Madras High Court
R. Manonmani vs Kaliamurthi And Ors. on 22 October, 1991
Equivalent citations: (1992)2MLJ198
JUDGMENT V. Ratnam, J.
1. This appeal has been preferred by the claimant, against the award of the Motor Accident Claims Tribunal (Sub Court), Tiruvannamalai, in M.C.O.P. No. 49 of 1984.
2. On 22.8.1984 at about 9.30a.m. an accident took place between a bus TNM 6579 belonging to the 2nd respondent, driven by the 1st respondent and insured with the 3rd respondent and a cyclist, Ravi, who was proceeding from Vellore Road, near Periyar statue at Tiruvannamalai. In that accident, the cyclist Ravi sustained injuries in his waist, chest and stomach and died instantaneously. The appellant is the mother of deceased Ravi and, according to her, the accident, resulting in the death of Ravi, took place entirely owing to the rash and negligent driving of the bus TNM 6579 by its driver. The deceased, according to the appellant, was working under a private Doctor and was earning a salary of Rs. 150 p.m. besides doing bead work at home, thereby earning another Rs. 150 p.m., and was supporting the appellant out of his earnings. Claiming that as a result of the death of her son, Ravi, she had lost the benefit of his earnings and support, the appellant prayed that compensation in a sum of Rs. 50,()00 should be awarded to her.
3. In the counter filed by the owner of the vehicle, which was adopted by the driver, the rash and negligent driving of the bus was denied and it was stated that deceased Ravi drove the cycle without regard to the rules of the road and attempted to cross the road and got himself involved in the accident, which had taken place only owing to the carelessness of the deceased. The income staled to have been earned by Ravi, was disputed and the amount of compensation claimed was also characterised as excessive and exorbitant. The 3rd respondent-insurance company disputed that the vehicle involved in the accident, was insured with it and stated that deceased Ravi had driven the cycle negligently and carelessly and lost control and dashed against the rear side of the bus and that had caused the accident. The compensation claimed by the appellant was also stated to be excessive and exorbitant.
4. Before the tribunal, on behalf of the appellant, Exs.A-1 to A-3 were marked and P.Ws.1 to 3 gave evidence, while, on behalf of the respondents, the 1st respondent was examined as R.W.I. On a consideration of the oral as well as the documentary evidence the tribunal found that the accident, resulting in the death of Ravi, was the outcome of the rash and negligent driving of the bus by its driver and the cycle by the cyclist, deceased Ravi and that the negligence had to be apportioned at 50:50. Dealing with the compensation awardable to the appellant, the tribunal found that the annual contribution of deceased Ravi to the appellant could be determined at Rs. 1,500 and taking into account the age of the appellant at the time of the death of Ravi, it would be appropriate to adopt a multiplier of 25 and on that basis, the compensation awardable to the appellant, was determined at Rs. 34,500. Consistent with the finding on negligence, the tribunal halved the amount of compensation determined and passed an award in favour of the appellant for Rs. 18,750 together with interest at 12% p.m. from the date of claim petition, against the driver, owner and the insurer of the bus as well as the insurer had not established that the vehicle involved in the accident was not covered by a policy issued by it. In this appeal, the appellant has prayed that the disallowed portion of the compensation should also be awarded.
5. Learned Counsel for the appellant contended that at the time of the accident, deceased Ravi was aged about 14 years and was a 'Child' within the meaning of The Children Act, 1960 (hereinafter referred to as 'the Act') and such a person could not be properly held to have contributed to the accident. Reliance in this connection was placed upon Section 2(e) of the Act and the decision reported in Delhi Transport Corporation v. Kumari Lalitha A.I.R. 1982 Del. 558 : 1983 A.C.J. 253. On the other hand, learned Counsel for the respondents submitted that though it may be that a distinction requires to be drawn between 'children' and 'adults', when the question of negligence arise, if, on the evidence, it is established that the person involved in the accident, was of such age and understanding, as can reasonably be expected of him to take precautions for his safety, then, contributory negligence could be attributed and it is not an inflexible rule that children could never be held guilty of contributory negligence. Reference in this connection was made by learned Counsel to the decision reported in E.Enjanadevi v. Arumugham 1983 A.C.J. 625.
