JUDGMENT : 1. This appeal is directed against the judgment and order dated 30th January, 1981, passed by the Member of the Motor Accident Claims Tribunal, Buldana, dismissing the petition of the appellant Ishwardas Ingle. 2. The facts giving rise to the appeal are as follows. The respondent No. 1, the Maharashtra State Road Transport Corporation, Bombay (hereinafter referred to as the Corporation), owned a Bus bearing No. MHB-9734. The respondent Nos. 2 and 3 are the officers. The respondent No. 4 opponent No. 4 Shaikh Matin s/o Sk Mohiddin is an employee of the Corporation and was working as a Driver at the time of the incident. On 21st May 1979, the Bus No. MHB 9734 was running from Buldana to Solapur and the respondent No. 4 Sk. Matin was driving that bus. Ashok Tambat, the witness No. 2 of the Corporation was acting as Conductor of the said Bus. The BUS started from Buldana towards Solapur, used to stop at Mera, Deulgaon-Raja and Bhivgaon being stops on the route. The appellant/petitioner and his sisters boarded the said Bus at stop known "Mera". When the said Bus was running along the road and was passing by the Bhivgaon stop, it brushed against the rear portion of another stationary Bus which was running from Jalna to Jafrabad, on its off side as a result of which the right hand of the petitioner was caught and crushed between two buses. Both the buses were damaged to some extent on its' off side (right sides) rear portion. The petitioner was taken in the same bus to the Jalna Mission. Hospital and was admitted there. The petitioner's witness No. 1 Dr. Moses examined and operated on the petitioner. The right upper arm of the petitioner was removed in the operation. The petitioner was in the hospital up to 30th May 1979 on which date he was discharged. The petitioner alleged that the respondent No. 4 Saikh Matin, the driver of the Bus, was driving the Bus at a high speed and the accident took place due to the negligent driving of Shaikh Matin. According to him, as a result of the brushing of the bus with the other stationary bus, and swerving the same toward wrong side i.e. right side, he got a jerk resulting into throwing his right arm outside the window of the bus. According to him, as a result of the brushing of the bus with the other stationary bus, and swerving the same toward wrong side i.e. right side, he got a jerk resulting into throwing his right arm outside the window of the bus. He further alleged that due to rash and negligent driving of the bus he suffered permanent disability. Due to such permanent disability, he received mental and physical shock and he could not prosecute his further studies and also to secure any employment. According to him, he would have earned at least Rs.500/- per month for a period of 20 years. However, he restricted his claim to the extent of Rs. 50,000/- for permanent disability suffered by him. The opponent/respondent No. 2, the Divisional Controller of the Corporation and opponent No. 4 Sk. Matin resist the claim of the petitioner by their written statement Exh. 23. They have admitted the accident as well as the crushing of the right hand of the petitioner. However, they denied that the sisters of the petitioner were accompanied him. They also denied the educational qualification of the petitioner, his future studies and probable income. They further denied that the driver was driving the bus in grossly negligent manner and that the accident took place due to careless and negligent driving of the respondent No. 4. Their case, inter alia, was that the opponent No. 4 and the conductor of the bus were all along of the window of the bus. On seeing the stationary bus at the Bhivgaon bus stop, the respondent No. 4 drive the bus in the third gear at a speed of about 25 to 30 K. M. per hour, leaving sufficient space in between his bus and the stationary bus. The respondent No. 4 was also blowing horn of the bus. But, alt of a sudden a boy tried to cross the road and hence the respondent No. 4 swerved the bus towards its off side, as a result of which the rear portion of the his bus brushed against the rear portion of the stationary bus. The petitioner had put his hand out of the window in spite of the warnings given by the respondent No. 4 and the conductor of the bus. Thus, the petitioner suffered injury due to his own negligence. The petitioner had put his hand out of the window in spite of the warnings given by the respondent No. 4 and the conductor of the bus. Thus, the petitioner suffered injury due to his own negligence. On seeing the injury of the petitioner, the respondent No. 4 had stopped the bus and had tried to take it in the opposite direction, but in doing so, the glass-pans of the window of the bus were broken by the branches of a Baniyan tree, which was by the side of the road. Thus, according to him, the respondent No. 4 was not rash and negligent in driving the bus and the petitioner had not sustained the injury due to the rash and negligent driving of the respondent No. 4 but had sustained it due to his own negligence. They, therefore, prayed that the petition be dismissed. 3. The petitioner/appellant was examined by Doctor Devid Moses, the civil surgeon. Dr. Devid Moses conducted the operation. The petitioner examined him as witness No. 1, his sister Sushila as witness No. 3. According to Doctor Moses, on 21st May, 1979, the petitioner was brought in the Hospital, Jalna with his right upper arm completely amputated and just hanging with the skin flap. He found lot of bleeding from his right arm. He was in the state of shock. Besides this, he found other injuries on the person of the petitioner. He gave treatment to the patient and on the same day at about 12 noon he was operated upon. Doctor removed the right upper arm of the petitioner and reshaped the stump after legating the brachial artery and deriding the muscles. He covered the stump with the skin. The applicant had suffered permanent disability. The applicant was discharged on 30-5-79. According to the doctor, the injuries found on the person of the appellant could have been caused by the right arm being caught into two moving buses, like two buses passing from close and moving in opposite directions. The respondents 2 to 4 have examined four witnesses, 1; D. W. 1 Sk. Matin s/o Sk. Mohiddin the driver of the bus; 2. D. W. 2 Ashok Tambat, the conductor of the bus; 3. The respondents 2 to 4 have examined four witnesses, 1; D. W. 1 Sk. Matin s/o Sk. Mohiddin the driver of the bus; 2. D. W. 2 Ashok Tambat, the conductor of the bus; 3. D. W. 3 Bajirao Bobde who travelled in the same bus and D. W. 4 Kisan Savle the police Head Constable who recorded the statement of the applicant in the hospital and who in his evidence proved the contradiction marked A,B,C. in Exh. 54. 