Judgment : N. Kumar, J. ORDER ON REFERENCE This appeal is listed before us to consider the following questions namely: (i) Whether a passenger who travels on the roof-top of the bus meets with an accident and on account of that earlier he sustains injuries or dies in such an accident, could it be held that there is a contributory negligence on his part for such an accident and if it is held that there is the extent of contributory negligence on the part of the passenger and the driver and conductor of the bus who were conducting the bus? (ii) Whether the view taken by the two Division Benches of this court in the case of Mayamma (supra) and Shivaleela (supra) is the correct view or whether the decision of the Division Bench in the case of Sunanda (supra) is the correct view or any other view fixing different percentage of contributory negligence on the driver or the conductor or the passenger is required to be taken?” 2. This is a Corporations appeal. The claimants are wife and children of deceased Ramesh Reddy. The case of the claimants is that on 24.05.20063, deceased Ramesh Reddy had come to Gulbarga from Sedam for purchase of materials. While returning back, he boarded NEKRTC bus bearing registration No.KA-32-F-658 at 8.45 p.m. near Tirandaz Talkies, Gulbarga, as it was the last but to Sedam. The conductor had issued tickets to all the passengers. Due to heavy rush there was no space inside the bus. Hence the conductor allowed the passengers to travel on the roof of the bus. The deceased was one such passenger who traveled on the roof of the bus. The driver of the bus drove the vehicle in a rash and negligence manner. As a result, the branches of the tree hit the deceased due to which he sustained injuries. After hearing the hue and cry of the other passengers who were also traveling on the roof of the bus, the driver stopped the vehicle. Deceased Ramesh Reddy was shifted to Government Hospital, Gulbarga. From there he was admitted to Basaveshwar Hospital, Gulbarga, where he underwent operation on the same day. Thereafter, he was shifted to Hyderabad in an ambulance for further treatment. However, on the way Ramesh Reddy succumbed to injuries. Deceased Ramesh Reddy was shifted to Government Hospital, Gulbarga. From there he was admitted to Basaveshwar Hospital, Gulbarga, where he underwent operation on the same day. Thereafter, he was shifted to Hyderabad in an ambulance for further treatment. However, on the way Ramesh Reddy succumbed to injuries. He was declared dead on 25.05.2003 at about 5 to 6 p.m. Contending that the accident was on account of rash and negligent driving by the driver of the bus his legal heirs put forth their claim. 3. The driver of the bus did not contest the matter. It is the second respondent-Corporation which contested the claim by filing detailed statement of objections. 4. The Tribunal framed three issues. Thereafter on behalf of the claimants, wife of the deceased was examined as P-W-1. They also examined an eye witness to the accident as P.W-2. Claimants produced 17 documents. On consideration of the aforesaid oral and documentary evidence on record, the Tribunal held that, in the first place the respondents had not pleaded contributory negligence on part of the deceased. Even otherwise, the evidence on record indicated that he did not contribute, in any manner to the accident and the accident was on account of the rash and negligent driving by the driver of the bus. Therefore, the Tribunal by its award by the driver of the bus. Therefore, the Tribunal by its award dated 27th August, 2004 proceeded to award an amount of Rs.3,85,000-00 as compensation with interest at 8% per annum, to the claimants. Aggrieved by the same, the Corporation has preferred this appeal. 5. The appellant corporation contends that the deceased was traveling on the top of the bus without the knowledge or consent of either the driver or the conductor of the bus and without purchasing any ticket. The accident occurred mainly because of the negligence on the part of the deceased. The driver or the conductor of the bus was not at all responsible for the accident. Therefore, the Tribunal committed serious in fixing the entire negligence on part of the driver of the bus, which is unsustainable. The accident occurred mainly because of the negligence on the part of the deceased. The driver or the conductor of the bus was not at all responsible for the accident. Therefore, the Tribunal committed serious in fixing the entire negligence on part of the driver of the bus, which is unsustainable. Relying on two judgments of Division Bench of this Court in the case of Smt. Mayamma vs. Sri Siddaiah & Another reported in ILR 2003 KAR 1179 and Smt. Shivleela & Others vs. Karnataka State Road Transport Corporation reported in ILR 2003 KAR 3602, it was contended that the Tribunal ought to have held that the deceased contributed 50% of the negligence. The Tribunal committed a serious error in relying on the judgment of the Division Bench of this Court in the case of Managing Director KSRTC & Another vs. Smt. Sunanda & Another reported in 2004 (2) KCCR 741, wherein it is held that in cases where passenger travels on the roof top of the bus, the passenger cannot be held to have contributed to the negligence. 6. It is because of the aforesaid conflicting view of the Division Benches of this Court, by order dated 03.01.2006, the learned Judges who were members of the Division Bench have referred the matter for consideration by the Full Bench. The Hon’ble Chief Justice has in turn ordered for posting the matter before the Full Bench. 