6. Before proceeding to consider the aforesaid, submissions, it would be first necessary to advert to the question whether deceased Ravi could at all be called a child. From Ex. A-3, the School certificate relating to Ravi, it is clearly established that on the date of the accident, he was nearly 14 years of age. Presumably, on account of this, learned Counsel for the appellant was emboldened to rely upon the definition of 'Child' occurring in Section 2(e) of the Act. However, this definition would not be of any assistance, for, that had been enacted for the purposes of the Act, the object of which, is to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children. The expressions 'delinquent child' and 'neglected child' have been defined under Sections 2(j) and 2(1) of the Act. From this, it is clear that the definition of a 'child', a 'delinquent child' and a 'neglected child' occurring in the Act, have been enacted for the purpose of giving effect to the provisions of that act, providing for the education and rehabilitation, among others, of neglected or delinquent children, as defined in that Act. Having regard to the purpose for which the Act had been enacted, the definition therein, with reference to a 'child', cannot be pressed into service, to claim that the deceased in this case was a 'child' arid could not, therefore, be held to have contributed to the accident by his own negligence. It would be appropriate at this stage to refer to Winfield and Jolowicz on Law of Tort (10th Edition, page 111). It has been stated that there is no age below which, as a matter of law, it can be said that a child cannot be guilty of contributory negligence. In Salmos and Heuston on The Law of Torts, 18th Edition, page 488, it has been pointed out that in cases, where contributory negligence is alleged against a child, it is the duty of the trial Judge to rule, in each particular case, whether the plaintiff, having regard to his age and mental development, may properly be exacted to take some precautions for his own safety and consequently be capable of being guilty of contributory negligence and that would be a question of fact to be determined on evidence, whether he had fallen short of the standard, which might reasonably be expected from him, having regard to his age and development. The position has been summarised in Clerk & Elndsell on Torts, The Common Law Library Number 3 Fifteenth Edition, page 577, by stating that in considering whether a child has taken reasonable care for its own safety, regard must be had to its age, the circumstances of the case and the knowledge of the particular child of the perils to which the defendant's negligence has exposed him and there is no age, below which, as a matter of law, it can be said that a child cannot be guilty of contributory negligence. It would thus appear that merely on the basis of age, a conclusion regarding the contributory negligence, cannot be arrived at, but that would depend upon the facts, circumstances and the evidence available.
7. In this case, regarding the manner in which the accident took place, there is the evidence of P.W.3 stated to be an eye witness to the accident and the driver of the bus, R.W.I. In his evidence P.W.3 stated that, on the date of accident at about 9.30 or 10 O' clock, he had come to put his mother on the bus to Gingee and was standing near Periyar statue and at that time, the bus belonging to the 2nd respondent, came driven very fast from east towards west without sounding the horn and he heard a noise and ran and found that Ravi was caught in the rear wheel of the bus and the cycle was lying by his side. In his cross examination, P.W.3 admitted that he did not remember, in which bus he put his mother and that the accident took place to the east of the periyar statue. A suggestion that he did not witness the accident, was denied by him. In his further cross examination, he admitted that only after hearing the noise, he turned and saw and that the noise came from east of the place, where he was standing and that he could not say whether the boy went and hit against the bus and was caught under the wheel, or, the bus came and dashed against the boy. R. W. 1 is the driver of the bus and in his evidence, he stated that the accident took place to the right side of the Periyar statue