4. From the pleadings and the defence taken by the respondents 2 to 4, there is no dispute about the accident. The only issue to be determined is that : Whether the petitioner sustained injuries because of the negligence on the part of the Driver or because of his own negligence and even assuming the contributory negligence, of the appellant whether he is entitled for any compensation? 5. Negligence is failure in the duty to take due care. The expression 'due' connotes that degree of care which a reasonable man ought to take in a given set of circumstances. What may amount to a negligent act in a particular place and occasion may not be a negligent act in another place or occasion. The question in each case, therefore, depends upon its own facts. While determining the liability of a person on the ground of negligence, one of the essential factors, though not an exclusive or sole factor to be taken into account is whether a reasonable man could have foreseen in a given situation that the act complained of was likely to result in damage in respect of which action is taken. 6. It cannot be disputed that the initial burden is on the petitioner to establish that there had been negligence on the part of the opponent No. 4. The petitioner Ishwardas deposed that on 21-5-1979 in between 7-30 or 8-00 a.m. he and his sisters Sushila Kharat and Sunetra boarded Buldana-Solapur S.T. But at 'Mera' stop for going to Beed. He got accommodation on the last bench and that too on driver's side. He was sitting just near the window. His both the sisters were sitting on the bench next in front of him. The bus reached at Deulgaon Raja and thereafter had reached near Bhivgaon Bus Stop. The S.T. Bus which was going from Jalna to Jafrabad was standing on the road near Bhivgaon. He was sitting just near the window. His both the sisters were sitting on the bench next in front of him. The bus reached at Deulgaon Raja and thereafter had reached near Bhivgaon Bus Stop. The S.T. Bus which was going from Jalna to Jafrabad was standing on the road near Bhivgaon. The buses were facing each other. The bus in which he was travelling was driven in a high speed. The driver did not blow the horn. He did not reduce the speed on seeing the stationary bus. The bus dashed the stationary bus as a result of that he was thrown up from the seat and his right hand was thrown outside the window. The bus had dashed against the stationary bus on its rear portion. The glass panels of the bus were broken. The body of the bus was also broken. In the accident, his right hand was amputated and was hanging on the skin only. He asserts that he had not put his hand out side the window. However, in his cross-examination he admitted that he had stated so in his statement to police, portion marked 'A'. He had stated that the bus had started from Deulgaon at about 10 a.m. however he denied to have stated in his statement before police. He denied to have stated the portions marked 'B' & 'C' in his police statement, which portions have been proved by P.H.C., Shri Savle. In his statement recorded by police, he stated that one bus came from the side of Jalna and at that time his right hand and right elbow was outside the window. He has further stated that his hand was outside the window. The bus coming from the side of Jalna brushed against the bus in which he was sitting as a result of which the glass pans of both the buses were broken and his hand was crushed and fractured. Perusal of the copy of the police statement Exh. 55, shows that his statement was recorded on 22-5-79. It appears to be a certified copy. It is not clear from this statement that it is written by P.W. 4 Kisan Savle. 7. Smt. Sushila Kharat (witness No. 3) deposed that : "At that place one bus was standing. It was facing towards Deulgaon Raja. I was talking with Ishwardas at that time. It appears to be a certified copy. It is not clear from this statement that it is written by P.W. 4 Kisan Savle. 7. Smt. Sushila Kharat (witness No. 3) deposed that : "At that place one bus was standing. It was facing towards Deulgaon Raja. I was talking with Ishwardas at that time. The hands of Ishwardas were inside the bus and he was looking straight. Neither the driver nor the conductor had warned Ishwar not to keep his hand outside the window. Our bus was in high speed. The driver of our bus had not reduced the speed and had not blown the horn on seeing the bus in front of him. Our bus dashed against the other stationary bus. As a result of the said dash, the glass pannels of the window were broken. So also the body of the bus was torn. All the passengers in the bus got a jerk and were thrown up from the seats. As a result of the jerk, the right hand of- Ishwar was thrown out of the window and was cut being crushed between our bus and the other stationary bus. His hand was hanging by means of skin only." In the cross-examination she had made some improvements. Considering the panchanama Exh. 45, it is observed by the lower court that the witness Sushila is giving an imaginary version of the accident and she being the sister of the petitioner, she is an interested witness. 