JUDGMENT - S.C. PRATAP, J.:---This appeal by the original plaintiff is directed against the judgment and decree dated 27th March, 1968, passed by the joint Civil Judge, Senior Division, Nagpur, in Special Civil Suit No. 101 of 1955, to the extent the same went against the plaintiff-appellant herein. 2. The original action was one instituted in torts by the plaintiff for recovery of damages in the sum of Rs. 12,594/- as per particulars in paragraph seven of the plaint. The circumstances under which the said action came to be instituted were as follows : 3. At the relevant time the plaintiff was working as an agent of the Eastern Mining Contractors Private Limited and was posted at Munsar Manganese Mine at Munsar in Nagpur district. He was then drawing a salary of Rs. 403/- per month. As an employee, he was provided by the Company with a motor cycle bearing No. B.Y.J. 9439. On the after-noon of 22nd May, 1965 at about 3 p.m. the plaintiff had gone on his motor cycle to Village Kandri, a distance of about three miles from Munsar Mine. One Dinkar Ganpat Maratha was seated on the pillion of the motor cycle. The plaintiff had gone to meet one Nathusao for negotiating with him regarding lime required for the mine. On their way return after meeting Nathusao, plaintiff and Dinkar halted at the shop of one Manibhai for drinking water and then further commenced their return journey. While plaintiff and Dinkar on the motor cycle in question came on the main P.W.D. Jabalpur-Nagpur road, a motor truck bearing no. B.Y.Y. 2491 fully loaded with heavy logs of wood and driven by defendant No. 2 was seen coming from Jabalpur direction to Nagpur direction i.e. north-south. The plaintiff, therefore, did not cross-over to the left side of the road but remained on the right side of the road and proceeded along the right side so as to enable the truck to pass over. The said truck was, however, driven rashly and negligently by defendant No. 2 and it suddenly came on the plaintiffs motor cycle without blowing any horn and without giving any warning and dashed against the motor cycle from behind, as a result whereof the motor cycle as also the plaintiff and Dinkar were thrown away. 4. Severe injuries were sustained by the plaintiff. The motor cycle was also considerably damaged. 4. Severe injuries were sustained by the plaintiff. The motor cycle was also considerably damaged. The impact was so great that the plaintiff got severe injuries to his left shoulder and to his left hand, and the fingers of the plaintiffs left palm were totally crushed and mutilated. Plaintiff was taken to Mayo Hospital via the Police Station and he remained as indoor patient in the said hospital from 29th May, 1965 to 24th June, 1965. Right from the moment of the accident till recovery he had to undergo considerable pain, agony and the impact of shock. He had also to undergo operation and grafting of skin on his fingers and palm of the left hand. Even after his discharge from the hospital the palm and the fingers of plaintiffs left hand remained unfit for his own use. Treatment, therefore, continued in that behalf. Still further, upon medical advice plaintiff was again admitted in Medical College Hospital and underwent another operation on 7th October, 1965. He remained there as an indoor patient and was discharged more than 15 days thereafter on 23rd October, 1965. Even thereafter he was advised to take rest for a month. According to the plaintiff, the injuries were caused solely because of the action and conduct of defendant No. 2 who was at relevant time driving the truck in question in a rash and negligent manner. Defendant No. 1 was the owner of the truck and defendant No. 2 was driving the same in the course of his employment at the time of the accident. The vehicle in question was insured with defendant No. 3 and under the policy, the insurance company was also liable for the loss and damages caused to the plaintiff. In spite of two surgical operations and treatment the plaintiff failed to completely recover. The left hand including the palm became permanently incapacitated for the rest of his life. Prior to the filing of the suit plaintiff issued notice to defendant Nos. 1 and 2 on 4th August, 1965, but the same did not result in any compliance. Hence the plaintiffs suit as aforesaid for recovery of damages in the sum of Rs. 12,594/-. Claim of the plaintiff was denied by defendant Nos. 1 and 2 on various grounds. Prior to the filing of the suit plaintiff issued notice to defendant Nos. 1 and 2 on 4th August, 1965, but the same did not result in any compliance. Hence the plaintiffs suit as aforesaid for recovery of damages in the sum of Rs. 12,594/-. Claim of the plaintiff was denied by defendant Nos. 1 and 2 on various grounds. It is, however, unnecessary to state these grounds of denial here because all of them have been negatived by the learned trial Judge except one to which we shall presently come. Defence which partly succeeded before the learned trial Judge was one of contributory negligence. Defendant No. 3 raised contentions, similar to defendant Nos. 1 and 2. 5. Issues were framed by the learned trial Judge and upon consideration of the oral and documentary evidence on record, it was held that the plaintiff established that defendant No. 2 was driving the loaded truck in question rashly and negligently; that on account of the said rush and negligent driving the truck dashed against the plaintiffs motor cycle from behind and caused injuries to the plaintiff; that the plaintiff received severe injuries upon several parts of his body and had to be admitted to the Hospital and had to undergo operations as stated in the plaint; that the plaintiffs left hand was permanently incapacitated; that defendant No. 1, owner of the truck, was vicariously liable for damages; that defendant No. 3 failed to prove that the instant suit was not maintainable and that the defendants failed to prove that the truck was driven in slow speed and that the plaintiff himself dashed against the rear wheel in an attempt to cross the road from right to left. All these findings were, therefore, categorically in favour of the plaintiff. 