Judgment :- 1. The appeal is preferred by the appellant-claimant against the Judgment and degree dated 22.08.2003 made in MCOP No.729 of 2002 on the file of the Motor Accident Claims Tribunal/Principal District Judge, Namakkal (transferred M.C.O.P.No.526 of 996 Sub-Court, Sankari). 2. Background facts in a nutshell are as follows: One Rajammal met with motor vehicle accident on 01.10.1996 at about 7.00 p.m. The said injured was travelling in the bus bearing Registration Number-TN 27/1079, Route No.55, belonging to the respondent-Transport Corporation. While, the bus was nearing Keleripatty Erakkam in Thiruchengode-Veppadai Road, the driver of the bus drove the same in a rash and negligent manner and hit the rig lorry which came in the opposite direction. Due to the impact of the same, the injured sustained fracture and other grievous injuries all over the body. Immediately, after the accident, she was taken to Government Hospital, Thirucehngode. She claimed a sum of Rs.2,50,000/-as compensation. On pleadings the Tribunal framed the following issues:- "1. Whether the accident occurred due to the rash and negligent driving of the bus driver? 2. Whether the petitioner is guilty of contributing negligent on her part as pleaded in the counter? 3. Whether the petitioner is bad for non joinder of necessary parties, the owner and insurer of the rig lorry? 4. Whether the petitioner is entitled to get the compensation from the respondent as claimed in this petitioner? 5. To what any other relief?" After considering the oral and documentary evidence, the Tribunal held that the driver of both the vehicles and the claimant are equally responsible for the accident. Therefore, the claimant is entitled to get only 1/3 of the compensation. The details of the compensation are as under: Loss of earning Rs. 5,000/- Transport to hospital and extra nourishment and Medical expenses Rs. 25,000/- Pain and suffering Rs. 10,000/-Disability Rs. 10,000/- Loss of earning power Rs. 25,000/- Total...Rs. 75,000/- Out of the said sum of Rs.75,000/-, the claimant is entitled to 1/3 of Rs.25,000/-(75,000X1/3) as compensation with interest at 9% per annum. Aggrieved by that award, the appellant-claimant has filed the present appeal for enhancement. 3. 25,000/- Pain and suffering Rs. 10,000/-Disability Rs. 10,000/- Loss of earning power Rs. 25,000/- Total...Rs. 75,000/- Out of the said sum of Rs.75,000/-, the claimant is entitled to 1/3 of Rs.25,000/-(75,000X1/3) as compensation with interest at 9% per annum. Aggrieved by that award, the appellant-claimant has filed the present appeal for enhancement. 3. The learned counsel appearing for the appellant-claimant vehemently submitted that there is no contributory negligence on the part of the claimant and she was sitting in the window side merely resting the hand on window and the accident occurred only due to rash and negligent driving of the driver of the bus, who hit the rig lorry came in the opposite direction. He also relied on this Court Judgment in the case of The Managing Director, Tamil Nadu State Transport Corporation Vs. Dr.S.Rajendran reported in 2007-4-L.W.290 and submitted that the Tribunal is wrong in holding that there is negligence on the part of the claimant. He further submitted that the Tribunal was awarded a meagre sum of compensation and hence, the order passed by the Tribunal is not in accordance with law, the same has to be set aside. 4. Learned counsel appearing for the respondent-Transport Corporation submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed. 5. Heard the counsel and perused the materials available on records. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P10 were marked. On the side of the respondents, RW1, the driver of the respondent-Transport Corporation bus was examined and no documents were marked to substantiate their claim. P.W.1 is the claimant. PW2 is Dr.K.Periyasamy. Ex.P1 is the FIR in CC 31/1976 (certified copy). Ex.P2 is the Wound certificate (Duplicate copy). Ex.P3 is the M.V.I.report (certificate copy). Ex.P4 is the Charge sheet (certified copy). Ex.P5 is the Medical bills (Original). Ex.P6 is the X-ray (Original). Ex.P7 is the Discharge summary (Original). Ex.P8 is the Vinayaka Mission Hospital card (Original). Ex.P9 is the Disability certificate issued by Dr.K.Periyasamy. Ex.P10 is the X-ray (Original). This Court repeatedly held that merely sitting and resting on the window side would not be considered as a negligence. Ex.P5 is the Medical bills (Original). Ex.P6 is the X-ray (Original). Ex.P7 is the Discharge summary (Original). Ex.P8 is the Vinayaka Mission Hospital card (Original). Ex.P9 is the Disability certificate issued by Dr.K.Periyasamy. Ex.P10 is the X-ray (Original). This Court repeatedly held that merely sitting and resting on the window side would not be considered as a negligence. Therefore, the driver of the bus should be very cautious while over taking and crossing another vehicle and he should not come very close to the crossing vehicle and also it is the duty of the driver to see that whether there is sufficient gap between the two vehicles, while crossing each other. In the case of The Managing Director, Tamil Nadu State Transport Corporation Vs. Dr.S.Rajendran reported in 2007-4-L.W.290, this Court has held that there is no compound negligence on the part of the claimant, who is sitting on the window side. Paras 9 to 16 are as follows: "9. In a decision in Sushma Mitra Vs.M.P.State Road Transport Corporation ( 1974 ACJ 87 ), the High of Madhya Pradesh has held as follows: "it cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of passengers. While driving he must have the passengers in contemplation and he must avoid acts or omissions which can reasonably be foreseen to injure them and in deciding what acts or omissions he should avoid, he must bear in mind the normal habits of passengers. It is a matter of common experience that passengers who sit adjoining a window very often rest their arm on the window-sill by which act the elbow projects outside the window. The driver of the bus must have these passengers also in contemplation and, therefore, while overtaking or crossing another vehicle on the road he must not come too close to the vehicle that is overtaken or crossed and he must leave sufficient gap between the vehicles to avoid inury to these passengers. 