Smt. Shivleela and ors. Vs. Karnataka State Road Transport Corporation, by Managing Director - Court Judgment

Tirath S. Thakur, J.

1. Motor Accident Claims Tribunal Bidar has by the order impugned in this appeal dismissed M.V.C. No. 114 of 1995 filed by the appellant for payment of compensation for the death of Sri Shivaraj Matapathy in a motor accident. The present appeal filed by the claimants assails the correctness of the said judgment and order.

2. The appellant happen to be the widow, mother and minor children of late Shivaraj Matapathy who filed M.V.C. 114/1995 before the Tribunal for payment of compensation for the death of Sri Shivaraj Matapathy. The case of the claimants as set out in the claim petition was that Sri Shivaraj Matapathy was travelling to village Khashampur, Aurad Taluk from Bidar in connection with a certain cultural program to be conducted by him. He boarded a KSRTC bus at Bidar bus stand at about 6.30 p.m. on the 17th January 1992. Since the bus was full of passengers, the deceased was asked to travel on the roof of the bus. The deceased accordingly climbed to the roof of the bus and started his journey. At one of the stations on the way, the deceased had according to claimants come down from the top bus of the to request the conductor of the bus to allow him to sit inside the bus as some of the passengers had alighted. This request was, according to the claimant turned down by the conductor who asked him to resume his place on the top of the bus. The deceased accordingly, got back to the roof of the bus to continue his journey. While the bus was nearing Boral bus stand, the deceased, it appears, was hit by the branches of a road side tree. The claimants alleged that the negligence of the driver in driving the vehicle had resulted in injuries to the deceased, which eventually resulted in his death in the Government hospital at Bidar on 19.1.1992. Compensation assessed at Rs. 3,50,000/- with cost and interest was accordingly claimed by the appellants from the corporation.

3. The Corporation opposed the claim. In the objections filed on its behalf, it was inter alia alleged that respondents - 2 and 3 i.e., the driver and the conductor of the bus were unaware of the presence of the deceased on the roof of the bus. It was specifically denied that the conductor had allowed the deceased to sit on the top of the bus in question. According to the corporation, the deceased, had on his own accord, climbed to the top of the bus from the rear and sustained some minor injuries when he fell down from the same. The Corporation was not according to objection responsible for the accident in any manner nor were the claimants-appellants herein entitled to payment of any compensation.

4. The tribunal framed four issues on the basis of the pleadings of the parties and allowed the parties an opportunity to lead evidence in support of their respective versions. Out of the claimants, Appellant-1 Shivleela who happens to be the widow of the deceased stepped into the witness box apart from two other witnesses namely, Jaishanker (P.W.2) and Umadevi (PW.3). In rebuttal, the Corporation examined the driver of the offending bus.

5. Upon appreciation of the oral evidence and the documents produced by the parties in support of their respective cases, the Tribunal dismissed the claim petition in terms of the impugned judgment. The Tribunal held that the deceased Shivaraj Matapathy was not travelling on the roof of the bus as per the direction of the driver and conductor of the vehicle as alleged and that the injuries resulting in his death were not caused because of any rash or negligent driving of the bus by its driver. The present appeal, as noticed earlier, assails and correctness of the said findings and seeks award of a suitable amount of compensation.

6. We have heard Mr. Ashok R. Kalyan Shetty Counsel appearing for the appellants and Mr. D. Vijayakumar Counsel for the respondent-corporation. We have also been taken through the record of the case.

7. Two questions primarily fall for our consideration. The first relates to the genesis of the accident and the extent of contributory negligence of the driver and conductor of the bus on the one hand and that of the deceased on the other. The second question relates to the quantum of compensation that could be awarded in case the accident is found to have been caused either entirely or in part on account of the negligence of the driver of the offending vehicle. The Tribunal has while examining the question relating to the genesis of the accident disbelieved the version of P.W.2 and held that the deceased had taken to the roof of the bus on his own and therefore, the accident in question resulting in injuries to him was in no way attributable to any act of omission or commission on the part of the driver or conductor of the vehicle. That finding of the Tribunal has come under severe criticism by Mr. Shetty Counsel appearing for the appellant. It was argued by the learned Counsel that the material on record including the statement of P.W.s 1 and 2 was sufficient to show that the accident had indeed occurred on account of the deceased being hit by branches of some trees growing on the side of the road. The Tribunal was not according to Mr. Shetty justified in rejecting the testimony of P.W.2 who was one of the co-passengers travelling with the deceased on the roof of the bus. Even the objections filed on behalf of the Corporation did not seriously dispute the fact that the deceased had died on account of the injuries sustained by him while he was travelling on the roof of the bus. Relying upon two decisions of the High Court of Punjab and Haryana in VIJAY SINGH v. HARYANA ROADWAYS AND ANR., 1990 ACJ - 18 and MANJIT KAUR AND ORS. v. PEPSU ROAD, TRANSPORT CORPORATION AND ORS., 1990 ACJ 471 Mr. Shetty argued that travelling on the top of the bus did not itself tantamount to negligence on the part of the passengers and the driver of any such bus was duty bound to take care and caution to drive the bus at a slow speed and in a careful manner so that no harm comes to those travelling on the roof of the bus. Alternatively he submitted that even if the travel of the deceased on the roof of the bus was taken as an act of contributory negligence, the negligence may not be more than 20%, the remaining 80% being the negligence of the driver of the vehicle. In support of this submission, he placed reliance upon a decision of this Court in MFAs No. 1890/1994 and 1888/1994 disposed on 6.7.2000.