8. According to Sk. Matin (D.W. 1), he was the driver of the bus which met with an accident. The bus was going from Buldana to Solapur on the day of incident. Ashok Tambat was the conductor of the bus. When the bus reached Deulgaon, he got down from the bus and found the applicant sitting on the last seat of the driver's side and putting his right hand outside the window and sleeping by resting his head on the back side palm of his hand. According to him, he asked the applicant not to keep his hand outside the window of the bus. Thereafter, the bus started from the said stop. The applicant had took his hand inside the bus after his warning. There being no stoppage at Bhivgaon, the bus was not stopped. The accident took place at Bhivgaon Pati. According to him, he asked the applicant not to keep his hand outside the window of the bus. Thereafter, the bus started from the said stop. The applicant had took his hand inside the bus after his warning. There being no stoppage at Bhivgaon, the bus was not stopped. The accident took place at Bhivgaon Pati. There was one S.T. Bus standing on the right side of my bus at Bhivgaon Pati. On seeing the S.T. Bus by the side of the road, he put his bus in 3rd gear from the top gear and was driving the bus at a speed of about 25 to 30 km per hour. I blew the horn of my bus while passing by the side of the S.T. Bus. Some persons and children were sitting on the road on the left side of the bus. I had crossed the half length of the S.T. Bus. There was a banian tree under which some persons and children were sitting on the left side of the bus. After passing the part of S.T. Bus to some extent, a boy aged 8 to 10 years, found crossing the road from left side to the right side. In order to save the said boy, I took my bus little bit on the right side, applied the brakes and stopped the bus. While taking the bus to the right side the rear portion of my bus and the rear portion of the parked S.T. bus brushed each other. My bus had stopped at the distance of 10 ft. after the bus had brushed against the other stationary bus. When two buses brushed, the hand of the applicant was fractured. In the cross-examination, he admitted that for the first time in the court he deposed that some persons and children were sitting by the side of the road and that one boy had suddenly started crossing the road. Witness Ashok Tambat was the conductor of that bus. His evidence is also in the same tone as given by the driver. D.W. 3 Bajirao claimed to be a co-passenger in that bus on the fateful day. According to him, he was travelling in the said bus at that time. He was also sitting on the last bench of the bus. His evidence is also in the same tone as given by the driver. D.W. 3 Bajirao claimed to be a co-passenger in that bus on the fateful day. According to him, he was travelling in the said bus at that time. He was also sitting on the last bench of the bus. The back of the seats in the said bus were high up to the knee and there being some standing passengers, he was not able to see the situation in front of the bus because of the standing and sitting of the passengers. He too deposed that the applicant had kept his right hand out side the window while sitting. This witness deposed that he heard the horn blown by the driver when Bhivgaon came. The bus was running in a slow speed and not in a high speed. At that time, I felt that the bus was swerved towards right. Evaluating the oral and documentary evidence placed on record by the rival parties, the learned Member of the Motor Accident Claims Tribunal dismissed the petition filed by the appellant Ishwardas. 9. The learned counsel for the appellant submitted that citing the stationary bus at the Bus Stop, the driver of the bus ought to have reduced the speed but as the speed was not reduced, he lost the control and thereby he swerved the bus towards the wrong side and due to sudden swerving there was jerk resulting throwing the hand of the appellant outside the window. It is further submitted that the learned Member of the Tribunal lost sight that the vehicle was not moving in the crowded place, nor the arm or hand was kept by the claimant outside the window. Mere gripping of the window cannot be said to be a negligent act of the claimant. In fact, it was the duty of the respondent No. 4 to leave sufficient pace while crossing other bus or vehicle. 10. In the instant case, there is an ample evidence on record to show that the respondent No. 4 the Driver did not leave the sufficient space while crossing the stationary bus and consequently it resulted in accident. This fact itself is sufficient to demonstrate that the respondent No, 4 was callous and negligent and failed to discharge his duties diligently. In the instant case, there is an ample evidence on record to show that the respondent No. 4 the Driver did not leave the sufficient space while crossing the stationary bus and consequently it resulted in accident. This fact itself is sufficient to demonstrate that the respondent No, 4 was callous and negligent and failed to discharge his duties diligently. The learned counsel for the appellant/petitioner further submitted that the learned member of the Tribunal has committed an error in observing in para 14 of the Judgment that the accident in this case took place due to the negligence on the part of the petitioner himself. It is also submitted that the cases cited before the learned Member of the Tribunal have not been considered at all and hence the judgment is perverse and deserves to be quashed. 