The duty of care owed to pedestrians by drivers and the assessment of compensation under the Motor Vehicles Act, 1988.

Ritu Bahri, J.

1. The present appeal has been preferred by the claimants-appellants (for short the appellants), against award dated 30.05.1998 passed by the learned Motor Accident Claims Tribunal, Kurukshetra (for short, the Tribunal) whereby the Tribunal only awarded Rs. 50,000/- to the appellants on account of no-fault liability.

Facts Not In Dispute

2. On 25.01.1997, Ramesh Kumar along with her wife Leela Devi aged 34 years (since deceased) and Ranjit Singh were going from Unri to Pipli for domestic work in a three wheeler No. HR-37-0756, which was being driven by Chander Pal and at about 11.15 A.M, the three wheeler reached the crossing of Sector 2 and 3 of Kurukshetra of G.T. Road, the tyre of one of the wheel was punctured and they left the three wheeler and while they were standing on their due left on katcha portion on the road, a car bearing registration No. DIG-9987 came from Delhi side, which was being driven by respondent No. 1 in a rash and negligent manner, struck against Leela Devi, causing fatal injuries to her. She was taken to Nagpal Nursing Home, Kurukshetra from where she was referred to PGI Chandigarh where she died on 29.01.1997 due to the injuries received by her.

3. The learned Tribunal admitted the factum of accident caused by the driver of the above mentioned car, which was being driven by respondent No. 1. The learned Tribunal while relying upon the site plan (Ex P2) held that the accident had taken place on extreme wrong side of the road, which is contradictory to the statement of PW-1 Chander Pal (driver of the three wheeler) and PW-2 Ramesh Kumar (husband of the deceased). Thus, the deceased was crossing the road when the accident took place. It was further held that if a person suddenly starts crossing the road without caring for fast traffic road on such a road like Delhi-Ambala G.T. Road, the only alternative with the driver of the vehicle is to try to avoid the accident, which had been done by the driver of the car by taking the car to the extreme right side in order to avoid hitting the lady. The driver applied the brakes with full force, which turned the face of the car towards Delhi side.

4. On the other hand, the learned counsel for the respondent-Insurance Company have vehemently opposed the present appeal.

5. I have heard learned counsel for the parties and perused the record.

6. Reference at this stage can be made to a judgment passed by this Court in a case of Mohindro Devi v. Sukh Ram, passed in FAO No. 48 of 1991 wherein one person died in an accident, while he was travelling in a cycle. He had turned from left to roadside of the road without minding a truck, which was coming from the opposite side and killed in the accident. In para 3 of the judgment, it has been observed as under:-

3. 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