7. Sri Vijay Kumar, learned Counsel appearing for the Corporation contended that in view of sub-section (2) of Section 123 of the Motor Vehicles Act, 1988 when there is total prohibition on the part of the passengers to travel on the top of the bus, there was contravention of law by the deceased. Therefore, when the accident occurred on account of his traveling on the roof top of the bus, it cannot be said that the driver of the bus was in any way responsible for the accident. At any rate, as held by the two Division Benches of this Court, referred above, 50% of the contributory negligence is to be attributed to the deceased and to that extent the compensation amount has to be reduced. 8. Per contra, Sri S.P. Shankar, the learned Senior Counsel as an Amicus Curiae assisting the Court submitted that contravention of law is nothing to do with the contributory negligence. 8. Per contra, Sri S.P. Shankar, the learned Senior Counsel as an Amicus Curiae assisting the Court submitted that contravention of law is nothing to do with the contributory negligence. If there is contravention of law, the law provides for the consequences and for payment of penalty. Mere contravention of law is no proof of contributory negligence. Negligence is purely a question of fact. Unless the passenger who was traveling on the roof-top of the bus contributes to the accident, he cannot be held to have contributed to the accident. Therefore the contention that if a passenger traveling on the roof-top gets injured or dies, 50% contributory negligence has to be attributed to the said passenger is unsustainable and not supported by any statutory provision or authority. As a matter of fact, Counsel contends that it is purely a question of fact to be decided in the facts and circumstances of that particular case and no general rule can be laid down. 9. The relevant observations in the three judgments of this Court on which reliance is placed which has resulted in this reference can be now usefully referred. This Court in the case of Smt. Mayamma vs. Sri Siddaiah & Another reported in ILR 2003 KAR 1179 (Division Bench) has held as under: “We have very carefully evaluated the rival arguments canvassed before us and we do find that there is something to be said in respect of both points of view. While the Respondent’s learned Counsel may be right to the extent of pointing out that the deceased was on the wrong side of the law the moment the traveled on the top of the bus, there is an equally valid contention raised by the appellant’s learned Counsel that once the bus staff permitted these persons to travel on the top or rather once they condoned it, then a corresponding obligation arose vis-à-vis the driver particularly to ensure that due care and caution is taken on order to avoid injury or death to those persons traveling on the top. The simplest example that we could cite would be a situation whereby the bus was required to approach a rather low over-bridged and where it would be very obvious to the driver that if he were to drive through that bridge, all these who are sitting on top would most certainly be injured and probably killed. The simplest example that we could cite would be a situation whereby the bus was required to approach a rather low over-bridged and where it would be very obvious to the driver that if he were to drive through that bridge, all these who are sitting on top would most certainly be injured and probably killed. The fact that they were on the wrong side of the law would not entitle the driver to proceed under these circumstances because, the law would make it obligatory on the part of the driver to stop the bus and ensure that these persons move from that position as it was quite certain that they would suffer serious injury or death if this course of action is not observed. The fact that the deceased was on the roof would still not absolve the driver from his duty and in our considered view, his having ignored this aspect and having drivens the bus in such a manner that the deceased came in contract with the telephone wire and got wrenched off the top of the bus is sufficient to fasten a corresponding negligence on the driver. We do concede that this is an unusual case and we do concede that it is for this reason that the law has also required to be stretched or innovated to some extent but the objection is that the decision is required to be fair to both the parties. We have been required to do an assessment from the limited material that is on record because the mother has stated that the deceased was running a small Hotel and earning Rs.100/-per day which in our considered view is a gross exaggeration. We have done a reasonable estimation of the figures. We have taken the income at Rs.1,500/-at the very highest and minus the contributions we arrive at the base figure of Rs.750/-and applying the multiplier of 12, we arrive at a figure of Rs.1,08,000/-. With the conventional additions, the aggregate compensation payable would work out Rs.1,20,000/-. We proposed to apportion 50% of the negligence to the deceased in which case, the appellant would be entitled to half of the computed compensation which works out to Rs.60,000/-. This Court in the case of Shiveela and others vs. Karnataka State Road Transport Corporation, Bangalore, reported in 2003 AIR – KANT. We