Madras High Court
Muthuswamy And Anr. vs S.A.R. Annamalai And Ors. on 24 February, 1989
Equivalent citations: (1989)2MLJ480
ORDER Padmini Jesudurai, J.
1. These appeals arise out of an award passed by the Motor Accidents Claim Tribunal. The parents of the deceased, who have been awarded compensation have filed C.M.A. No. 809 of 1982, challenging the finding that the deceased also contributed to the accident and also seek enhancement of compensation together with interest, while the owner of the vehicle has filed A.A.O. No. 1103 of 1988, contending that a higher amount should have been deducted for the negligence contributed by the deceased.
2. Facts briefly are: On 10-7-1980, Balasubramaniam, son of the appellant in C.M.A.No. 809 of 1982, aged 6 years and 9 months at the time of his death, was knocked down by a taxi bearing registration No. MDY 9599 belonging to the first respondent insured with the second respondent and driven by the third respondent. Balasubramaniam sustained serious injuries and succumbed to them soon after. The vehicle was driven in a rash and negligent manner. The appellants filed M.C.O.P. No. 243 of 1980 under Section 110-A of the Motor Vehicle Act (hereinafter referred to as the Act) in the Court of Motor Accidental Claims Tribunal (Additional District Judge) Salem, claiming a compensation of Rs. 50,000.
3. The respondents resisted the claim alleging that the accident was not due to the rash and negligent driving of the vehicle by the third respondent but was due to the negligence of the deceased boy. The claim was also excessive.
4. Before the Tribunal, the first appellant examined himself as P.W.I and examined an eye wit ness to the occurrence as P.W.2. They had exhibit A.1 to A.9 marked on their side. The respondents had no evidence to offer, either oral or documentary. On the above evidence, the Tribunal found that the accident was due to the negligence of both the third respondent as well as the deceased boy. The Tribunal did not fix the percentage of contri bution of each. Regarding the compensation, the Tribunal assessed the sum of Rs. 8,000 deducted the sum of Rs. 2,000 for the negligence contributed by the deceased boy and passed an Award in favour of the appellants for the remaining sum of Rs. 6,000. Aggrieved with the findings, these appeals have been filed.
5. Thiru. T.Somasundaram, learned Counsel for the appellants (ranking of parties as in C.M.A. No. 809 of 1982) challenged the Award on the following grounds:
(1) the finding that the deceased also had contributed, to the accident was against law and the facts of the case. A deduction of Rs. 2,000, therefore, ought not to have been made.
(2) the quantum of compensation fixed by the Tribunal is grossly inadequate;
(3) The Tribunal had not awarded interest for the compensation. The same should be allowed.
6. Thiru N.Rosi Naidu, learned Counsel for the 1st and 2nd respondents and Thiru V.Narayana swamy, learned Counsel for the 3rd respondent met the above contentions with reference to the facts of the case, and relied upon certain decision, which I shall refer to in the course of the discussion, Contention No. 1:
7. According to the learned Counsel for the appellants, the deceased was aged six years and nine months and was too young to be capable of contributing negligence to the accident. The Tribunal having found that the third respondent had been guilty of rash and negligent driving, culpability, ought not to have been attributed to the boy aged 8 years.
8. For a better appreciation of the legal issue involved, I shall first refer to the circumstances under which and the manner in which, the accident had taken place. The accident had occurred in an east to west road. It was a straight road. The deceased and his elder sister Porkodi, were re turning from school in a cart. Near the scene of occurrence, both of them got down from the cart on the southern side of the road. Their house was on the northern side of the road. Both of them tried to cross the road, when the Ambassador car driven by the third respondent came from the east;-knocked against the boy, threw him off and came to a standstill, 45 feet from the place of impact. The boy sustained head injuries and died on the way to the hospital. The Tribunal had found the third respondent to be rash and negligent, mainly from the fact that the vehicle could be brought to a standstill Only 45 feet away from the place of accident. The Tribunal, therefore, found that the third respondent had not applied the brakes in time to avoid the accident and also in coming on the wrong side of the road which was to his right. Having found the third respondent to be rash and negligent for the above reasons the Tribunal went on to observe that because the accident had occurred when the deceased boy and his sister were crossing the road from the south to the north, the deceased had also contributed to the accident. It is this latter finding, that is initially challenged by the learned Counsel for the appellant.
