D. H. SHUKLA, J. ( 1 ) THE applicants were the claimants in Motor Accident Claim Petition No. 65 of 1981 filed before the Motor Accidents Claim Tribunal No. 3 (Auxiliary) at Ahmedabad wherein they claimed compensation of Rs. 25 0 for the death of their son Narendra on account of the motor accident which occurred at about 9-30 a. m. on 9 in Bapunagar against the two respondents the Ahmedabad Municipal Transport Service and the Oriental Fire and General Insurance Co. Ltd. The learned Tribunal dismissed their petition by the judgment and order dated 16/06/1982. ( 2 ) BEING aggrieved by the said decision the appellants have preferred the present appeal. ( 3 ) THE appellants case may shortly be stated as under:the appellants are residing at Laxman Mohanlals Chawl in Bapunagar Ahmedabad. They had a son Narendra. He was aged about 12 years and was studying in a primary school. On the fateful day 9 Narendra had gone for purchase of vegetables. It is their case that while he was walking on the public road near Block No. 117 opposite Voras Chawl in Bapunagar he was fatally hit by bus bearing No. GTE 5051 belonging to the respondent No. 1 and which was driven by its driver during the course of his employment. It is their case that the bus was being driven at an excessive speed and without due care and caution. The accident in their submission occurred on account of the reckless driving of the bus by the driver of respondent No. 1. Deceased Narendra suffered serious injuries particularly over his abdomen. Still the driver did not care to stop the bus but drove it away. The deceased was removed to E. S. I. General Hospital at Bapunagar where he was examined and treated for his injuries. But the treatment proved of no avail and he expired on that very day at about 2-30 p. m. ( 4 ) THE appellants submit that the deceased was quite healthy and that had he not met with such an accidental death he would have lived a long life and would have been of succour to them financially and otherwise. They have claimed a total compensation of Rs. 25 0 [after stating the facts the learned Judge further observed]: ( 5 ) THE Tribunal raised issues at Exh. 12. They have claimed a total compensation of Rs. 25 0 [after stating the facts the learned Judge further observed]: ( 5 ) THE Tribunal raised issues at Exh. 12. ( 6 ) THE first issue relates to the question as to whether the petitioners prove that the deceased died due to the injuries sustained by him in the alleged vehicular accident. This issue is found in the affirmative. ( 7 ) THE issue Nos. 2 and 3 are material issues. Issue No. 2 relates to the question whether the petitioners prove that the said accident was the result of rash and negligent driving of the AMTS bus bearing No. GTE 5051 by its driver and this issue is found in the negative. The third issue relates to the question whether the respondents prove that the said accident was the result of the sole negligence on the part of the deceased and this issue is found in the affirmative. . . . . . . . . . . . . . . . . . . [after stating some evidence the Learned Judge further observed]: ( 8 ) THE more material is the evidence of the eye-witness Suresh Sesrav Neemji. He has deposed that Narendra was proceeding to purchase vegetable. The driver of the bus was driving the bus at an excessive speed and in a reckless manner. The bus hit Narendra from the front portion. The front wheel moved over the abdomen portion While the people raised shouts and created a hubbub the driver drove away the bus. His father was informed and Narendra was removed to the Bapunagar General Hospital. He has categorically stated that he had witnessed the incident and he has averred that the accident occurred due to the negligence of the bus driver ( 9 ) IT is very pertinent to note that no cross-examination of any of these two witnesses is sought. It is also pertinent to note that Suresh Sesrav Neemji (Exh. 15) has in no uncertain terms stated that the accident occurred as the AMTS bus hit the deceased who was walking on the road. If the version of the accident is different it was necessary to seek the cross-examination of the alleged eye-witness on this point. It is also pertinent to note that Suresh Sesrav Neemji (Exh. 15) has in no uncertain terms stated that the accident occurred as the AMTS bus hit the deceased who was walking on the road. If the version of the accident is different it was necessary to seek the cross-examination of the alleged eye-witness on this point. But no attempt has been made in that direction ( 10 ) ON the other hand the driver of the respondent No. 1 Shivaji Varvaji stated in his evidence (Exh. 27) that he has been employed as a motor driver with the AMTS and that he is holding a motor driving licence. On 9-2-1981 he had taken the bus bearing No. 438 on a Vardhi and that Rameshchandra Punjalal was employed as a conductor in the same bus. He has reiterated in his affidavit that while the bus was negotiating a turn it had slowed down at which point of time certain children entered the bus and started plying mischief. At that time The anti-reservation stir was going on in the City. He has further deposed that those children had gone to the exit door to alight from the bus. the children were giving pushes to one another on which account deceased Narendra