Madhya Pradesh High Court
Bhuribai And Anr. vs Shyam Sunder And Ors. on 5 July, 2006
Equivalent citations: AIR 2007 (NOC) 384 (M. P.)
JUDGMENT Abhay Gohil, J.
1. This appeal has been filed by parents of the deceased under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') against the award dated 12.2.2002 passed by the Additional Motor Accidents Claims Tribunal, Lahar, District Bhind in Claim Case No. 8 of 1998, whereby Tribunal dismissed the claim petition.
2. The brief facts of the case are that on 28.6.1998 at about 9.30 in the morning deceased Pappu along with other villagers was travelling from village Mahua to Lahar in a bus bearing registration No. MP 07-F 0113. He was sitting on the rooftop of the bus. The respondent No. 1 was driving the bus. It is submitted that he was driving rashly and negligently. Near village Chiruali when the bus was passing under the tree of acacia (babool) one of the branches of the tree hit the deceased Pappu, as a result of which he received head injury. The bus was not stopped by the driver even after the call made by other passengers and it was stopped at Lahar Bus Stand. A report of the incident was lodged at 5.30 p.m. on the same day. The matter was investigated and charge-sheet was filed. Thereafter, the widow, child and parents of the deceased have filed the claim petition. The learned Claims Tribunal dismissed the claim petition on the ground that the claimants have failed to prove that the accident took place due to the rash and negligent driving of the vehicle by the driver. Claims Tribunal has also found that the claimants have also failed to prove that permission was given by the driver and conductor/cleaner to the deceased to travel on the rooftop of the bus. Claims Tribunal has found that the deceased was sitting on the rooftop of the bus himself and for his own negligence he himself is liable. Against the dismissal of claim petition, the parents of the deceased have filed this appeal. The widow and the daughter have not filed any appeal.
3. Mr. R.P. Gupta, learned counsel for the appellants argued and submitted that accident took place arising out of use of motor vehicle. There is no rebuttal of this evidence that permission was not granted to the deceased to travel on the rooftop by the driver or owner of the bus. He placed reliance on various decisions of the High Courts. On the contrary, Mr. S. Gajendra-gadkar, learned counsel for the insurance company, respondent No. 3, supported the award and submitted that there is no scope for any interference in the findings recorded by the learned Claims Tribunal. There is also no evidence on record about rash and negligent driving by the driver of the vehicle and that any permission was granted by them to sit on the rooftop of the bus.
4. We have considered the rival submissions of the learned counsel for the parties and have perused the evidence on record. Bhuribai, AW 1, is the mother of the deceased. She was not travelling in the said bus. Ramdin, AW 2, a co-passenger who was also travelling along with the deceased in the bus was also sitting on the rooftop of the bus. He has stated that earlier they were sitting inside the bus. Looking to the crowd in the bus, driver and conductor/cleaner had directed them to go on the rooftop of the bus and, therefore, they went there and on such direction they were travelling on the rooftop of the bus. The F.I.R. was also lodged by Ramdin, AW 2. Same is the evidence of Meharban Singh, AW 3. He was also travelling along with the deceased on the rooftop of the bus. Both have narrated that when the bus was passing under the tree (one of the branches) of acacia (babool) hit the deceased and he received injury and died because of the same. Bhogilal, AW 4, is the father of the deceased. He was not travelling in the bus and is not the eyewitness. From the record of the Tribunal it is clear that the driver of the bus was not examined and respondents have not produced any evidence to rebut the aforesaid allegations. Though in the written statement, they have denied these allegations. Therefore, in the absence of any other rebuttal evidence, the evidence of Ramdin, AW 2 and Meharban Singh, AW 3, is accepted and can be relied upon. There is no effective cross-examination of these witnesses and from their evidence it is found proved that the deceased along with other persons were travelling in the bus and were travelling on the rooftop of the bus on the direction of the driver and conductor/cleaner. For not producing any evidence in rebuttal, an adverse inference can also be drawn against the driver and owner of the bus and it is to be held that the deceased was travelling on the rooftop of the bus with permission by the driver and conductor/cleaner. Witnesses have also stated that the incident took place due to rash and negligent driving of the vehicle by the driver as he had not taken care when bus was passing under the acacia tree, as he was knowing this fact that some of the passengers are sitting on the rooftop of the bus and he was also negligent in not immediately stopping it. Therefore, considering the aforesaid facts, it can be held that not only the incident took place arising out of use of motor vehicle but also due to rashness and negligence of the driver. This fact also cannot be denied that the deceased himself was also responsible for travelling on the rooftop of the bus as well as for not observing the rule to avoid negligence, prudence and opportunity to save himself from such an incident when he was travelling on the rooftop of the bus.