9. This takes us to the question whether a child aged six years could be said to be negligent under these circumstances. In Halsbury's Laws of Eng land, Third Edition, Volume 28, Para 8 at page 93, the following observations are found;
A distinction must be drawn between children and adults, for an act which would constitute contributory negligence on the part of an adult person, the reason being that 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 naturally ignorant of danger or to be unable to fend for himself at all, he cannot be said to be guilty of contributory negligence with regard to a matter beyond his appreciation, but quite young children are held responsible for not exercising that care which may reasonably be expected to them. Where a child in doing an act which contributed to the accident, was only following the instincts natural Jo his age and the circumstances, he is not guilty of contributory negligence, but the taking of reasonable precautions by the defendant to protect a child against his own propensities may afford evidence that the defendant was not negligent, and is therefore not liable". I shall now refer to some of the decision in which the principles regarding contributory negligence of children have been laid down. In Gough v. Throne, 1967/A.C.J. 183 a child aged 131/2 was waiting on a pavement along with his elder brother to cross a main road. The driver of a vehicle stopped his vehicle to allow them to cross. He gave a hand-signal beckoning them to pass. While they were crossing the road, the child was knocked down by another vehicle, which came from behind at a rash speed. It was contended that the child had not leant forward to ensure that there was no other vehicle approaching from the off-side of the stationary vehicle and that therefore the child was guilty of contributory negligence. Reversing the finding of the lower Court that the child also was negligent and had contributed 1/3rd to the accident, Lord Denning, M.R. held that the child could not be guilty of contributory negligence and made the following observation.
A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A Judge should only find a child guilty of contributory negligence if he or she is of such an age, as reasonably to be expected to take precaution for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy". Salmon, L.J. agreeing with Lord Denning ob served that an ordinary child of 131/2 years, would not have done anything more, than what that child did, in relying unquestionably on the lorry driver's signal, though an older person, despite the signal, would have looked behind before crossing.
10. Nearer to us, we nave a judgment of the Bench of the Gujarat High Court in Amul Ramachandra Gandhi v. Abhashbhai Kasambhai Diwan, 1979 A.C.J. 460, where a boy aged 2 was returning from school with two of his friends and was knocked down by a truck proceeding in the same direction and approaching from behind. Desai J. (as he then was) reversed the finding of the Tribunal, which had held that the boy had contributed 10% to the accident. Applying the principles of several decisions referred to in the judgment, the learned Judge held that 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 manner that he could have brought it to a stand still 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.
11. The Bench decision of the High Court of Delhi in Delhi Trans Corpn. v. Kumari Lalitha, 1983 A.C.J. 253, also brings out the principles under lying the approach to such cases. Therein a girl aged 8 years, was standing at the bus stand, waiting for the arrival of the bus to go to her school. All on a sudden, another bus driven in a rash and negligent manner, crushed her. Ruling out any contributory negligence on the part of the child, the Court made the following observation:
The child will be judged according to its own intelligence, experience and mental capacity so far as its ability to perceive the risk goes. Its perception of danger and judgment of speeds and distances have to be considered in each individual case. Children are one of the most dangerous classes in society so far as causing motor accident goes. Reads on which schools open are accident prone areas. There is no standard child. There is, no standard care required of children. The individual circum stances of each case have to be examined to determine the question of infant's liability to be guilty of contributory negligence. Regard must be had to its immaturity and tender age. Perception of risk is the text.
12. In Jones v. Lawrence, 1970 A.C.J. 358, boy aged 6 years and 3 months, emerged from behind a stationary van and ran into the road. The motor cyclist coming at a speed, which exceeded the speed limit, knocked the boy down. The question arose whether the boy had contributed to the accident. At the time when the boy was examined in Court he was 11 years and the evidence showed, that the boy had been taught road discipline in his boy had been taught road discipline in his school. The concerned school Mistress who road discipline was taught in schools, infants of 7 years and three months, had propensity taught and if a child of that age wanted to go anywhere, he would forget all that he had been taught. Commenting upon this aspect of the case, Dimming Bruce, J observed as follows:
I do not doubt that he had received that teaching before the date of the accident and that if he had given the matter a thought he would have realised it was his duty, as a matter of taking reasonable care for his own safety, to advance with the utmost caution and look round the corner of the van in order to see whether anything was coming before he walked or ran across the road. The propensity, how ever, of infants of seven year and three months to forget altogether what they have been taught was sensibly described by his school mistress. She wants to get anywhere, he will forget all he has been taught. She said such children do not remember if something else is uppermost in their minds. She was only describing what I regard as the nominal experience of children of the age of seven years and three months. In my view the defendant has failed as a after of probability or that his behavior was anything other than that of a normal child who is, regretfully, momentarily forgetful of the perils of crossing a road.
13. It follows from the above decisions and the principles elucidated in them, that at the age of 6 a child cannot be reasonably expected to take precaution for his own safety. The child would have little road sense and little knowledge of the hazards of road traffic. At that age, the child would act, more by instinct than by reason. The question whether a child is of sufficient age and intelligence to realise and appreciate the risks he runs, so as to be capable of being guilty of contributory negligence, is a question of fact in each case.