proposed to apportion 50% of the negligence to the deceased in which case, the appellant would be entitled to half of the computed compensation which works out to Rs.60,000/-. This Court in the case of Shiveela and others vs. Karnataka State Road Transport Corporation, Bangalore, reported in 2003 AIR – KANT. HCR 2450 (Division Bench) has held as under: “The decision of this Court in Lakkawwa and others v. M.d. KSRTC, Lakshmavva and others v. M.D. KSRTC (MFA 1888 and 1890/1994 disposed on 6-7-2000 & 6-1-1999 respectively) arises out of an accident where more than one person were traveling on the top of the bus, some of whom were hurt including one who died because of a branch of a roadside tree hitting him. This Court apportioned the responsibility between the injured/deceased and the driver of the bus in the ratio of 20:80. That decision is in our view, explainable on the broad approach that has to be adopted in such cases in indicated by us above. If the conductor and the driver of the bus knew about the group of persons traveling on the roof of the vehicle, the driver has to take additional care and caution to ensure that no harm is done to them. Failure to abide by that requirement and a consequent accident can account for the extent of liability being fixed on the driver to the extent of 80%, the passenger taking only 20% of the blame on himself. The decision in Lakkawwa’s case supra however does not have any application to the facts of the present case only one person is found to have been traveling on the roof of the bus. The version of P.W.2 who claims to be traveling with him at the time accident has been disbelieved. Even the version of the driver and the conductor is that they did not have any knowledge about the deceased having climbed the bus and being on the roof while it was moving. The case at hand is in our view closer to the facts of the – Kant HCR S60 : 2003 AIHC 1582) where this Court apportioned the negligence between the passenger on the one hand and the driver on the other in the ratio of 50:50. The case at hand is in our view closer to the facts of the – Kant HCR S60 : 2003 AIHC 1582) where this Court apportioned the negligence between the passenger on the one hand and the driver on the other in the ratio of 50:50. In the totality of all these circumstances, therefore, we are inclined to hold that the accident resulting in the death of deceased Sri Shivaraj Matapathy was because of the contributory negligence of the driver and conductor of the KSRTC bus on the one hand and the deceased on the other. The percentage of negligence contributed by them in the ration of 50:50. This Court in the case of Managing Director KSRTC and Another vs. Smt. Sunanda and Another reported in (2004 (2) HCCR 741 (Division Bench) has held as under: “It is not in dispute that the deceased was traveling on the top of the bus in question. It is also not in dispute that the deceased had leaded tin sheets on roof top of the bus. For the purpose of loading these tin sheets on roof top, the deceased must have taken sufficient time and the same cannot be done without the knowledge of the driver and conductor of the bus. Such loading of the goods on the top of the bus will not be allowed without the conductor having collected the requisite fare from the passenger. It was the duty of the conductor and the driver of the bus to have noticed if there were any passengers on the roof top and to ask them to alight from the roof top and to board the bus. Boarding of the bus necessarily pre-supposes that the passenger will have to get inside the bus, either sit in the seat or stand in the place reserved for standing. The conductor of the bus has to comply with this statutory duty. In case the passenger is on the roof top of the bus itself, the conductor ought to have asked the passenger to get down and thereafter ought to have signaled to the driver of the bus to proceed. The driver of the bus was also enjoined with the duty to ensure that the bus move only after there was safe traveling conditions for the passengers. The driver of the bus was also enjoined with the duty to ensure that the bus move only after there was safe traveling conditions for the passengers. The deceased, who loaded his goods on to the roof of the bus and sat on the roof top of the bus could not have done so stealthily. Neither the driver nor the conductor cautioned the said deceased not to travel on the roof top of the bus, the deceased having fallen of the roof of the bus and died cannot be held to have contributed to the negligence. There is neither pleading nor proof of contributory negligence. There is no evidence on record to show that the deceased had refused to alight from the roof top in spite of the directions from the driver or the conductor or he was cautioned about the risk, he was undertaking by traveling on the roof of the bus. The MACT having arrived at a positive conclusion that there was no negligence on the part of the deceased in traveling on the roof of the bus, no exception can be taken to the said finding.” STATUTORY PROVISIONS 10. Chapter VIII of the Motor Vehicle Act, 1988 deals with the Control of Traffic. Section 123 of the Act deals with Riding on running board, etc., which reads as follows: “123. Riding on running board, etc. .(1) No person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle. .