fell down from the exit door. While he and the conductor went near him he got up and started walking. They did not find any particular injury to have been sustained by him He was not bleeding. At That time many persons had collected at the site and they had advised them to take away the bus since the boy bad not received serious injury and as the situation was rather tense in the area. He has further stated in his evidence that the incident occurred on account of the sole negligence of Narendra and that even police has taken that as an accident. The rest of the affidavit consists of denials to the averments made by the appellant No. 1 ill his affidavit. ( 11 ) THE Tribunal came to the conclusion from the facts and Circumstances on the record of the case that Narendra died on account of the injuries he had received in the motor accident. This issue has been rightly decided and needs no further discussion. ( 11 ) THE Tribunal came to the conclusion from the facts and Circumstances on the record of the case that Narendra died on account of the injuries he had received in the motor accident. This issue has been rightly decided and needs no further discussion. However he has attributed the incident to the sole negligence of deceased Narendra and has exonerated the bus driver from the liability. It appears to me that the Tribunal has erred in deciding issues Nos. 2 and 3. In reaching the conclusion the Tribunal did not consider the testimony of the eye-witness reliable but he accepted the testimoney of the driver Shivaji Varvaji. In its view Shivaji Varvaji is corroborated by certain documents and circumstances of the case whereas the version of the eye-witness is inconsistent with them. It has considered that the medical evidence shows that there was no bleeding injuries and that is what is stated by the driver of the bus also. The medical evidence therefore corroborates the driver and the eye-witness stands falsified by it. He has accepted the version or the driver that Narendra received injuries while alighting from the exit door and in that view of the matter no responsibility could be attributed to the driver. The Tribunal has observed in its judgment that since they were the anti-reservation stir days the driver and the conductor were required to be tactful. It was therefore natural that the conductor would not be in a position to control all these boys who all of a sudden boarded the bus which was not occupied by anyone since the bus had gone for Vardhi. The Tribunal has further observed that since the boys had started alighting from it by its front exit door the bus would naturally be at a slow speed. Since the boys were giving pushes to each other the fall of Narendra might have been caused on that account. There was therefore no reason for holding the driver and conductor responsible for the accident in question. I do not uphold the view of the Tribunal insofar as it has completely failed to rely on the eye-witness and in treating him as an unreliable witness. There was therefore no reason for holding the driver and conductor responsible for the accident in question. I do not uphold the view of the Tribunal insofar as it has completely failed to rely on the eye-witness and in treating him as an unreliable witness. ( 12 ) IT may be noticed that the eye-witness is the resident in the neighborhood of the place where the accident occurred and therefore if he states on oath that he had seen the accident there is no reason to disbelieve him. It is also to be noted that the respondents have not sought his cross-examination. The respondents knew from his affidavit his version of the accident and therefore if the drivers version was different they should indeed have sought the deponents crossexamination. The Tribunal has disbelieved him on two grounds firstly that he has not correctly narrated the injuries and that the narration of the driver is more consistent with the injuries on record. As a matter or fact the eye-witness has stated about the injuries received by the deceased on the abdomen portion and he has not referred to any other injuries in his affidavit. Therefore it is difficult to say from the deposition about injuries by both that one is more reliable than another. Secondly the Tribunal has laid great emphasis on the contents of the medical papers wherein in the history of accident it is stated that the injuries were suffered on account of a fall from the S. T. bus just then. No doubt this Endorsement corroborates the say of the driver but we have no idea as to who has given this history of the accident. Dr. Rashmikant R. Desai has filed his affidavit but he has nowhere stated that it was he who had recorded the history of the accident. On the contrary he has stated in his affidavit. He had the history of accidental injuries by bus and does not say that the history of the accident was a fall from the bus. It appears that the Medical Officer who had recorded the history of the accident is not examined His affidavit is not filed and thus we are in the dark about the source from which the history of the accident was gathered. It appears that the Medical Officer who had recorded the history of the accident is not examined His affidavit is not filed and thus we are in the dark about the source from which the history of the accident