NARASIMHAIAH Vs. GENERAL MANAGER

JUDGEMENT

(1.) THE short point that has been canvassed in this first appeal is that the learned Member of the tribunal who has come to the conclusion that the appellant who himself was a driver was guilty of contributory negligence to the extent of 60% and would therefore be entitled to receive only 40% of the aggregate of Rs. 28,000/- is erroneous. The facts are undisputed in so far as the petitioner was crossing a busy road in Bangalore at a point other than on the pedestrian crossing and he came to be injured by a lorry belonging to the first respondent. The petitioner underwent treatment for about 10 days as he has sustained two minor fractures and the learned Member has very correctly computed the various computations under each of the heads. Though these were sought to be disputed, I see no reason to interfere with the manner in which the computation has been done because there was no additional material before the Tribunal to justify any higher computation. The aggregate came to Rs. 28,000/- and the learned Member held that the petitioner was virtually asking for trouble by seeking to cross a busy road and to this extent, he was liable to the extent of 60% by way of contributory negligence. The basic submission is that a degree of caution is required to be observed by drivers of heavy vehicles and that even if a pedestrian strays on to the road particularly in a crowded city like Bangalore, the vehicle driver is obliged to ensure that he does not injure the person and if he does so, that the negligence is absolute.

(2.) ON the other hand, Mr. Mahesh, Learned Counsel who represents the Insurance Company put forward a strong submission that the negligence on the part of the pedestrain would be total if he so much as attempts to cross a busy road where vehicles are moving at any point other than the pedestrain crossing. He submits that in busy traffic it is virtually impossible for the driver of a heavy vehicle to avoid a pedestrain who suddenly tries to cross the road and that if the petitioner got injured in the process, that the respondents cannot be held liable to any extent whatsoever. Learned Counsel further pointed out that whereas the pedestrian has the right of way on the pedestrain crossing, that the opposite position obtains when it comes to the question of a pedestrain who seeks to cross a busy road at any other point particularly when the traffic is moving and that the vehicle has right of way in these circumstances. To this extent, he supported the decision of the lower Court and he submitted that where judicial discretion has been correctly exercised that it is not a case for any interference. Even as regards the quantum awarded under different heads, Learned Counsel submitted that it is on the higher side because no cogent material was produced before the Tribunal to justify an award of Rs. 28,000/ -. He also submitted that one special circumstance which distinguishes this case is that the appellant himself is a driver and therefore, he is aware, of the rules of the road' and the hazards of crossing a busy road much more than other persons. Cumulatively, he submitted that the total amount of Rs. 28,000/itself can hardly be justified and in any event, that the appellant should be more than satisfied with having been awarded 40% of that amount.

(3.) IT is difficult to make a fine distinction in cases relating to contributory negligence. I find it impossible to dispute the submission canvassed by Mr. Mahesh that the appellant was guilty of contributory negligence by having attempted to cross a road at a point where he ought not to have done but the fact still remains, that such incidents are not uncommon and howsoever wrong the pedestrain may be, there is some expectation vis. a. vis, the driver of heavy vehicles that they must be extra cautions in ensuring that they do not injure the pedestrain who commits such errors. The culpability on the part of the driver of the offending vehicle is therefore slightly greater than that of the appellant and in my considered view, the ratio of 60:40 ought to be reversed in so far as the appellant can justifiably be held liable to the extent of 40% and that therefore be entitled to receive 60% of the amount of Rs. 28,000/- which was originally computed.