BABUCHAND PASWAN Vs. KAMALESH KUMAR SINGH

JUDGEMENT

(1.) This miscellaneous appeal is directed against the judgment dated 7.2.1997 passed by Motor Accidents Claims Tribunal, Gaya in M.V. Claim Case No. 96 of 1993.

(2.) The facts relevant for this appeal are that one Mahipal Paswan was travelling in a bus bearing registration No. BPV 3285 on 11.5.1993 and he was going to Gaya. When the bus reached Bairia village, another bus bearing registration No. BHB 9231, came from the opposite side and dashed against the bus in which the deceased was travelling, smashing his head. He was subsequently brought to the hospital where he was declared dead.

(3.) Upon the evidence adduced, the Tribunal came to the conclusion that the deceased Mahipal Paswan died on account of his own contributory negligence because he was projecting his head outside the window of the bus in which he was travelling and passengers are normally not expected to project their heads outside the windows in order to avoid any injury by oncoming vehicles from the opposite direction. Against the judgment of the Tribunal, this appeal has been preferred and it was submitted by the appellant's lawyer that in a motor vehicle accident case, negligence on the part of the victim is normally not the principle on which the claim case is founded. Negligence on the part of the offending vehicle is also not to be the criteria in calculating or deciding the compensation to be granted under the Motor Vehicles Act. Before I advert to the argument of the appellants' lawyer, I would like to refer to the facts of this case in a further broader view. The F.I.R. of the case indicated that the accident took place when the deceased had projected his head outside the window of the bus to spit. Some eyewitnesses, who were fellow passengers, said that the deceased was sleeping and keeping his head on his hands when he was knocked down by speeding offending bus coming from opposite direction. So, there were contradictory statements of the eyewitnesses regarding the manner of the accident and as to at what point of time the deceased received injury upon his head. Post-mortem report, Exh. 2, shows that there were injuries upon the parietal region of the head of the deceased extending from the right eyebrow to the middle of the parietal middle region. The parietal bone under the scalp was found fractured in multiple small pieces. Perhaps, there were injuries upon the hands also. That shows that the deceased received injuries upon his head as also hands. This is possible when a man projects his head outside the window of a bus to spit. I do not think that such injury can be possible when anybody keeps his head on the cushion of his hands to sleep because in such cases normally one would be expected to place his head on the folds of his hand in a moving bus. So, it appears that the alleged accident took place when the deceased had just peeped outside the window of the bus to spit. It further follows from the circumstances that the deceased was very careless and was not cautious to avoid being knocked down by oncoming vehicle from the other side. In such a circumstance, it was not possible for the driver of the bus in which the deceased was travelling to forewarn the passengers sitting behind him nor it was possible for the oncoming vehicle to forewarn the passengers not to keep their heads or any parts of the body outside the windows of the bus. It appears that negligence was apparent on the part of the deceased. It is a matter of common knowledge that rustics indulge in such nonchalant activities of spitting without taking proper care to avoid accident. It is also common habit of some unscrupulous persons to spit frequently without taking care not to spit on passers-by or to avoid accident from the vehicle coming from the opposite direction. From the circumstances on the record, it was apparent that there was, of course, negligence on the part of the deceased which resulted in his death.