was gathered. I do not want to enter into a technical question as to whether the document wherein the history of the accident is recorded is not exhibited and therefore it would not be permissible to look into the same. Apart from the technical aspect the difficulty still remains as to how this history of the accident can be accepted unless we have the satisfactory evidence that in all probability the version of the accident given as a fall from the bus is a correct one. In the absence of the evidence of the person who had given the history and in the absence of the evidence of the person who had recorded the history how can we say that the contents of this document are satisfactorily proved ? Let apart that aspect of the question I will now examine the question on the basis that deceased Narendra suffered injuries as stated by the driver. Now according to the version of the driver when the motion of the bus had become slow the conductor was standing on the step of the entrance. In the first place the conductor Rameshchandra Punjalal is not examined by the respondents. There is no reason advanced as to why such an important witness is not examined. Why is his affidavit not filed to let us know as to what is his version of the accident ? In fact he is the person who would be in better know of things than the driver. Secondly if the version of the driver is correct that Rameshchandra was standing on the steps leading to the entrance of the bus it was his duty to allow the children to enter the bus particularly when it was in motion. We have no evidence before us as to what was the exact situation in the locality then. No evidence is produced to show that at the relevant time the situation was tense. Rameshchandra could have directed the driver to stop the bus till he had cleared out the children from the bus. We have no evidence before us as to what was the exact situation in the locality then. No evidence is produced to show that at the relevant time the situation was tense. Rameshchandra could have directed the driver to stop the bus till he had cleared out the children from the bus. Not only that but according to the driver the children played mischief in the bus and all of them started together to get out from the bus exit door and they were pushing one another near the exit door while they were trying to get down. Now this is stated by the driver himself. If therefore the drivel knew that the children were trying to get down more than one at a time while the bus was in motion what was his duty as a reasonable and prudent driver of a passenger bus ? Should he not have stopped the bus altogether till the children were cleared out of the bus ? What was the conductor doing then ? All said and done they were children who did not realise the hazard of jumping down from a running bus but at least the driver and the conductor were mature persons whose duty it was to look after the safety of the children. This aspect has been overlooked altogether by the Tribunal. I do not approve of the observation of the Tribunal that When Narendra had an accidental fall while alighting from the bus then obviously the driver of the said bus could not be held responsible for it. As pointed out above the driver and the conductor both of whom were in the employment of the respondent No. 1 were clearly amiss in their duties in not safeguarding the interests of the children. They did owe a duty to the children even if we accept the version of the driver that the children were in a mischievous mood. ( 13 ) MR. J. V. Desai invited my attention to the note published in 32 Bombay Law Reporter submitting it contained opposite observations. The note is captioned LIABILITY FOR ACCIDENTS TO CHILDREN ( 15/08/1930 It is observed as under:"it has been laid down that a higher degree of care is required. A knowledge of the natural disposition of children is to be presumed. J. V. Desai invited my attention to the note published in 32 Bombay Law Reporter submitting it contained opposite observations. The note is captioned LIABILITY FOR ACCIDENTS TO CHILDREN ( 15/08/1930 It is observed as under:"it has been laid down that a higher degree of care is required. A knowledge of the natural disposition of children is to be presumed. In the well-known case of LYNCH V. NURDIN (1841) I Q. B. 29 (where a serven year old child climbed into an unattended cart while another child urged on the horse whereby the first child fell out and was hurt) Lord Denman refused to entertain the defendants plea that the child by its own negligence had caused the accident. The child having indulged the perfectly natural instinct of playing with an empty cart and a deserted horse the defendant could not be heard to complain of the child yielding to such temptation So again in COOKE V. MIDLAND GREAT WESTERN RAILWAY OF IRELAND (1909) A. C. 229 lord Atkinson said (at p. 237) The authorities from Lynch v. Nurdin (supra) downwards establish. . . that every person must be taken to know that young children and boys are of a very inquisitive and frequently mischievous disposition and are likely to meddle with whatever comes within their reach". ( 14 ) THE observation further continues. The disposition of children being what it is and knowledge of that disposition being presumed it is incumbent on those on whom is