles of law settled by this Court in that regard. No interference is called for in that figure as well. I am, therefore, of the view that the award of damages in the sum of Rs. 20,000/- to respondent No. 1 herein by" the lower Tribunal can be said to be just and proper deserving no interference whatsoever in this appeal.

9. In the result this appeal fails. It is dismissed with costs.