AJIT J. GUNJAL, J. ( 1 ) LORD du Parcq has pointed out that the "underlying principle of the law of the highway is that all those lawfully using the highway must show mutual respect and forbearance". Hence, the duty of a person, who drives or rides a vehicle on the highway, is to use reasonable care to avoid causing damage to persons, vehicles or property of any kind on or adjoining the highway. Urbanisation with auto revolution is not an unmixed good. Accidents are a few amongst other evil effects of it. This preface is required as the question involved in this appeal is regarding contributory negligence of the claimant. ( 2 ) THE genesis of the claimant's case is that he was aged about 58 years at the time of accident and was working as Head worker at Mangalore Port Trust. On the fateful day, i. e. , on 24. 11. 1997 when he was standing by the side of the road in order to cross and go to the other side, a lorry bearing registration No. KA 19-5259 came from Udupi side at high speed in a rash and negligent manner on its wrong side and hit him. Due to the accident he sustained grievous injuries, namely, fracture of right femur, fracture of right acetabulum. He was shifted immediately to Fr. Muller Hospital, Mangalore and he was admitted as an inpatient. He was operated upon for the said injuries with an insertion of a rod on 5. 12. 1997 and was discharged on 23. 12. 97 with an advice that he should be in the bed for three months more. It is his further case that the resultant effect of the accident is that he is unable to walk and do his normal duties. A claim petition was laid seeking compensation of Rs. 2,00,000 for the injuries suffered by him and also under various heads, namely, the future expenses, loss of income, permanent disability, disfiguration, towards pain and suffering and loss of amenities. ( 3 ) THE said claim petition was resisted, mainly, by the insurance company, inter alia, contending that the claimant did not spend Rs. 25,000 for treatment and expenses. They further denied their liability and they also further denied that the accident had occurred due to the rash and negligent driving of the driver of the vehicle in question. ( 3 ) THE said claim petition was resisted, mainly, by the insurance company, inter alia, contending that the claimant did not spend Rs. 25,000 for treatment and expenses. They further denied their liability and they also further denied that the accident had occurred due to the rash and negligent driving of the driver of the vehicle in question. Their main defence, as could be seen from the statement of objections filed before the Tribunal, was that the claimant himself contributed towards the accident. Thus, the fault lay at the threshold of the claimant as he has not taken proper and due care while crossing the road. In the alternate they pleaded that if the Tribunal were to hold that the claimant was not at fault, he should be held responsible and certain amount of negligence must also be attributed to him. ( 4 ) TRIBUNAL taking into consideration the material on record, viz. , evidence and record, and interpreting Exh. P-l first information report, Exh. P-3 spot panch- nama and Exh. P-4 the sketch, came to the conclusion that claimant had substantially contributed to the accident and apportioned negligence in the ratio of 40:60, that is, the claimant had contributed to the extent of 40 per cent for the accident. Insofar as the injuries suffered by the claimant, the tribunal, taking into consideration the prolonged hospitalisation which was for a duration of more than a year and relying on the evidence of PW 2 the doctor, came to the conclusion that the claimant is entitled for compensation of Rs. 3,20,833 with break-up as follows: the Tribunal has awarded Rs. 50,000 towards pain and suffering; Rs. 8,600 towards attendant charges; Rs. 2,52,233 towards loss of earnings during his hospitalisation; Rs. 10,000 towards loss of amenities. In view of the fact that the Tribunal having recorded a finding that the claimant had contributed to an extent of 40 per cent towards the accident, reduced the compensation amount to an extent of 40 per cent from the total compensation and has awarded Rs. 1,92,500. The claimant is aggrieved by the finding recorded by the tribunal on the question of contributory negligence only. Insofar as the compensation awarded by the Tribunal is concerned, the same is not under challenge either by the claimant or by the insurance company. Insofar as determination of the compensation is concerned, it is concluded. 1,92,500. The claimant is aggrieved by the finding recorded by the tribunal on the question of contributory negligence only. Insofar as the compensation awarded by the Tribunal is concerned, the same is not under challenge either by the claimant or by the insurance company. Insofar as determination of the compensation is concerned, it is concluded. The only question which falls for consideration in this appeal is: What is the extent of contributory negligence of the claimant towards the accident? ( 5 ) IT is relevant to note that Exh. P-4 the sketch discloses that the vehicle in question was coming from Udupi side and was proceeding towards Mangalore. The total width of the road as could be seen from the sketch is 150 ft. from the median line on the west and 180 ft. on the eastern side. The accident has occurred about 2'/2 ft. from median line and the vehicle in question has proceeded further to an extent of 20 ft. from the spot and has climbed the median line. It is also to be noted that on the western side of the median line, the road is proceeding towards Udupi from mangalore which is a one-way and on the eastern side which proceeds from Udupi to mangalore is also one-way. It is National highway No. 17. The say of the claimant that he crossed the first half of the road on the western side and was on the median line and had to cross the remaining half. The fact that the accident had occurred in such a fashion which is about 2v2 ft. from the median line would indicate that the vehicle in question indeed was being driven at a high speed in a rash and negligent manner. The fact that the claimant had got down from the median line and was about to cross the remaining half of the road and when he had covered the distance to an extent of about 3 feet, the accident had occurred. In this background the question is what is the extent of contribution, if any, of the claimant to the accident. ( 6 ) A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inactiveness when his foot is on the pedal of the vehicle in motion. ( 6 ) A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inactiveness when his foot is on the pedal of the vehicle in motion. He cannot take a chance thinking that a rash driving need not necessarily cause accident. ( 7 ) CHARLESWORTH and Percy in their Book on Negligence, 7th Edn. , have stated