cast a duty to take care to take special precautions in cases where there exists some allurement or temptation or danger. It is further observed therein as under:"how far may contributory negligence be pleaded in defence to such an action as we have been discussing ? In IYNCH V. NURDIN (SUPRA) as we saw the Court would not allow the defendant to set up contributory negligence inasmuch as it was his (the defendants) carelessness had been the cause of temptation being put in the way of the child to which temptation it was natural to yield. Further in Cooks case (supra) Lord Collins considered that those of tender age who could be deemed incapable of caution would therefore be deemed incapable of contributory negligence. And in LAY V. MIDLAND RAILWAY CO. Further in Cooks case (supra) Lord Collins considered that those of tender age who could be deemed incapable of caution would therefore be deemed incapable of contributory negligence. And in LAY V. MIDLAND RAILWAY CO. (1875) 34 L. T. 30 KELLY C. B. (AT P. 31) said that what might amount to contributory negligence in a grown-up person might not be so in the case of a child". ( 15 ) THE note has discussed the liability for negligence vis-a-vis children particularly in the circumstances where an attraction existed which would allure a child to be attracted by the same danger despite the inherent hazard In the present case also the fact is that the deceased was a child aged about 12. Another fact is that he was in a group of children. Thirdly the children were in a mischievous mood on account of the tense situation. Fourthly the children having pushed themselves inside the bus despite the presence of the conductor on the step were mischief-mongering inside the bus. Fifthly that they reached the exit door with an idea to get out from the bus through the exit door while the bus was in motion. Now it is a matter of common experience that alighting from a running bus is a sort of an attraction which attracts even adults and that would be more so in the case of children particularly those who were out for a small mischief. These are the circumstances which make the above observations relevant for the discussion of the issue as to whether deceased Narendra could be held liable for negligence. ( 16 ) THE case of GOUGH V. THORNE 1966 (3) ALL ENGLAND REPORTS 398 has a bearing on the question. A 13 1/2 years old girl (the plaintiff) was waiting on the pavement with her two brothers to cross a main road in London at a corner where there were bollards and a refuge in the middle of the road. An approaching lorry stopped between the plaintiff and the bollards about five feet from the bollards and the driver held out his right hand to warn traffic coming along to stop and with his left hand beckoned the plaintiff and her brothers to cross. An approaching lorry stopped between the plaintiff and the bollards about five feet from the bollards and the driver held out his right hand to warn traffic coming along to stop and with his left hand beckoned the plaintiff and her brothers to cross. They did so but when they had just passed the front of the lorry the plaintiff was struck and injured by a bubble-car which was being driven at excessive speed the driver of which failed to notice the lorry drivers outstretched hand and drove between the lorry and the bollards. In an action by the plaintiff for damages the trial Judge found that the bubble car driver the defendant was negligent but also found that the plaintiff was negligent in advancing past the lorry into the open road without pausing to see whether there was any traffic coming from her right and assessed the degree of her contributory negligence at one-third. On appeal by the plaintiff against this finding of contributory negligence it was held that an ordinary child of 13 (unlike an adult) could not reasonably be expected to pause to see for herself whether it was safe to go forward when the lorry driver had beckoned her on and so the plaintiff had not been negligent in relying entirely on the lorry drivers signal to her to cross. The appeal was accordingly allowed. ( 17 ) NEARER home we have the decision of the Division Bench of this Court in the case of AMUL RAMESHCHANDRA GANDHI V. ABBASBHAI KASAMBHAI DIWAN AND OTHERS 19 G. L. R. 721; P. D. Desai J. (as he then was) speaking for the Division Bench observed as under :"a distinction must be necessarily drawn between children and adults when the question of contributory negligence arises for a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be unable to defend for himself or to be naturally ignorant of danger or where in doing an act which contributed to the accident he was only following the instincts natural to his age and circumstances he is not guilty of contributory negligence. Where a child is of such an age as to be unable to defend for himself or to be naturally ignorant of danger or where in doing an act which contributed to the accident he was only following the instincts natural to his age and circumstances he is not guilty of contributory negligence. A child should be found guilty of contributory negligence only if it is established as a matter of fact on the evidence on record that he is of such an age and understanding as reasonably to be expected to take precautions for his own safety