6. It was, however, further held by the learned trial Judge that defendant No. 3, the Insurance Company, proved that the plaintiff was guilty of contributory negligence. And in the context of this finding against the plaintiff on contributory negligence, the learned trial judge extensively reduced the damages as claimed and awarded to the plaintiff only an amount of Rs. 1864/- in that behalf which included Rs. 741/- towards the hospital expenses, Rs. 400/- only towards compensation for permanent partial disablement of the left hand, further Rs. And in the context of this finding against the plaintiff on contributory negligence, the learned trial judge extensively reduced the damages as claimed and awarded to the plaintiff only an amount of Rs. 1864/- in that behalf which included Rs. 741/- towards the hospital expenses, Rs. 400/- only towards compensation for permanent partial disablement of the left hand, further Rs. 400/- only as and by way of general damages for mental agonies and nervous shock and the value of the personal articles lost in the process of the said accident. It is against the rejection of the balance claim that the plaintiff has come upto the Court in the present appeal. In the appeal, however, the claim is restricted to a total additional amount of Rs. 5000/-. The defendants do not appear to have challenged the decree passed against them. 7. In support of the appeal, I have heard Mrs. N. Hardas, the learned Advocate for the appellant herein. Respondents to the appeal though served have not chosen to appear either personally or through any Advocate of this Court. I have therefore, not had the benefit of arguments on their behalf. 8. Mrs. Hardas, the learned Advocate, strenuously contended that the approach, reasoning and the conclusion of the learned trial Judge on the question of contributory negligence was erroneous not only in law but also on facts. She took me through the evidence, both oral and documentary on the record, in support of her aforesaid submission. She also cited certain authorities on the law on contributory negligence including two Division Bench rulings, one in (Swarnalata v. Union bank of India)1, A.I.R. 1963 Assam 117 and the other in (Smt. Jeet Kumari Poddar v. Chittagong Engineering and Electric Supply Company Limited)2, A.I.R. 1947 Calcutta 195. Considering the learned Advocates contentions in the light of the evidence on record and in the light of the cited authorities, I am of the view that this appeal deserves to be allowed and the damages granted to the plaintiff deserves to be enhanced. 9. Now, when we go through the evidence and the record of the case, one is really rather surprised to note the almost nonchalant approach of the learned trial Judge on the question and of contributory negligence. 9. Now, when we go through the evidence and the record of the case, one is really rather surprised to note the almost nonchalant approach of the learned trial Judge on the question and of contributory negligence. Having held in favour of the plaintiff on all the other issues, the learned trial Judge has, in my view, wrongly refused to award to the plaintiff fair and just compensation on the ground that the plaintiff was guilty of contributory negligence. The wrong finding on contributory negligence against the plaintiff has virtually wiped out the effect of all the other findings in favour of the plaintiff consequently resulting in award of damages of an illusory character. 10. Mrs. Hardas first referred to the statement of law on the aforesaid subject in Ratanlals Law of Torts, 20th Edition (1973) at page 416 : "Contributory negligence is negligence in not avoiding the consequence arising from the negligence of some other person, when means and opportunity are afforded to do so. If is the non-exercise by the plaintiff of such ordinary care, diligence, and skill, as would have avoided the consequences of the defendants negligence. The doctrine of contributory negligence "rests upon the view that though the defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the casual connection between the defendants negligence and the accident which has occurred; and that the defendants negligence accordingly is not the true proximate cause of the injury". The doctrine is founded upon the maxim in jur non remota cause sed proxima spectatur. The law takes into consideration any act or conduct of the party injured or wronged which may have immediately contributed to that result. And one who has by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. For he will be considered in law to be the author of his own wrong .........Contributory negligence does not depend upon the breach of any duty as between the plaintiff and the negligent defendant, but it depends entirely on the question whether the plaintiff could have reasonably avoided the consequences of the defendants negligence. For he will be considered in law to be the author of his own wrong .........Contributory negligence does not depend upon the breach of any duty as between the plaintiff and the negligent defendant, but it depends entirely on the question whether the plaintiff could have reasonably avoided the consequences of the defendants negligence. If contributory negligence is alleged against the plaintiff it must be proved that the plaintiff had knowledge of the existing danger or of the defendants negligence and that the plaintiff could have reasonably avoided such danger or negligence." The legal position is reiterated by another author referred to before me by the learned