11. Where the negligence of the plaintiff or that of the defendant is the sole cause of the accident, the matter is free from doubt, but the difficulty may arise where the accident is caused partly by the negligence by the plaintiff and partly by the defendant. In such circumstances, it becomes the duty of the court to ascertain whether the negligent act or omission of the plaintiff or the defendant was the cause of accident. If the petitioner's negligence was the cause of accident, he could not recover the damages and the defendant is wholly absolved him from liabilities. A rigid application of the rule obviously resulted in harsh and inequitable treatment of those whose contribution to the wrong was less or his negligence was not the major cause of accident, but whose loss in suffering was great. Negligence involves three ingredients, a legal duty to take care, breach of that duty and consequential damage to another. Duty to take care is defined as a restriction of the defendant's freedom of conduct, obliging him to behave as a reasonably careful man would behave in the like circumstances. It is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed. A reasonable man would so regulate his conduct as to avoid producing any undesirable consequences which he foresees as probable. A reasonable man would so regulate his conduct as to avoid producing any undesirable consequences which he foresees as probable. The real and effective test of liability is the foreseeability of the accident. foresee ability not of the manner in which the accident happened but of the occurrence of an accident of the kind i.e. the normal standard of the careful conduct. If the conduct in question falls short of that standard, it is negligence. To decide culpability courts have to determine what a reasonable man would have forseen and, thus, form an idea of how he would have behaved in the circumstances. Negligence is a question of fact and not of law and each case must depend upon its own facts. In a case of Veeran and Another Vs. T.V. Krishnamoorthy and Another, it is observed (at page 176) : "A reasonable man so regulates his conduct as to avoid producing any undesirable consequence which he foresees as probable. That the normal standard of careful conduct. If the conduct in question falls short of that standard or if the circumstances of the act are such that a reasonable man would have seen the probability of the accident, then the defendant who failed to do likewise or who envisaged it and rejected it as too remote a chance, has to be regarded as having been negligent. It is unnecessary in law to prove that he actually foresaw the event or the consequences. It is enough if the circumstances are such that he as a reasonable man ought to have forseen them". 12. Negligence is a breach of legal duty to take care as defined by Basu D.D. in his "The Law of Torts", 9th Edition-page 152. Negligence presupposes a negative state of mind, an absence of awareness of consciousness of what would be done such state of mind being consequent upon failure to apply or exercise the requisite caution or precautions. 13. The first and most pertinent question which requires close consideration, scrutiny or determination is without whose negligence mischief i.e. brushing two buses on their rear sides, causing damage to both the buses and injuries to the appellant, might have not happened and really in ultimate analysis the enquiry is who caused the accident and in other words who is legally responsible for the injuries. The object of the enquiry is to fix upon some wrongdoer the responsibility for the wrongful act who has caused the accident. It is as much not merely of casual agency but of the responsible agent. 14. The appellant asserts that the driver of the Bus was going with an excessive speed, so far as the question of speed is concern I am satisfied with the circumstances of the case and the evidence given by the applicant and his sister Sumitra. Besides this, there is no evidence that the driver has stopped the vehicle instantaneously applying the brakes. Sk. Matin the driver of the bus has deposed that as soon as he sight the stationary bus, he changed the gear of the bus and brought the vehicle in 3rd gear and, therefore, he was going with a moderate speed and when he first noticed the boy crossing the road, he swerved his bus to the right side and thereby the rear side of his bus brushed with the rear side of the stationary bus. From the evidence, it is clear that only the rear right aide portion of the bus brushed with the rear right side of the stationary bus, resulting breaking of the glass pannels of the bus. It, therefore, indicates that practically the bus which was driving by Sk. Matin had crossed the stationary bus. Therefore, as soon as he sighted a boy crossing the road, he ought to have applied the brakes and stopped the bus at the place itself to save the life of the boy. There was no need to swerve the bus abruptly towards the right side. The spot panchanama Exh. 44 does not speak about any skid marks to indicate that the driver applied the brakes of the bus. Similarly, if there would have been sufficient distance between the two buses, while crossing the stationary bus, as Sk. Matin had crossed at least three fourth portion of the stationary bus, there would have been no dash or brushing the rear side of his bus with the rear side of the stationary bus. Therefore, it indicates that while crossing the stationary bus no sufficient space was kept or maintained. Because of the abrupt turn to the right side, the bus dashed with the stationary bus. Therefore, it indicates that while crossing the stationary bus no sufficient space was kept or maintained. Because of the abrupt turn to the right side, the bus dashed with the stationary bus. Even then the driver did not stop the bus and swerved the same to his right side and thus crossed completely the stationary bus. In fact, such course could have definitely been avoided if the bus would not have been in speed and within the reach of the driver's control. We are aware that the man may lie but not the circumstances. Thus, the circumstances clearly demonstrate that the evidence of the driver, conductor and alleged co-passenger is not trustworthy as they want to save Sk. Matin. 