and the blame for the accident could be necessarily attached to him. In cases of road accidents it must be borne in mind that a child is not possessed of the road sense or the experience of elders. Even if it transpires that he was taught road discipline either at home or at school and that therefore if he had best owed some thought he would have realised that it was his duty to take reasonable care for his own safety still a normal child would not be held culpable in view of his propensity to forget altogether what has been taught to him if something else is uppermost in his mind. A normal child is always momentarily forgetful of the perils of crossing and walking on a road regretfully though and under such circumstances if he failed to notice even an oncoming vehicle and got hurt by it he cannot be held guily of contributory negligence In such a case the question of the duty of the driver of the vehicle must be examined with greatest precision and unless the driver is in a position to show on establishment of primary facts that he was driving the vehicle in such a manner that he could have brought it to standstill in case of emergency and that accident was inevitable or unavoidable the inference of his negligence and his alone must be raised almost as a matter of course". ( 18 ) I have discussed above the factors which in my opinion clearly show that it was the negligence on the part of the driver and the conductor both in not Stopping the bus at the relevant time when both of them knew that the children were hurriedly trying to jump out from the exit door of the bus in motion. ( 19 ) THE Tribunal has observed that although Narendra was aged about 12 years and he was a minor but that does not necessarily mean that he was not of understanding age. When he was with other boys or practically the same age group he would be able to realise the pros and cons of his act and so he is solely responsible for his such act in alighting from the bus while it was in some motion and it is quite probable that as there were number of boys who wanted to alight they might be giving pushes to each other and that might have resulted in the fall of Narendra on the road as he might have been unable to maintain his balance. The above observations of the Tribunal run counter to the tenor of the accepted legal position which I have indicated from the observations of the Tribunal English and Indian in the reported case. First the Tribunal has obviously failed to take into consideration the special protection extended to the children of tender age when they are placed in a dangerous situation. The Tribunal thus has entirely misdirected itself and erred in holding the deceased guilty of sole negligence. Its finding is required to be set aside and corrected. The finding on issue No. 2 therefore is that the said accident was a result of rash and negligent driving of AMTS bus bearing No. GTE 5052 by the bus driver. I would add although it is not a part of the issue as framed by the Tribunal that the conductor Rameshchandra should also be held negligent inasmuch as he did not carry out his duties as a conductor with such vigilance as the occasion required. My finding on issue No. 3 is that the respondents have failed to prove that the accident was the result of the sole negligence on the part of the deceased. As observed earlier deceased Narendra could not be held guilty of negligence at all. ( 20 ) THE next question which arises is to consider the question of quantum of damages which must be awarded to the appellants. The Tribunal has given its finding on the issue in case its finding on other issues were reversed. In its view a sum of Rs. ( 20 ) THE next question which arises is to consider the question of quantum of damages which must be awarded to the appellants. The Tribunal has given its finding on the issue in case its finding on other issues were reversed. In its view a sum of Rs. 9 0 would be adequate pecuniary loss on account of the premature death of deceased Narendra to which he has added a sum of Rs. 5 0 by way of damages for the shortened expectation of life. It has also awarded a further sum of Rs. 1 0 for pain shock and suffering suffered by the deceased Narendra It is of the opinion that a global compensation of Rs. 15 0 to the appellants would be adequate under the circumstances of the case. In SHIVKOR V. RAMNARESH REPORTED IN 19 G. L. R. 713 a Division Bench of this Court awarded damages at Rs. 7 200 in case of the death of one Jagpalsing who was about 12 years of age. There was evidence of longevity in the family and deceased Jagpalsing was healthy intelligent and brave. He had also an aptitude for military career. Taking all these factors into account the Division Bench considered that Jagpalsing could have at least contributed a sum of Rs. 50. 00 per month to the estate of his parents. Parents were in fifties. Father during the pendency of the appeal died. The mother alone was alive and the loss of monetary benefit was determined on the basis of the period during which the boy would have been required to contribute to the estate of his parents. Taking into account the fact that the father had died and the mother was in her fifties twelve years purchase factor was considered reasonable and applied to the case. . ( 21 ) A recent judgment in regard to the question of damages payable on account of a fatality suffered by a minor child is the case of MANGALDAS MOHANLAL PATEL AND ANOTHER V. UNION OF INDIA AND ANOTHER 1982 (VOL. 2) GUJARAT LAW HERALD 467 The Claims Tribunal had awarded an amount of Rs. 21 0 by way of compensation and in appeal the appellant-claimants had restricted their additional claim to Rs. 10000. 