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THE MANAGING DIRECTOR versus AYYAMMAL

High Court of Madras

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The Managing Director v. Ayyammal - C.M.A.No.1120 of 2005 [2005] RD-TN 316 (20 April 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20/04/2005

CORAM

THE HON'BLE MR.JUSTICE P.D.DINAKARAN

AND

THE HON'BLE MR.JUSTICE S.SARDAR ZACKRIA HUSSAIN C.M.A.No.1120 of 2005

The Managing Director

Tamil Nadu State Transport Corporation

Division-I

Dharmapuri. .. Appellant -Vs-

1.Ayyammal

2.Muthuvel .. Respondents PRAYER: 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.

For Appellant : Mr.P.Jagadeeswaran

For Respoden : -

:JUDGMENT



(Judgment of this Court was delivered by 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.

2. 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.

3. 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.

4. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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 Municipal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53.

12. 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.

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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