15. The learned trial court has made the mountain out of the mole hill by considering the contradictions from the police statement recorded on the next day of the incident of the petitioner and on that basis, it is observed that the witness has given altogether different version before the police than in his evidence before the Court. The witness has given the explanation that when his statement was recorded he was confused. On the day of incident at about 12 noon his (hand?) was amputated. He being a young man studying in 12th standard whose hand is amputated, one can expect his mental agony. Therefore, it cannot be ruled out that under the situation, he must be under strain and stress, and deserves immunity. Contents of the police statement cannot be treated as gospel truth in view of the condition of the petitioner. Thus, on this count alone, the evidence of the Petitioner cannot be said to be untrustworthy. Such view of the learned trial Court is erroneous as he has not considered the mental condition of the appellant. 16. Considering the facts and circumstances, according to me, the appellant has produced satisfactory evidence coupled with circumstances considered and discussed in the preceding paras that the bus was in a speed, the driver has not blown the horn, not stopped the bus or reduced the speed after sighting the stationary bus at the bus stand and did not apply the brakes even sighting the boy as alleged by the road. 17. In the case of Union of India (UOI) Vs. 17. In the case of Union of India (UOI) Vs. Hindustan Lever Limited and Others, what is negligence, actionable negligence includes composite negligence and contributory negligence, statutory negligence has been discussed. It is summarised as under (at pages 261 & 262) : "Negligence" may be defined as omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the human affairs, would do, or something which a prudent and reasonable man would not do. So negligence is a breach of duty to take care resulting in damage to one whether in person or property. The take care may be imposed by statute or it may arise due to the relations in which one may stand to another i.e. when the person or property of one is in such proximity to the person or property of another that, if due care is not taken, damages may be caused by the one to the other. When the negligence is a breach of duty to take the care imposed by law it may be called statutory negligence and when it is a breach of duty to take care arising out of circumstances of a particular case, it may be termed as actionable negligence. Contributory negligence is an expression which implies that the person who has suffered damage, is also guilty of some negligence and has contributed towards the damage. In such a case, the Court has power to apportion the loss between the parties, who can be held guilty of negligence by act or omission on their part as it deems just and equitable. On the other hand, composite negligence would arise when negligent acts or omissions of two or more persons, have caused damage to a third person. In such a case, the said third person does not contribute to the mishap or to the damage and as such he is entitled to sue all or any one of the negligent persons for damages. It is no concern of his whether there is any duty of contribution or indemnity as between the negligent persons. In the case of statutory negligence the same having arisen out of breach of a statutory obligation, neither the defence of contributory negligence nor that of composite negligence can be open or available to the wrongdoer." 18. It is no concern of his whether there is any duty of contribution or indemnity as between the negligent persons. In the case of statutory negligence the same having arisen out of breach of a statutory obligation, neither the defence of contributory negligence nor that of composite negligence can be open or available to the wrongdoer." 18. Smt. Sushila(A.W.3) the sister of the appellant has specifically deposed in para 6 to the effect that the other bus was standing on the road itself but on one side of the road. It was standing in such a position that the other vehicle could pass along the road. I was not frightened on getting a jolt in the bus. The rear portion of our bus and the rear portion of the other bus had brushed against each other. The witness adds that these rear portions brushed against each other after giving a dash. This has not been disputed by the other side. Sk. Maddin (D.W. 1) the driver of the S.T. Bus has deposed that some persons and children were sitting by the side of the road at some distance towards the front side of the stationary bus. However, in the cross-examination, he admitted that "he had not told to anybody till today that some persons and children were sitting by the side of the road and that one boy suddenly started to cross the road." It means, he invented the story to hide his sin. Similarly, Sk. Maddin the driver and the Conductor of the Bus Shri Ashok Tambat deposed that both were giving warnings to the passengers not to put their hands outside the window, wherever the bus stopped. Both the witnesses deposed on oath but the usual experience of the public is otherwise or contrary. We never found the driver and conductor instructing the passengers not to rest their elbow near the window. Therefore, this statement is nothing but to save their skin and to show that they are and were duty conscious. 19. Contributory negligence means the share in the responsibility. Contributory negligence is an expression meaning negligence on the part of the plaintiff materially contributing to the injuries. It does not mean the breach of any duty on the plaintiff. Therefore, this statement is nothing but to save their skin and to show that they are and were duty conscious. 