00 only. The Division Bench came to the conclusion that the deceased would have very easily earned about Rs. 600. 00 per month. 2) GUJARAT LAW HERALD 467 The Claims Tribunal had awarded an amount of Rs. 21 0 by way of compensation and in appeal the appellant-claimants had restricted their additional claim to Rs. 10000. 00 only. The Division Bench came to the conclusion that the deceased would have very easily earned about Rs. 600. 00 per month. Even if 50% thereof was taken as his own expenses the benefit that the claimants would get would be at least Rs. 300. 00 per month The Division Bench further held that the Tribunal had rightly taken 15 years multiplier. The facts disclose that the deceased was 13 years old at the time of the accident and he was studying in 7th standard in a High School. The Division Banch observed that in such cases where a young boy who is studying in school and who is not earning anything it is difficult to evaluate his future earning capacity and 105s to the appellants. The Court has to value a chance and as further observed by the Division Bench one does not know what might have happened had he not been killed but the value of the prospect chance or probability of support can be estimated by taking all significant factors into account and as further observed by the Division Bench one has always to make certain conjectures to arrive at a particular amount that may be available to the dependants by way of dependency benefit. ( 22 ) IT is clear therefore that while evaluating a chance one has to examine the facts on record before him. So far as the present case is concerned I have to follow the guidelines provided in principle by the legal authorities in general and the two cited cases before me in particular. But in final analysis the guidelines are to be applied to the facts of the case before me. Now the facts of the case before me are that the deceased was aged 12 and he was the son of the appellant who belonged to a working class. The deceased was studying only in the third standard as reflected by the School Leaving Certificate (Exh. 19 To this must be added all the imponderables of life. These are the factors which must be put in balance while considering the future prospects of the deceased. The deceased was studying only in the third standard as reflected by the School Leaving Certificate (Exh. 19 To this must be added all the imponderables of life. These are the factors which must be put in balance while considering the future prospects of the deceased. I must also take into account the fact that both the appellants are alive and that they have another son besides Narendra. It appears that Narendra was the elder one but the appellant s have another son from whom also they may expect support in their future life. The 15 years multiplier would surely apply in this case. Under the circumstances I estimate the support which the deceased would have lent to his parents at Rs. 100. 00 per month. May be Narendra would have fulfilled the expectations of his parents to makes him an Engineer. That is anybodys guess but on an average he would have earned enough at least to set apart a sum of Rs. 100. 00 for his parents after meeting with all his personal expenses and the expenses of his family. From the affidavit it appears that the appellant No. 1-father was aged about 36 and the appellant No. 2 was presumably a little younger but in the same age group. The monthly support of Rs. 100. 00 is the annual support of Rs. 1200. 00 and when multiplied by 15 it comes to Rs. 18 0 To this sum of Rs. 18 0 be added an additional sum of Rs. 5 0 for the shortened expectation of life. The total amount which becomes payable as compensation to the appellants comes to Rs. 23 0 I do not want to award anything to the appellants separately for the pain shock and suffering suffered by the deceased while he was alive but in my opinion the amount claimed by the appellants and the figure reached by me are reasonably within the brackets. Under the facts and circumstances of the case it would be reasonable to satisfy the claim of the appellants placed by them at Rs. 2 0 The findings on issues Nos. 4 and 5 would therefore accordingly be that the appellants are entitled to the Compensation for the loss of the life of the deceased in the said accident and that the appellants together should be awarded a sum of Rs. 2 0 The findings on issues Nos. 4 and 5 would therefore accordingly be that the appellants are entitled to the Compensation for the loss of the life of the deceased in the said accident and that the appellants together should be awarded a sum of Rs. 25 0 compensation plus interest at the rate of 6 per cent per annum from the date of application till realisation of the amount. The Tribunal has rightly held that both the respondents shall be liable to satisfy the claim of the appellants jointly and severally. Its finding on issue No. 6 is upheld. Appeal allowed. .