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Judgment
P.D. Dinakaran, J.—This appeal is directed against the award and decree passed on 24.7.2003 in M.C.O.P. No. 451 of 2002 on the file of
the Motor Accident Claims Tribunal (Fast Track Court), Kallakurichi.
The appellant is the transport Corporation. The first respondent is the wife of the deceased and the second respondent is the son of the
deceased.
The respondents/claimants preferred a claim petition before the Motor Accidents Claims Tribunal, Kallakurichi against the appellant herein
claiming a compensation of Rs. 2,00,000/- for the death of the deceased Kulandaivel caused on 1.2.2000 at about 8.00 a.m. at Sanisanthai on the
Main road of Salem to Dharmapuri, by the rash and negligent driving of the appellant''s bus by its driver.
According the respondents/claimants, on 1.2.2000 at about 8.50 a.m. at Sanisanthai on the Salem to Dharmapuri Main Road, the appellant''s
passenger bus bearing registration No. TN-29-1103, in a rash and negligent manner, dashed against the deceased and caused his death on the
spot. It is claimed that the deceased was an agriculturist and he earned Rs. 4000/- per month. The deceased was aged 43 years at the time of the
accident and therefore, the claimants claimed a total compensation of Rs. 2,00,000/- under various heads.
5.1. The claim was resisted by the appellant/Transport Corporation by taking the stand that there was no rash and negligence on the part of the
driver of the vehicle. It was submitted that the deceased crossed the road all of a sudden being aware of the bus approaching him; the deceased
lost his balance on the road, fell down in front of the bus and thus hit the body of the bus.
5.2. The claim was also resisted on the ground that the amount claimed by the respondents/claimants was highly exaggerated and there was no
material to show as to what was the deceased''s income and the deprivation of financial contribution by the deceased to his family.
The Tribunal, weighing the evidence let in by both sides, concluded that the said accident was caused due to the rash and negligent driving of the
bus and it is a case of contributory negligence, and by order dated 24.7.2003 awarded a sum of Rs. 1,70,400/- towards compensation. Aggrieved
by the award and decree passed on 24.7.2003 in M.C.O.P. No. 451 of 2002 by the Tribunal, the Transport Corporation has preferred the
present appeal.
The only point agitated in this appeal by the appellant/Corporation is that the accident had taken place only due to the total negligence of the
deceased who crossed the road all of a sudden, but not due to the rash and negligent act of the driver of the appellant/Corporation. It is thus
contended that the appellant/Corporation is not at all liable to pay the compensation.
The question that arises for our consideration in the above appeal is whether the accident has taken place purely due to rash and negligent act of
the appellant/ Corporation or due to the total negligence on the part of the deceased or due to the contributory negligence of both of them.
We have gone through the evidence on record. Even though the case of the claimant is that the accident has taken place when the deceased
crossed the road, the case of the appellant/Corporation is that the deceased crossed the road even without noticing the vehicle coming on the road
and there is no proper explanation on the part of the driver of the appellant/Corporation who was examined as R.W.1, as to why he failed to apply
the brake to prevent the accident. Therefore, it goes without saying that assuming the deceased negligently crossed the road without noticing the
vehicle coming on the road, the accident could have been prevented had the driver of the appellant/Corporation applied the brake diligently. The
failure to act diligently by applying brake amounts to rash and negligent act on the part of the driver of the appellant/Corporation, and forms a
major reason for the accident.
Negligence is nothing but a failure to observe precaution and vigilance which the circumstances justly demand, whereby such other person
suffers injury. Not only a commission of an act but also an omission to do something which a reasonable man would do or is obligated to do
amounts to negligence. Therefore, negligence does not always mean absolute carelessness, but also includes a failure to observe the degree of care
and precaution and vigilance duly required under the circumstances which justly warrant. Therefore, negligence is a relative and comparative term.
No rigid formula and no mathematical ratio could be laid down as to what constitutes negligence under particular circumstances of the accident.
But to determine what an act would amount or would not amount to negligence, the test would be whether a prudent and reasonable man would
foresee as to whether a particular act or omission would cause a damage. In other words, not only an act but also an omission to do an act which
the circumstances warrant from a reasonable man''s point of view and which the law obligates, would constitute negligence.
In a case where the Corporation bus dashed against a cyclist resulting in his death, the Apex Court rejecting the defence of the Corporation
that the deceased had suddenly come from the left side of the bus at high speed; took right turn in contravention of the traffic regulation; and even
though the driver of the bus applied brake and halted the bus, the cyclist dashed the right corner of the bus and fell down, held that the accident
was a result of negligence of both the driver and the deceased, who came from the wrong side and apportioned the blame worthiness in the ratio of
75% and 25% respectively, vide The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, .
In the instant case, R.W.1, the driver who happened to be the eye-witness to the accident categorically stated that the deceased even without
noticing the vehicle which was coming on the road had taken a risk of crossing the road, but he has not chosen to explain as to why he had not
applied the brake, which a prudent and reasonable man is obligated to do. Therefore, the apportionment of negligence by the Tribunal as 80% and
20% on the appellant/Corporation and the deceased respectively, in our considered opinion, is justified.
We find no reason to take a different view than that of the Tribunal. Hence, this appeal is dismissed. No costs. Consequently, C.M.P. No. 6273 of
2005 is closed.