5. It is submitted by Mr. S. Gajendra-gadkar, learned counsel for respondent No. 3 that it can be believed that initially the deceased was sitting inside the bus. Thereafter, he was asked to go on the rooftop of the bus and at that time he could have refused when he was not a gratuitous passenger and, therefore, he has vehemently argued that deceased himself was responsible for negligence, who was travelling on the rooftop of the bus, which is contrary to the rules. He submitted that insurance company cannot visualise such a situation while issuing insurance policy that a person will travel on the rooftop of the bus contrary to the rule of prudence.
6. We have considered the cases cited by the learned counsel for the parties. Mr. R.P. Gupta, learned counsel for appellants has placed reliance on the decision of the learned single Judge of Orissa High Court in the case of Inja Venkatrao v. Sundara Barik . In this case the principle of contributory negligence was considered in the same circumstances when passenger was travelling on the roof-top of a bus and was hit by a branch of a tree and sustained fatal injury and it was held that conductor and driver allowed passengers to travel on the rooftop and driver was negligent for the accident.
7. Mr. R.P. Gupta, the learned counsel for the appellants has also placed reliance on the decision of learned single Judge of Orissa High Court in the case of Divisional Manager, New India Assurance Co. Ltd. v. Sanjukta Mallik , in which it is held that passenger travelling on the rooftop can be liable for contributory negligence on the part of such passenger. But such action of the passenger would not have the effect of exonerating the insurance company from its liability.
8. Learned Counsel for the appellants has further placed reliance on the decision of learned single Judge of this High Court in the case of Sundarbai v. Laxminarayan 2007 ACJ 255 (MP), in which it has been held that when the victim was allowed to travel on roof of the bus in contravention of traffic rules and he died due to electric current while sitting on the roof of the bus, then driver required to be over-cautious and careful about electric wires and it was held by the learned single Judge that the driver of the bus was negligent and set aside the award of the Tribunal dismissing the claim petition and allowed the petition filed by claimants and awarded compensation to the claimants. Learned single Judge considered two decisions while recording the finding, one in the case of New India Assurance Co. Ltd. v. Punjab Government and second in the case of Inja Venkatrao v. Sundara Barik and has also considered the Division Bench decision of Allahabad High Court in case of Oriental Insurance Co. Ltd. v. Shibhu Bai , but facts of this case are distinguishable. In this case accident took place due to electric wire as the bus was standing just below the electric wire. Therefore, the case of Division Bench of Allahabad High Court in the case of Shibhu Bai (supra) is distinguishable.
9. Learned Counsel for the appellants has further placed reliance on the decision of the learned single Judge in the case of Sohanlal v. Mangilal , in which it has been held that driver and conductor allowed passengers to travel on the roof with full knowledge as the bus was overcrowded, they are responsible for the accident and deceased was not guilty of contributory negligence.
10. In the case of Gali Krishna Murthy v. General Manager, Andhra Pradesh State Road Trans. Corporation (AP), the learned single Judge of Andhra Pradesh High Court has held that when a passenger travelling on the roof of the bus along with others fell down when the bus hit a bridge and sustained injuries and after considering the provisions of Section 123(2) of the Act, 1988, which expressly prohibits that no person shall travel on the rooftop of a motor vehicle and in that case it was held that injured contributed in the occurrence of accident up to the extent of 25 per cent and negligence was attributed to the driver up to 75 per cent.
11. In reply Mr. S. Gajendragadkar, the learned counsel for the insurance company, respondent No. 3, submitted that it could be a case of contributory negligence and placed reliance on two decisions of the Division Bench of Karnataka High Court in the case of Shivleela v. Karnataka State Road Trans. Corporation , in which a passenger was travelling on rooftop of the Corporation bus and was hit by branches of a roadside tree resulting in his death. In that case Karnataka High Court has held that this is a case of contributory negligence of the deceased as well as the owner of the bus.
12. The other case of the Division Bench is in the case of Mayamma v. Siddaiah , in which also a passenger was travelling on the rooftop of the bus and got trapped in telephone cable under which the bus passed, he fell down and sustained injuries. In that case the Tribunal held that deceased was negligent in travelling on the rooftop of the bus which is prohibited and observed that the deceased was on the wrong side of the law the moment he travelled on rooftop of the bus, but once the bus staff permitted these persons to travel on the rooftop or rather once they condoned it, a corresponding obligation arose for the driver to ensure that due care and caution is taken to avoid injury or death of these persons and held that both the passenger and the driver are equally negligent.
13. Learned Counsel for the insurance company, respondent No. 3, has also cited another decision of learned single Judge of Karnataka High Court in the case of Managing Director, North West Karnataka State Road Trans. Corpn. v. Guddappa Durgappa Ramannavar . After placing reliance on the decision of Division Bench in the case of Mayamma v. Siddaiah , the learned single Judge has also held that a passenger travelling on the roof of the bus along with other passengers was thrown on the road when the driver applied brakes and passengers sustained injuries. In that case also it has been held that both injured and driver are equally negligent.
