Karnataka High Court
Smt. Mayamma vs Siddaiah And Ors. on 1 January, 2003
Equivalent citations: 2003ACJ1397, 2003(3)KARLJ14, 2003 AIR KANT HCR 860, 2003 A I H C 1582, 2003 AIR - KANT. H. C. R. 860, 2003 AIHC 1582, (2003) 1 KCCR 797, (2003) 3 RECCIVR 50, (2003) 2 TAC 410, (2003) 3 KANT LJ 14, (2003) 2 ACJ 1397, (2003) 3 ACC 253
JUDGMENT
1. We have heard the appellant's learned Advocate as also the respondents' learned Advocates. At the very outset, the appellant's learned Counsel has assailed the judgment of the Tribunal which has taken cognizance of the fact that admittedly the deceased Dollegowda had fallen off from the top of the moving bus No. CTX 8688. There are conflicting versions with regard to what had exactly happened, the appellant's learned Advocate submitting that the deceased had climbed on to the roof of the bus to remove the luggage and that as often happens, the driver had just sped away, as a result of which, the deceased who was on top, fell off, sustained fatal injuries and died. The Tribunal has relied on the evidence of P.W. 2 who claims to be one of the persons travelling along with the deceased on the roof of the bus. He also happens to be the complainant or informant and the First Information Report has been produced wherein he has stated that there were about twenty persons on the top of the bus and that the deceased was one of them. His version is that the deceased was sitting on the luggage and that the driver of the bus was driving at a fast speed, that there was a telephone cable under which the bus passed and because, the deceased was slightly taller than the others that this was responsible for his getting whipped off the top of the bus and it is obviously the fall from the moving bus that proved fatal. The view of the Tribunal was that the deceased had virtually asked for what had happened insofar as in the first instance, he had travelled on the top of a moving bus which is something which the law prohibits and secondly, that even assuming that he had got on to the top of the bus along with several others, that he had obviously not observed the necessary precautions to ensure that he did not come into contact with low objects or for that matter, that he held on sufficiently in order to avoid falling from the top of the bus. In sum and substance, the Tribunal took the view that there was 100% negligence on the part of the deceased, that there is nothing on record to establish the negligence on the part of the bus driver and that consequently, the claimant who is the mother is not entitled to any compensation. The present appeal assails the correctness of this order. As we had indicated earlier, the appellant's learned Advocate submitted before us that even assuming that the deceased was on the roof of the bus for whatever reason, that there was a corresponding responsibility on the part of the bus driver who was aware of the fact that there were as many as twenty people on the roof of the bus, to ensure that the bus was driven in such a manner that these persons do not come into contact with any low objects that would cause death or injury to them and secondly, being aware of the fact that the bus was overloaded even to the extent of as many as twenty persons on the top, that the driver ought to have driven the bus in a manner that would least endanger those persons. The submission canvassed is that the law with regard to contributory negligence has wrongly been applied and the appellant's learned Counsel has strongly submitted before us that even assuming the Court comes to the conclusion that the negligence is established on the part of the deceased, that the error committed by the Tribunal lies in the fact that the degree of negligence has been overpitched. What the learned Counsel has submitted before us and what is really the point of law involved in this case revolves around the question as to whether the concept of contributory negligence can be equated with a situation involving total negligence because if the first is established, then the appellant would still be entitled to some compensation.
2. On behalf of the respondents, a very strong submission has been canvassed on two grounds. Firstly, that the facts of this unequivocally establish that the deceased had breached the law by travelling on the top of the bus and secondly, that he had acted not negligently, not recklessly but, dangerously and having done so, that he has disqualified himself from compensation through is own reckless conduct. On the basis of the evidence of P.W. 2, the respondents' learned Counsel has advanced his second submission whereby he contends that this case is representative of that small class of instances where the injured person is totally disqualified from any compensation because the act itself is per se so dangerous as to qualify for being categorised as 100% negligence.
3. We have very carefully evaluated the rival arguments canvassed before us and we do find that there is something to be said in respect of both points of view. While the respondents' learned Counsels may be right to the extent of pointing out that the deceased was on the wrong side of the law, the moment he travelled on the top of the bus, there is an equally valid contention raised by the appellant's learned Counsel that once the bus staff permitted these persons to travel on the top or rather once they condoned it, then a corresponding obligation arose vis-a-vis the driver particularly to ensure that due care and caution is taken in order to avoid injury or death to those persons travelling on the top. The simplest example that we could cite would be a situation whereby the bus was required to approach a rather low over-bridge and where it would be very obvious to the driver that if he were to drive through that bridge, all these who are sitting on top would most certainly be injured and probably killed. The fact that they were on the wrong side of the law would not entitle the driver to proceed under these circumstances because, the law would make it obligatory on the part of the driver to stop the bus and ensure that these persons move from the position as it was quite certain that they would suffer serious injury or death if this course of action is not observed. The fact that the deceased was on the roof would still not absolve the driver from his duty and in our considered view, his having ignored this aspect and having driven the bus in such a manner that the deceased came in contact with the telephone wire and got wrenched off the top of the bus is sufficient to fasten a corresponding negligence on the driver. We do concede that this is an unusual case and we do concede that it is for this reason that the law has also required to be stretched or innovated to some extent but the objection is that the decision is required to be fair to both the parties.