8. On behalf of the respondent-Corporation, it was on the other hand submitted by Mr. Kumar that if a passenger without the knowledge of the conductor or driver of the bus stealthily climbs to the roof of the bus from the rear and remains undetected in darkness and eventually meets with an accident, neither the driver nor the conductor of the bus can be held responsible for any negligence so as to entitled the injured or his legal heirs to the payment of any compensation. He submitted that the Tribunal had correctly approached the question of negligence and rightly disbelieved the statement of P.W. 2 to dismiss the claim petition. It was according to the learned Counsel, humanly impossible for the driver or the conductor of the bus to prevent any passenger from climbing to the roof of the bus unnoticed at all times or to keep checking whether any such ticket less traveller had made his way to roof. The log sheets of the bus, according to the Counsel, did not show that there was no vacant seat inside the bus so as to force the passengers to climb on to the roof nor was there any corroboration of the case set up by the claimants that the driver and conductor of the bus had asked the deceased to sit on the top of the bus. Alternatively, he submitted that even if the driver or conductor of the offending vehicle was held in any way responsible for the accident on account of their negligence in preventing the deceased from going to the roof top or forcing him to alight from the same, the said negligence could not be more than 50%. The remaining 50% negligence must be attributed to the passenger who had taken a calculated risk in travelling on the roof of the bus, Reliance in support was placed by the Counsel upon a Division Bench of this Court in SMT. MAYAMMA v. SRI SIDDAIAH, ILR 2003 KAR 1179.

9. Travel by passengers on the roof top of public transport vehicles is not unknown. It is in fact a menace, which is fraught with grave danger to the lives of those who travel carelessly on the roof of the buses or other vehicles. This Court has expressed concern about such hazardous roof top travel in Mayamma's case relied upon by Mr. Kumar. We are not sure whether the directions issued in that case have had any effect in terms of reducing the incidents of roof top travel and thereby saving the valuable lives of those who either volunteer or forced to travel on the roof of the vehicles for a variety of reasons. More often than not such dangerous mode of travel is resorted to because of inadequacy of bus service on certain routes in the States. All that we need say is that it is high time that the authorities identify such routes and ensure that people do not have to risk their lives by getting on to the roof of the buses especially because of the in stuffiness of the transport services provided to them. We may hasten to, add that we should not be understood to mean that we are pending remedial measures approving of such roof top travel which is by no means legal or safe for those who do so or for others who travel in their company inside the vehicle. Public transport vehicles are not meant or even suited for this kind of open-air travel without any safety measures and proper setting or other arrangements.

10. Let us now examine the facts of the instant case. The deceased was as noticed earlier, travelling on the roof of the bus owned by the respondent-corporation. According to the case of the claimants, he was made to travel on the roof of the bus by the driver and conductor, as there was no space inside the bus. We do not however find any evidence or other material to support that version. Although P.W.2 - Jaishanker has made a statement to the effect that the driver of the bus forced them to sit on the roof of the bus that statement has been disbelieved by the Tribunal and in our opinion rightly so. The version of the witness is wholly unnatural and untrustworthy. According to the witness, when some passengers alighted on the way, they came down from the top of the bus to take a seat inside the vehicle, but were sent back to the roof of the bus by the Conductor without any reason. We do not find that statement to be worthy of any credit. If the passengers had alighted and space inside the bus had become available, there was no reason why the conductor or the driver would have found it difficult to accommodate the passengers inside the bus. Similarly the statement of the witness that the driver was driving the vehicle fast despite requests made to him to go slow fails to inspire confidence. If travel was indeed dangerous on the roof of the vehicle or because of the speed of the bus the witness as also the deceased would not have resumed their place on the roof. In any case, if they were finding that the driver was driving the vehicle in a reckless manner so as to endanger their lives, they would have left the bus, as any other prudent person would have done in such a situation. The case of the claimants that the deceased was forced to go to the roof of the bus has therefore, been rightly rejected by the Tribunal, which finding we have no difficulty in affirming.

