K. Kannan, J. - (1.) BOTH the appeals are connected, FAO No. 1172 of 1989 is at the instance of the claimants for enhancement and FAO No. 1275 of 1989 is by the Transport Corporation against the award passed.
(2.) IN the manner of determination of the award for death of a 47 years old person who was travelling on the carrier of the bicycle hit by the Transport Corporation bus, the Tribunal found a contributory negligence on the cyclist and after determining the compensation, taking the income at Rs.2000/ -per month and applying a multiplier of 14, the Tribunal cast an abatement of 50% of the claim for the contributory negligence. While so doing, the Tribunal observed that the bus was going on the main road and the cyclist was coming from the side road and he should have been careful to allow the vehicle to go past before crossing the road. The Tribunal also noticed that there had been tyre marks on the road by at least 10 -12 feet which showed that the driver was coming at a high speed and therefore, could not stop the vehicle immediately to find that the driver of the bus was also negligent. Learned Counsel appearing for the Appellants points out that the bus driver had admitted in his evidence that he saw the cyclist coming on to the road at least 10 -15 yards before the place of accident and therefore, the occasion itself ought to have been a caution to him and preventing hitting against the cyclist if he had been careful so far. Between a careless cyclist and a careful driver I would rather believe that it is a negligence of a driver of the motorcar or bus that caused accident on roads. A certain amount of careless approach either of the pedestrian or a cyclist is always to be assumed on Indian roads. It is not rule of thumb but these are all the qualities of the Indian life. I had an occasion to deal with this situation in Mohindro Devi v. Sukh Ram in FAO No. 48 of 1991 where I have held as follows: I am of the view that the approach of the Tribunal was wholly faulty. Learned Counsel for the insurance company would argue that there was no negligence at all of the truck and the accident had taken place only by the negligence of the cyclist. Any driver of a motor cycle ought to know that a cyclist or a pedestrian has just as much use for the road as they have. There shall be a greater degree of circumspection for a driver on a motor vehicle, than a pedestrian or a cyclist. The reasons are obvious. A pedestrian dashing against another pedestrian does not cause death nor a cyclist could cause death to a pedestrian. It is only a faster moving vehicle with heavier mass can cause death by its impact. A person that drives a truck ought to be prepared at any time for even a careless use of the road by a pedestrian or a cyclist. I will be loath to infer an element of negligence for a cyclist or a pedestrian ever. I would, on the other hand, hold a driver of the motor cycle to be always responsible if there results an impact with the cyclist and he comes to harm and in this case, a person was crushed to death. It will be wrong to assume that a driver, who could drive the vehicle carefully, would cause death by the negligence of another. Even an issue of contributory negligence in such situations ought not to be easily inferred. I would, therefore, reverse the finding that the accident took place only by the negligence of the cyclist and that the driver of the truck was careful in his driving
(3.) I will, therefore, reverse the finding that there had been any contributory negligence and hold the bus driver to be wholly responsible for the accident.;