Advocate, Mrs. N. Hardas viz., C. Kameshwara Rao in his book on the Law of Torts. Mrs. Hardas also relied upon two standard English Books on The Law of Torts by eminent authors, the first being Salmond on the Law of Torts and the other being Winfield and Jolowicz on Tort. 11. Indeed, the law of contributory negligence is by now well settled. It is, however, the actual application of that law that often creates difficulties. But in this particular case before me I do not find any such difficulty. In my view, the law, has not been correctly appreciated by the learned trial Judge. In my further view, correctly applying the law of contributory negligence to the facts present in this case, conclusion is irresistible that the plaintiff is not guilty of contributory negligence. On the contrary, evidence shows absence of carelessness or negligence on his part. It further shows that the plaintiff has, in fact, take due care and precaution in the matter of avoiding the accident in question. This is a case where not only have the defendants failed to establish contributory negligence on the part of the plaintiff but indeed one where plaintiff, on the contrary, establishes exercise of due care, responsibility and diligence with the object of avoiding the accident in question. That he nevertheless failed in the process of actually averting the accident has been his misfortune giving rise to the present litigation. 12. Now, as already indicated, the plaintiff along with Dinkar (the latter on the pillion seat of the motor cycle) were returning to Munsar after plaintiffs work with one Nathusao at village Kandri was over. While so returning, they took a brief halt for taking water to quench their thirst. 12. Now, as already indicated, the plaintiff along with Dinkar (the latter on the pillion seat of the motor cycle) were returning to Munsar after plaintiffs work with one Nathusao at village Kandri was over. While so returning, they took a brief halt for taking water to quench their thirst. Thereafter they proceeded on their onward journey to Munsar. Thus proceeding they came on the main Jabalpur-Nagpur road. Their first entry on the road was from the right side. They were on the way towards crossing over to the left side of the said road. But they noticed the truck in question coming from behind from Jabalpur side and proceeding towards south. They, therefore, remained on the right side and postponed going on the left side of the road. This was done with a view to allow the truck to pass over and to avert any collision and to see to it that the truck was not in any manner obstructed in its onward journey towards Nagpur. Record shows that the tar part of the road was as much as 14 feet in width. Record further shows that the plaintiff and his motor cycle were virtually on the extreme right of the road leaving almost 11 feet of clear space on the tar road itself. There was still some space beyond the tar part of the road. There was thus more than enough space for the truck to safely pass over on its onward journey. Evidence, however, shows that instead of adopting the safe course, the truck driver drove and ran extremely close to the motor cycle in question. And so drove the truck in such rash and negligent manner as to result in the collision and accident in question over-throwing the motor cycle as also the plaintiff and Dinkar therefrom. These are the vary simple but stark facts emerging from the record. Can it then be said that this is a case where the plaintiff did not exercise care and caution or is it a case where the plaintiff, in fact, exercised due care and caution with a view to avoid the accident ? What can be said to be the proximate cause of the accident ? Can it then be said that this is a case where the plaintiff did not exercise care and caution or is it a case where the plaintiff, in fact, exercised due care and caution with a view to avoid the accident ? What can be said to be the proximate cause of the accident ? Was it want of due care on the part of the plaintiff or was the truck drivers rashness, carelessness and negligence that was the immediate and proximate cause of the accident in question ? Even if the law of contributory negligence is to be invoked, the invocation must still ultimately result in the decision in favour of the plaintiff. The alertness and swift action by the plaintiff establishes that he had taken the necessary precaution to avert the accident. 13. As observed by Salmond in his Law of Torts relied upon by Mrs. Hardas : "The defence of contributory negligence confesses and avoids a prima facie liability, it excludes the idea of deliberation, and relies upon the failure of the plaintiff to exercise reasonable care". Going through the evidence on record, it is impossible to come to the conclusion that the plaintiff has in any way been instrumental in the occurrence of the accident. Evidence and record show that this is not a case where the doctrine of contributory negligence can be so applied as to exclude the idea of deliberation on the part of the truck driver nor can the said doctrine results in the conclusion that there was failure on the part of the plaintiff to exercise reasonable care. As already indicated, this was, on the contrary, pre-eminently a case where there has been exercise of reasonable care on the part of the plaintiff. The "last clear opportunity" as the phrase goes, has been fully well availed of by the plaintiff in the instant case. That in spite of this the accident took place does not necessarily mean that the plaintiff was guilty of contributory negligence. On the contrary, facts, circumstances and evidence in this case lead to the conclusion that the rashness and negligence on the part of the truck driver in question was, indeed, very grave and very serious which could not be successfully mitigated even by the due care