JUDGMENT
Hakim Imtiyaz Hussain, J.
1. This appeal is directed against the award passed by Motor Accident Claims Tribunal Baramulla (for short the Tribunal) in a claim petition No. 50 of 1986 titled Mst. Hajra and Ors. v. Dheeraj Singh and Ors..
2. The legal heirs (widow and children) of one Abdul Majid Lone filed a claim petition before Motor Accident Claims Tribunal, Srinagar on 22.05.1986 alleging therein that on 18.02.1986 said Abdul Majid Lone while travelling from Sopore to Panzalla had a fall from a vehicle, Bus No. 5521-JKC which was being driven by Deeraj Singh. The occurrence allegedly took place due to the rash and negligent driving of the driver/owner due to which said Abdul Majid Lone died on spot. It was alleged by the said legal heirs that the deceased at the time of his death was earning of Rs. 1500/- per month and was the main source of income and sustenance for them having the expectancy of surviving upto 100 years. The legal heirs therefore, claimed the compensation of Rs. 5,00,000/- from the driver/owner of the vehicle and also from United India Insurance Company Limited Srinagar.
3. During the proceedings of the case a separate Motor Accident Claims Tribunal was created at Baramulla and since the matter fell within the territorial jurisdiction of that Tribunal the case was transferred to that Tribunal in terms of order dated 08.06.1988. The Tribunal on 27.04.1988 framed the following issues in the case:
“1. Whether on 18.2.1986 respondent No. 1 was rashly and negligently driving vehicle No. 5521/JKC near Hadipora, Sopore as a result of which the deceased who was travelling in the said vehicle fell down causing injuries to him which led to his death? OPP
2. On proof of issue No. 1 are the petitioners entitled to receive compensation from the respondents, if so, of what value and of what proportion ? OPP
3. Relief.”
4. On conclusion of the trial the Tribunal found the legal heirs of the deceased entitled to compensation of Rs. 1,55,000/. The Tribunal accordingly granted the said amount in favour of the legal heirs of the deceased with interest @ 10% from the date of judgment.
5. Aggrieved by the said order the driver/owner of the vehicle has filed the present appeal on various grounds.
6. Heard. Consdilred. Various grounds were raised by the learned counsel for the appellant to assail the impugned order of the Tribunal. The learned counsel would argue that the order under challenge has been passed by a Tribunal which had no jurisdiction to entertain the claim and award compensation as originally the matter was pending before the Tribunal at Srinagar and that the Tribunal at Srinagar has without any authority and jurisdiction transferred the case to the Tribunal. It is further alleged that the Tribunal proceeded against the appellant in ex parte without issuing a formal notice to him. It is also argued that the Tribunal has not applied the correct formula while calculating the compensation amount as out of the total income l/4th has been deducted as personal expenses of the deceased whileas the Tribunal should have deducted l/3rd of the total amount of compensation. It was also forcefully argued by the learned counsel for the appellant that the deceased has contributed to his death, as such, his legal heirs were not entitled to any compensation.
7. So far the point relating to jurisdiction and ex parte proceedings is concerned, I find no force in it on the ground that the Tribunal at Srinagar has validly transferred the case to the Tribunal at Baramulla. As said above, originally the claim petition was pending before the Motor Accident Claims Tribunal at Srinagar. Prior to the year 1988 there was only one Motor Accident Claims Tribunal for the whole of Kashmir valley and its headquarter was at Srinagar. In the year 1988 district wise bifurcation of the Tribunals took place and by means of SRO 165 dated 25.05.1988 a separate Tribunal was constituted under the provisions of Section 110 of Motor Vehicles Act at Baramulla. Since the accident in the present case had taken place within the territorial jurisdiction of Motor Accidents Claims Tribunal Baramulla, the Motor Accident Claims Tribunal at Srinagar validly transferred the case to the said Tribunal. An order to this effect was passed by the Presiding Officer, Motor Accident Claims Tribunal, Srinagar on 08,06.1988. On that date the counsel for the parties were present and they were directed to appear before the Tribunal at Baramulla on 80.07.1988. Thus, there was a valid transfer of case and none of the parties objected to it at that time. The ground is not, therefore, available to the present appellant at this stage.
8. The order of the tribunal further shows that the date fixed at Baramulla was duly conveyed to the counsel for the parties but the proceedings of the Tribunal shows that on 30.07.1988 when the case was fixed at Barmulla the present appellant did not appear. The case was adjourned to 22.09.1988. On that date also nobody appeared for the present appellant. It was only on 10.11.1988 that one S. Pritam Singh appeared for the appellant before the Tribunal at Baramulla.
9. Under these circumstances I find no force in the argument raised by the learned counsel for the appellant.
10. It was next argued by the learned counsel for the appellant that the deceased has died as he had boarded the roof of the bus and that he got killed because of the fall from the roof. The learned counsel would argue that since the deceased has by boarding the roof of the bus contributed to his death and it was the deceased who had the last chance to avoid the accident the legal heirs of the deceased were not entitled to any compensation. Learned counsel has in this behalf referred to an authority cited as Rural Transport Service v. Bezlum Bibi, .
11. The defence of contributory negligence is no doubt available to the party who has to pay the compensation in the Motor Accident Claims cases but such a party can succeed to avoid the liability only when it is shown that there was any negligence on the part of the injured and it was due to such negligence that the injury/death took place. The contributory negligence applies in respect of conduct of the injured or the deceased. Where there has been an act of omission or commission on the part of injured or the deceased which has materially contributed to the damage the question of contributory negligence may arise. Even in such cases it has been held by the courts that the contributory negligence could not debar the injured to claim compensation. Even in the authority cited by the learned counsel: Rural Transport Service v. Bezlum Bibi (supra), where the deceased was guilty of contributory negligence it was held that it would not totally debar him from claiming compensation; it will merely mitigate the owner’s liability.
12. In the present case the deceased had boarded the roof of the bus. There is no evidence on file nor has been such a circumstance brought to the notice of the court that the appellant, who was driving the vehicle did make an effort to prevent the deceased from boarding the roof and travelling in that position.
13. In Manjit Kour v. Pepsu Road Transport Corporation, 1991 Acc CC 253 and Vijay Singh v. Haryana Road Ways, , it was held that mere travelling on the roof of a bus does not per se constitute contributory negligence on the part of the bus passenger.
14. As observed above there is no evidence on file that the present appellant did make an effort to prevent the deceased from not boarding the roof but the circumstances show that in fact the appellant allowed it. There is no mention as to under what circumstances the deceased boarded the roof. In such circumstances the act of the deceased will not constitute contributory negligence on his part which could disentitle the heirs to claim compensation.
15. So far the ground regarding deduction of l/4th of personal expenditure of the deceased from the amount of compensation is concerned, I find force in the same. The Tribunal has erred in deducting l/4th out of the total amount of compensation. It should have deducted l/3rd of the total amount of compensation. Applying l/3rd deduction to the mount of Rs. 2,16,000/- as calculated by the Tribunal the amount of compensation comes to 1,44,000/-. In addition to it the Tribunal has granted Rs. 8000/- as funeral expenses which has not been challenged. The total amount thus comes to Rs. 1,52,000/-.
16. In view of these observations the amount of compensation i.e. Rs. 1,70,000/- as fixed by the Tribunal is reduced to Rs. 1.52,000-/. Except this modification in the impugned judgment the appeal stands dismissed.