Important points:
The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.

JUDGMENT :

1. The appellant is the claimant in O.P.(MV) No.1300 of 1996 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 13.05.1996. The accident occurred near the traffic island at Sasthamangalm in Thiruvananthapuram. At the place of the accident, the appellant, who was a pedestrian, was knocked down by an autorickshaw bearing Registration No.KL-01/3159, owned by the 1st respondent, 3rd driven by the 2nd respondent and insured with the respondent. Alleging that the accident occurred due to rash and negligent driving of autorickshaw by the 2nd respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads.

2. Before the Tribunal, the 1st respondent filed written statement contending that the accident occurred due to the negligence of the appellant. The 1st respondent pointed out that the vehicle was covered by a valid insurance policy issued by the 3rd respondent insurer.

3. The 3rd respondent insurer filed written statement admitting insurance coverage of the autorickshaw involved in the accident; however denying negligence alleged against the 2nd respondent driver. The insurer took a contention that the accident occurred due to the negligence of the appellant, who carelessly crossed the road.

4. Before the Tribunal Exts.A1 to A18 were marked on the side of the appellant/claimant and the appellant was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence.

5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the 2nd respondent driver and also on account of contributory negligence on the part of the appellant. The Tribunal fixed 50% contributory negligence on the appellant. Based on that finding, the liability of the 3rd respondent insurer is limited to 50% of the total compensation amount of Rs.2,31,000/-. The Tribunal held that the appellant is entitled for a sum of Rs.1,15,500/-together with interest at the rate of 9% per annum from 15.11.1996 till the date of realisation and the 3rd respondent insurer was directed to satisfy the award.

6. Challenging the finding of the Tribunal on contributory negligence and limiting the entitlement of the appellant to 50% of the amount of total compensation awarded, the appellant/claimant is before this Court in this appeal.

7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3rd respondent insurer.

8. The only issue that arises for consideration in this appeal is as to whether the finding of the Tribunal as to contributory negligence on the part of the appellant can be sustained.

9. The reasoning of the Tribunal as contended in paragraph 7 of the award on the question of contributory negligence reads thus:

“7. Issue No.1:-In view of the contentions between the parties, the cardinal aspect to be decided in this case is whether the accident happened due to the negligence of the 2nd respondent as contended by the petitioner. Negligence means the failure to use the amount of care which under the special circumstances of the case a reasonable man would use. It is significant to note that negligence has to be presumed from the facts and circumstances of each and every case. The facts of the instant case would show that on 13.5.1996 at about 11.30 am the petitioner was walking along the public road at Sasthamangalam while so an autorickshaw bearing Reg.No. KL.01/3159 driven by the 2nd respondent in a rash and negligent manner came from south to north and hit down the petitioner as a result of which he sustained very serious injuries. In order to substantiate the petitioners case reliance has been placed by the petitioner on