ROORMAL Vs. JANKILAL

JUDGEMENT

(1.) THESE two Civil First Appeals arise out of a suit for recovery of damages filed by Jankilal plaintiff in forma pauperis against Roodmal, Kishore Singh, Rajas-than Agricultural Insurance Co Ltd. and the Unique Motor and General Insurance Co. Ltd. , Jaipur, Defendants Nos. 1 to 4 respectively, in the court of the District Judge, Jaipur City.

(2.) THE case set out by the plaintiff is that he was a Head Constable in the Rajasthan Police Service in the year 1951. On the 1st of December 1951, he was travelling in Bus No. RJL-288, hereinafter called, for the sake of brevity, Bus No. 288, and was proceeding from Jaipur City to Manoharpur. THE owner of this bus is Roodmal defendant No. 1 and this bus is insured with the Rajasthan Agricultural Insurance Co. Ltd. , Defendant No. 3. THE insurance policy covered the liability to third party in the event of accident caused or arising out of the use of vehicle in a public place. THEre was a collision of the bus in which the plaintiff was travelling with Bus No. RJL. 546, hereinafter called Bus No. 546, coming from the opposite direction at a little distance from Mile Stone No. 27/5. Bus No. 546 is owned by Kishore Singh Defendant No. 2 and was insured for third party liability with the Unique Motor and General Insurance Co. Ltd. Defendant No. 4. According to the plaintiff this accident was the result of negligence on the part of both the buses. Both were being driven at a great speed. When these buses crossed each other, they brushed each other on account of the negligence of the drivers and the excessive speed. In this accident, the right hand of the plaintiff was seriously injured. THE plaintiff received the following injuries on his right hand: - (1) Lacerated wound 3"x 1-1/2"x bone deep on the surface of right fore arm with fracture of both bones; (2) Lacerated wound 3-1/4" x 1-1/2"x bone deep or the dorsal surface of right forearm riddled with fracture of both bones; (3) Lacerated wound 6-1/2"x 3-1/2" x thickness of arm on right arm with comminuted fracture of humerus. THE plaintiff was admitted in the Sawai Man Singh Hospital, Jaipur and was treated by Dr. G. K. Bhatnagar under the supervision of Dr. P. D. Mathur, Surgeon, Sawai Man Singh Hospital. THE amputation of the hand was considered necessary in view of the injuries and it was performed by Dr. H. D. Shukla under the supervision of Dr. P. D. Mathur. THE plaintiff claimed Rs. 32,225/-- as damages as detailed in Para. No. 4 of the plaint.

(3.) A man who keeps his hand outside the window of a railway coach even if knowing it may get injured is only acting in a spirit of bravado and must be taken to have invited injury to himself and cannot claim any damages but when a man is acting in a manner in which a common man in the given circumstances is supposed to act and he gets injured on account of the negligence of the defendant, he cannot be held to be disentitled to claim damages merely on the ground that he has not taken extraordinary care of himself, or on the ground that there was some negligence on his part, though he could not have foreseen that such negligence was likely to result in injury to him. This is the rule of common law laid down in a number of authorities decided by the highest court in England. We may in this connection refer to the following passage in Halsbury's Laws of England 3rd Edition 21 Volume (1959), at Page 90. "a person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might hurt himself. The plaintiff is not usually bound to foresee that another person may be negligent unless experience shows a particular form of negligence to be common in the circumstances. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is at best a matter of doubt, the defendant alone is liable. " It is a question of fact in each case to determine whether the want of knowledge by the plaintiff of an existing danger was so unreasonable in what he did that it constituted contributory-negligence.