JUDGMENT : S.H. VORA, J. 1. Feeling aggrieved by the judgment and award dated 31st March, 2006 passed by the Motor Accident Claims Tribunal (Aux. II), Ahmedabad (Rural) in Motor Accident Claims Petition No. 1542 of 2000 instituted by the heirs of deceased-Salimuddin Ilmuddin Kureshi u/s 166 of the Motor Vehicles Act, 1988 (for short, the 'Act') whereby, the driver of the appellant held negligent in causing the accident to the extent of 70%, the appellant has preferred the present appeal u/s 173 of the Act. It was the case of the appellant that the accident in question occurred due to sole negligence of the deceased and, therefore, the learned Tribunal has erred in holding negligence of the deceased to the extent of 30%. The learned Tribunal, on the basis of the pleadings, framed appropriate issues and fixed 70% liability on the part of the driver of the appellant after appreciation of evidence adduced before it. 2. I have heard the submissions of learned Advocate Ms. Avani S. Mehta appearing for the appellant. During the course of hearing, learned Advocate invited my attention to the panchanama of the place of incident at Ext. 28 and also evidence of the driver of the offending bus and after reading the contents of the panchanama describing the situation, she has submitted that the deceased abruptly appeared behind the truck on the road and in the process of saving the deceased, the right side of the bus dashed with the deceased and, thereafter, the bus dashed with a tree. According to her, the deceased was to be blamed more than the driver of the bus because without seeing on both sides of the road, the deceased crossed the road and, therefore, the learned Tribunal was not justified in fixing 70% liability as contributory negligence on the part of the driver of the appellant. 3. To appreciate this contention, I have gone through the oral deposition recorded before the learned Tribunal and also panchanama Ext. 28. It seems that the accident has occurred on the main road and there is a bus-stand on the other side of the road. From the panchanama, it appears that there is brake marks having length of 10 feet. 3. To appreciate this contention, I have gone through the oral deposition recorded before the learned Tribunal and also panchanama Ext. 28. It seems that the accident has occurred on the main road and there is a bus-stand on the other side of the road. From the panchanama, it appears that there is brake marks having length of 10 feet. Meaning thereby, the driver of the bus could not stop the bus even after applying brake up to the 10 feet and the bus only could be stopped when it dashed with the tree which is situated at approximately 25 feet away from the place where it dashed with the deceased. 4. Since the plea as to contributory negligence to the extent of 100% of the deceased is taken and when such defence is available to the appellant herein in a claim petition filed u/s 166 of the Act, it is for the appellant to prove contributory negligency, if the claim petition has to be successfully resisted. No doubt, it is well established rule of caution rendered imperative by consideration of safety that before entering upon a road, to cross it, the pedestrian must look to both the sides of the road and to proceed to cross it only with the reasonable certainty of being able to do so without causing any danger thereby to himself or to any other road-user. But there is always constant and ever present duty of care upon drivers of all the vehicles and more particularly, heavy vehicles like bus to avoid harm or injury to road-users even if they happen to be in the wrong. As is evident, there was a flow of traffic on both sides of the road and further, such traffic was on the road where, there is bus-stop close to it and so naturally, there are more number of pedestrians on both sides of the road either to alight from the bus or to board on bus. Under this situation, if a passenger proceeds to come across the busy road without bothering about the state of traffic on it, at that time, he no doubt does so at his peril, but this provides no licence for harm being caused to him. Under this situation, if a passenger proceeds to come across the busy road without bothering about the state of traffic on it, at that time, he no doubt does so at his peril, but this provides no licence for harm being caused to him. If, however, the pedestrian enters upon the road in such a manner that an accident with him is rendered unavoidable, the pedestrian cannot stand absolved from blame merely on the ground that the accident had taken place in the centre of the road. 5. In the case on hand, the Court finds the driver of the appellant more careless and negligent in driving the bus on the road where, such traffic, both of vehicles or pedestrian, is there and the same is visible at the distance at least of a half kilometer on the road, on which the accident occurred, is the straight road and the driver of the bus could not stop the bus even if he applied brakes at the distance of 10 feet and the bus could be stopped only when it dashed with the tree situated at the distance of about 25 feet from the place where the bus dashed with the deceased. Under these circumstances, the learned Tribunal has rightly found the driver of the appellant negligent to the extent of 70% and I do not see any reason or ground to interfere with the findings recorded by the learned Tribunal after analysis of evidence before it. 6. It is not the case of the driver of the appellant that he blown the horn so as to alert the pedestrian crossing the road and in my considered opinion, where any heavy vehicle is about to pass nearby any bus-stand of any village, then the driver driving the heavy vehicle or any light motor vehicle, needs to blow horn so that any pedestrian crossing the road unmindfully can be alerted and accident can be avoided. No such steps have been taken on the part of the driver of the appellant and considering the fact that it was the straight road, the driver of the appellant would have seen the deceased crossing the road from the far distance. No such steps have been taken on the part of the driver of the appellant and considering the fact that it was the straight road, the driver of the appellant would have seen the deceased crossing the road from the far distance. But since the bus was at the great speed and in spite of the fact that the bus driver applied the brakes over the distance of 10 feet, he could not stop the bus and dashed with the deceased. Thus, considering the evidence on record, the learned Tribunal has rightly made apportionment of negligency on the part of both the driver of the appellant and deceased and, therefore, I do not see any reason to interfere with the judgment rendered by the learned Tribunal. Hence, the appeal preferred by the appellant deserves to be dismissed and the same is accordingly dismissed. The appellant to bear its cost and cost of the respondents.