S.S Sodhi, J.:— In an accident between the Haryana Roadways bus HYK-262 and an unidentified truck coming from the opposite direction, the right arm of the claimant Ram Pal, who was travelling in the bus and sitting beside a window, got crushed and was amputated from the shoulder. This happened on June 13, 1983 on the Ropar-Nangal Road.
2. The Tribunal came to the finding that the accident had been caused due to the rash and negligent driving of the bus. A sum of Rs. 2,00,000/- as claimed by the claimant, was awarded as compensation.
3. Mr. M.S Jain, Addl. Advocate General, Haryana sought to assail the finding of negligence by adverting to the writing exhibit R/1. The case as set up by the bus-driver with regard to this writing being that the accident was reported to the police of police station Anandpur Sahib, where the claimant, his wife and one Surmukh Singh stated that the accident occurred due to the rash and negligent driving of the truck coming from the opposite direction and the bus driver was not at all at fault. It is pertinent to note that this writing Exhibit R/1 was not put to the claimant when he came into the witness-box nor was any question asked from him with regard to it. The other eye-witness P.W 4—Vinod Kumar was the only witness from the side of the claimant to whom a suggestion to this effect was made, but it was categorically denied by him. The writing Exhibit R/1 come on record for the first time during the statement of the bus driver R.W 1—Mulkh Raj. The version, he came-forth with regard to it is clearly at variance with that was set-forth in the written statement Here, he deposed that the police had come the hospital at Nangal and enquired from the claimant Ram Pal whether he wished to register any case, but Ram Pal declined as he (bus driver) was not at fault and it was then the claimant gave the writing Exhibit R/1 to the police. Mulkh Raj went on to depose that the writing Exhibit R/1 was scribed by Raunak Ram. This Raunak Ram has not been produced, nor indeed any of the persons who are shown to have witnessed it. Such thus being the circumstances with regard to this document, no exception can indeed be taken to the Tribunal not relying upon it.
4. Faced with this situation, an attempt was next made to contend that this was a case of contributory negligence, as the circumstances clearly suggest that that the claimant had his arm outside the window of the bus when the on-coming truck grazed aganist that side of the bus. There is indeed no substance in this contention either as 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 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. It is, therefore, incumbent upon the driver to ensue that while going fast or crossing a vehicle, building or other object, there is sufficient margin left to avoid any mishap to any passenger on account of his or her arm, while on the window protuding out. There are two precedents for this view from our Court, the first being; State of Punjab v. Smt. Guranwanti . AIR 1960 Punj 490.. This was a case where the hand of a passenger sitting next to a window in the bus was crushed, when the bus, while over-taking a rickshaw on a one way bridge went too close to the dividing railing of the bridge. It was held that the bus-driver was negligent and with no contributory negligence on the part of the injured passenger. It was, in this behalf, observed that passengers often travel with their elbow resting on the window and there was no prohibition against it.
5. Next there is Prem Devi v. Harbhajan Singh . 1984 86 PLR 459., where specifically and categorically, it was held that there was no contributory negligence on the part of a passenger travelling in a bus by his arm projecting outside the body of the bus while resting it on the window thereof.
6. Counsel for the appellant, however, sought to press in aid the judgment of the High Court of Bombay in Gurish Transport v. Pedro Salvador . 1988 A.C.J 509., where the injured passenger who had kept his elbow on the window sill of the bus was fastened with contributory negligence to the extent of 25 per cent. A reading of this judgment would show that it took no note of earlier precedents nor indeed is there any reasoning to support apportionment of contributory negligence upon the injured-claimant. There being two binding precedents of this Court, holding to the contrary, and it is these that must thus be followed.
7. The finding of negligence recorded against the bus-driver has accordingly to be up-held and affirmed.
8. Here another point was sought to be raised by the Additional Advocate General, namely; that from the circumstances in which the accident had occurred, the truck-driver too, must be held to be equally to blame for the accident and he consequently sought a finding to this effect. In dealing with this matter it will be recalled that the truck in question has not been identified till date. Even if it be taken that some fault was also attributable to the truck-driver, it would merely be an exercise in futility to proceed any further unless and untill this truck is identified and its owner and driver impleaded as parties to this petition.
9. The quantum of compensation awarded to the claimant was not in any manner questioned. The amount awarded is, at any stage clearly justified having regard to age of the claimant, the nature of the injuries and the financial loss that he has suffered on account of this accident.
10. The award of the Tribunal thus warrants no interference in appeal. It is accordingly hereby up-held and affirmed. This appeal is thus dismissed with costs. Counsel fee Rs. 500/-.
R.M.S
Appeal dismissed.