4. We have been required to do an assessment from the limited material that is on record because the mother has stated that the deceased was running a small hotel and earning Rs. 100/- per day which in our considered view is a gross exaggeration. We have done a reasonable estimation of the figures. We have taken the income at Rs, 1,500/- at the very highest and minus the contributions we arrive at the base figure of Rs. 750/- and applying the multiplier of 12, we arrive at a figure of Rs. 1,08,000/-. With the conventional additions, the aggregate compensation payable would work out to Rs. 1,20,000/-. We propose to apportion 50% of the negligence to the deceased in which case, the appellant would be entitled to half oil the computed compensation which works out to Rs. 60,000/-. In the facts and circumstances of the case and particularly in view of what has been pointed out by the appellant's learned Advocate that the appellant is a very poor lady who is depending entirely on her son. we award interest at the rate of 8%. The respondents are directed to deposit the amount of Rs. 60,000/- along with 8% interest from the date of claim until the date of payment with the Tribunal within an outer limit of 12 weeks from today. We further direct that the Tribunal, out of the amount deposited, to invest a sum of Rs, 50,000/- in the name of the appellant-mother and any nominee of her choice with the Post Office Savings Bank Account closest to the place where the appellant is resident. The appellant shall be informed that this amount will be invested in the Post Office Monthly Income Scheme and that the interest that accrues on the investment will be deposited in the Savings Bank Account from where she shall be free to withdraw it. On the expiry of the scheme, the amount in question to be released to the appellant or in the event of her demise to her nominee or legal heirs as the case may be. The balance of the amount to be released to the appellant.
5. Before parting with this judgment it has become very necessary for us to issue certain stringent directions which are not only in the public interest but are absolutely essential from the point of view of ensuring the safety of the bus passengers. Travelling on the rooftop of a bus is per sc illegal, it is life threatening and by disqualifying the person concerned from the whole or half of the compensation in the event of death or injury is certainly not the only appropriate solution. While we do concede that sometimes rooftop travel is indulged in out of a sense of bravado or heroism, in the majority of instances it is done out of sheer necessity as the buses are so overcrowded that there is no other option left. A survey has indicated that in almost all instances these rooftop passengers are poor villagers though in some areas, city folk are also forced into this plight but the disturbing fact that raises eyebrows and is a cause for grave concern is the fact that in Karnataka alone, in the year 2002, 306 persons lost their lives and 718 were seriously injured while resorting to this form of travel. We have refusal to accept the argument advanced before us that if it is resorted to as a means of last resort because there is no other transport available and there is no room in the bus that it should be condoned. The inherent dangers involved in this mode of travel, having regard to the weather and light conditions, the unevenness of the road which makes the vehicle extremely unstable, not to mention the poor condition of the vehicles and the reckless manner in which these buses are invariably driven and above all, the fact that under Indian conditions obstacles and projections which could include even overhanging branches of trees are sufficient to kill the passengers. Even if the Government officers are unconcerned over this dismal state of affairs and callously profess that the passengers should be allowed to or rather encouraged to kill themselves if they want to, this Court can never ever accept such an inhuman approach. We have a heart and this Court is concerned about the safety and welfare of every citizen, particularly the poorest of the poor. We therefore need to direct the Transport Department of the State Government and the police authorities to take the following measures forthwith to put a full stop to this dangerous form of travel:
(a) That the finest preventive is by catering to the need. An immediate survey be done in all areas where rooftop travel is prevalent to ensure that enough of buses both private and public are made available to cater to the requirements. If this Court finds that this has not been done and that because of the negligence and non-action on the part of the State Government deaths and injuries occur to helpless passengers who are forced on to roofs because of non-availability of space, hereinafter, this Court will be required to make an example by awarding exemplary damages against the State Government,
(b) That the Transport and Police Departments during the course of the next one month shall prominently convey through the press and the electronic media the directions of this Court which are to the effect that rooftop travel shall be totally prohibited which shall also include persons travelling on any other part of the outside of the vehicle such as hanging on to the access ladder and this direction shall also include maxi cabs wherein it is the order of the day to find persons hanging on to the back of the vehicle as also on to the doors which are kept in an open condition. It shall also be brought to the notice of the public that anybody breaching the law in this regard will be placed under arrest and suitably punished. The police and the transport authorities shall rigorously enforce these directions and shall ensure a total stop to this lethal practice.
(c) In order to put a full stop to this dangerous practice, the Director General of Police and the Secretary to Government, Transport Department to whom copies of this judgment shall be forwarded, to report to the Registrar General within 4 weeks from today as to what steps have been taken in compliance with the High Court directions and to also indicate in the reports as to what follow up measures have been taken for purposes of ensuring that this dangerous practice is not restored or condoned.
6. With these directions the appeal which partially succeeds to stand disposed of. No order as to costs.
The Registrar General to forward a copy of this judgment to the Director General of Police, Government of Karnataka, and to the Secretary to Government, Transport Department, Government of Karnataka.