and caution and precaution exercised by the plaintiff. On the contrary, facts, circumstances and evidence in this case lead to the conclusion that the rashness and negligence on the part of the truck driver in question was, indeed, very grave and very serious which could not be successfully mitigated even by the due care and caution and precaution exercised by the plaintiff. As observed by Winfield and Jolosicz in their Law of Torts : "It is perhaps fair to say that in the result, the ultimate question was `who causes the accident?". This, indeed, is the predominant question arising while determining the question and issue qua doctrine of contributory negligence. On the facts, circumstances and evidence in this case, answer to the above question is one and singular viz., the accident was the direct result of the rash, negligent and careless conduct and action of the truck driver. And the accident unfortunately could not be averted by the exercise of care, caution and precaution on the part of the plaintiff. The plaintiff took all possible steps to avoid the accident. He acted with alertness, care and caution. There was no negligence on his part at all. Indeed, one is at a loss to find or discover any such act or omission on the part of the plaintiff so as to render him guilty of contributory negligence. 14. It is relevant and significant to note that the learned trial Judge has himself observed in paragraph 18 of his judgment that as the truck was coming from the rear side, the plaintiff took a decision to remain on the right side of the road and he proceeded along the right side of the road at a distance of about 3 to 4 feet from the right edge of the road, leaving a sufficient portion of the tar road on his left side to allow the truck to pass by. The learned trial Judge has further observed that it was not probable that the plaintiff, who is a mature man, would act so hastily so as to turn the handle of his motor cycle for crossing when the existence of a huge passing truck could be easily felt, perceived and seen. The learned trial Judge has further observed that it was not probable that the plaintiff, who is a mature man, would act so hastily so as to turn the handle of his motor cycle for crossing when the existence of a huge passing truck could be easily felt, perceived and seen. According to the learned trial Judge, further, the plain fact was that defendant No. 2 (the truck driver) being on the rear side of the motor cycle, it was his duty to drive the truck in such a way as to avoid danger to the motor cycle ahead, there being sufficient wide portion of the tar road and katcha portion of road to admit the passing of the truck on the left side. But the truck driver drove too close to the motor cycle and driving too close to another auto-vehicle proceeding in the same direction was itself a dangerous act. The learned trial Judge further observed that as the plaintiff was ahead, he could not have anticipated that the truck would come so close to him. But defendant No. 2, who was on the rear side, could easily see the motor cycle ahead of him and how it was being driven. It is further observed by the learned trial Judge that the act of defendant No. 2, in driving too close to the motor cycle was itself negligent and he was, therefore, liable for all its natural and proximate consequences. This being the correct approach and reasoning of the learned trial Judge, one fails to understand as to how the learned trial Judge suddenly jumped to the conclusion that even so and nevertheless the plaintiff is guilty of contributory negligence. On the contrary, facts and circumstances emerging from the record lead to the irresistible conclusion that the plaintiff is not in any manner, guilty of contributory negligence. 15. In this view of the matter, damages awarded to the plaintiff will have to be enhanced. Even on the finding of the learned trial Judge, the compensation awarded was very much inadequate. Mrs. Hardas the learned Advocate, contended that the plaintiff should be awarded at least an additional total sum of Rs. 5000/- on the item of compensation for permanent partial disablement and general damages for mental agonies and nervous shock. Even on the finding of the learned trial Judge, the compensation awarded was very much inadequate. Mrs. Hardas the learned Advocate, contended that the plaintiff should be awarded at least an additional total sum of Rs. 5000/- on the item of compensation for permanent partial disablement and general damages for mental agonies and nervous shock. Though it must be said that the claim in appeal has been fairly and reasonably restricted to an amount of Rs. 5000/- in lieu of the main original claim in the suit, I am, however, of the view that additional damages in the sum of Rs. 4000/- would meet the ends of justice in this case. Compensation for permanent partial disablement of the right hand is enhanced form Rs. 400/- awarded by the learned trial Judge to Rs. 3400/- and general damages for mental agonies and nervous shock is enhanced from Rs. 400/- awarded by the learned trial Judge to Rs. 1400/-. The plaintiff will thus be entitled to a decree in this appeal for an amount of Rs. 400/- in addition to the amount of Rs. 1864/- already decreed in his favour by the learned trial Judge. In all the circumstances of the case, I am of the further view that interests of Justice in this case also require payment of interest at the rate of 6% per annum on the aforesaid additional sum of Rs. 4000/- from today till realisation. 16. In the result, this appeal succeeds and the same is allowed. In addition to the amount awarded to the plaintiff by the learned trial Judge, the defendants shall pay to the plaintiff a sum of Rs. 4000/- with interest thereon at 6% per annum from today till realisation together with proportionate cost of this appeal. -----