Court caseAIR 1980 Cal 165

A bus of the appellant transport service was overloaded. Its conductor invited passengers to travel on the roof of the bus, and several did, among them Taher Sheikh. On the way the driver swerved the bus to the right to overtake a bullock cart. As he did so Taher Sheikh, on the roof, was struck by the overhanging branch of a tree; he fell down, received severe injuries and died. His mother, Bezlum Bibi, claimed compensation from the owner of the bus.

The Calcutta High Court held that inviting passengers to travel on the roof of the bus, and then driving so as to swerve the bus near an overhanging tree with passengers on the roof, was a rash and negligent act on the part of the conductor and the driver, for which the owner was vicariously liable. At the same time, the passengers on the roof, including the deceased, had taken the risk of travelling in that dangerous position and so were themselves negligent. The court treated this as contributory negligence going to the amount of compensation rather than as a complete defence, following the principle of apportionment.