11. That however is not the end of the matter. Assuming that the driver or the conductor of the bus had not sent the deceased to the roof for travel, the question that remains to be examined is whether they should have allowed the deceased to travel by sitting on the roof. The argument of Mr. Kumar that it is humanly impossible for the driver and the conductor to keep a watch on people who may stealthily climb to the roof of the bus or that anyone who did so was taking a calculated risk for himself without inviting any liability for the Corporation has not impressed us. The driver of the bus and so also the conductor had in the very nature of their duty an obligation to ensure that the bus is not put in motion so long as there is any passenger on the roof of the vehicle. We do not think that any such obligation is either excessively onerous or impossible of discharge. The fact that the vehicle had started from Bidar at 6-30 p.m. by which time it was perhaps dark, also did not absolve the conductor and the driver to ensure that there was nobody on the roof of the bus either for travel or for any other purposes like getting his/her luggage to or from the top of the vehicle. This part of the duty was evidently neglected by the conductor and the driver who perhaps assumed that there was no one on the roof, without proper verification. The result was that the deceased who appears to have climbed to the roof of the bus continued to stay on the roof and was eventually hurt in the course of the journey. The first Information Report, a copy whereof is on record shows that the deceased was found lying in an injured condition on the roof of the bus only when the bus reached its destination at Aurad at about 8 p.m. Some one who appears to have climbed to the roof of the bus to get back his luggage noticed that the deceased was lying there in an injured condition. He informed the driver and the conductor of the bus about the deceased where upon the deceased was brought down from the roof of the bus and shifted to the hospital where he died some time later. That the injuries were on account of an accident in which the deceased was hit by the branch of some tree on the way is in the above circumstances much too evident as is the fact that the accident occurred on account of the failure on the part of the driver and the conductor of the vehicle, to ensure that no one was travelling on the roof.

12. The question then is how to apportion the negligence between the driver and the conductor on the one hand and the deceased on the other. According to Mr. Shetty, travelling on the roof of the bus does not by itself tantamount to negligence in the light of two decision of the Punjab and Haryana High Court relied upon by him. The driver is according to the learned Counsel under an obligation to drive the bus carefully to ensure that those travelling on the roof are not hurt. According to Mr. Kumar appearing for the Corporation, any passenger who climb to the roof of the vehicle to travel by squatting on the same takes a calculated risk and must be presumed to have contributed to the occurrence of the accident in an equal measure if not more on the analogy of the judgment of this Court in Mayamma's case.

13. It is neither possible nor proper for us to lay down any general standard or norms to govern the apportionment of liability between those travelling on the roof of a public vehicle and the driver/conductor of any such vehicle. Each case shall have to be dealt with in its own peculiar facts and circumstances. A distinction however may be made broadly between a situation where the driver and the conductor of the bus are fully aware of the fact that a person or group of persons are travelling on the roof of the vehicle and another situation where the passenger has managed to climb to the roof without the knowledge of the driver or the conductor of the vehicle. The degree of care and caution which the driver incharge of the vehicle is supposed to take while driving the vehicle will be different in the two situations. If the driver knows that a group of persons is travelling on the roof of his bus, he must ensure so much more care and caution in driving the vehicle as is necessary to avoid any mishap. If the evidence in a given case establishes that the driver did not take the care and caution expected of him, the Court shall be justified in determining the extent of his liability accordingly. In a second situation, the extent of care and caution required of the driver would be relatively less than in the former case. That is because, the person travelling on the roof has managed to sneak to the roof without the knowledge of the driver or conductor. What is important is that in either situation any person who travels on the roof of the vehicle takes a calculated risk. Travel on the roof of the vehicle is per se dangerous and any one who does so must be presumed to be aware of the risk involved and the consequences thereof. The degree of care and caution on the part of driver may vary depending on whether the driver knows about the presence of the person on the roof or is unaware of the same, but in so far as the passenger is concerned, he takes a risk by travelling in breach of the law and must therefore share the consequences flowing from the same.

14. The decisions of Punjab and Haryana relied upon by Mr. Shetty appear to be taking a rather broad view on the subject. We record our respectful dissent from the opinion expressed in the said decisions if the same purport to lay down as a general principle of law that even when the passengers decide to travel on the roof of the bus, they are in no way contributing to the accident that may eventually result in death or bodily injury to any one of them. The very nature of the travel on the roof and the risks that are implicit in any journey performed by a passenger by squatting on the top of the vehicle must in our view attribute to the passenger the knowledge that his act may cause physical injury or even result in his death in the event of an accident.

