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Judgment
Tirath S. Thakur, J.—This appeal by the Corporation assails the correctness of an award made by the Motor Accident Claims Tribunal, Saundatti whereby a sum of Rs. 3,13,000/- with interest at the rate of 9% per annum has been determined and awarded as compensation for the death; of Sri Ramachandrappa Lamani in a road accident.
The case of the claimants as set out in the claim petition was that the deceased Sri Ramachandrappa Lamani was travelling on the roof of a bus plying between Ramdurg and Batakurki. Somewhere on the way, he was hit by a branch of roadside tree resulting in severe injuries to him that proved fatal. M.V.C. No. 840 of 1992 was in due course filed by his father, widow and the children for payment of compensation. Their case was that the accident in question had taken place due entirely to the rash and negligent driving of the offending vehicle/bus by its driver. Their further case was that the deceased was made to sit on the roof of the bus by its driver and conductor as there was no space available inside the bus to accommodate him. Compensation assessed at Rs. 5,00,000/- with cost and interest was accordingly claimed by the claimants.
The Corporation opposed the claim inter alia on the ground that the accident in question had not taken place on account of the alleged rash and negligent driving of the bus. According to the Corporation, the deceased had on his own accord, climbed to the roof of the bus from the rear knowing fully well that any such travel could endanger his life and result in a fatal accident.
Upon appreciation of the oral evidence and the documents produced by the parties in support of their respective cases, the Tribunal held that the accident in question had taken place on account of the rash and negligent driving of the offending vehicle by its driver. Taking the income of the deceased at Rs. 2,100/- per month and deducting one-third (1/3rd) towards his personal expenses, the Tribunal took the balance of Rs. 1,400/- p.m. or Rs. 16,800/- per annum as his contribution to the family and capitalized the same by applying a multiple of 15 to award a sum of Rs. 2,52,000/- towards loss of dependency. To that amount, the Tribunal added Rs. 15,000/- towards pain and agony allegedly suffered by the claimants, Rs. 10,000/- towards loss of estate, Rs. 10,000/- towards loss of expectation of life, Rs. 10,000/- towards loss of love and affection, Rs. 10,000/- towards loss of consortium, Rs. 1,000/- towards transportation expenses of the dead body apart from Rs. 5,000/- towards expenses incurred for funeral. A total amount of Rs. 3,13,000/- was thus awarded with interest at 9% p.a. from the date of the petition till the date of deposit. The present appeal, as noticed earlier, assails the correctness of the said award.
Appearing for the appellant-Corporation, Mr. D. Vijayakumar made a two-fold submission. Firstly, he contended that the Tribunal was in error in holding that the deceased had not in any way contributed to the occurrence of the accident. He urged that the oral testimony of D.Ws. 1 and 2, the driver and conductor of the bus proved that the deceased had, without the knowledge of the driver and conductor, climbed to the roof-top of the bus knowing fully well that any such travel would endanger his life. They had further stated that the deceased had not been permitted by anyone of them to travel on the roof. The Tribunal should therefore, have held that the deceased had also contributed equally to the occurrence of the accident on account of his travelling on the roof of the bus. Secondly, he submitted that the Tribunal had committed a mistake in awarding a sum of Rs. 15,000/- towards pain and agony suffered by the claimants and Rs. 10,000/- towards loss of expectation of life. Award of sum of Rs. 10,000/- towards loss of love and affection was also according to the learned Counsel excessive.
On behalf of the respondents-claimants, it was on the other hand argued that the view taken by the Tribunal was justified on the material placed before it leaving no scope for this Court to interfere with the finding recorded by the Tribunal. He submitted that the deceased had been made to sit on the top of the bus by the driver and conductor with other persons as there was no space to accommodate them inside the bus. In any such case, the driver of the bus was under an obligation to drive the vehicle carefully to avoid any accident or harm to the passengers. Since however, the driver of the offending vehicle drove the vehicle negligently, the accident in question had occurred resulting in fatal injuries to the deceased. He was in that view entirely responsible for the accident. It was also submitted that the award of Rs. 15,000/- towards pain and agony suffered by the claimant may not be justified but the same could be sustained under the head ''medical expenses incurred for the treatment of the deceased''.