thus:"a road user must not presume to use the highway on the basis that the other users, whether drivers or pedestrians, will behave with reasonable care, which common experience has shown to be a false assumption. In this regard Lord uthwatt added: 'a driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form these follies commonly take'. Pollock c. B. said: 'it is the duty of persons, who are driving over a crossing for foot-passengers which is at the entrance of a street, to drive slowly, cautiously and carefully; but it is also the duty of a foot-passenger to use due care and caution in going upon a crossing at the entrance of a street, so as not to get among the carriages, and thus receive injury'. "it is the duty of the driver of a vehicle to keep a good look out. He must look out for other traffic which may be expected to be on the road in front of him, behind him or along side of him especially at crossroads, junctions and bends. The case on hand would clearly indicate that the claimant had crossed a better part of the road and was standing on the median line to cross the remaining half. The fact that he had crossed only a small extent of the road to an extent of 21/2 ft. the offending vehicle in question came and hit him. The aftermath of the accident was that it had proceeded for a further distance of 20 ft. and had climbed the median line. This is another clear indication that the driver indeed was rash and negligent. The only question hence is what is the care taken by the driver to avoid the said accident. The aftermath of the accident was that it had proceeded for a further distance of 20 ft. and had climbed the median line. This is another clear indication that the driver indeed was rash and negligent. The only question hence is what is the care taken by the driver to avoid the said accident. However, the fact that a motorist's failure to see a pedestrian crossing all of a sudden cannot be lost sight of. It is not disputed before me that on the western side is the new Mangalore Port Trust and on the eastern side of the road is the Mangalore chemicals and Fertilisers which would essentially mean that it is a busy road. All the more so, driver of the vehicle ought to have been more prudent and circumspect while driving. But it cannot be lost sight of the fact that a duty is also cast on a pedestrian and he should use due care and caution in going upon and crossing the road and it is his duty to look out for the oncoming traffic. Insofar as the another duty cast on the pedestrian is concerned, it is needless to say that he has to give the driver a plenty of time to see him and slow down and start before he attempts to cross or put one foot on the crossing. It is not always necessary that the vehicular traffic will have to stop for a pedestrian to cross, for the vehicle needs more time to stop in view of the speed a motor generates. Moreover, whenever a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, they cannot claim any specific precedence and the responsibility for causing the accident more often than not will have to be shared by the pedestrian along with the vehicle driver. In view of this, it cannot be said that it was only the driver of the vehicle in question who was solely responsible for the accident. It has also to be noted that there is no evidence forthcoming to show that it was the pedestrian crossing or whether there were any zebra crossing. In view of the fact that claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed to him. It has also to be noted that there is no evidence forthcoming to show that it was the pedestrian crossing or whether there were any zebra crossing. In view of the fact that claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed to him. ( 8 ) THE Hon'ble Supreme Court in the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, 2002 ACJ 1720 (SC), has observed at para 9 of the judgment as follows:"the following observation of the High court of Australia in Astley v. Austrust ltd. , (1999) 73 ALJR 403, is worthy of quoting: 'a finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstance's of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. . . The duty owed by the defendant, although relevant, is only one of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property'. " ( 9 ) MR. Vishwajith Shetty, learned counsel appearing for the appellant-claimant submitted that taking into consideration the way the accident had occurred, the apportionment, in the circumstances, ought to have been 90:10; ninety per cent attributable to the driyer of the vehicle and 10 per cent to the claimant. However, Mr. Ravishankar, learned counsel appearing for the respondent submitted that the contributory negligence as apportioned by the tribunal is just and proper. However, Mr. Ravishankar, learned counsel appearing for the respondent submitted that the contributory negligence as apportioned by the tribunal is just and proper. He further submitted that the Tribunal had taken into consideration the relevant materials on the record and submitted that the ratio as determined by the Tribunal should be maintained. Be that as it may, the facts and the law on contributory negligence as discussed above would indicate that apportionment in the ratio 75:25 would be just and proper taking into consideration the evidence on record. This view of mine is supported by a Division Bench ruling of this court in Sharada Bai v. Karnataka state Road Trans. Corpn. , 1988 ACJ 490 (Karnataka ). Insofar as the compensation awarded by the Tribunal is concerned, it does not require any reconsideration as the tribunal has properly appreciated and awarded the compensation under all other heads. ( 10 ) IN view of what is stated above, the appeal is allowed in part. The judgment and award of the Tribunal is modified and the finding on apportionment of negligence is modified to the extent that the contributory negligence of the appellantclaimant would be 25 per cent and that of the vehicle 75 per cent. The compensation awardable in the circumstances also varies. Consequently, the compensation awardable is Rs. 2,40,000. The compensation over and above Rs. 1,92,500 shall be deposited by the insurance company within a period of 8 weeks from today. The said amount of compensation shall carry interest at the rate of 8 per cent per annum. Appeal is accordingly disposed of. No costs. ( 11 ) BEFORE parting with the case, it is necessary to observe that in the interest and for the safety of pedestrians it is not only desirable and absolutely necessary to make zebra crossing on the road within the city limits where the vehicular traffic is heavy and also construct scientifically designed speed breakers to slow down the speed of vehicles. Failure to do so should be construed as dereliction of duty on the part of authorities concerned. Appeal partly allowed. --- *** --- .