Shukla, J. -
(1.)X x X X
The circumstances under which the appellant received injuries in the motor accident arose as under: -
The present appellant and others were proceeding to Unjha in a trailer of Dalasing Bhathibhai, attached to the tractor, with their agricultural produce. It is alleged that when the tractor crossed the river bridge between Moti Dau and Nani Dau, a public carrier belonging to respondent No. I and driven by respondent No. 2 went from behind and dashed against the right side of the trailer, on account of which impact the tractor and the trailer were thrown in a pit which was situated by the side of the road and the trailer capsized. The gunny bags which were lying in the tractor fell down and the appellant and his other companions were injured. By that time, a bus belonging to S. T. Corporation came from the opposite direction. The public carrier of respondent No. 1 and the S. T. bus collided. The appellant was removed to the Civil Hospital, Mehsana and from there he was removed to the Civil Hospital, Ahmedabad. The injured part of his body was put into a plaster and he was discharged from the Civil Hospital, Ahmedabad after about four days. He was directed to go to the Civil Hospital after about a month and a half. However, the appellant felt severe pain about four days after and he went to a bone -setter at Ahmedabad and then he did not go to the Civil Hospital at all. On 7 -4 -1977, he was examined by Dr. Lalbhai, Orthopaedic Surgeon at the Civil Hospital, Mehsana and his permanent disability was ascertained. He was stated to have sustained permanent disability to the extent of 66 per cent and his case was that lie was unable to carry on his agricultural pursuits himself and was therefore required to engage a 'Sathi' for doing agricultural work. Consequently, as pointed out above, the appellant Fuljibhai claimed compensation of Rs. 50,000 from the owner and driver of the public carrier as well as from the Insurance Company, being respondent No. 3 and also from the State Road Transport Corporation being respondent No. 4 and the driver of the bus being respondent No. 5
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6. The Tribunal framed issues out of the contentions of the rival sides. The Tribunal held that the cause of the accident could be attributed to the negligence of the driver of the public carrier and that the S. T. bus driver could not be held guilty of negligence in that occurrence. In other words, the liability to pay compensation was cast on respondents Nos. 1, 2 and 3, whereas respondents Nos. 4 and 5 were completely exonerated from any liability to pay compensation to the appellant. The Tribunal further held that the tractor driver was not responsible for the occurrence of the accident. The Tribunal, however, held that the appellant himself was guilty of contributory negligence on account of the fact that he went to take the treatment of a bone -setter instead of continuing the treatment by a competent surgeon. So holding, he reduced the amount of compensation by 40 per cent by taking the conduct of the appellant amounting to contributory negligence to the extent of 60 per cent. The grievance of the appellant is directed substantially against this reduction of compensation payable to him on account of alleged contributory negligence on his part.
7. x x x x x X x
8. Dr. Lalbhai Maganbhai (Exh. 113), petitioner's witness No. 12, is examined as a witness. He has stated in his deposition that he examined the appellant on 25 -8 -1975 at his residence. He had issued a certificate to the appellant which is to be found at Exh. 114.
He assessed the disability of the left lower limb at 75%. X -ray dated 22 -81977 revealed malunited fracture of tibial condyle. He again examined the appellant on 23 -3 -1978 at his private clinic, He found the disability to the extent of 60 per cent. He stated in his cross -examination that he had assessed the disability by reference to the book named "Disability & Evaluation" by Henry Kesstler. He further stated in his cross examination that there were no chances of the further reduction in disability. Dr. Lalbhai stated in his cross examination that had they continued the treatment by an Orthopaedic Surgeon, then no disability might have been left or at any rate the disability would have been much less. He in terms stated that the cause of disability was want of proper treatment. In cross -examination by Mr. Oza, Dr. Lalbhai stated that the appellant had left the hospital against the medical advice and therefore he could not treat him, We may note at this stage that Mr. P. V. Nanavati leaned a great deal upon this statement of Dr. Lalbhai while pleading that the contributory negligence of the appellant was rightly estimated by the Tribunal relying upon this part of Dr. Lalbhai's deposition. But about it later.
9. The Tribunal has discussed in our opinion quite correctly the circumstances of the appellant which was sadly brought about by the accident. The Tribunal took into account that the appellant sustained a fracture and was required to be hospitalised. The Tribunal awarded a sum of Rs. 10,000 as compensation for pain, suffering and the permanent disability suffered by the appellant. The Tribunal further awarded Rs. 1,000 towards medical and other expenses which the appellant was required to incur for taking treatment. The Tribunal further awarded Rs. 1,500 as the actual economic loss suffered by the appellant because of six months, confinement in bed, and further awarded Rs. 27,000 for future economic loss. Thus the Tribunal awarded to the appellant Rs. 39,500 as total compensation.
10. The Tribunal, however, was of the view that the appellant was guilty of contributory negligence in leaving the medical treatment by an Orthopaedic Surgeon and choosing instead to take treatment of a bone -setter. On this count, the Tribunal reduced the compensation payable to the appellant by 60 per cent and awarded net compensation of the amount of Rs. 15,800.
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14. The Tribunal had assessed the contributory negligence of the appellant to the extent of 60 per cent and the said contributory negligence was based upon the failure on the part of the appellant to continue the treatment by a surgeon and in choosing to take the treatment of a bone -setter. We fail to understand how, in the first place, this can be considered as contributory negligence at all. The Tribunal, with respect, has misconceived what is contributory negligence. The contributory negligence is the fault on the part of claimant in the very occurrence of the accident, So far as the present appellant is concerned, he is not alleged to have been in any way guilty of contributory negligence for the occurrence of the accident. The Tribunal, however, deducted 60 per cent of the compensation payable to the appellant on the ground that he did not take the proper treatment with the result that he came to suffer permanent disability which he would not have suffered had he taken the proper treatment. This conduct of the appellant is indisputedly subsequent to the accident and cannot be termed as contributory negligence at all. Mr. Nanavati could not address us to persuade us that the 60 per cent disability should be taken as on account of the contributory negligence of the appellant. Secondly, we may clarify that we do not agree with the Tribunal that in choosing to go to a bone -setter, the appellant was guilty of any negligence on his side. There is no evidence whatever on this point to come to the conclusion that the malunion was the result of the negligence on the part of the bone -setter. It cannot be said that because the claimant approaches a bonesetter for his treatment, he is per se guilty of any negligence. Negligence is a question of fact in each case which is required to be proved by leading cogent evidence in that regard.
15. There is another principle which would have its play in an appropriate case. That is the principle of the duty of the claimant to mitigate his loss. That principle is not attracted at all in this matter, there is no evidence in that connection and at no stage has the matter been tried and discussed from that point of view. We, therefore, do not find any substance, whichever way we look at, in the Tribunal's finding holding the appellant guilty of contributory negligence to the extent of 60 per cent and therefore we set aside the Tribunal's finding as regards the contributory negligence of the appellant.
16. Appeal partly allowed