JUDGMENT
Deepak Gupta, J.
1. This appeal by the H.R.T.C. is directed against the award passed by the learned Motor Accident Claims Tribunal-II, Kangra at Dharamsala in M.A.C.P. No. 44-G/99, decided on 29th August, 2001, whereby an award of Rs. 1,02,900 along with interest and costs has been passed against the appellant and in favour of the claimants.
2. The admitted facts are that claimant Rajesh Kumar was travelling on the roof of bus No. HP-07-2884 belonging to the appellant. When he was travelling on the roof, he was hit by a branch of tree and damaged eye. He accordingly claimed compensation. The case set up by the claimant is that in fact it was the conductor of the bus who had asked him to travel on the roof. However, this fact is denied by the appellant and according to the appellant the conductor had not asked any person to travel on the roof of the bus. The learned Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the bus and awarded compensation.
3. The main point raised by Mr. Ashok Sharma, learned Counsel for the appellant, is that since the claimant himself was travelling on the roof of the bus, the accident occurred due to his negligence and no liability could be fastened upon the H.R.T.C. In the alternative, he contends that it is a case of contributory negligence. On the other hand, Mr. Jagdish Thakur, learned Counsel for respondent No. 1 has supported the award of the learned Tribunal.
4. It is clear from the evidence that the claimant was travelling on the roof of the bus. The version of the claimant that he was forced to travel on the roof of the bus cannot be accepted. He is a grown-up man and could not have been forced to travel on the roof. His consent to travel on the roof of the bus is writ large. On the other hand the version of the appellant that they were not at all negligent also cannot be accepted. The driver and conductor cannot state that they were totally oblivious of the fact that the claimant was travelling on the roof of the bus. However, even if it is held that the conductor and the driver took no steps to prevent the deceased from climbing on to the roof of the bus, it cannot be said that there is no fault on the part of the claimant. The deceased was a grown-up man. He was not a child. He knew what was good for him. A grown-up person is expected to take care of himself. He is not expected to do such acts which are against law and which endanger his life or limb. The argument on behalf of the claimants is that there is nothing on record to show that the deceased was travelling on the roof of the bus and in any event there is no evidence to show that the conductor stopped him from climbing on to the roof of the bus and as such there is no negligence on behalf of the deceased.
5. A number of authorities have been cited at the Bar. In Froom and Ors. v. Butcher 1975 (3) The All England Law Reports 520, Lord Denning M.R. was dealing with a case in which a car driven by the plaintiff had a head-on collision with another car driven by the defendant. The negligence for the accident was wholly attributable to the defendant’s negligent driving. At the time of the accident the plaintiff was not wearing the seat belt fitted to his seat. The plaintiff suffered injuries to the head and the chest which could have been avoided if he had been wearing the seat belt. It was held that the plaintiff was guilty of contributory negligence to the extent of 25% since if he had been wearing a seat belt, he could have avoided the injuries. Explaining the concept of contributory negligence, Lord Denning M.R. in his judgment held as follows:
3. Contributory negligence-
Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself.
6. It is common knowledge that ladders are fitted on the rear of the buses so that the luggage of the passengers can be placed on the roof. The roof is not meant for passengers but for luggage. Some people prefer to travel on roofs even when there is space inside the buses. This is not a sensible thing to do. If any person does so, it is his own fault. He is asking for trouble and has only to thank himself for the consequences.
7. Whenever there is an accident the negligent driver must bear his share of the responsibility. It is his negligence which causes the accident. But, insofar as the damage might have been avoided or the damage lessened by the victim having obeyed rules and not having clambered on to the roof of the bus, he must bear some share of the loss. What is the share of contributory negligence is something which shall depend on the facts of each case.
8. Everyone knows and ought to know that he is not supposed to travel on the roof of a bus. It is not only the driver and conductor of the bus who should know this fact, but even passengers are expected to know this fact. If the passenger despite knowing that such an act is inherently dangerous and may cause him injury still travels on the roof of the bus or hangs on to the rear of the bus, then the victim must bear his share of the contributory negligence.
9. There is no sound reason for benefiting a victim who breaks the law. This would amount to giving premium to the law-breakers. I have already culled out the reasons for holding that when a grown-up person does such an act which itself endangers his life or limb, he is asking for trouble. When any person does such an act it does not stand to reason that he can claim compensation for injuries which he may not have suffered if he had acted like a prudent human being. In my humble opinion a person who acts negligently must suffer the consequences. Such person has contributed to his misery and to that extent his claim has to be reduced. What is the extent of contribution shall depend on the facts of each case. There may be sympathy with a person who has been injured or the heirs of a person who dies. However, such sympathy cannot take place of law.
10. In the facts of the present case, in my opinion the claimant was primarily negligent in climbing on to the roof of a moving bus. However, the driver and conductor of the bus cannot also say that they were not totally at fault. There was an option with the driver to have stopped the vehicle and not driven it till all the persons got down from the roof of the bus. Therefore, in my opinion both, the bus driver and the claimant, equally contributed to the accident. The appellant is, therefore, entitled to mitigation of damages to this extent.
11. The claimant stated that he was earning Rs. 3,000 per month by working with Ashwani Motors Pvt. Ltd. The learned Tribunal has assessed the income at Rs. 1,800 per month. The age of the claimant was 24 years at the time of the accident. In my opinion the income assessed and the loss of dependency at Rs. 540 per month is just and reasonable. However, the multiplier applied is definitely on the lower side and the multiplier should have been 18. The compensation for future loss of income works out to Rs. 1,10,160. The claimant has suffered a serious injury and there is evidence on record to show that he remained admitted in hospital. His disability certificate has been proved on record as Ext. PW-4/A which shows that he has suffered disability to the extent of 30%. Keeping in view the nature of injuries, period of treatment and the fact that the claimant is not entitled to any reimbursement from any source, he is entitled to Rs. 10,000 for medical expenses, transportation charges, attendant charges, etc.
12. A Division Bench of this Court in Deepak Singh v. H.R.T.C. I (1993) ACC 331 : 1993 (2) SLC 129, in similar circumstances had awarded Rs. 37,500 under the head of pain and suffering, loss of matrimonial prospects and enjoyment of life. In the present case also one eye of the claimant has almost been lost and the claimant has undergone great pain and agony and in my opinion he should be awarded Rs. 15,000 on this account. The claimant has also suffered a permanent disability. He cannot see like any normal human being. He would be unable to do many things which a normal human being can do. With this disability he shall have to live throughout his life. He is, therefore, held entitled to Rs. 25,000 for loss of amenities, discomfort, etc.
13. The total compensation, therefore, is assessed at Rs. 1,60,160. However, since I have held that the claimant himself is responsible for the accident in equal measure, he is entitled to get Rs. 80,080 from the appellant.
14. In view of the above discussion the appeal is partly allowed and the compensation is reduced from Rs, 1,02,900 to Rs. 80,000. The claimant shall also be entitled to interest on this amount at the rate of 9% per annum from the date of filing of the claim petition till deposit of the amount.