Madras High Court
The Managing Director Metropolitan ... vs Janaki And Ors. on 18 October, 2005
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
JUDGMENT P.D. Dinakaran, J.
Page 1689
1. The above appeal is directed against the award dated 7.2.2003 in M.C.O.P.No.548 of 1999 on the file of Motor Accidents Claims Tribunal, 4th Small Causes Court, Chennai.
Page 1690
2. The claimants/respondents 1 to 8 made a claim petition in M.C.O.P.No.548 of 1999 before the Motor Accidents Claims Tribunal (IV Small Causes Court), Chennai, claiming a compensation of Rs. 3,00,000/- (Rupees three Lakhs only) with interest with reference to an accident said to have been occurred on 1.1.1999 at about 5.30 hours on the G.S.T.Road, due to the rash and negligent driving of the driver of the bus bearing Registration No. T.N.01 N 1558 belonging to the appellant Corporation, as a result of which the husband of the first claimant and the father of claimants 2 to 8, aged about 50 years, who was earning a sum of Rs. 1,500/-p.m. as a Security Guard and was getting a sum of Rs. 500/- as pension, died.
3. The Tribunal taking into consideration the fact, on the basis of salary Certificate Ex.P6 of the deceased, that the deceased Karunakaran was earning Rs. 1,500/-per month as a Security Guard in Kumaravel Security Force and he was getting a sum of Rs. 500/- p.m. as pension, fixed his earnings as Rs. 2,000/- per month and as such, arrived the yearly income at Rs. 24,000/- and after deducting 1/3rd i.e. a sum of Rs. 8,000/- towards his personal expenses, fixed a sum of Rs. 16,000/- as his yearly contribution to the family and adopting a multiplier of 11, awarded a sum of Rs. 1,76,000/- as loss of income. The tribunal also awarded a sum of Rs. 2,000/- towards travelling charges, Rs. 2,000/- towards funeral expenses, Rs. 30,000/- towards mental agony, and Rs. 20,000/- towards consortium, totalling a sum of Rs. 2,30,000/- as compensation.
4. The learned counsel for the appellant contends that there is contributory negligence on the part of the deceased also and therefore, the compensation, awarded should have been apportioned.
5. We have perused the judgment of the tribunal and have given careful consideration to the submission of the counsel for the appellant. It is trite that the precept of 'negligence' means the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The test of negligence lies in default to exercise the ordinary care and caution which is expected of a prudent man in the circumstances of a given case. The duty to exercise such care and caution including reasonable use of his faculties of sight and intelligence to observe and appreciate danger or threatened danger of injury is undoubtedly on the driver of an automobile. If he fails to do so and such failure is the proximate cause of the injury or death, he is guilty of negligence. In other words, the test is whether the driver could, by exercising normal diligence and caution, avert the accident. Negligence is the omission to do which a reasonable man, guided upon the considerations, which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. The negligence is not a question of evidence; it is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which could be reasonably foreseen to be likely to cause Page 1691 physical injury to persons. The degree of care required, of course, depends upon the facts in each case vide M.N.Rajan and others V. Konnali Khalid Haji and another reported in 2004 ACJ 484.
6. In the instant case, the tribunal has found that the driver of the bus belonging to the appellant Corporation was responsible for the accident as the appellant Corporation has not substantiated, either by examining the driver-R.W.1 or the conductor of the bus, the negligence which is attributed to the cyclist involved in the accident. Hence, the plea of contributory negligence urged by the learned counsel for the appellant transport corporation in this appeal is rejected.
7. Since no other ground is urged by the learned counsel for the appellant Corporation, we do not see any reason to interfere with the order of the tribunal. The award dated 7.2.2003 in M.C.O.P.No.548 of 1999 is, therefore, confirmed. The appeal is dismissed.