JUDGMENT
Saldanha, J
1. This Appeal raises a point of law of some consequence having regard to the unusual circumstances of the case. The issue centres around the question as to whether the liability as far as negligence is concerned is confined only to the action or non-action on the part of the driver or whether in the case of public transport vehicles the concept extends also to other members of the operating group, The facts are extremely clear insofar as the deceased Siddalingappa who was aged about 30 years had travelled in a K.S.R.T.C. passenger bus from Ghanagapur Station to Vaijapur on 6.11.1988. He was an agriculturist and the bus had halted at Vaijapur bus stop at which time the deceased got on to the top of the bus and unloaded two bags of . coconuts belonging to him. He was in the process of unloading the third bag when it is alleged that the bus moved forward suddenly and that he was either thrown or fell off the top of the bus. As a result of the fall, he sustained injuries and was removed to hospital. He succumbed to the injuries on 24.11.1988.
2. A Claim Petition was filed before the M.A.C.T. Gutbarga claiming compensation aggregating to Rs. 1.5 lakhs by the wife, two minor children and the mother. The learned trial Judge after recording the evidence disallowed the plea for compensation completely. The reasoning of the trial Court was that the evidence indicated that the deceased had climbed on to the top of the bus and that he was unloading the bags of coconuts when he fell from the top and sustained injuries. The learned trial Judge held that in these circumstances, no negligence can either be ascribed to or held to be established vis-a-vis the driver of the vehicle and since this is a pre-condition for the award of damages, that the claim was liable to be rejected. The present Appeal is directed against that order.
3. When the matter came up for directions, since the main issue involved in this case was as to whether on the aforesaid set of facts it can be held that the respondent-Corporation is liable to pay compensation, I requested, Mr. S.P. Shankar, learned Senior Advocate to assist his Colleague and to appear as Amicus Curiae in this Appeal, He has advanced certain submissions which I shall deal with and I also heard the learned Advocate who represents the Corporation. I have also had occasion to go through the record of this case.
4. The main submission canvassed by Mr. Shankar and one of some consequence, centres around the fact that while assessing the aspect of negligence, the Tribunal ought not to confine itself to the action or non-action only on the part of the driver of the vehicle though in most cases the issue is confined to this aspect of the matter. There could arise situations in which one needs to take cognizance of the conduct of other members who were responsible for the vehicle. Invariably, as far as transport vehicles are concerned, there is a second person who is usually designated as the Conductor and the law expects a certain degree of care and caution to be exercised by the Conductor of the vehicle, may be in conjunction with the driver; and therefore in a situation where it is demonstrated that death or injury has occasioned because of the negligence on the part of the Conductor or the Conductor along with the driver, the liability would still arise.
5. In this regard, Mr. Shankar has drawn the attention of the Court to Chapter IX of Salmond’s Law of Torts, 18th Edition, wherein the learned author has dealt with the concept of negligence. Quite apart from situations where wrongful intent is required by law as a condition of liability, the learned Author has pointed out that the concept of negligence essentially involves the mental attitude of the defendant towards the consequences of his act and has proceeded to point out that it may be a positive act or it may be the avoidance of doing something which the law expects of that person. The learned Author has also dealt with the aspect of inadvertence and has pointed out that merely because the wrongdoer was not conscious of his duty would not to any extent reduce his liability. It is true that a distinction has to be drawn between inadvertence and recklessness but the position in law has been settled by the Decision of the House of Lords in DONOGHUE v. STEVENSON 1932 AC 562, wherein, the Court has summarised the position and held that negligence, where there is a duty to take care is a specific tort in itself. Based on these observations, Mr. Shankar has submitted that there was a duty on the part of the Conductor of the vehicle to ensure that the persons who were involved in the placement and removal of the luggage on the bus did so without danger to life or limb.
6. In this regard, Mr. Shankar has advanced another argument which to my mind is of equal importance, He has drawn the attention of the Court to Chapter 29 of the Motor Vehicles Act which requires that even Conductors must have a licence. This presupposes that they must possess certain qualifications and the fact that they are licenced employees means that certain statutory duties are cast on them. On the basis of this background, Mr. Shankar submitted that the duty was clear as far as the driver and Conductor of the vehicle was concerned, to ensure that in the course of loading and unloading operations, the persons involved in the same did not sustain any form of injury. For example, it was the obligation of the Conductor of the bus to supervise these operations and to also ensure that while loading and unloading was going on, that the vehicle did not move,
7. Mr. Shankar submitted that the evidence in this case unmistakably discloses particularly the testimony of P.W.1 that the driver of the bus did get in and that he suddenly started the bus and that as a result of the manner in which the bus was suddenly moved, that the deceased was virtually thrown off the top of the vehicle. Learned Counsel submitted that it was the duty of the Conductor to have ensured that the bus did not move and to have brought it to the notice of the driver that a person was still on the top of the bus unloading something and that the vehicle should not be moved until he had completed his operation. Mr. Shankar, therefore, submitted that there can be no dispute on the basis of this record that the deceased who was injured in the course of this incident and subsequently died, is entitled to receive compensation on the ground of negligence which has been established.
8. On the question of quantification, learned Counsel submitted that even though the evidence of the mother was to the effect that the deceased who was an agriculturist, aged 30 years, was earning Rs. 50/- per day, that having regard to the general circumstances the Court may safely discount this claim and reduce it to Rs. 500/- per month. This would aggregate to Rs. 6,000/- per year and applying the multiplier 14, it would aggregate to Rs. 84,000/-. He submitted that under the rest of the heads, the general award of Rs. 13,000/- would be in order. The aggregate comes to be 97,000/- which according to him ought to be rounded of to Rs. 1,00,000/-.