19. Contributory negligence means the share in the responsibility. Contributory negligence is an expression meaning negligence on the part of the plaintiff materially contributing to the injuries. It does not mean the breach of any duty on the plaintiff. It means the failure by a person to use the reasonable care for the safety of himself or his property, so that he becomes the author of his own wrong. It is an expression which implies that the person who has suffered damage is also guilty of some negligence and has contributed towards the damages. In order that a plea of contributory negligence may be successful, it must be shown either that there was negligence on the part of the plaintiff which contributed to the accident and that the defendant could not by using ordinary care have avoided the accident or that notwithstanding the defendant's negligence the plaintiff could by the use of ordinary care have avoided the accident. Where the plaintiff's negligence did not contribute to the cause of the accident, he is not guilty of contributory negligence. To be contributory negligent in law, the plaintiff's negligence just be such that the damage is at least partly, the result of it. Thus, the governing principle is that the plaintiff's failure to exercise reasonable care for his own protection does not amount to contributory negligence in respect of the damages, unless that damages results from the particular risk to which his conduct exposed him. 20. In the conclusion I may say that there may exist a duty of the plaintiff to take reasonable care of himself so that he may not be held guilty of contributory negligence, still the existence of duty owed to the defendant is not compulsory. It may be absent. Whether negligence exists in a particular case has to be determined by the consideration of all the attendant or surrounding facts and circumstances, and the test of contributory negligence is, the exercise of ordinary care and caution which is expected of a prudent man in the circumstances of a particular case. There is no principle of law which enjoins on the users of the road to be extra astute. There is no principle of law which enjoins on the users of the road to be extra astute. A driver prudent and reasonable, is not expected to drive on the assumption that he would meet with improbable obstruction on the highway, otherwise there would be impetus to the law breakers, 20-A. In the instant case, only because the plaintiff was travelling in the bus resting his elbow on the window of the ST. Bus, the learned trial court wrongly held him guilty absolving the bus driver and other defendants from their liabilities. It is a usual phenomenon that the passenger often travel with their elbows resting on the window of the vehicle including cars and there is no prohibition against this. It is usually experienced in the places where there is a considerable traffic as well as on the highways. Resting elbow on the window while sitting in the bus may be because a slightly more comfortable way of sitting. By no stretch of imagination, it can be said that the sitting resting the elbow on the window in the bus, the passenger either was negligent or contributed to the negligence. It is the duty of the driver of a public bus to fake all steps which a person of ordinary prudent would taken to ensure the safety of the passenger. The driver of the bus in question cannot be said to be unaware of the fact that the passengers were in the habit of putting their hands outside the bus. He could not thus foresee that while overtaking or crossing the vehicles either moving or stationary, if he would not leave the sufficient space between the other vehicle/ vehicles and his bus, there was likely of passenger's arms being injured. In the instant case the driver noticed the stationary bus on the road and, therefore, he should have insured a sufficient space between his bus and the stationary bus while crossing the same. But, from the facts and circumstances as discussed in the preceding paras, the driver did not leave the sufficient space between his bus and the stationary bus. In the instant case the driver noticed the stationary bus on the road and, therefore, he should have insured a sufficient space between his bus and the stationary bus while crossing the same. But, from the facts and circumstances as discussed in the preceding paras, the driver did not leave the sufficient space between his bus and the stationary bus. The driver thus, was negligent while crossing the bus without reducing the speed and applying the brakes and abruptly swerving his bus towards the wrong side i.e. the right side, resulting in dash or brushing bus's right rear side to the right rear side of the stationary bus, causing injury to the right arm of the appellant. In view of this fact, the appellant cannot be said negligent at all merely because he rested his elbow on the window. 21. I am fortified in my views by the decisions in the following cases, practicably having identical facts. 1. In the case of Sushma Mitra v. M.P. State Road Transport Corporation, reported in 1974 ACJ 87 : AIR 1974 MP 68 , the plaintiff" was travelling in a bus belonging to the defendant resting her elbow on the window sill. Her elbow was hit by the Truck while crossing the bus and her elbow was injured. The court held that the plaintiff was not guilty of contributory negligence. It said : "It is a common practice for the passengers to sit near the window to rest their arms near the window. There was no evidence that the passengers are cautioned not to do so. On the roads outside a town, the traffic is not too heavy and there is usually ample space for the vehicles to pass each other, without coming too close and it is rare for an accident to happen in the manner it has happened in the instant case. Having regard to the speed at which the vehicle was moving, they must have crossed each other in a split second leaving no time for the plaintiff to withdraw her hand after seeing the truck. In these circumstances, the plaintiff cannot be said to have failed to take reasonable care of her safety in resting her arm on the window of the bus." 2. In these circumstances, the plaintiff cannot be said to have failed to take reasonable care of her safety in resting her arm on the window of the bus." 2. In the case of Kerala State Road Transport Corporation v. Madhavi Amma 1977 ACJ 3 , the deceased, a passenger in a Bus suddenly got up from her seat and looked outside. In the meantime, the bus collided with another stationary bus on the road. Either on account of part of her body brushing against the bus or because of her falling down in the bus due to the collision between the buses, she sustained injuries to which she later succumbed. The Division Bench of this Court traced the development of the doctrine of contributory negligence in England and in India. Following the decisions in Union of India v. Lalman, it held that on the proof of contributory negligence, the Courts are bound to apportion the liability and on that basis effect a reduction in damages payable by the defendants in such cases. In the present case, the deceased had not contributed in the accident. So full damages were awarded." 