P.D. Dinakaran, J.
1. The above appeal is directed against the judgment and award dated 16.08.2001 made in M.C.O.P. No. 463 of 1997 on the file of Motor Accident Claims Tribunal (Chief Judge, Small Causes), Chennai, whereby the Tribunal has allowed the claim petition and awarded a sum of Rs. 4,41,500/- with interest at 9% p.a., for the death of the deceased Surendrakumar, in a motor accident said to have taken place on 08.11.1996 at 21.00 hours at Medavakkam Tank Road.
2. According to the claimants, who are parents and sisters of the deceased Surendrakumar, on 08.11.1996 at about 21.00 hours when the deceased was proceeding in his motor cycle from south to north on the left side of the road, a bus bearing Registration No.TN-01-N-1778 belonging to the appellant transport corporation came in a rash and negligent manner hit against the deceased, as a result, the deceased sustained injuries and died.
3. The claimants filed M.C.O.P. No. 463 of 1997 before the Motor Accident Claims Tribunal (Chief Judge, Small Causes Court), Chennai, claiming compensation of a sum of Rs. 7,50,000 for the death of the deceased, which was resisted by the appellant transport Corporation on the ground that the when the bus bearing Registration No.TN-01-N-1778 was proceeding at Medavakkam tank road, the deceased, who was riding the motorcycle in a rash and negligent manner on the left side of the bus lost his balance, grazed on the left side body of the bus, fell down and sustained injuries. Hence, it is a case of contributory negligence on the part of the rider of the motorcycle. Therefore the petition is liable to be dismissed.
4. During the pendency of the petition, the first claimant/father of the deceased died. In support of the claim, the second claimant/mother of the deceased has got examined as P.W.1, Pushparaj, ADSI attached to the Vepery Traffic Investigation branch was examined as P.W.2 and one Nagaraj, Autorickshaw driver, was examined as P.W.3. besides marking Exs.P1 to P8. On the side of the appellant/transport Corporation, the driver of the bus was examined as R.W.1 and no documentary evidence was let in.
5. The Tribunal, after analysing the materials and after holding that the accident was caused due to the negligence of the driver of the appellant transport Corporation, passed an award for a sum of Rs. 4,41,000/- with interest at 9 per cent per annum from the date of the claim petition till the date of deposit, under the following heads:
Love and affectionand funeral expenses : Rs. 20,000/-Loss of estate : Rs. 25,000/-Pecuniary loss : Rs.3,96,000/---------------Total : Rs.4,41,000/---------------
6. Aggrieved over the said award dated 16.08.2001, the transport Corporation has filed the above appeal.
7. Heard Mr. A.S. Ramachandran, learned counsel for the appellant/transport Corporation.
8. Mr. A.S. Ramachandran, learned counsel for the appellant, after taking us through the award of the Tribunal and all other materials placed before Court, would submit that the deceased, who was riding a motor cycle in a rash and negligent manner on the left side of the bus lost his balance and grazed on the left side of the bus, thus contributed to the accident. Hence, the appellant transport corporation is not liable to pay compensation. He also challenges the quantum awarded by the Tribunal.
9. 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. It is trite, 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 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
10. Therefore, the question is whether in the instant case, the claimants have proved the negligence on the part of the driver of the appellant transport Corporation. P.W.3 an eye witness in unmistakable terms has stated that the bus bearing Registration No.TN-01-N-1778 which was proceeding from south to north hit against the motorcycle, as such the motorcyclist sustained injuries. The driver of the bus in his evidence deposed that when the bus was proceeding from south to north, the motorcyclist attempted to overtake the bus lost balance and grazed with the bus. Even assuming that due to the negligence of the motorcyclist he 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. Hence, the plea of contributory negligence urged by the learned counsel for the appellant transport corporation in this appeal is rejected.
11. As the determination of the question of compensation depends on several imponderables and there is always a likelihood of there being a margin of error; and only if the assessment made by the Tribunal is considered to be unreasonable it will be proper to interfere in the same. Since it is the just compensation which is required to be awarded, no method of calculation of compensation would be justified if it does not result in awarding the amount which is not 'just' looking to the peculiar facts of each case. In the instant case, taking into consideration the totality of the circumstances, we are of the considered opinion that the impugned award cannot be held to be unreasonable and vitiates to warrant an interference by this Court.
12. This appeal consequently fails and is dismissed. No costs. C.M.P. No. 6655 of 2005 is also dismissed.