at the road junction. His further evidence was to the effect that he slopped the bus, in order to enable the passengers waiting at the left side, to board the bus and started it after the conductor gave whistle and at that time, a cyclist dashed against the right side rear wheel of the bus and fell down and he stopped the bus and got down and then gave the complaint to the police. R.W.I also stated further that the traffic was heavy and that he parked the bus to the left side of the road and when the bus was about to move, the boy came and his and the wheel had not even completed one revolution. In the cross examination, R.W.I deposed that the accident took place about 20 or 22 feet away from the stalue on the right side and that he did not drive the bus at a high speed and without sounding the horn. R.W. 1 also stated that no case was registered against him and the accident was not due to his rashness or negligence. The claimant, examined as P.W.I, stated in her evidence, that her son had studied upto the VI Standard and was employed under the Doctor, P.W.2, who had provided him with a cycle and that she did not know whether her son dashed against the rear wheel and her evidence is, therefore, not very helpful at all. It would be necessary to refer to the evidence of the employer of deceased Ravi, examined as P.W.2. He stated that the deceased had been employed under him for about 4 or 5 months prior to his death and the cycle involved in the accident, was his. From the evidence, referred to above, it is seen that deceased Ravi had studied upto VI standard and was aged about 14 years at the time of the accident and had been using the cycle of P.W.2 at atleast for 4 or 5 months prior to the accident. P.W.3 had clearly admitted in his evidence that he cannot say whether the bus hit the cyclist or the cyclist hit the bus and even according to his version, he turned and saw only after hearing the noise from the eastern side. The testimony of P.W.3 had not been believed by the tribunal for two reasons, viz., (1) the improbability of P.W.3 standing near the Periyar statue for the purpose of putting his mother on a bus for Ginges, and (2) the hearing of the noise by P.W.3 and his having turned and seen thereafter. In so far as the first reason is concerned, the tribunal was not quite right, for, it is the evidence of R.W.I that the bus was stopped to enable the passengers waiting on the left side of the road to board it and that was near the Periyar statue. However, in so far as the second respondent is concerned, the tribunal was quite right in concluding that P.W.3 could not have actually witnessed the accident, for, even, according to his version, he did not actually see the accident taking place, but only after hearing the noise, he turned a saw. If follows that by the time P.W.3 heard the noise from the eastern side and turned and saw, the accident had happened and in that sense, P.W.3 could not have seen the accident happen so as to speak to the manner in which the accident took place. The evidence of R.W. 1 would also show that the bus had not moved very far after picking up the passengers and had just started to move and at that time, the cyclist came on the rear and hit against the bus and that that area was subjected to heavy traffic. Though P.W.3 might not have actually witnessed the accident and R.W.1 had also not seen the accident, for, the cyclist, according to him, came from the rear and hit against the right side of the bus the indisputable fact is that the accident had taken place and the cyclist had lost his life instantaneously. The evidence of P.Ws. 1 and 2 referred to earlier, would show that the deceased had been provided with a cycle by P.W.2 and considering the age of the deceased and the experience gained by him in driving a cycle, particularly, in that locality of heavy traffic, it follows that the accident could not have taken place, if the deceased had taken every care and precaution to observe the normal speed as well as the rules of the road, while driving the cycle. Likewise, R.W.1, while starting the stationary bus and moving on the main road, also must have taken care to see that there was no vehicle coming near the bus to its right and it is obvious that R.W.1 also failed to observe care and caution and that had led to the accident.