9. Mr. Shankar has also drawn the attention of this Court to certain Decisions which to my mind require to be looked at. Firstly, he has submitted that the Supreme Court first in the Decision Minu B. Mehta & Anr. vs Balakrishna Ramachnadra Nayan & Anr., laid down the principle that negligence must be established before a claim for damages can be maintained. This principle has been reiterated by the Supreme Court in the case of GUJARAT STATE ROAD TRANSPORT CORPORATION, AHMEDABAD, V. RAMANBHAI PRABHATBHAI AND ANR . This principle of law is well settled and there can be no two opinions of the fact that establishment of negligence is a precondition. As far as the second aspect of the matter is concerned the question is as to whether, if the record discloses that the incident took place when the vehicle in question was stationary at the bus stop and the fact that the vehicle was not “in use”. Mr. Shankar relied on the Decision of the Supreme Court Shivaji Dayanu Patil & Anr. vs Smt. Vatschala Uttam More. This Decision virtually settles the law because in a well considered Judgment, the Supreme Court held that as long as it is demonstrated that the vehicle was being put to the purpose for which it was intended namely to carry the passengers or goods, the fact that the incident took place at a time when it was stationary would make no difference to the aspect of liability. This Decision virtually settles the law on the point.
10. On behalf of the Corporation, the learned Advocate has submitted that in the first instance the evidence in this case is inconclusive. It is his contention that only one of the witnesses has stated that the bus was moved by the driver whereas the generality of the evidence is to the effect that the deceased fell down from the top of the bus and the learned Advocate submits that when he was unloading the third heavy bag, in all probability he had overbalanced. The basic submission advanced by the learned Advocate proceeds on the footing that the deceased has on his own volition climbed to the top of the bus. He submitted that if the deceased got to the top of the bus and decided to unload the bags of coconuts that he was doing so without having specifically obtained the permission or consent of the operating crew, that he was doing so at his own risk and that consequently, the principle of Volenti Nonfit Injuria would apply to this case. As far as this argument is concerned, I need only to point out that if the Corporation, who is the owner of the vehicle and who is deemed to be aware of the fact that in this particular vehicle the goods were carried on the top, had failed to make its own arrangement for putting the goods on top and removing them, then it cannot be heard to argue that the deceased who had gone on the top of the bus to take down his bags of coconuts was acting either unauthorisedly or that there was any direct negligence on his part. To my mind, the deceased in the aforesaid circumstances was left with no option except to go to the top of the bus to move his goods, in the absence of any satisfactory arrangement from the Corporation and he was also justified in his belief that the operating crew of the bus would take note of this condition and would ensure that the bus did not move until he alighted from where he was. I am unable to accept the contention of the learned Advocate who submits that the bus had never moved and that the deceased fell off on his own. It has come up in evidence that the deceased had already removed two of his bags and there is no reason to hold that while unloading the third bag that the deceased who was an agriculturist, would have fallen off the top of the bus. There is positive evidence that the bus was voluntarily moved by the driver and it is quite clear that neither the driver nor the Conductor of the bus cared to ascertain whether anybody was on the top and further more, that the driver started off the bus with a sufficient amount of a jerk to cause the falling of the deceased from the top, The doctrine of Volenti Nonfit Injuria would therefore, to my mind, have no application to the facts of this case.
11. On the question of quantum, the Corporation’s learned Advocate had submitted that merely because the deceased was an agriculturist, in the absence of any material whatsoever and the mere statement from his mother that he was earning Rs. 50/- per day that this Court cannot arbitrarily quantify the compensation and that this case should be remanded for evidence in this regard. I do not see the propriety of remanding the case at this point of time as also having regard to the status in life of the claimants, the Court can take Judicial notice of the existing state of affairs and of economic conditions and on that basis hold what may reasonably be said to be the correct income of the deceased and it is for this reason that I have no hesitation in upholding the submission that regardless of the evidence the same should be discounted and that the income of the deceased be taken at Rs. 6000/- per year. The submissions canvassed on behalf of the Corporation that the compensation of Rs. 1 lakh in the facts of this case would be excessive and that a lower figure should be awarded cannot be upheld. To my mind, the figure of Rs. 1 lakh is both fair and just.
12. The Appeal accordingly succeeds. The impugned order is set aside. The respondent-Corporation are directed to deposit with the M.A.C.T., Gulbarga within a period of 8 weeks from today the compensation amount of Rs. 1 lakh along with interest computed at 6% P.A. from the date of application up to the date of deposit and costs quantified at Rs. 500/-.
13. Out of the amount that is deposited, the Tribunal shall invest a sum of Rs. 25,000/- each on behalf of the two minors – claimants-2 and 3 which amount shall be payable to them on their attaining majority. The Tribunal shall ascertain from claimant-1 as to which is the closest branch of a Nationalised or Co-operative Bank to the place where she is residing and the said amount shall be deposited as a Fixed Deposit for a period of two years renewable every two years until each of the two claimants attains majority. The Bank shall be directed to pay interest accruing on the said amount every quarter directly to claimant-1.
14. As far as the balance amount is concerned, the Tribunal shall invest a sum of Rs. 25,000/- on behalf of the mother-claimant-4 in the same manner as indicated above with a stipulation that the interest accruing thereon shall be payable directly to claimant-4 every quarter. This amount shall remain invested during the life time of claimants and on her death, the amount shall thereafter be paid over to claimant-1. After making the aforesaid pre-investments, the Tribunal shall pay over the whole of the remaining amount to claimant-1 who is the wife of the deceased.
The Appeal to stand disposed of. There shall be no order as to costs.
15. Before parting with this Appeal, I need to record the fact that this Court very much appreciates the efforts put in by the learned Advocates who have very ably assisted the Court in this matter.
