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6. Further, submitted that the claimant is entirely responsible for having sustained the injuries since he was traveling on the roof top of the bus and the claimant has fully known the fact that traveling on the roof top of the bus is dangerous and also not permitted as per law. Therefore, the claimant himself has invited the risk. Therefore, the entire negligence is to be attributed on the part of the claimant.

7. Further, submitted that even in the case, the driver and conductor of the bus were negligent but that is only for minimal to say that the driver and conductor are responsible only to the extent of 25% but remaining 75% negligence is to be attributed on the part of the claimant. Therefore, the Tribunal is not correct by holding the driver and conductor of the bus as solely responsible for cause of accident.

17. In another judgment in the case of Smt. Shivleela and Others vs. Karnataka State Road Transport Corporation reported in ILR 2003 KAR 3602, it was held that the deceased had not traveled on the roof top of the bus stealthily; that means, without knowledge of the driver/conductor of the bus and therefore, the driver and conductor knew very well that the deceased climbed roof top of the bus and was traveling. Therefore, it was held that the percentage of negligence contributed by the deceased and driver and conductor of the bus is in the ratio of 50:50.

20. It is not disputed fact that the claimant had traveled on the roof top of the bus but the question to be considered here is under what circumstances, the claimant was constrained to travel on the roof top of the bus whether on his own willingness, at his own risk and whether the claimant had traveled on the roof top of the bus was within the knowledge of driver and conductor of the bus was, is to be considered.

21. The respondents have not attempted to summon either driver or conductor of the bus to examine before the Court that under what circumstances, the claimant had traveled on the roof top of the bus i.e., whether on his own risk or it was within the knowledge of the conductor or driver of the bus but Ex.P5 is the charge sheet resulting in to initiation of the criminal proceedings based on the complaint that it is the opinion of the Police Investigation Officer while filing charge sheet that since the bus was hired on contract basis for taking persons to a marriage function and since there was no space inside the bus, the claimant was constrained to travel on the roof top of the bus. Therefore, it cannot be said that the travel made by the claimant on the roof top of the bus was not within the knowledge of the driver and conductor of the bus. Even though there may be violation of Section 123 of MV Act, but for such violation, Criminal action is invited but that cannot be made as a ground to reject the claim petition or to attribute the entire negligence on the part of the claimant in case of injury or the deceased in case of death. But considering the entire case on its true perspective, weighing and sifting the evidence on record on its preponderance of probabilities that the bus was not used as a stage carriage bus but was used for contract basis to take the bus to a marriage function. Therefore, certainly the driver and conductor of the bus were having knowledge under what circumstances, the claimant and other persons have traveled on the roof top of the bus. It cannot be said that the traveling of the claimant on the roof top of the bus is not within their knowledge. Under these circumstances, the driver and conductor of the bus would have cautioned the claimant or prevented the claimant to travel on the roof top of the bus then the accident could have been avoided. Therefore, it can safely be held that the driver and conductor of the bus have consented the claimant to travel on the roof top of the bus. Therefore, under these circumstances, the major portion of the contributory negligence is to be attributed on the part of the driver and conductor of the bus.

23. Therefore, considering the facts and circumstances involved in the case and weighing and sifting evidences adduced in the present case on its preponderance of probabilities, the claimant had also made some negligence while traveling on the roof top of the bus. It is not the case of the claimant that the bus was used for stage carriage or claimant was traveling to go to his native place where buses are not sufficient to their route, therefore, compelled to travel on the roof of the bus but facts and circumstances are different from the above analogy that the bus was used for the contract basis to take the bus for attending marriage functions and therefore, there is no other vehicles available, in case, the bus is full of persons. Therefore, if the bus is full of inmates and there was no space for sitting or standing, then the claimant and others could have been traveled to return to their village by any other vehicle without making travel on the roof top of the bus. If there is no vehicle on that route available then the thing would have been different. Therefore, to some extent, the claimant has also taken risk on his own to travel on the roof top of the bus. There was every possibility on the part of the claimant to refuse to travel on the roof top of the bus and he could have traveled by any other vehicle to go to his native place. In this case, the offending vehicle was filled with people at a maximum number without there being any space for sitting or standing. Therefore, in this regard, there is also some contributory negligence on the part of the claimant, but not as large as the negligence on the part of the driver and conductor of the bus. Here upon considering the weightage of duty attached to the claimant on one hand and driver and conductor of the bus on the other hand, the duty and responsibility of the conductor and driver of the bus is more onerous compared to claimant. The driver and conductor of the bus were very well positioned to stop or prevent the claimant and other people from travelling on the roof top of the bus because the driver and conductor were having control over the bus and, ultimately, the driver had taken a risk in driving the bus, allowing the claimant and other people to travel on the roof top of the bus. Also, in the cross examination of PW.1, it is revealed that even though during the course of suggestion, but upon considering the preponderance of probabilities, the owner has also consented to the claimant and other persons to travel on the roof top of the bus. Therefore, major contributory negligence is to be attributed on the part of the driver, conductor, and owner of the bus on the one hand, and minor contributory negligence is to be attributed on the part of the claimant.