8. It would be appropriate in this connection to refer to some decisions, which have a bearing on this question. In Srinivasan v. Parasivamurthy A.I.R. 1976 Kam. 92,the question arose, whether a boy of six, injured in an accident, could be guilty of contributory negligence. On the evidence, it was found that when the boy was standing just near a fact-path, the driver of the lorry struck the boy and that constituted a clear ease of rash and negligent driving on the part of the owner of the vehicle. That decision cannot, therefore, be taken as laying down that merely because in that case the injured boy was six years old, contributory negligence cannot be attributed to him. In Govinda Prasad v. Sujit Chowmick , a school going student of about 14 years of age, was found, on the evidence, to have contributed to the accident and the negligence was apportioned between the student and the conductor of the bus in the ratio of 1:2. In that case also it was found that the body, aged 14 years, tried to board the bus and just caught hold of the handle of the front door, when the conductor gave the bell and the bus started moving, resulting in the boy losing his hold and falling down and the rear wheel of the bus running over his right leg. In view of that evidence, the Calcutta High Court held, agreeing with the tribunal, that it was due to the negligence of the conductor of the bus and also the contributory negligence of the school boy, the accident had happened and the fixation of the proportion, was also quite justified. This case clearly illustrates that merely on the basis of age, it cannot be held that the contributory negligence should be ruled out. InA.R.Gandhiv.A.K.Diwan A.I.R. 1979 Guj. 14, after referring to some English decisions the resulting position was summarised at page 20 thus:
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 fend 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 the 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 bestowed some thought, he would have realized 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 on coming vehicle and got hurt by it, he cannot be held guilty 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 a standstill in case of emergency and that the accident was inevitable or unavoidable, the inference of his negligence and his alone must be raised almost as a matter of course.
After observing as above, the court proceeded to consider the evidence relating to the manner in which the accident took place and it was found that having regard to the nature of the vehicle, which was involved in the accident, and the fact that it came from behind without even sounding the horn and hit the boy, that was not a case, in which, such a boy can be expected to be careful for his own safety and the only inference that could be drawn was that the negligence was that of the driver of the vehicle alone. It is thus seen that ultimately, the question depends upon the appreciation of evidence relating to the manner, in which the accident took place and whether the victim and the driver of the vehicle, on their part, had taken every reasonable precaution in the matter of driving the vehicles and in observing the rules of the road and even if it is found, on the evidence, the victim boy had not taken every precaution reasonably expected of him, then, there is nothing to preclude the court from holding that he had also contributed to the accident by his own negligence. In the decision reported in Delhi Transport Corporation v. Kumari Lalitha A.I.R. 1982 Del. 558 : 1983 A.C.J. 253, strongly relied upon by learned Counsel for the appellant, a girl of 8 years, was found by the tribunal to have contributed 20% to the accident, which was, on appeal vacated by a learned single Judge. On further Letters Patent Appeal, the question whether the girl of 8 years, could at all be blamed for the accident, on the ground of contributory negligence, it was pointed out that in considering whether a child had taken reasonable care for its own safety, regard must be had to the age of the child, the circumstances of the case and the knowledge of the particular child of perils to which the defendant's negligence has exposed her and that there is no age, below which, as a matter of law, it can be said that the child cannot be guilty of contributory negligence. The decision further proceeded to agree with the conclusion arrived at by the single Judge on an analysis of the evidence that the eight year old girl was not at all to be blamed for the accident on the ground of contributory negligence. It is also further significant that the girl could not have contributed to the accident, had also been concluded as found in para 10 of that judgment. Thus, the aforesaid decision does not in any manner support the very broad proposition put forward by learned Counsel for the appellant that deceased Ravi, who was aged 14 years at the time of the accident, could not at all have contributed to the accident, It now remains to consider the only decision relied on by learned Counsel for the respondents, reported in E. Enjanadevi v. Arumugham 1983 A.C.J. 625. In that case, a boy aged about 12 years, was travelling on the carrier of a cycle, when he was knocked down from behind and run over. In the course of the claim proceedings, one of the questions, which arose, was regarding the rash and negligent driving of cycle and the tribunal recorded a finding that though the driver of the car, was rash and negligent in driving the vehicle, the accident was also owing to the contributory negligence on the part of the deceased and in that view, the negligence was apportioned at 70 : 30 between the driver of the car and the cyclist. In considering the propriety of the fixation of the proportion of the negligence and the liability for payment of compensation, it was pointed out on a consideration of the evidence that the cyclist was also negligen t and the tribunal was right in the view it took that the car driver and the cyclist should be blamed for the accident, which could be apportioned at 70 : 30. This case also illustrates that the age of the victim cannot be the sole or exclusive guide to determine the question of contributory negligence in relation to an accident. In the light of the principles laid down in the aforesaid decisions and considering the available evidence regarding the manner, in which the accident took place, the tribunal cannot be stated to have committed any error in holding that the rash and negligent driving of the cyclist Ravi and that of the bus by its driver, had caused the accident and that the negligence has to be apportioned at 50:50.
