MADHU ALIAS M. C. MADAPPA v. MAHADEVA — 1978 DIGILAW 95 (KAR)

SABHAHIT, J. ( 1 ) THIS appeal is instituted under Sec. 110d of the Motor Vehicles Act by the original claimants and is directed against the judgment and award d/7-7-1975 passed by the District Judge and Member, Motor Accidents claims Tribunal, Mysore, in M. V. Misc. No. 75 of 1972 on his file. The claimants averred in the petition that their son Ramesh and other children were playing near the park on the foot-path of Vasanthamahal road, Nazarbad Mohalla on 1-6-72 at about 8 a. m. when the Police jeep coming from the northern direction 'and driven rashly and negligently went off the road on the left side and hit the young boy Ramesh (Madhu) causing him fatal injuries. The boy was removed to the hospital where he succumbed to the injuries within about six hours after the accident. On these allegations, a sum of Rs. 50,000 as damages was claimed from the respondents. Respondent-1 is the driver. Respondent-2 is the owner and Respt-3 in the insurer of the jeep: respondent-1, by his statement of objections filed on 31-7-73, contended that the boy who was flying a kite came suddenly from the opposite side in chase of the kite which had been cut off and dashed against the real portion of the jeep and sustained injuries. Thus, he denied his liability contending that the accident was inevitable. Respondents 2 and 3 contended similarly. They also asserted that the compensation claimed was too high. The Tribunal raised the following issues for decision on the basis of the pleadings before it. (1) Is the petition maintainable? (2) Is the accident due to the rash and negligent driving of the first respondent? or Is it an inevitable accident? (3) Are the claimants entitled to any compensation, and if so, the quantum and from whom? the claimants examined as many as six witnesses. PW. 1 is the doctor who treated the boy. PWs. 2, 3 and 4 are the eye-witnesses so also PW. 5. PW. 6 is the mother of the deceased boy, being one of the claimants. As against this, the respondents did not examine any witnesses on their behalf. The Tribunal, appreciating the evidence on record, held that the accident was inevitable and as such, the claimants were not entitled to any compensation. It, however, held that the petition was maintainable, by its judgment d. 7-7-75. As against this, the respondents did not examine any witnesses on their behalf. The Tribunal, appreciating the evidence on record, held that the accident was inevitable and as such, the claimants were not entitled to any compensation. It, however, held that the petition was maintainable, by its judgment d. 7-7-75. Aggrieved by the said judgment and award dismissing the petition, the claimants have come up in appeal before this Court. The learned Advocate appearing on behalf of the appellants-claimants vehemently contended that the Tribunal was not justified in holding that the accident was not the result of rash and negligent driving of the jeep in question. He further, submitted that on the facts of this case, the Tribunal ought to have awarded compensation for the death of Ramesh to the claimants who are the parents of the deceased boy. As against that, the learned Govt Pleader appearing for the respondents argued supporting the reasoning and findings of the learned Member of the Tribunal the points, therefore, that aiise for our consideration in this appeal are: whether the Tribunal was justified in holding that the accident was inevitable; if not, what is the quantum of compensation to which the claimants are entitled to ? pw. 2 Chikkanna has deposed that on the date of the accident at about 8 a. m. , he was going on the road by the side of Nazarbad Police station having taken coffee in Mylari Hotel and then saw a disturbance and further found the boy Rmesh underneajth the side wheel of the jeep lying injured on the face. The boy was unconscious. The legs of Ramesh were on the footpath and the head was on the road. The road iuns north to south and the jeep was facing south. The jeep was on the left side of the road and the front left wheel of the jeep was on the footpath and the rest was on the road. He took the child to the shop of a doctor in the first instance and since that doctor did not attend on the child immediately, he took the child to the Mission Hospital. He has further deposed that ramesh expired at about 4 p. m. on, the same day. In the cross-examination it is elicited that the left front wheel of the jeep was touching the head of the boy. He has further deposed that ramesh expired at about 4 p. m. on, the same day. In the cross-examination it is elicited that the left front wheel of the jeep was touching the head of the boy. He has further stated that his statement was recorded by the police. It is also elicited that there are parks on both the left and light sides of the road. Boys were flying kites in the area. Thus, it emerges from his evidence that the jeep actually left the tar road and went on the kaccha road before it caused the accident to the young boy Ramesh it is also established that it was a busy locality having parks on either side of the road and that boys were flying kites by the road side. The evidence of PW. 2 is corroborated in the testimony of PW. 3 Swamy and pw. 4 Vasu. Both of them are the brothers of the deceased boy Ramesh. The have deposed similarly. . Nothing is elicited in the cross- examination of these witnesses to disbelieve their evidence. It is true that the evidence of PW. 5 is not consistent with the evidence of these eye witnesses. By reading the evidence of PW. 5, we get an impression that he has not seen the accident at all. He has positively stated that the accident happened on the light side of the road to the jeep which is not the case of the claimants nor of the other side. Hence, it is not proper to place any reliance on the evidence of this