Order awarding compensation upheld.

ORDER :- The Pandian Roadways Corporation has filed this appeal against an award of compensation passed by the Motor Accidents Claims Tribunal, Madurai in M.A.C.O.P. 112 of 1978.

2. On 13-2-1978 at about 8.30 a.m. the claimant was travelling with his brother on a cycle. His younger brother was seated on the back seat. The cycle was coming from North to South near the Indian Bank colony, Natham Road, Maduari. At that time the city bus TMN 5186, belonging to the appellant and driven by the second respondent was coming from South to North. The cycle was proceeding on the left side of the road. At first they came in front of the city bus. On seeing the dogs the second respondent slowed down the bus and the dogs proceeded towards the cycle. In order to avoid the dogs, the brother of the injured slightly turned the cycle towards his right and he lost his balance. The three occupants of the cycle fell down. While the claimant fell down on the right side in front of the cycle, the other two brothers fell down on the left. At that time the front wheel of the bus came into contact with the right arm of the claimant and the tyre tore off all the muscles of the right hand and the bones were visible. If the driver of the bus had completely stopped the vehicle, the accident, according to the claimant, would not have taken place. The claimant, therefore, alleged that the injury to his hand was solely due to the negligence of the second respondent and that the appellant was vicariously liable. The compensation claimed was Rs. 50.000/- made up of Rs. 500/- for extra nourishment, Rs. 5000/- for pain and suffering and Rs. 44500/- for continuing or permanent disability and for loss of earning power.

3. The appellant denied any rashness or negligence on the part of the driver and contended in its statement before the tribunal that the accident was brought about solely by the careless manner in which the brother of the claimant was driving the cycle. An objection was also taken to the amount of compensation claimed.

4. On the allegations of the respective parties, the tribunal framed two points, which arose for consideration as follows :-

1. Whether the accident was due to the rash and negligent driving of the second respondent of the city bus TMN 5186, belonging to the first respondent? and

2. If so, what is the amount of compensation to be awarded and from which of the respondents, whether the Corporation or from its driver?

P.W.3, the claimant's brother, who drove the cycle, in his evidence, stated that the driver of the bus saw them falling down and that he did not even stop the bus. He stated that the bus was at a distance of about 6 feet at the time of the brother falling down.

5. P.W.4, who was an eye-witness, spoke to the boys falling down and the driver of the bus not stopping it. According to him, the bus was proceeding slowly, because there was a bus stop ahead and after seeing the dogs fighting he further slowed it down. He stated that the boys, who travelled on the cycle, got frightened, lost their balance and fell down. According to him, the bus was at a distance of about 10 feet when the boys fell down.

6. The driver of the bus gave evidence as R.W.1. He also stated that the boys fell down when the bus was at a distance of about 3 or 4 feet, that he applied brakes and that the bus stopped at a distance of 1-1/2 or 2 feet. In cross-examination he admitted that even if the brake was applied immediately, the bus would stop at a distance of about 2 feet.

7. On an appreciation of the evidence the tribunal came to the conclusion that the last opportunity to avoid the accident was only with R.W.1, the driver that the fighting of the street dogs and the consequent falling down of the claimant and his brothers from the cycle could not be treated as acts of negligence on their part and that the accident was solely due to the negligence of the driver. He gave Rs. 15000/-as compensation for the injuries sustained; Rs. 4000/- for pain and suffer