JUDGMENT
P.D. Dinakaran, J.
Page 2008
1. This appeal is directed against the award and decreetal order dated 23.9.2003 made in MACTOP No. 821 of 1999 on the file of Motor Accident Claims Tribunal, (III Additional Sub Court), Coimbatore.
2. According to the claimant/respondent, on 29.11.1998, when the claimant was travelling in a bus belonging to the appellant corporation bearing Registration No. TN-37-N-0507, the driver of the bus negotiating a curve drove the bus in a rash and negligent manner, as a result, the claimant was thrown away from the bus through the rear side door and sustained grievous injuries. Immediately, she was admitted in the nearby private hospital. The claimant suffered head injuries apart from fracture of the right leg. Hence, the claim petition claiming a sum of Rs. 2,00,000/- as compensation by the injured claimant.
3. The above claim petition was resisted by the appellant transport corporation stating that the claimant, who was standing near the rear foot board tried to hand over her bag to a passenger, who was sitting near her, without holding the iron bar provided in the bus and lost her balance, fell down and sustained injuries. When the driver of the bus came down from the bus, he saw that the claimant was sitting in the road. Hence, the driver of the bus was not responsible for the accident.
4. The Tribunal after taking into consideration the oral and documentary evidence found that the accident had happened due to the negligence on the Page 2009 part of both the claimant and driver of the bus and fixed the contributory negligence and awarded a sum of Rs. 45,000/- as compensation.
5. Aggrieved against the order of the Tribunal dated 23.09.2003, the transport corporation has filed the present appeal.
6. Heard Mr. A. Babu, learned counsel appearing for the appellant arguing for admission.
7. Mr. A. Babu, learned counsel appearing for the appellant after taking us through the award of the Tribunal and the materials placed would submit that since the claimant did not hold the iron bar, lost her balance and fell down from the bus, she herself had invited the accident. The driver of the bus is not responsible for the accident. He also challenges the quantum of compensation awarded by the Tribunal.
8. A reasonably careful driver does not always assume that other users of the road, whether drivers or others, will behave with reasonable care and he guards against the negligence of others when experience shows such negligence should be common. In other words, even assuming that due to the negligence of the driver or the passenger of the bus, who fell down on the road, the fact itself would not be a licence or justification for the driver of the bus not to perform the duty cast on him carefully and not to avert the accident. The test for determining the negligence is whether the driver could be exercising normal care and diligence which ordinarily cautious persons, put in similar circumstances, would have done, to avert the accident. A reasonable man, that is a man of ordinary prudence is presumed to be both free from over-apprehension and from over-confidence.
9. At the time of accident, the claimant was employed as Lower Selection Grade Postal Assistant. It is seen from the records that due to the accident, the claimant was getting frequent headaches and she is not able to work as she had done before the accident and also she is suffering severe pain while walking or climbing steps. If the driver of the bus has driven carefully, the accident could not have happened. Also, if the claimant holds the iron bar provided in the bus, she could have averted the accident. Hence, the Tribunal after taking note of this fact, rightly apportioned the negligence between the claimant and the driver of the bus.
10. With regard to the quantum, the claimant has remained admitted in the hospital for considerably a long time. She also suffered fracture at the right leg, as a result, she could not able to climb steps as before. Also, the claimant produced medical bills. As per the medical bills only, the Tribunal has awarded the compensation towards medical expenses. The pain and suffering and loss of enjoyment of life is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal she had to under go.
11. For the aforesaid reasons, we do not see any merit in the appeal and the same is dismissed. Consequently, C.M.P. No. 17873 of 2005 is also dismissed.