9. Learned Counsel for the appellant next contended that the tribunal had fixed the amount of compensation awardable to the appellant at a low and meagre amount. Referring to the evidence of P.Ws.1 and 2, learned Counsel submitted that deceased Ravi was earning not less than Rs. 300 every month and considering his age at the time of his death and also the age of the claimant, it would be just, proper and fair that compensation, as claimed by the appellant, should be awarded to her. On the other hand, learned Counsel for the respondents submitted that the tribunal was justified in awarding to the appellant a sum of Rs. 18750 on the basis that the annual contribution of the deceased to the appellant could be determined at Rs. 1500 and that too for 25 years and that the award does not deserve to be disturbed.
10. Though deceased Ravi was aged about 14years at the time of his death, it is seen from the evidence of P.Ws. 1 and 2 that he had been earning. According to P.W. 1, the deceased had two sources of income, viz., earning from his employment under P.W.2and by rolling beedies in leisure time. P.W. 1 stated that he was earning about Rs. 300 in all. In cross-examination, P.W. 1 was not able to give the name of the person, under whom, deceased Ravi was stated to have been rolling beedies. A suggested that deceased Ravi did not earn anything at all by rolling beedies, was denied by P.W. 1. P.W.2 is a Homeopathic Doctor, under whom, the deceased was employed and according to him, the deceased was working under him for about 4 or 5 months between 8 a.m. and 12.30 p.m. and 4.00 p.m. to 8.30 p.m. and that he had paid him Rs. 150 p.m. towards salary. In cross-examination P.W.2 had denied the suggestion that he did not pay to deceased Ravi Rs. 150 p.m. by way of salary. Indeed, nothing has been elicited from P.W.2 to discredit his testimony that he was paying to the deceased Rs. 150 p.m. In so far as the earnings of deceased Ravi from rolling of beedies are concerned, though P.W. 1 was not in a position to name the person, under whom, the deceased was stated to have been rolling beedies, such earnings by the deceased are not improbable or unacceptable, particularly, having regard to the availability of leisure time for the deceased before 8 a.m. and between 12.30 and 4 p.m. and after 8.30 p.m. Though there is no evidence to establish that deceased Ravi was earning Rs. 150 p.m. by rolling beedies, yet, having regard to the time that was available at his disposal, it is quite probable that part of it was devoted to the rolling of beedies and in that process, the deceased would have earned at least Rs. 2.50 per day or Rs. 75 p.m. in addition to the salary he was receiving from P.W.2. In other words, the total monthly earnings of the deceased could be fixed at Rs. 225 and deducting one third, out of this, towards his personal expenses, the monthly contribution of the deceased "to the appellant could be fairly, justly and reasonably be fixed at Rs. 150 or the annual contribution at Rs. 1,800. At the time of the death of Ravi, the appellant was aged about 35 years, and at best, the appellant could have expected here deceased son to have supported her for the next 25 years or at any rate upto her 60th year. In other words, the multiplier to be adopted in this case could be fixed at 25 and the loss of contribution to the appellant owing to the sudden death of her son Ravi in the accident, could be fixed at Rs. 45,000. In view of the finding on the question of negligence, the amount payable to the appellant by way of compensation could be only one half of this amount, i.e., Rs. 22,500. In other words, the appellant would be entitled to recover from the respondents, compensation in a sum of Rs. 22,500 together with interest at 12% p.a. on that amount from 15.10.1984 till date of payment, credit being given to payments, if any, made meanwhile. The civil miscellaneous appeal is allowed in part, to the extent indicated and the award of the tribunal will stand modified accordingly. There will be no order as to costs in this appeal.