(2) No person shall travel on the running board or on the top or on the bonnet of a motor vehicle.” Section 177 of the Act deals with General provision for punishment of offences, which reads as under: “177. General contravenes any provision of this Act or of any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence, be punishable for the first offence with the fine which may extend to one hundred rupees, and for any second or subsequent offence with fine which may extend to three hundred rupees.” In this background, it is necessary to know what is negligence and contributory negligence in order to answer the question of law referred to for our consideration. NEGLIGENCE 11. NEGLIGENCE 11. Negligence is conduct, not a state of mind – conduct which involves an unreasonably great risk of causing damage. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. It is a question of law whether in any particular circumstances a duty of care exists. The question is was the defendant under any duty of care at all, and, if so, did he observe the standard required in the circumstances of the case? Foresight is the test for duty and remoteness. It is a characteristic of the definition of the tort of negligence that it does not refer to the scope of the protection it affords to the plaintiff but rather to the qualities of blameworthiness or fault to be attributed to the conduct of the defendant. There is no liability for negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others. This duty of carefulness is not universal; it does not extend to all occasions and all persons and all modes of activity. The harm to the plaintiff’s interest which has in fact occurred must be of a kind against which it was the duty of the defendant to take precautions. In the absence of some existing duty the general principle is that there is no liability for a mere omission to act. The fundamental notion appears to be that the imposition of an obligation to take positive steps for the benefit of another requires that other should furnish something by way of consideration. The standard of conduct required by the common law is that of the reasonable man. The reasonable man is presumed to be free both from over-apprehension and from over-confidence. A reasonable man does not mean a paragon of circumspection. But he is also cool and collected and remembers to take precautions for his own safety even in emergency. The standard of conduct required by the common law is that of the reasonable man. The reasonable man is presumed to be free both from over-apprehension and from over-confidence. A reasonable man does not mean a paragon of circumspection. But he is also cool and collected and remembers to take precautions for his own safety even in emergency. So, while on the one hand an error of judgment may not amount to negligence, on the other hand the fact that it might happen to him is not necessarily a defence – even the most careful are sometimes careless. CONTRIBUTORY NEGLIGENCE 12. The doctrine that, if the plaintiff’s act was the proximate cause of the damage the plaintiff could not recover damage was a well-established principle of medieval law. In the sixteenth and seventeenth centuries the conception of negligence as a ground of liability worked its way into the common law. With the recognition of negligence as a ground of liability a practice grew up of alleging that a plaintiff could not recover because he was debarred by his own negligence. The Rule of law is that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls. When any person suffers damage as the result partly of his own fault and partly on the fault of any other person or persons, the claim in respect of that damage shall not be defeated by reason of the fault of the person suffered damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. 13. The question of contributory negligence does not depend upon any breach of duty as between the plaintiff and the defendant. All that the defendant is obliged to prove is that the plaintiff failed to take reasonable precautions for his own safety in respect of the particular danger which in fact occurred, so that he thereby contributed to his own injury. This however is not to say that in all cases the plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully. This however is not to say that in all cases the plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully. The governing principle is that the defendant must show that the plaintiff has failed to take reasonable care for his own safety in respect to the particular danger which has in fact occurred. The question whether the principle applies in any particular case is, as always, one of fact. Firstly, the law does not, in general, require any man to be careful of his own safety. What it does say is that a man who has negligently created a danger whereby another person is injured may plead as a way of avoiding liability that the injured person by his negligence contributed to create the danger. Secondly, no question of operative contributory negligence arises in a case where the defendant proves that the plaintiff has failed to take precautions against a foreseeable danger which has not occurred and that those precautions, if taken, would have been effective to protect him against the unforeseeable danger which in fact occurred. The statement that the plaintiff must be shown to have failed to take proper precautions for his own safety against the particular danger which in fact occurred does not mean that the particular form in which the danger