The Law Reform (Contributory Negligence) Act 1945, Section 1, which provides that contributory negligence only mitigates the liability of the defendant and does not bar the claim altogether, is applicable in India.

( 1 ) THIS is an appeal under Section 110-D of the Motor Vehicles Act (Act IV of 1939) (hereinafter referred to as the said Act) and is directed against an award dated January 3, 1974, passed by the Motor Vehicles Accident Claims Tribunal, Burdwan, in Acci- (Sent Claim Case No. 72 of 1969. The appeal raises a short but an important point as to whether contributory negligence on the part of the deceased on whose death in the accident the claim is put forward would defeat the claim. The facts are not much in dispute and are shortly set out as hereunder.

( 2 ) ON October 28, 1969 one Taher Seikh son of late Isu Seikh boarded a bus run by the appellant on the route Burdwan to Nasigram via Khetia and Bhatar. He boarded at Khetia and was proceeding to Bhatar. Since the bus was overcrowded the deceased Taher Seikh along with other passengers got on to the roof of the bus as there was no accommodation available inside the bus. He took his seat on the right side. Unfortunately for him when the bus was nearing Bhatar it swerved on the right side of the road to overtake a cart on the road. The deceased Taher was struck by an overhanging branch of a tree and he fell down on the ground sustaining multiple injuries in his forehead, chest etc. He was removed to B. S. Hospital at Burdwan and there he died on the day following as a result of the injuries suffered.

( 3 ) RESPONDENTS 1 and 2 before us, the mother and the brother of the deceased lodged a claim of Rs. 20,000 by way of compensation against the appellant and the insurer, respondent No. 3 under Section 110a of the said Act with the Motor Accident Claims Tribunal, Burdwan.

( 4 ) SUCH claim was contested both by the appellant as also by the insurer. The appellant denied that there was any negligence on the part of the driver or the conductor and claimed that the accident was entirely due to the fault on the part of the deceased who was not supposed to travel on the roof of a bus. The insurer took a similar defence but at the same time pleaded an additional defence that when the accident occurred in respect of a passenger carried on the roof of a bus in contravention of the Motor Vehicles Act, it is not covered by the insurance policy and the insurer is not liable to pay any compensation in a case like the present one.

( 5 ) ON the pleadings as aforesaid, the Tribunal framed the following issues:--1. Was there rashness or negligence on the part of the driver of the vehicle or the conductor? 2. Is the petitioner entitled to compensation, and if so, how much? 3. Is the insurer liable to pay compensation, and if so, to what extent? 4. Is opposite party No. 1 liable for compensation? And if so, to what extent?

( 6 ) EVIDENCE was led on behalf of the claimants who examined five witnesses. P. W. 1 Bezlun Bibi was one of the claimants,-- the mother of the deceased. In her evidence she stated that the deceased, her son was 24/25 years of age at the time of his death and was quite hale and hearty. He was a hawker by profession and used to earn Rs. 200 to Rs. 250 per month and he used to give Rs. 5 or Rs. 6 to her daily for family expenses. P. W. 2 Abdul Mannan was a fellow passenger with the deceased. In his evidence he stated that as there was no space inside the bus conductor asked him to get on to the top of the bus. His further evidence is that Taher too was asked by the conductor to get on to the roof and that there were other passengers too so travelling on the roof. The bus was running at a high speed and while overtaking a cart swerved on the right, went into the kutcha flank of the road and the deceased Taher being hit by a branch of a tree fell down from the roof. Shouts being raised the bus stopped 300 to 400 cubits ahead. Taher was bleeding from his head and was removed to hospital. In cross-examination he denied the suggestion that he and Taher got on to the roof of the bus in order to avoid purchasing ticket and he further denied the suggestion that there was n