3. In the case of Sydney Victor and Another Vs. Janab S. Kader Sheriff and Others, it is observed (at page Mad 347; of AIR) : "It is true that putting out the hand or any part of the body outside a fast moving vehicle would be a negligent act, particularly if the vehicle is moving in a crowded place. Even such putting out a part of the body outside the moving vehicle may not be an act which endanger the safety of a person concerned. If the vehicle was not moving in a crowded place, but it was moving in a broad highway. There is no reasonable possibility of any other vehicle coming close to the vehicle in which the person injured is travelling." 4. In the case of State of Punjab and Another Vs. Guranwanti, a passenger was travelling with her elbow slightly outside the bus. A sudden jolt threw her arm outside the body of the bus. She suffered injury by striking her arm against some trees. The High Court held that she was not guilty of contributory negligence. Bishan Narain J., said : "It is well known that often the passengers travel by keeping their elbows resting on the windows of their cars. A sudden jolt threw her arm outside the body of the bus. She suffered injury by striking her arm against some trees. The High Court held that she was not guilty of contributory negligence. Bishan Narain J., said : "It is well known that often the passengers travel by keeping their elbows resting on the windows of their cars. There is no prohibition against it." 5. In the case of Chaturji Amarji and Others Vs. Ahmad Rahimbux and Others, A 'passenger was resting his elbow on the window sill of a bus. The bus grazed with a truck coming from the opposite direction resulting in the severance of the forearm of the passenger. On the basis of this fact, the Court held that : The drivers of the bus and the truck were negligent as they must have sufficient gap between the vehicles to avoid any hurt or danger to the passengers. The passenger was not guilty of contributory negligence." 6. In the case of G.R. Shetty v. Unnikrishna Nair, 1981 ACJ 293 . (DB) two vehicles grazed against each other while a passenger was resting his arm on the window sill for taking a nap. As the result of the accident the passenger's elbow got fractured. The court held that : "The passenger was not guilty of contributory negligence, because it is a part of the duty of the drivers while overtaking or crossing other vehicles to see that sufficient distance is left between the vehicles so that they are not likely to hurt any passenger who may be putting his hand on the window-sill." 7. In the case of Delhi Transport Undertaking and Another Vs. Krishna Wanti and Another, it is observed that : "It is the duty of the driver of the public buses to take all steps which a person of ordinary prudence would take, to ensure the safety of the passengers. The driver of the bus in question cannot be said to be unaware of the fact that the passengers were in the habit of putting their hands outside the bus. He could thus foresee that while overtaking a moving cart if he would not leave sufficient space between the cart and the bus, there was a likelihood of the passengers' arms being injured. The respondent had put her elbow on the window while sitting in the bus. He could thus foresee that while overtaking a moving cart if he would not leave sufficient space between the cart and the bus, there was a likelihood of the passengers' arms being injured. The respondent had put her elbow on the window while sitting in the bus. This cannot be said to be a negligent way of sitting. On the other hand it may be called a slightly more comfortable way of sitting. The driver having noted the protruding wooden logs should have ensured a sufficient space between the bus and the cart while overtaking it. In case, he found that the on coming traffic did not permit him of that much space, it was his duty not to risk overtaking the cart. The driver thus was rightly held negligent in overtaking the cart which resulted in injuries to the respondent." 22. Now the question before me is what should be the quantum of damage to which the plaintiff/appellant is entitled. The applicant/appellant is a young boy of 18 or 19 years of age. At the time of incident he had passed his 12th standard examination. He received mental shock due to the amputation of his arm. His hand became practically incapable and as a result of incapacity and shock he is not in a position to realise his aspiration to conduct further education, he discontinued his further education. On the contrary, it is submitted by the learned counsel for the respondents that mere loss of hand cannot be stamped as incapacity to prosecute study. It is easy to say so but difficult to digest. The right hand of the plaintiff is amputated and it would take considerable time or years to learn writing by the left hand. Till he develops the habit of writing by the left hand, he cannot even dream to prosecute his further studies. The appellant specifically submitted in his evidence that he had taken commerce as his subject to pass the 12th standard and it was his desire to become the chartered accountant. He had enquired about the costs of artificial limb and he Was told that it costs Rs. 5000/-. He had incurred expenses for the medical treatment at Washim also. The opponent had paid only Rs.500/- for medical expenses incurred at Jalna. The opponent offered the compensation of Rs.5000/- and to that effect he received the letter Exh. 39. He had enquired about the costs of artificial limb and he Was told that it costs Rs. 5000/-. He had incurred expenses for the medical treatment at Washim also. The opponent had paid only Rs.500/- for medical expenses incurred at Jalna. The opponent offered the compensation of Rs.5000/- and to that effect he received the letter Exh. 39. According to him, he could have got more than Rs. 500/- per month as earning and he could have got it for 20 to 25 years. Because of the amputation of his right arm, now, he can not earn that much amount. He is wholly dependant on his elder brother and sisters. In the cross-examination, he stated that his parents are the residents of 'Mera' where his father works as a Christain Missionary. He demanded the compensation of Rs.50,000/-. 