10. A Division Bench of this Court in Mrs.Sydney Victor Vs.Janab S.Kadar Sheriff (1974 ACJ) 318 = (1974) 87 L.W.365 has held that, "It is true that putting out the hand or any other part of the body outside a fast-moving vehicle would be a negligent act particularly if the vehicle is moving in a crowded place. 10. A Division Bench of this Court in Mrs.Sydney Victor Vs.Janab S.Kadar Sheriff (1974 ACJ) 318 = (1974) 87 L.W.365 has held that, "It is true that putting out the hand or any other part of the body outside a fast-moving vehicle would be a negligent act particularly if the vehicle is moving in a crowded place. In a busy city where there is heavy traffic, it would certainly be highly dangerous to put out the hand or arm or other part of the body so as to be projecting outside the moving vehicle. Even such putting out a part of the body outside the moving vehicle may not be an act which endangers the safety of the person concerned, if the vehicle was not moving in a crowded place but it was moving only in a broad highway, for in such a highway there is no reasonable possibility of any other vehicle coming very close to the vehicle in which the person is travelling. In any event, we are not in a position to hold that mere gripping of the window cross-bar in a position in which the right thumb was gripping the bar on its outer side would be a negligent act on the part of the injured, especially when the vehicle was on a broad highway and not moving in any crowded place. It cannot be said that PW.1 the injured, had acted negligent or without due care, merely by gripping the cross-bar of the window when the bus was going in a highroad." 11. A Division Bench of Kerala High Court in O.Mammachan V. Kerala Stat RTC & Anr., reported in II (1994) ACC 476, has considered the question as to whether the person who rests his arm in the window still for the comfortable sitting can said to be attributed to the accident. In paragraph 7 of the judgment, it has held that, "the driver of the bus owes a duty of care for the safety of passengers travelling in the bus. To achieve this object he has to look out for any possible obstruction on the road and to take reasonable steps to avoid obstruction without causing any injury to the passengers. While overtaking a moving vehicle or crossing another vehicle, the driver has to leave sufficient space in order to see that there was no likelihood of the passengers arms being injured. While overtaking a moving vehicle or crossing another vehicle, the driver has to leave sufficient space in order to see that there was no likelihood of the passengers arms being injured. He should have foreseen the possibility of passengers resting their elbows on the window-sill. In the process of crossing or overtaking another bus, he must not only avoid contact with the body of the bus but also avoid the elbow of any passenger resting on the window-sill coming into contact with the oncoming bus or the bus which he is overtaking. Precautions are therefore to be taken by him to leave sufficient gap for preventing any mishap." 12. In a decision in State of Punjab and Another Vs.Smt. Guranwanti, reported in AIR 1960 Punjab 490, the Punjab High Court has observed that it is well-known that often passengers travel with their elbow resting on the window of the car. There is no prohibition against it. It was further observed that the plaintiff at that time of the morning considering the state of traffic cannot be said to have failed to use reasonable care for his safety by resting his elbow on the window. 13. In the instant case, RW.1 the driver of the bus, has deposed that on the date of accident, he was driving his vehicle carefully and cautiously, and the respondent/claimant was sleeping in the back seat by keeping his hand o the window sill. Another bus bearing Registration No.TN-31-0552 came in the opposite direction at a high speed, dashed against the rear portion of the bus, as a result of which, the respondent/claimant sustained grievous injuries. 14. Even assuming that the respondent/claimant has kept his arm on the window sill, the fact that two vehicles have crossed so close to each other, would prove that the buses were driven by its driver rashly and negligently without giving sufficient gap. It is the duty of the driver to drive cautiously while crossing the other vehicle. He should leave sufficient gap between the vehicles. The driver has not taken sufficient care to avoid the accident. 15. It is the duty of the driver to drive cautiously while crossing the other vehicle. He should leave sufficient gap between the vehicles. The driver has not taken sufficient care to avoid the accident. 