witness who could not even properly describe the scene of occurrence. The other witnesses exmined on behalf of the claimants have consistently deposed, as stated above, that the boy Ramesh was on the foot-path on the left side of the road when the jeep went off the road and hit him. If that be so, it attracts the uoctrine of resipsa loquitur (the thing speaks for itself) and the burden shifts on to the driver tot explain why he went off the road in causing the accident. In this case, the driver has desisted from entering the box. It may also be mentioned further that the driver, in his statement of objections has taken a positive stand that the boy Ramesh came suddenly running across the road and hit the jeep on the rear side. In this case, the driver has desisted from entering the box. It may also be mentioned further that the driver, in his statement of objections has taken a positive stand that the boy Ramesh came suddenly running across the road and hit the jeep on the rear side. If that were so, it was his duty to step into the box and explain the circumstances. Non-appearance of the driver in the box would attract adverse inference against him. That apart the positive testimony of the witnesses discussed above would clearly establish that there was actionable negligence on the part of the driver in leaving the road and going on the kaccha road while hitting the boy. In the cross-examination of PW. 2, it is no doubt elicited that a boy suddenly crossed the road from right to left and the driver of the jeep in order to save that boy, swerved the jeep towards left and hit Ramesh. In, the first place, that is not the stand taken by the driven. Even assuming that it is a fact, even so, the responsibility of the driver cannot be absolved. It is laid down by Lord Uthwatt in Upson's case, 1949 AC. 155. thus :"a driver is not of course bound to anticipate folly (of others) in all its forms, but, he is not entitled to put out of consideration the teachings of experience as to the form these follies commonly take. "it is in evidence that boys were flying kites at the place. It is further in evidence that there were parks on either side of the road. Any diligent driver could observe the boys flying kites on either side of the road. In that case, it was the duty of the driver to check up the speed, so as to be in a position to halt the vehicle in case of any common folly committed by am cf the boys on the road. The driver, in the instant case, has not done so. If he were diligent, he could have hatted the jeep when he saw that a boy was crossing the road. Besides, if really a boy crossed from right to lefl, it is not probable that the driver should swerve the vehicle to the left which amounts only chasing the boy in trying to hit him. If he were diligent, he could have hatted the jeep when he saw that a boy was crossing the road. Besides, if really a boy crossed from right to lefl, it is not probable that the driver should swerve the vehicle to the left which amounts only chasing the boy in trying to hit him. Thus, considered either way, we are satisfied that the accident has happened as a result of rash and negligecnt driving of the jeep. The learned Member of the Tribunal clearly erred in holding to the contrary thalt the accident was an inevitable one. We are constrained to set aside that finding. the next point that arises for our consideration is the quantum of compensation to which the parents of the deceased boy are entitled. It is well settled that in the case of children of tender years, compensation to be awarded is only for the loss of expectation of future happy life which, of course, forms a conventional figure. The leading case on the subject is that of Benham v. Gambling, 1941 AC. 157 HL wherein the House of Lords has laid down that a conventional figure should be awarded under this head and in that case, 200 were awarded. Since then, however, the Courts in england as well as in our country have raised this figure due to the fall in the value of money. The House of Lords in England, in the case of naylor v. Yorkshire Electricity Board, 1968 AC. 529 raised the conventional award to 500. In the case of Mc cann V. Sheppard, (1973) 1 WLR. 540 the same was raised to 750 by the Court of Appeal. In our country, in the case of M. P. Road transport Corptn v. Sudhakar, AIR. 1968 MP. 47. Sudhakar, a boy of one year was killed and the Court awarded Rs. 7,500 which was however, reduced to Rs. 5,000 by the High Court. In the case of Concord of India Fire and General Insc co Ltd v. L. J. Machado, 1966 ACJ. 32 Rs. 6,000 were awarded for the death of a child of 8 years by this Court. In the case of Krishnaji v. Subhadra devi, 1969 ACJ 349 the High Court of Patna awarded Rs. 10,000 under this head for the death of a boy of 7 years. In the case of Manmohan Sarup Kaushal v. Mela Ram, 1977 ACJ. 32 Rs. 6,000 were awarded for the death of a child of 8 years by this Court. In the case of Krishnaji v. Subhadra devi, 1969 ACJ 349 the High Court of Patna awarded Rs. 10,000 under this head for the death of a boy of 7 years. In the case of Manmohan Sarup Kaushal v. Mela Ram, 1977 ACJ. 140 the High Court of Delhi awarded Rs. 8,000 for the death of a girl of 11 years. Having regard to the fall in the money value, we find it just and proper to award Rs. 6,000 for the death of Ramesh a boy of five years, to the claimants under this head. Compensation cannot be awarded under any other head. In the result, therefore, we set aside the order of the Tribunal and award Rs. 6,000 to the claimants with costs along with interest at 6 per cent per annum on the said sum awarded from the date of the petition till the date of payment. We further direct that the entifre sum awarded along with costs and interest shall be paid over by Respondent-3_the Karnataka government Insurance Department. The appeal is accordingly allowed. --- *** --- .