MAYAMMA Vs. SIDDAIAH

JUDGEMENT

(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 perse 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.