15. The Supreme Court in Municipal Corporation of Greater Bombay V. Laxman Iyer reported in AIR 2003 SC 4182 = 2004-2-L.W.15, in paragraph 6, it is held that, "Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of a care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the decree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent. It is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligate or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act." 16. Under the circumstances, the argument of the learned counsel for the appellant that there was contributory negligence on the part of the respondent/claimant is rejected. If the answer is in the affirmative, it is a negligent act." 16. Under the circumstances, the argument of the learned counsel for the appellant that there was contributory negligence on the part of the respondent/claimant is rejected. The findings of the Tribunal regarding negligence are based on evidence and also supported by the legal principles and therefore, it is confirmed." I agree with the above finding and following the same, the Tribunal is wrong in holding that there is a compound negligence on the part of the claimant and the finding given by the Tribunal is liable to be set aside to that extent and accordingly set aside. 6. At the time of the accident, the claimant was aged about 40 years. She was working as power loom coolie and was earning Rs.3,000/-per month. PW.1, in her evidence, has stated that only the drivers of both the vehicles caused the accident and also further stated that she sustained fracture and dislocation of her right hand and immediately after the accident, she took treatment in Erode Arutperumjothi Hospital. Due to the said accident, there is a restricted movements in his right hand and she is unable to do any work as before. PW.2 is Doctor Periyasamy, who examined the claimant. He determined the disability at 48%. Ex.9 is the disability certificate. In his evidence, he has stated that the claimants sustained one commuted fracture of lower end of humerus and fracture of clecranon. Ex.P.6 is the X-ray film. Further, in his evidence, he has stated that the claimant was admitted in the hospital on 01.10.1996 for her injury in the right leg and fractures on the right elbow and she underwent surgery and screw and S.S. Wire were also fixed. Then she was discharged on 06.10.1996. After considering the oral and documentary evidence the Tribunal awarded a sum of Rs.5,000/- towards loss of earnings and another Rs.10,000/-towards continuing disability and further sum of Rs.25,000/- awarded towards loss of earning power. As per the evidence adduced by the Doctor, the disability is 48%. The learned counsel appearing for the respondent-Transport Corporation has not disputed the same. Normally the Courts award Rs.1000/-to 2000/- per percentage of disability. Hence, I feel that it would be appropriate to award Rs.1000/- for 1% disability. As per the evidence adduced by the Doctor, the disability is 48%. The learned counsel appearing for the respondent-Transport Corporation has not disputed the same. Normally the Courts award Rs.1000/-to 2000/- per percentage of disability. Hence, I feel that it would be appropriate to award Rs.1000/- for 1% disability. Accordingly, the award would be Rs.48,000/- (Rs.1,000 x 48%) towards permanent disability when an amount of Rs.48,000/- towards permanent disability is awarded the amount of Rs.5,000/- towards loss of earning and Rs.10,000/-towards continuing disability and Rs.25,000/-towards loss of earning power awarded by the Tribunal are unwarranted and the same is set aside. The Tribunal has awarded Rs.10,000/- towards pain and suffering, which is very reasonable and the same is confirmed. The Tribunal also awarded a sum of Rs.25,000/-towards transport to hospital, extra nourishment, treatment and medicines etc. Ex.P5 and Ex.P8 are medical bills. It both the exhibits put together, the actual expenditure works out to Rs.20,000/-. But Tribunal awarded consolidated sum towards transport, extra nourishment as well as medical treatment. The Tribunal ought to have awarded Rs.5,000/- towards transport to hospital and another Rs.5,000/- towards nourishment. After taking into consideration the evidence available on record, it is reasonable to award a sum of Rs.30,000/- under this heads as against Rs.25,000/- awarded by the Tribunal. The Tribunal has fixed the rate of interest at 9% p.a from the date of petition. Keeping in view the prevailing rate of interest during that period is 9%, the same is confirmed. The details of the modified compensation as per the above discussion are as under:- Loss due to 45% disability Rs. 48,000/- Transport, extra nourishment and medical bills Rs. 30,000/- Pain and sufferings Rs. 10,000/- Total...Rs. 88,000// In view of the above finding that both the drivers of the vehicles are responsible to the accident i.e, the driver of the bus as well as the driver of the lorry, the claimant is entitled to 50% compensation. In view of the above, the 50% modified compensation works out to Rs.44,000/- (88,000X50%). The Tribunal has also already fixed the liability on the Transport Corporation at Rs.25,000/-. As the award is now modified to Rs.44,000/-, the respondent-Transport Corporation is liable to pay the balance compensation of Rs.19,000/-. Therefore, the claimant is entitled to the enhanced compensation of Rs.19,000/- with interest at 7.5% from the date of petition. 7. The Tribunal has also already fixed the liability on the Transport Corporation at Rs.25,000/-. As the award is now modified to Rs.44,000/-, the respondent-Transport Corporation is liable to pay the balance compensation of Rs.19,000/-. Therefore, the claimant is entitled to the enhanced compensation of Rs.19,000/- with interest at 7.5% from the date of petition. 7. Under these circumstances, the respondent-Transport Corporation is directed to deposit the enhanced compensation of Rs.19,000/-with interest at 7.5% p.a. within eight weeks from the date of receipt of a copy of this order. On such deposit, the appellant-claimant is permitted to withdraw the same on making proper application. 8. With the above modifications, the Civil Miscellaneous Appeal is disposed of. No costs.