C R SHIVANANDA Vs. H C GURUSIDDAPPA

JUDGEMENT

(1.) THIS appeal is listed before us to consider the following questions namely: (i) Whether a passenger who travels on the roof-top of the bus meets with an accident and on account of that earlier he sustains injuries or dies in such an accident, could it be held that there is a contributory negligence on his part for such an accident and if it is held that there is the extent of contributory negligence on the part of the passenger and the driver and conductor of the bus who were conducting the bus? (ii) Whether the view taken by the two Division Benches of this court in the case of Mayamma (supra) and Shivaleela (supra) is the correct view or whether the decision of the Division Bench in the case of Sunanda (supra) is the correct view or any other view fixing different percentage of contributory negligence on the driver or the conductor or the passenger is required to be taken?"

(2.) THIS is a Corporations appeal. The claimants are wife and children of deceased Ramesh Reddy. The case of the claimants is that on 24.05.20063, deceased Ramesh Reddy had come to Gulbarga from Sedam for purchase of materials. While returning back, he boarded NEKRTC bus bearing registration No.KA-32-F-658 at 8.45 p.m. near Tirandaz Talkies, Gulbarga, as it was the last but to Sedam. The conductor had issued tickets to all the passengers. Due to heavy rush there was no space inside the bus. Hence the conductor allowed the passengers to travel on the roof of the bus. The deceased was one such passenger who traveled on the roof of the bus. The driver of the bus drove the vehicle in a rash and negligence manner. As a result, the branches of the tree hit the deceased due to which he sustained injuries. After hearing the hue and cry of the other passengers who were also traveling on the roof of the bus, the driver stopped the vehicle. Deceased Ramesh Reddy was shifted to Government Hospital, Gulbarga. From there he was admitted to Basaveshwar Hospital, Gulbarga, where he underwent operation on the same day. Thereafter, he was shifted to Hyderabad in an ambulance for further treatment. However, on the way Ramesh Reddy succumbed to injuries. He was declared dead on 25.05.2003 at about 5 to 6 p.m. Contending that the accident was on account of rash and negligent driving by the driver of the bus his legal heirs put forth their claim.

(3.) THE appellant corporation contends that the deceased was traveling on the top of the bus without the knowledge or consent of either the driver or the conductor of the bus and without purchasing any ticket. THE accident occurred mainly because of the negligence on the part of the deceased. THE driver or the conductor of the bus was not at all responsible for the accident. THErefore, the Tribunal committed serious in fixing the entire negligence on part of the driver of the bus, which is unsustainable. Relying on two judgments of Division Bench of this Court in the case of Smt. Mayamma vs. Sri Siddaiah & Another reported in ILR 2003 KAR 1179 and Smt. Shivleela & Others vs. Karnataka State Road Transport Corporation reported in ILR 2003 KAR 3602, it was contended that the Tribunal ought to have held that the deceased contributed 50% of the negligence. THE Tribunal committed a serious error in relying on the judgment of the Division Bench of this Court in the case of Managing Director KSRTC & Another vs. Smt. Sunanda & Another reported in 2004 (2) KCCR 741, wherein it is held that in cases where passenger travels on the roof top of the bus, the passenger cannot be held to have contributed to the negligence.