manifested itself should actually have occurred to his mind. It is sufficient if it is a danger of a particular class whose occurrence he should anticipate and take reasonable precautions to guard against him. It is necessary to consider not only the causative potency of a particular act, but also its blameworthiness, though culpability here, as elsewhere in the law of torts, means not so much moral blameworthiness as a departure from the standard of care of the reasonable man. The court must also consider a third factor – namely, what is just and equitable. Hence the precise percentage by which the award is reduced is a question of fact in each case. The Court should find and record the total damages which would have been awarded if the claimant had not been at fault. It is inappropriate to apply this principle when the responsibility of one of the parties is properly to be assessed at 100 per cent. The court cannot deal with minute percentage. The Court should find and record the total damages which would have been awarded if the claimant had not been at fault. It is inappropriate to apply this principle when the responsibility of one of the parties is properly to be assessed at 100 per cent. The court cannot deal with minute percentage. It is a question of fact in each case whether the conduct of the plaintiff amounts to contributory negligence. The burden of proving the negligence of the plaintiff that contributed to the damage in such a way as to exonerate the defendant wholly or partially lies upon the defendant. The defendant must always establish such contributory negligence as well amount to a defence. When the court has to decide, that the case is one in which it is proper to apportion the loss between the parties, the result is that the plaintiff’s damages are reduced to such extent as the court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage. 14. The contributory negligence has two facets. One in which two or more vehicles and drivers are involved in the accident. In such a case the question is who drove the vehicle in a rash and negligent manner. If all of them drove the vehicle in a negligent manner, who contributed to what extent in causing the accident. It is on the basis of such factual finding apportioning the blameworthiness on the drivers, the contributory negligence has to be assessed. To the extent of the percentage of negligence attributed to each driver, the owner of the vehicle and consequently if the vehicle is insured, the insurer would be liable to pay the compensation. If the driver himself is claiming compensation as third party, if his negligent act is also the cause of the accident, then the compensation payable to him would get reduced to the extent of the percentage of negligence attributed to him. 15. The second fact where the claimant is not involved in the accident in any manner, i.e., in driving the vehicle but arises out of breach of duty, resulting in injury on account of the accident. Failure to take reasonable care or precaution for his own safety while traveling in a motor vehicle, in respect of the particular danger, which in fact occurred, so that he thereby contributed to his own injury. Failure to take reasonable care or precaution for his own safety while traveling in a motor vehicle, in respect of the particular danger, which in fact occurred, so that he thereby contributed to his own injury. It is this second aspect which is dealt with under Section 123 of the Act. 16. Section 123 of the Acts casts a duty on the driver and conductor of a motor vehicle to prevent any person from traveling on the running board or on the top of the vehicle. There is an obligation cast on them under the statute to see that all persons are within the body of the vehicle. In spite of this statutory provision, if they permit any person to travel on the running board or on the top of the vehicle, it is breach of duty. It is an omission to do some thing which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do. The driver and conductor of a motor vehicle owe a duty to the passengers of a motor vehicle to see that they do not travel on the running board or on top of the vehicle. Similarly no person shall travel on the running board or on the top or on the bonnet of the motor vehicle. If he travels, it is a careless conduct, the commission of which amounts to negligence. A duty of care exists as it is embodied in a statute with foresight for the benefit of such persons traveling in a motor vehicle. Mere breach of law or duty would not create a liability to pay damages. Such a breach should result in injury which is the foundation of a claim for damages. Therefore, the question of contributory negligence does not depend upon any breach of duty as between the plaintiff and defendant. Such a breach of duty should result in injury and consequent loses. In other words there should be a nexus between the breach of duty and the injury. If there is a blame causing the accident on both sides, the loses lies where it falls. This omission constitute a careless conduct. Foresight is the rest for duty and remoteness. 17. Such a breach of duty should result in injury and consequent loses. In other words there should be a nexus between the breach of duty and the injury. If there is a blame causing the accident on both sides, the loses lies where it falls. This omission constitute a careless conduct. Foresight is the rest for duty and remoteness. 