Judgment:-As a result of an accident at about 9-30 p.m. on 21st May, 1947,. in which the motor lorry belonging to the first defendant and the motor bus belonging to the second defendant were involved, the plaintiff a passenger in the bus, got his right arm crushed. Eventually that arm had to be amputated The first defendant had insured the lorry with the third defendant, and the second defendant had taken out a policy issued by the fourth defendant The plaintiff claimed Rs. 20,000 as damages, and he laid the suit against both defendants 1 and 2. In response to the notice issued through Court under section 96(a) of the Motor Vehicles Act, defendants 3 and 4 applied to the Court and obtained permission to be impleaded as party defendants to the suit.

The plaintiff pleaded that the accident was caused by the negligence of the drivers of both the vehicles; alternatively, he pleaded that one or the other of the drivers was guilty of negligence, which eventually resulted in the plaintiff being injured. Defendants 1 and 2 in effect each charged the driver of the other with responsibility for the accident. Defendants 1 and 2 each pleaded that it was the plaintiff who had his right arm thrust outside the bus in which he was travelling, and that was really responsible for the injury to the arm. Neither of the Insurance Companies, defendants 3 and 4, set up any of the defences enumerated in section 96(2) of the Motor Vehicles Act. In effect each Insurance Company supported! the pleas set up by its policy-holder.

Issue 5 in the suit was “what is the liability of defendants 3 and 4, if any ?”

The learned Subordinate Judge found that there was a collision between the bus and the lorry, and the learned Subordinate Judge further found that it was the negligence of the driver of the lorry owned by the first defendant that led to that collision. The learned Judge therefore fixed the responsibility for the negligence on the first defendant and decreed Rs. 5,000 as damages payable by the first defendant to the plaintiff. On issue 5 the learned Judge recorded: "No finding is given on issue 5 as it is unnecessary in this suit."

The first defendant appealed. The plaintiff filed a memorandum of cross-objections, claiming a further sum of Rs. 5,000 as compensation.

It should be easy to dispose of the contention of the first defendant, negatived by the lower Court, that the plaintiff had at least contributed by his negligence to the damage in his arm that he sustained that day by keeping his arm outside the bus. It is really a little difficult to visualise even the possibility of the plaintiff’s arm being thrust through the window of the bus behind his back. It was not disputed that the seat occupied by the plaintiff ran alongside the bus, and that the plaintiff was seated with his back to the wall of the bus nearest the driver. If the contention of the first defendant is to be accepted, the plaintiff must have thrust out his arm "behind his back, an inconvenient position normally difficult to visualise. There was no specific evidence to prove that either. Even if the plaintiff had rested his elbow on the window and most of the witnesses swore that the plaintiff had not even done that, that would not amount to any proof of negligence on the part of the plaintiff. It was common ground that the road was about 60 feet wide, and the metalled portion itself was 16 feet wide. There was thus ample clearance for the "bus and the lorry travelling in opposite directions, and obviously the first defendant could not claim the right to take his lorry within an inch or less of the bus coming from the opposite direction. On the evidence on record, the learned Subordinate Judge was right in holding that the plaintiff had in no way contributed to the injury to the arm that he sustained that day.

That there was a collision between the lorry and the bus could not really be in doubt. Both the drivers virtually admitted it in the report which each of them lodged soon after the o

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