Negligence is a relative and comparative term.

P.D. Dinakaran, J.

This appeal is directed against the award and decree passed on 24.7.2003 in M.C.O.P.No.451 of 2002 on the file of the Motor Accident Claims Tribunal (Fast Track Court), Kallakurichi.

2. The appellant is the transport Corporation. The first respondent is the wife of the deceased and the second respondent is the son of the deceased.

3. The respondents/claimants preferred a claim petition before the Motor Accidents Claims Tribunal, Kallakurichi against the appellant herein claiming a compensation of Rs.2,00,000/- for the death of the deceased Kulandaivel caused on 1.2.2000 at about 8.00 a.m. at Sanisanthai on the Main road of Salem to Dharmapuri, by the rash and negligent driving of the appellant's bus by its driver.

4. According the respondents/claimants, on 1.2.2000 at about 8.50 a.m. at Sanisanthai on the Salem to Dharmapuri Main Road, the appellant's passenger bus bearing registration No.TN-29-1103, in a rash and negligent manner, dashed against the deceased and caused his death on the spot. It is claimed that the deceased was an agriculturist and he earned Rs.4000/- per month. The deceased was aged 43 years at the time of the accident and therefore, the claimants claimed a total compensation of Rs.2,00,000/- under various heads.

5.1. The claim was resisted by the appellant/Transport Corporation by taking the stand that there was no rash and negligence on the part of the driver of the vehicle. It was submitted that the deceased crossed the road all of a sudden being aware of the bus approaching him; the deceased lost his balance on the road, fell down in front of the bus and thus hit the body of the bus.

5.2. The claim was also resisted on the ground that the amount claimed by the respondents/claimants was highly exaggerated and there was no material to show as to what was the deceased’s income and the deprivation of financial contribution by the deceased to his family.

6. The Tribunal, weighing the evidence let in by both sides, concluded that the said accident was caused due to the rash and negligent driving of the bus and it is a case of contributory negligence, and by order dated 24.7.2003 awarded a sum of Rs.1,70,400/- towards compensation. Aggrieved by the award and decree passed on 24.7.2003 in M.C.O.P.No.451 of 2002 by the Tribunal, the Transport Corporation has preferred the present appeal.

7. The only point agitated in this appeal by the appellant/Corporation is that the accident had taken place only due to the total negligence of the deceased who crossed the road all of a sudden, but not due to the rash and negligent act of the driver of the appellant/Corporation. It is thus contended that the appellant/Corporation is not at all liable to pay the compensation.

8. The question that arises for our consideration in the above appeal is whether the accident has taken place purely due to rash and negligent act of the appellant/ Corporation or due to the total negligence on the part of the deceased or due to the contributory negligence of both of them.

9. We have gone through the evidence on record. Even though the case of the claimant is that the accident has taken place when the deceased crossed the road, the case of the appellant/Corporation is that the deceased crossed the road even without noticing the vehicle coming on the road and there is no proper explanation on the part of the driver of the appellant/Corporation who was examined as R.W.1, as to why he failed to apply the brake to prevent the accident. Therefore, it goes without saying that assuming the deceased negligently crossed the road without noticing the vehicle coming on the road, the accident could have been prevented had the driver of the appellant/Corporation applied the brake diligently. The failure to act diligently by applying brake amounts to rash and negligent act on the part of the driver of the appellant/Corporation, and forms a major reason for the accident.

10. Negligence is nothing but a failure to observe precaution and