17. From the aforesaid provisions it is clear that in Chapter XIII where offences, punishments and procedures are dealt with, there is no specific provision for contravention of Section 123 of the Act. Therefore Section 177 is attracted and if a person travels on the running board or on the top or on the bonnet of a motor vehicle, for such contravention, he is liable to pay, if the act complained of is the first offence, a fine which may extent to Rs.100-00 and for the second or subsequent offence, a fine which may extent to Rs.300-00. Therefore, a harmonious reading of the aforesaid provisions makes it clear that under Section 123, there is an obligation/duty cast on the driver and the conductor of a motor vehicle not to carry on any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle. Similarly, a passenger shall not travel on the running board or on the top or on the bonnet of a motor vehicle. If there is contravention of these provisions, the Act provides for a punishment. Therefore, in the scheme of the Act and in the light of the aforesaid provisions in the Act, the right of a third party passenger to claim compensation in the event of an accident on account of which any injury is caused or life is lost, is in no way denuded. The contravention of the aforesaid provision is nothing to do with the entitlement of compensation. Therefore the argument of the learned Counsel for the Corporation that a passenger who has traveled on the roof-top of the bus is not entitled to compensation to the full extent and he will be entitled to compensation to the extent of only 50% in the event of any accident resulting in injury or death cannot be sustained. 18. Let us take a case of a bus driven in a rash and negligent manner. 18. Let us take a case of a bus driven in a rash and negligent manner. If persons traveling inside the body of the vehicle sustained no injury, mere driving of the bus in a negligent manner has not resulted in any injury to those passengers. Similarly, if persons traveling on the top of the bus are also not injured, mere traveling on the top of the bus will not result in any accident or injury. Normally a passenger of a bus has no role in the rash and negligent driving of the bus by its driver. However, where an accident occurs on account of the negligent act of the driver and a passenger sustains injury, the question that arises will be not whether he also contributed to the accident but whether the passenger has taken reasonable care and performed his duty; whether he could have avoided the injury or the extent of injury. 19. In the case of a bus driven in a rash and negligent manner by its driver falling into a tank adjoining the road or plunging into the tank, if the shutters of the bus were all closed, the passengers who are inside the bus naturally will not be able to come out and get drowned and may die or it may cause serious injury to them. At the same time if there are passengers on the top of the bus, they may jump out of the bus, swim and save themselves or they may stand on the bus and save their life. Even if they sustain some injury that cannot be attributed to their traveling on the top of the bus. Take the instance of a bus driven in a rash and negligent manner by its driver while it is proceeding on the top of a hillock falling into the valley or gorge in which event both the persons who are on the top of the bus and inside the bus may be injured or die on account of the accident. Even in this case mere traveling on the top of the bus would in no way is responsible for the injury or the death. However, take the case of a bus which has to pass through a culvert or an over-bridge or under the trees. Even in this case mere traveling on the top of the bus would in no way is responsible for the injury or the death. However, take the case of a bus which has to pass through a culvert or an over-bridge or under the trees. If nobody was on the top of the bus, even if the bus was driven in a rash and negligent manner, it would not have caused any injury or death to the occupants of the bus. If someone were to travel on the top of the bus, either the branch of a tree may hit them or the culvert or the bridge may hit them, and may cause injury or death. Even in such cases, all the persons who are on the top of the bus may not get injured or die. But in such cases not only the negligent act on the part of the driver is the cause for the accident and the resultant injury, but also the traveling on the top of the bus. The passenger also has contributed to a great measure for such injury or death. Therefore, the question in each case is, to what extent such a passenger on the top of the bus has contributed to the injury or death. It is only when he is the cause for the death or injury sustained by him in the accident, the Court has to decide the extent to which is action of traveling on the top of the bus is the cause for the injury sustained. 20. In Mayamma’s case it was held that the deceased was at the wrong side of law the moment he traveled on top of the bus. But, the fact that deceased was on the roof of the bus still would not absolve the driver from his duty and the driver having ignored this aspect and driven the bus in such a manner that the deceased came in contact with the telephone wire and got wrenched off the top of the bus is sufficient to fasten a corresponding negligence on the driver. After assessing the compensation payable, it was proposed to apportion 50% of the negligence to the deceased and reduce the compensation payable by 50%. 