A passenger sitting near a window of a bus with their arm resting on it cannot be held to be contributorily negligent if their arm is injured by the bus not leaving sufficient space while crossing or going past a vehicle or building.

1. Two passengers Qimat Rai Jain and Parshotam Dass Jindal, while travelling in the bus PUV-2102 had their right arms completely cut off, when the truck PUJ-6628 coming from the opposite direction, grazed against the right side of the bus while passing it. Both these passengers were sitting near one of the windows of the bus on the right with their right arms resting on it. This happened on the Grand Trunk Road near village Chachoki in the area of Police Station Phagwara on May 5, 1974.

2. The Tribunal held this to be a case of contributory negligence with all the parties involved therein namely the drivers of the bus and the truck as also the two claimants being equally to blame. After making due allowance on this account a sum of Rs. 34,000.00 was awarded as compensation to Qimat Rai Jain and Rs. 23,500.00 to Parshotam Dass Jindal.

3. The Tribunal clearly fell in error in imputing contributory negligence to the claimants. It is now well settled that the driver of a bus while overtaking or crossing another vehicle must keep in mind the normal tendency of a passenger sitting near a window to have his arm resting on it and may be even protruding out a little and he must, therefore, take care to leave sufficient space between his vehicle and the other so that no harm or injury is caused to such passenger. A precedent for this is provided by my judgment in F. A. O. No. 292 of 1977 (Prem Devi V/s. Harbhajan Singh) decided on October 25, 1983,*which was a similar case of a claimant losing her arm protruding out of the window of the bus she was travelling in, when the bus while passing a stationary bus struck against it. The question posed was "is a passenger travelling in a bus with his/her arm projecting outside the body of the bus, while resting it on the window thereof to be denied compensation for the injuries caused to such arm by the bus not leaving sufficient space while crossing or going past a vehicle or building". Following Sushma Mitra V/s. M. P. State Road Transport Corporation, 1974 Acc CJ 87 : (AIR 1974 Madh Pra 68) and Chaturji Amarji V/s. Ahmad Rahimbux, 1980 Acc CJ 368 : (1979 Cri LJ 107) (Guj), it was held that the accident in such a case must be attributed wholly to the rash and negligent driving of the bus driver. It follows, therefore, that no contributory negligence can be attributed to the claimants here. * Reported in (1984) 86 Pun LR 459.

4. As regards the drivers of the bus and the truck, there can be no manner of doubt that they were both rash and negligent and that too equally so.

5. Both the bus driver as also the driver of the truck blamed each other for the accident. According to the bus driver, the truck had come on to the wrong side of the road when it hit into the bus; whereas the truck driver stated that the bus was trying to overtake a cart when it came and hit into the truck. Neither of these versions is supported by either the claimants or the other witnesses examined by the claimants. The story of the truck driver regarding the cart which, it is said, the bus was trying to overtake is also clearly an afterthought in that no mention of it was made in the written statement.

6. The witnesses examined by the claimants in both these cases testified to the rash and negligent manner in which both the bus and the truck were being driven at the time of the accident. They denied the suggestion that there was any cart which the bus was trying to overtake or that the truck had come on to the wrong side and hit into the bus. The circumstances in which, the accident occurred, in the light of the evidence on record, leads to the irresistible conclusion that the accident here took place due to the negligence of the two drivers and consequently both the drivers of the bus as also that of the truck must be held equally liable.

7. Next to consider is the compensation payable to the claimants for the injuries suffered by them. Both the claimants suffered a similar injury namely, amputation of their right