15. The decision of this Court in LAKKAWWA AND ORS. v. M.D. KSRTC, LAKSHMAVVA AND ORS. v. M.D KSRTC, MFA 1888 AND 1890/1994 dtd by 6-7-2000 & 6-1-1999 arises out of an accident where more than one persons were travelling on the top of the bus, some of whom were hurt including one who died because of a branch of a roadside tree hitting him. This Court apportioned the responsibility between the injured / deceased and the driver of the bus in the ratio of 20:80. That decision is in our view, explainable on the broad approach that has to be adopted in such cases as indicated by us above. If the conductor and the driver of the bus knew about the group of persons travelling on the roof of the vehicle, the driver has to take additional care and caution to ensure that no harm is done to them. Failure to abide by that requirement and a consequent accident can account for the extent of liability being fixed on the driver to the extent of 80%, the passenger taking only 20% of the blame on himself. The decision in Lakkawwa's case supra however does not have any application to the facts of the present case where only one person is found to have been travelling on the roof of the bus. The version of P.W.2 who claims to be travelling with him at the time accident has been disbelieved. Even the version of the driver and the conductor is that they did not have any knowledge about the deceased having climbed the bus and being on the roof while it was moving. The case at hand is in our view closer to the facts of the case in Mayamma's case reported in ILR 2003 Kar 1179 where this Court apportioned the negligence between the passenger on the one hand and the driver on the other in the ratio of 50:50.

16. In the totality of all these circumstances, therefore, we are inclined to hold that the accident resulting in the death of deceased Sri Shivaraj Matapathy was because of the contributory negligence of the driver and conductor of the KSRTC bus on the one hand and the deceased on the other. The percentage of negligence contributed by them in the ratio of 50:50.

17. What is then the just and fair amount of compensation payable to the claimants. The deceased was according to the claimants-appellants a professional 'Musician-cum-singer'. He used to perform cultural music programmes on festivals and on other occasions apart from teaching music by conducting musical classes each student paying Rs. 50/- p.m. The statement made by his widow, P.W.1 lends support to her version apart from the statement of Umadevi who claims to be one of the disciples of the deceased. According to the deposition of the widow of the deceased and his student Umadevi P.Ws. 1 & 2 the deceased used to charge around Rs. 50/- per month from every student whom he was training in music. He used to teach music to four groups of 5 students each. In addition, he used to visit other villages outside his village to perform cultural programmes. On the date of the accident also, he was on his way to one such performance. In that view therefore, the income of the deceased could be taken at Rs. 1000/- per month from his tuition work plus another Rs. 1000/- per month from his musical performance in functions that he used to attend at different places to which he was invited. The annual gross income of the deceased would therefore come to Rs. 24,000/- out of which 1/3rd has to be deducted towards his personal and living expenses leaving the contribution to the family at Rs. 16,000/- per annum. The deceased was according to the evidence on record 30 years old at the time of accident. The correct multiple applicable in terms of the decision of this Court in GULAM KHADER KHADER v. UNITED INDIA INSURANCE CO. LTD., ILR 2000 KAR - 4416; and the Full Bench decision V.S. GOWDAR v. THE ORIENTAL INSURANCE COMPANY LTD., ILR 2002 KAR 2501 is 16.The loss of dependency would thus come to 16,000 x 16 = Rs. 2,56,000/-. Since however, the deceased was himself responsible to the extent of 50% for the accident in which he lost his life, his legal heirs shall be entitled to recover only the balance of 50% from the Corporation. The total loss of dependency recoverable from the Corporation therefore comes to Rs. 1,28,000/-. To sum up, the claimant shall be entitled to receive the following amount towards compensation.

Rs.1.Towards loss ofdependency1,28,000-002.Towards loss ofconsortium10,000-003.Towards loss ofEstate5,000-004.Towards loss of love & affection10,000-005.

Towards funeralexpenses2,000-00 Total Rs.

1,55,000-00 (Rupees one lakh fifty five thousand only)

The above amount shall earn interest at the rate of 8% per annum from the date of the petition till the date of deposit. Out of the amount so payable to the claimants -appellants a sum of Rs. 50,000/- each shall be released in favour of the widow and the mother of the deceased appellants - 1 and 4 in this appeal. The rest of the amount shall be invested in a term deposit in any schedule bank for a period of five years initially in the joint names of the minor sons of the deceased i.e. the Appellants-2 and 3 under the guardianship of their mother. The interest accruing on the said deposit shall be released in favour of the mother every six months which shall be used by the mother for the education and maintenance of the minor children. The parties are left to bear their own costs.