The deceased was, it appears, a ticketless traveller. This is evident from the deposition of P.W. 2 who claims to be one of those travelling on the roof of the bus along with the deceased. The statement of P.W. 2 further shows that the deceased and few others were made to travel on the roof of the bus by the conductor of the bus, as there was no space inside the bus to accommodate them. The driver and the conductor of the bus have no doubt disputed that position and asserted that there were only 45 passengers inside the bus when started from Ramdurg, yet that version is like the version of the claimants uncorroborated. What is noteworthy is that according to P.W. 2 there were not just two passengers but a number of others were also travelling on the roof of the bus. We are in that view inclined to hold that the said passengers were allowed to travel on the roof of the bus ostensibly because of paucity of space inside the bus. In any case the least that can be said is that the driver of the bus was aware of the fact that a group of persons was travelling on the roof of the bus when the bus started from Ramdurg bus stand. That being so, the driver of the bus was expected to take so much more care in driving the vehicle as was necessary to ensure that those who were precariously perched on the roof-top do not fall down or meet with any accident. The version of the driver that he had to take the bus to the extreme left side of the road in order to avoid a collision with a motor-car coming from the opposite direction also suggests that he was aware of the fact that there was a group of people travelling on the roof-top of the bus. In a situation where the driver is aware of the presence of the passengers on the roof of the bus, the degree of care and caution expected from him is relatively higher. If the driver did not take the necessary care and caution expected of him to avoid injury to the passengers on the roof of the bus, he failed in his duty. Any such failure would constitute culpable negligence on the part of the driver. At the same time, the passengers travelling on the roof of the bus cannot be said to be free from any blame. Just because there is no space inside the bus does not mean that the passengers have a license to climb to the roof of the bus and travel while squatting on the same. Such travel is in its very nature, hazardous and can prove dangerous for the passengers as it did for the deceased Ramachandrappa Lamani. Suffice it to say that passengers travelling on the roof of the bus must be deemed to have contributed to the accident should any mishap occur causing death or injury to any one of them. This Court has in Smt. Shivleela and Others Vs. Karnataka State Road Transport Corporation, held that where the driver of the bus is unaware of the presence of the passengers on the roof of the bus, the apportionment of responsibility for the accident would be half and half between the driver and the passengers. In cases where the driver is aware of the fact that the passengers are travelling on the roof, the degree of care and caution has to be higher and the responsibility of the driver in the event of an accident would also be proportionately higher. On a perusal of the material on record in the instant case, since the driver of the bus was aware of the presence of the passengers on the roof, his responsibility was relatively higher. The driver having failed to maintain the required standard of care and caution expected of him must therefore be held responsible to a greater extent for the occurrence of the accident. Taking into account all these circumstances, we are of the view that the responsibility for the occurrence of the accident can be apportioned 80:20 between the driver and the deceased Ramachandrappa Lamani respectively.
The only other aspect that needs to be considered is whether the Tribunal was justified in awarding a sum of Rs. 15,000/- towards pain and agony suffered by the claimants. The decisions of this Court have taken the view that no such award is permissible in law. Even the Counsel for the claimants did not dispute that position. What he argued was that the amount awarded should be adjusted under another head, viz., expenses incurred on the treatment of the deceased. There is however no evidence before us to show that any such expenditure was incurred by the claimants for the treatment of the injuries sustained by the deceased. The deceased appears to have died soon after he reached the hospital. In the circumstances, we are unable to sustain the award of Rs. 15,000/- towards pain and sufferings (pain and agony) of the claimants.
The claimants were entitled to compensation under the head ''loss of estate''. Having made an award in favour of the claimants under that head, there was no justification for making a further award of Rs. 10,000/- under the head ''loss of expectation of life''. At the same time we feel that the amount awarded by the Tribunal under the head ''loss of love and affection'' could be enhanced from Rs. 10,000/- to Rs. 15,000/-having regard to the number of children left behind by the deceased. As regards the expenses incurred on the transport of the dead body and funeral of the deceased, we do not consider it necessary to make any alteration in the amount awarded by the Tribunal.
To sum up, the amount of compensation shall be as follows.-
Rs.
1.
Towards loss of dependency
2,52,000-00
2.
Towards loss of consortium
10,000-00
3.
Towards loss of estate
10,000-00
4.
Towards loss of love and affection
15,000-00
5.
Towards funeral expenses
5,000-00
6.
Towards transportation expenses of dead body
1,000-00
Total
2,93,000-00
(Rupees two lakhs ninety-three thousand only)
Since the deceased himself was responsible for the accident to the extent of 20% as observed earlier, 20% of the said amount shall have to be deducted leaving the amount actually payable to the claimant at Rs. 2,34,400/- (Rupees two lakhs thirty-four thousand four hundred only). The said amount shall earn interest at the rate of 8% per annum from the date of petition till the date of deposit.
This appeal accordingly succeeds in part and is allowed to the extent that instead of Rs. 3,13,000/- awarded by the Tribunal, the claimants shall be entitled to a sum of Rs. 2,34,400/- with interest at the rate of 8% per annum from the date of the claim petition till the date of deposit.
We are informed that a part of the amount awarded by the Tribunal has already been paid by the Corporation. We therefore direct that the balance shall also be deposited by the appellant-Corporation with the Tribunal within six weeks in which event, the Tribunal shall make a suitable order for apportionment, disbursement/investment of the amount keeping in view the observations made by the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, . The amount lying in this Court shall also be transferred to the Tribunal. The award made by the Tribunal shall stand modified accordingly. The parties are left to bear their own costs.