14. After considering the aforesaid judgments cited by the learned counsel for the parties and after considering the facts of the present case and evidence on record that in the instant case the driver and the conductor/cleaner permitted the deceased to travel on the rooftop of the bus and there is no rebuttal of this evidence and also considering the fact that under Section 123(2) of the Act, 1988 there is specific bar for a passenger to travel on the rooftop of the bus, thus in view of the express bar under the law it cannot be held that there was no negligence on the part of the deceased. When a passenger travels on the rooftop of the bus, he himself calls for a risk of life and he knows its consequences and is also negligent while travelling on the rooftop of the bus. Therefore, it cannot be held that driver who has granted permission to travel on the rooftop is solely liable when there is specific bar under Section 123(2) of the Act, 1988. When a passenger travels on the rooftop, he invites the risk, may be calculated risk and such an act of the passenger may turn as an act of negligence. Even if the permission was granted, it was for the passenger to follow the rule of prudence and rule of opportunity to avoid risk and to refuse not to travel on the rooftop of the bus. In this case, it has come in evidence of the claimants witnesses that earlier the passengers were sitting inside the bus and because of the crowd they were asked by the driver and conductor/cleaner to go on the rooftop of the bus to travel. In such circumstances, it cannot be held that sole negligence would be of the driver and conductor/cleaner and the deceased will not contribute to negligence, even if it was a calculated risk, but that will not rule out the per se danger. Thus in view of the aforesaid discussion, we are inclined to take the same view and we concur with the view expressed in the two decisions rendered by the Division Bench of Karnataka High Court in the case of Shivleela, 2004 ACJ 759 (Karnataka) and in the case of Maya-mma, 2003 ACJ 1397 (Karnataka) and also the view taken by the learned single Judge the High Court of Orissa in the case of Inja Venkatrao, 1991 ACJ 581 (Orissa). We are of the view that to that extent the insurance company would not be liable for compensation. Therefore, it can be safely held that in such case the negligence of the parties would be contributory and both are held to be liable equally as they share equal negligence. Accordingly, we are not inclined to hold that in such cases sole responsibility would be of the driver or conductor. To that extent the decision of learned single Judge of this High Court in case of Sundarbai, 2007 ACJ 255 (MP), does not lay down correct law. Therefore, the same view cannot be affirmed and is liable to be overruled and accordingly it is overruled.
15. Now we shall proceed to consider the question of quantum. It has come in the evidence that deceased Pappu was aged about 24 years. He was married and was having one daughter. He was engaged in the business of selling cattle and was earning around Rs. 200 per day, i.e., around Rs. 5,000 to Rs. 6,000 per month. On the contrary, father of the deceased Bhogilal, AW 4, has admitted in para 4 of his cross-examination that deceased Pappu used to pay Rs. 800 to Rs. 1,000 to his father in a month, which shows that the same should be the amount of the dependency. There is no cogent and/or reliable evidence that he was engaged in the business of selling cattle and it cannot be said to be a regular business. It is a seasonal business and no document has been produced on the record about the same. Therefore, on the basis of oral evidence, it can be held that deceased was earning Rs. 1,500 per month, out of which he used to pay Rs. 800 to Rs. 1,000 to his father and the remaining amount he used to spend on himself. Therefore, if the income of the deceased is considered at Rs. 1,500 per month, the amount of dependency would come to Rs. 1,000 per month. Looking to the age of the deceased, who was 24 years admittedly the multiplier of 17 would be applicable and the amount of compensation shall be worked out to Rs. 2,04,000. Apart from this a further sum of Rs. 21,000 is added under various heads, i.e., for loss of consortium, loss of love and affection, funeral expenses, etc. Thus, the total compensation would come to Rs. 2,25,000 (rupees two lakh twenty-five thousand). Out of which the claimants would be entitled for 50 per cent of the same amount, i.e., Rs. 1,12,500 (rupees one lakh twelve thousand and five hundred). On the basis of contributory negligence on the said aforesaid amount the claimants are entitled for interest at the rate of 6 per cent per annum from the date of filing of the appeal.
16. Mr. R.P. Gupta, learned counsel for the appellants submits that widow of the deceased has remarried, but this will not be the case to disallow the amount of compensation to her, even though she has not filed any appeal. Therefore, under these circumstances, we direct to divide the amount of compensation equally amongst daughter, mother and widow. It is directed that the share of the daughter be deposited in a nationalised bank in her name, which is payable to her on attaining the majority.
17. In the result, the appeal is partly allowed with costs. Counsel's fee Rs. 1,000 (rupees one thousand).