21. After assessing the compensation payable, it was proposed to apportion 50% of the negligence to the deceased and reduce the compensation payable by 50%. 21. In the Shivleela’s case, the passenger was traveling on the roof top of the bus and the driver and conductor pleaded that they did not have any knowledge about the deceased having climbed the bus and it was held that the accident was the result of contributory negligence on the part of the deceased as well as the driver and the conductor of the bus. The percentage of negligence between them was apportioned at 50:50. 22. In Sunanda’s case, it was held that it was the duty of the consider and the driver of the bus to have noticed if there were any passengers on the roof top and asked them to alight from the roof top and board the bus. The conductor of the bus has to comply with the statutory duty. The driver of the bus was also enjoined with the duty to ensure that the bus moves only after there was safe traveling condition for the passengers. Neither the driver nor the conductor cautioned the deceased in that case not to travel on the roof top of the bus. The deceased having fallen from the roof of the bus, it was held that the deceased could not beheld to have contributed to the negligence. In that case, there was no pleading nor proof of contributory negligence. There was no evidence to show that deceased had refused to alight from the roof top in spite of directions from the driver or the conductor or that he was cautioned about the risk. In those circumstances, it was held that there was no negligence on the part of the deceased and hence the amount of compensation was not apportioned. 23. Thus it is clear that in the aforesaid three cases the Court did not go into the question under what circumstances the passenger traveling on the roof top of the bus can be said to have contributed to the accident and consequent loss and whether mere traveling on the roof top of the bus is sufficient to hold that he has contributed to the accident and how percentage of negligence is to be apportioned between the passenger and the driver and conductor of the bus. In the first two cases, merely as a general rule it has been held that the concerned passengers on the roof of the bus contributed 50% of the negligence. 24. In the light of the aforesaid discussion, it is clear that before the Tribunal is called upon to decide the question of contributory negligence, the plea that is available to the driver and conductor of the bus/driver, conductor and owner of the bus, they must specifically plead the contributory negligence and in support of the said plea, they must adduce evidence. On such evidence being adduced, the Court has to appreciate the material on record and come to a definite conclusion that traveling of the passenger on the top of the bus has, to any extent, contributed for the accident and the consequent loss. Only if such a finding is recorded holding that it indeed contributed to the accident, then the question will arise what is the extent to which he has contributed. Depending upon the percentage of his contribution, in the total compensation arrived at, the compensation payable has to be proportionately reduced to the extent of his contribution. Mere fact that the passenger was traveling on the roof top of the bus by itself is not sufficient to hold that he contributed to the accident and that he is not entitled to full compensation payable. Therefore, as stated above, it is not mere negligence or breach of law that is decisive. There should be contributory negligence for accident. Then the Court has to assess the extent of contributory negligence and it is only thereafter it can deduct out of the compensation payable to the claimant such percentage of compensation which represents the percentage of contributory negligence. 25. Therefore in the light of the aforesaid discussion, we answer the question of law referred to our consideration as under: CONCLUSION 26. Traveling on roof top of the Bus is pure negligence. But, unless the said negligent act contributed to the accident and consequential loss, the passenger cannot be denied the compensation. But by such negligent act, if the passenger has contributed to the accident, the extent of his contribution has to be ascertained. To that extent, the compensation payable would get reduced. No contributory negligence or fixed percentage of contribution could be attributed to the passenger, merely because he was traveling on the roof top of the bus. But by such negligent act, if the passenger has contributed to the accident, the extent of his contribution has to be ascertained. To that extent, the compensation payable would get reduced. No contributory negligence or fixed percentage of contribution could be attributed to the passenger, merely because he was traveling on the roof top of the bus. Hence, the precise percentage by which the award of compensation amount is to be reduced is a pure question of fact, to be decided by the Court, on the evidence adduced and in the circumstances of the each case. 27. In view of the fact that what is referred to the decision of the Full Bench is only the questions of law framed and now that we have answered those questions as aforesaid, the appeal papers have to be placed before the Division Bench for decision on merits in the light of the law declared by us. Ordered accordingly.