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High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. KUMAR, THE HONOURABLE MR. JUSTICE B.S. PATIL & THE HONOURABLE MR. JUSTICE S.N. SATYANARAYANA
North East Karnataka Road Transport Corporation
Versus
Smt. Vijayalaxmi & Others
Miscellaneous First Appeal No.141 of 2005
Decided on : 30-09-2011
MOTOR VEHICLES ACT, 1988 - Section 123(2): [N.Kumar & B.S. Patil & S.N. Satyanarayana, JJJ] Contributory negligence - Held, The question of contributory negligence does not depend upon any breach of duty as between the plaintiff and the defendant. All that the defendant is obliged to prove is that the plaintiff failed to take reasonable precautions for his own safety in respect of the particular danger which in fact occurred, so that he thereby contributed to his own injury. This however is not to say that in all cases the plaintiff ho is guilty of contributory negligence owes to the defendant no duty to act carefully. The governing principle is that the defendant must show that the plaintiff has failed to take reasonable care for his own safety in respect to the particular danger which has in fact occurred. Further held, The contributory negligence has two facets. One in which two or more vehicles and drivers are involved in the accident. It is their driving which is the cause of accident. In such a case the question is who drove the vehicle in a rash and negligence manner. If all of them drove the vehicle in a negligent manner, who contributed to what extent in causing the accident. It is on the basis of such factual finding apportioning the blameworthiness on the drivers, the contributory negligence has to be assessed. To the extent of the percentage of negligence attributed to each driver, the owner of the vehicle and consequently if the vehicle is insured, the insurer would be liable to pay the compensation. If the driver himself is claiming compensation as third party, if his negligent act is also the cause of the accident, then the compensation payable to him would get reduced to the extent of the percentage of negligence attributed to him. The second facet where the claimant is not involved in the accident in any manner, i.e., in driving the vehicle but arises out of breach of duty resulting in injury on account of the accident. Failure to take reasonable care or precaution for his own safety while traveling in a Motor Vehicle, in respect of the particular danger, which in fact occurred, so that he thereby contributed to his own injury. It is this second aspect which is dealt with under Section 123 of the Act.
MOTOR VEHICLES ACT, 1988 - Section 166: [N.Kumar & B.S. Patil & S.N. Satyanarayana, JJJ] Plea as to contributory negligence - Held, Before the Tribunal is called upon to decide the question of contributory negligence, the plea that is available to the driver and conductor of the bus/driver, conductor and owner of the bus, they must specifically plead the contributory negligence and in support of the said plea, they must adduce evidence. On such evidence being adduced, the Court has to appreciate the material on record and come to a definite conclusion that traveling of the passenger on the top of the bus has, to any extent, contributed for the accident and the consequent loss. Only if such a finding is recorded holding that it indeed contributed to the accident, then the question will arise what is the extent to which he has contributed. Depending upon the percentage of his contribution, in the total compensation arrived at, the compensation payable has to be proportionately reduced to the extent of his contribution. Mere fact that the passenger was traveling on the roof top of the bus by itself is not sufficient to hold that he contributed to the accident and that he is not entitled to full compensation payable. Further, Travelling on roof top of the Bus is pure negligence. But, unless the said negligent act contributed to the accident and consequential loss, the passenger cannot be denied the compensation. But by such negligence act, if the passenger has contributed to the accident, the extent of his contribution has to be ascertained. To that extent, the compensation payable would get reduced. No contributory negligence or fixed percentage of contribution could be attributed to the passenger, merely because he was traveling on the roof top of the bus. Hence, the precise percentage by which the award of compensation amount is to be reduced is a pure question of fact, to be decided by the Court, on the evidence adduced and in the circumstances of the each case.
N. Kumar, J.
ORDER ON REFERENCE
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 driver of the bus did not contest the matter. It is the second respondent-Corporation which contested the claim by filing detailed statement of objections.
4. The Tribunal framed three issues. Thereafter on behalf of the claimants, wife of the deceased was examined as P-W-1. They also examined an eye witness to the accident as P.W-2. Claimants produced 17 documents. On consideration of the aforesaid oral and documentary evidence on record, the Tribunal held that, in the first place the respondents had not pleaded contributory negligence on part of the deceased. Even otherwise, the evidence on record indicated that he did not contribute, in any manner to the accident and the accident was on account of the rash and negligent driving by the driver of the bus. Therefore, the Tribunal by its award by the driver of the bus. Therefore, the Tribunal by its award dated 27th August, 2004 proceeded to award an amount of Rs.3,85,000-00 as compensation with interest at 8% per annum, to the claimants. Aggrieved by the same, the Corporation has preferred this appeal.
5. 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
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