23. The question with regard to the quantum of damages awarded in the case of accident, has been discussed considering various judgments in para 15 of Chaturji Amarji and Others Vs. Ahmad Rahimbux and Others, as under (at page 1 13; of Cri LJ) : "This will take us to the question with regard to the quantum of damages awarded in the instant case. There are certain principles which are now well settled so far as the personal injury actions are concerned, and it would be better to recapitulate them at this stage. The assessment of damages in such cases has to be on recognised principles by following which principles various figures have to be arrived at. The figures have to be arrived at by following some method, principles, and standards, and not by speculation or conjectures. They are : 1. Ordinarily, this Court would refuse to interfere unless the award is too high or too low or beyond brackets. 2. As laid down in Hirji Virji Transport Co. v. Basiran Bibi in cases of disablement by virtue of loss of limb or any permanent defect, the compensation goes to a living person and not to the dependants or to the estate of the deceased and, therefore, it is an experience of the Court that in disablement cases, compensation awards are always higher than even in cases of death. 3. 3. As laid down by the House of Lords in H West & Sons Ltd. V. Shephard, the principles can be summarised in three proposition as under:-- (a) Bodily injury is to be treated as a deprivation which entitles a plff. to damages, and that the amount of damages varies according to the gravity of injury; (b) Deprivation may bring with it three consequences; loss of earning or earning capacity; expenses of having to pay others for what otherwise he would do for himself; and loss of enjoyment of life or a dimunition in full pleasures of living; c) In considering the deprivation the Court should have regard to the gravity and degree of the deprivation, that is to say, whether one or more limbs has been lost the duration of the deprivations, and the degree of awareness of the deprivation". 24. The facts of the case referred supra Chaturji Amarji and Others Vs. Ahmad Rahimbux and Others, and the case in hand are practically identical. In the case before Their Lordships, a college student met with an accident on 31-9-1971 and lost his right forearm. The aim of this boy was also to become the Chartered Accountant. In that case it is observed in para 17 that he could have, at least, earned Rs. 300/- p.m. It seems, by adopting the standards laid in the Workmen's Compensation Act, he has taken the disablement at 80% and has calculated the loss on that basis at the rate of Rs. 240/-p.m. i.e. 2,880/ - per year. Taking the multiple of 15 years, he was awarded Rs.43,200/- on this head. In the instant case, the incident had taken place on 21st May 1979 and according to the appellant he would have earned more than Rs.500/- per month. No one can dispute about the regular increase of prices of the commodities and wages of the workers and practically every year. Thus, during the period of 1971 to 1979, there is considerable increase in prices and wages. The money value has gone up. The plaintiff thus, entitled to get higher amount than was awarded in a case referred supra and consequently he be awarded. It is, therefore, in this context that 80% formula as adopted in the case referred supra, it cannot be said that the same cannot apply to the facts of the present case. The money value has gone up. The plaintiff thus, entitled to get higher amount than was awarded in a case referred supra and consequently he be awarded. It is, therefore, in this context that 80% formula as adopted in the case referred supra, it cannot be said that the same cannot apply to the facts of the present case. Loss of the right forearm would be a serious handicap to him in his working life affecting his prospects. In these days, even white collar workers who may not ordinarily have to do manual work, have to assist themselves in many of their chores with changing notions about the nature of the work, self help and about the circumstances in which the peons and the page boys slowly get eliminated. Paid physical help from others, in offices is a matter of the past to a great extent. Again with the increasing competition in the employment market, his chances have been considerably diminished and therefore, 80% which is adopted on the basis of the Workmen's Compensation Act, though it may not be strictly relevant, cannot be said to be irrelevant even if the overall effect of the loss of the limb on the total body functioning and earning capacity is taken into account. In my opinion, bearing in mind the correct standard in personal injury cases of such nature where a vital limb like the right forearm has been lost. The monthly loss of Rs. 500/- multiple of 15 years, would be to Rs. 90,000/- and 80% of it would be Rs. 72,000/-. However, in the instant case the appellant has only claimed Rs. 50,000/-. According to me, it is a very fair and reasonable claim. 25. In the result, the appeal is allowed. The defendants are directed to deposit Rs. 50,000/- towards the compensation, jointly and severally, in the Court within a month from the date of this order, with due information to the appellant, together with costs. 26. Appeal allowed.