JUGA DEVI ETC Vs. AMAR SINGH ETC

JUDGEMENT

(1.) The appeal is for enhancement in a case of death of a person who was 24 years of age. He was an agricultural labourer and he was stated to be standing in the footboard of the bus and when the driver applied the brake, the door opened and he fell out of the bus and died. The Tribunal found that there was contributory negligence and after determining the compensation of Rs. 1,68,000/-, deducted 1/3rd and awarded Rs. 1,12,000/-.

(2.) On the issue of contributory negligence, I cannot find sufficient support to enter such a finding by the only fact that the deceased was negligent in standing on the footboard and fell out of the vehicle when the driver had applied brake. The safety contrivance in the bus must be such that even if a driver applies a brake, the door cannot open unless someone had opened the door against the safety instructions and was attempting to jump out of the bus even when the bus was in motion. There was no such evidence that he was trying to get out of the bus even before the vehicle was stopped. On the other hand, the evidence was that the door opened by the sudden application of brakes and the deceased fell out of the door. This, in my view, will not amount to contributory negligence. I will hold the entire liability for the death to be resultant to the negligence of the driver and conductor in first allowing a passenger to stand near the footboard and against the owner for not putting an appropriate safety contrivance that would keep the lock intact till it is opened manually by a person wanting to board or disembark from the bus.

(3.) The deceased was said to be a labourer earning Rs. 1000/-. A coworker had been examined in this case to say that they used to get Rs. 1700/- Rs. 1800/- per month. Counsel for the respondent-State points out that a certificate filed in the Court itself showed that he was earning only Rs. 885/- and the additional amount came through only overtime. There is law to the effect that overtime allowance cannot be provided as a matter of course. It has been so held in M.P.S.R.T.C. v. Salina Roz Alexendra,1998 1 ACC 680. I will take the income as taken by the Tribunal, provide for 1/3rd deduction and adopt a multiplier of 18. The loss of dependency would be Rs. 1,44,000/-. I will provide for Rs. 5000/- for loss of consortium and Rs. 2500/- for loss of love and affection for the child and make a further provision of Rs. 5000/- towards loss to estate and funeral expenses to hold that the total compensation would be Rs. 1,56,500/-. The liability shall be on the respondents jointly and severally and the insurance company is bound to indemnify the owner-insured. The increase in compensation shall be available only to the widow and child equally.