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Judgment
K.B.K. Vasuki, J.—The appeal is filed by the second Respondent/Insurance Company against the award of compensation made in favour
of the first Respondent/claimant. The first Respondent/claimant is the injured in the accident occurred at 8.00 p.m. on 07.08.2006 on Lalgudi to
Trichy Road. The first Respondent filed claim petition seeking compensation of Rs. 4,00,000/-on the ground that the driver of the first
Respondent/transport is, due to his rash and negligent driving, solely responsible for the accident, in the course of which, the claimant who was
seated on the back seat of the bus thrown on the foot-board and sustained grievous injuries and incurred permanent disability which has affected
his earning capacity. The claim of the injured is contested by the owner and the insurer of the vehicle by denying rash and negligent aspects and
according to them, the injured was travelling on the foot-board at the time of the accident and fell down out of his own negligence and invited
accident.
The Tribunal rejected the defence so raised on the ground that the driver and the conductor of the vehicle are duty bound to take care that no
person is travelled on the running board, otherwise than the body of the vehicle and on the failure to exercise any reasonable care to warn him not
to travel on the foot-board and to come and be within the body of the bus, has held the driver of the vehicle to be responsible for the accident and
has fastened the entire liability upon the driver and the owner and the insurer of the vehicle. Aggrieved against the same, the second
Respondent/Insurance Company has preferred the present appeal before this Court.
The only point urged before this Court is that the tribunal ought to have held the injured to be guilty of contributory negligence by reason of his
travelling on the foot-board and ought to have accordingly apportioned the liability between the injured on one hand and the owner and the insurer
of the vehicle on the other hand.
The learned Counsel for the Appellant also sought to rely upon Ex.R3, accident register, in support of his contention regarding the contributory
negligence on the part of the injured, wherein it is recorded by the Doctor concerned that he was informed by the injured as if he was travelling on
the bus by hanging on the same and fell down and sustained injuries. The Tribunal has not placed any reliance upon the same without the author of
the same i.e., the doctor being examined in this regard. Excluding the above referred document, the other document available is Ex.R1, FIR
wherein the injured as the defacto complainant stated that he was, at the time of the accident, travelling in the standing position at the backside of
the bus above foot-board.
It may be true that the Insurance Company has in para 6 of its counter stated that the Petitioner was travelling on the foot-board of the backside
entrance and fell down because of his carelessness and he is hence solely responsible for the accident. If that is so, the Tribunal has rightly found
that the driver and the conductor ought not to have allowed him to travel on the foot-board and as rightly argued by the learned Counsel for the
injured, the duty so cast upon the driver and the conductor under Sections 123(1) & (2) of the Motor Vehicles Act is not duly complied with by
either of them in the instant case and their failure to do so led to his sustaining injuries in the accident occurred due to rash and negligent driving of
the vehicle and the tribunal has rightly fastened the liability on the driver.
The learned Counsel for the Respondent has also in support of such contention cited the Division Bench judgment of Karnataka High Court
reported in 2010 ACJ 871 in New India Assurance Company Limited v. Jayashree and Ors., wherein the Division Bench has, in paragraph No. 8
of the judgment, after referring to Sections 123(1) & (2) of the Motor Vehicles Act observed that there is nothing on record to show that any
attempt was made by the driver or the passenger in charge of the vehicle stopping the passenger from travelling on the roof of the bus and has in
paragraph 6 of the same judgment observed that in the absence of the injurer/Appellant bringing on record that inspite of enough space inside the
bus and inspite of caution or objection by the driver or the conductor of the bus for the deceased and other passengers to travel on the roof of the
bus deceased was to be held as a passenger, travelling in the bus at the time of the accident in question.
Similar view is also expressed by our High Court in 2001 LW 318 (Tamil Nade State Transport Corporation v. Saraswathi and Ors.), wherein
our High Court has held that it is duty of the driver or conductor to caution the passenger, when they attempted to get down from the moving bus.
The same logic can be applied to the facts of the instant case wherein also the Insurance Company fails to prove that the passenger was
travelling on the foot-board, despite enough space available within the body of the bus and despite the caution and objection given by either the
driver or conductor to stop him to travel on the foot-board.
That being so, the Insurance Company cannot be permitted to raise the plea of contributory negligence on the part of the passenger/Injured and
this Court is inclined to approve the approach of the Tribunal and agree with the finding rendered by the same in this regard. The driver of the bus
being held solely responsible for the accident, the owner and insurer of the vehicle are liable to answer the award made in favour of the claimants.
Though the Appellant has questioned the award of compensation of Rs. 50,000/- towards permanent disability of 25% as exorbitant and
excessive, the same is considering the young age of the injured accepted to be just and reasonable. There is no other valid reason made out by the
insurer to interfere with the award of the Tribunal.
In the result, the civil miscellaneous appeal is dismissed by confirming the award dated 22.09.2008 made in M.C.O.P. No. 298 of 2006 on
the file of the Motor Accident Claims Tribunal/Subordinate Court, Kulithalai. No costs.