14. Coming to the facts of the case before us, we find that the deceased was aged 6 years and 9 months on the day of the accident. He was studying in the second standard. No doubt, he was reading in English Medium School and the parents of the deceased are educated. We know that lessons on road sense, is not part of school curriculum in the second standard. Even, if it was observed by Cumming Bruce, J. in Jones v. Lawrence 1970 A.C.J. 358, a child of 6 would forget in a situation like this, all that had been taught and if the child wanted to go any where, that taught alone would be uppermost in its mind. The deceased had got down form the cart on his way back from school and so he had merely to cross the road to reach his house. The thought of reaching would be uppermost in his mind. In this situation, the deceased is bound to act only by instinct. This has to be taken in conjunction with the fact, that the third respondent had driven the vehicle in a rash manner, since the vehicle could be brought to a stop 45 feet after the impact As observed by Desai,J. (as he then was) in Amul Ramachandra Gandhi v.Abhasbhai Kasambhai Diwan, 1979 A.C.J. 460, the driver of the vehicle is expected to drive the same in such a manner, that it could be brought to a standstill in case of emergency. One cannot miss the fact, that the road is a straight road and the third respondent should have had full view of the deceased and his sister, getting down from the cart. He should have anticipated the possibility of the two children crossing the road after getting down from the cart. In these circumstances, we cannot hold that the deceased was culpable and had contributed to the accident.
Contention No. 215. The learned Counsel for the appellant next contended that the quantum of compensation assessed by the Tribunal is grossly inadequate and is based on no legal principle. The Tribunal has not awarded any amount for the pecuniary loss or for compensation for loss of a predominantly happy life. Instead, the Tribunal has awarded a sum of Rs. 8,000 for mental pain and agony caused to the appellants. The Tribunal has disallowed compensation for pecuniary loss and for loss of a predominantly happy life as hereunder:
Since the deceased was only aged 6 years and 9 months and was studying in II standard in the school, the possibility of his becoming a graduate or reaching school final and earning to help the parents is too remote. P.W.I is the Deputy Tahsildar and the 2nd petitioner is a teacher and as such they are not dependent on the deceased. Further the petitioners have 5 daughters and 2 sons. So in my view the petitioners arp entitled to compensation only for mental pain and agony and for which a sum of Rs. 8,000 can be awarded as compensation and in that an amount of Rs. 2,000 has to be deducted for the contributory negligence on the part of the deceased boy. So the petitioners are entitled to a sum of Rs. 6,000 as compensation for the death of their son". Needless to say, none of the reasons given by the Tribunal, can be sustained. The parents of the deceased are educated and it is said that both are in Government service. It is, averred that they were really interested in their son's education and would have put him in some Government service. That the parents have taken interest in the career of the son is seen from the fact that the boy had been put in an English medium school. It is averred that he was getting the highest marks in his class, though no proof thereof has been produced. Further the deceased is the eldest of the three sons of the appellants. Being the eldest son of a family having 5 daughters, it could be reasonably presumed that the deceased would have effectively shared the parents' responsibility towards the daughter. No doubt in the matter of compensation for the loss of very small children, the Court has to weigh the several imponderables and we cannot seek for precision or certainty. However, certain norms have been developed for guidance. Being the eldest son of the educated parents, both of whom are in Government service, it would not be too much to assume that the deceased would have procured him, at least an ordinary job. Even if the deceased had started earning at the age of 23 or 24, he would have still contributed at least a minimum of Rs. 100 to the appellants for a period of 10 years thereafter, during the lifetime of the appellants. As observed earlier, being the eldest son in a family of 5 daughters, this would be the barest minimum which he could be reasonably expected to contribute to his parents. It could therefore, be taken that the deceased would have contributed Rs. 100 per month' to his parents for a period of 10 years. The compensation comes to Rs. 12,000. The compensation of Rs. 8,000 awarded by the Tribunal for the pain and suffering caused to the appellants by the death of their son cannot be awarded since the Supreme Court in N.Sivammal and Ors. v. Managing Director Pandian Road ways Corporation and Anr.1985 A.C.J. 75 (S.C.), has. held that the legal representatives of the deceased are not entitled for loss caused to them. The sum of Rs. 12,000 awarded as compensation would represent all legitimate claims. In view of my finding negativing contributory negligence, the appellants are entitled to this sum of Rs. 12,000 without any deduction.
16. Contention No3: Learned Counsel for the appellants prayed for interest on the compensation awarded by the Tribunal. Learned Counsel for the second respondent stated that the second respondent has already deposited the amount ordered by the Tribunal and that therefore, they are not liable to pay any interest. The above contention has to be upheld. However, the second respondent will be liable to pay interest at the rate of 9% per annum on the enhanced compensation of Rs. 6,000 from the date of the filing of the petition, viz., 27.10.1980 till the date of deposit.
17. In the result, C.M.A. No. 809 of 1982 is partly allowed. The compensation awarded to the appellants is enhanced by Rs. 6,000. They will, there fore, be entitled to a total compensation of Rs. 12,000 with interest at 9% on the enhanced amount of Rs. 6,000 from the date of filing of petition, viz., 27.10.1980 till the date of deposit. The second respondent shall initially pay the amount. No cost. 18.AA.O. No. 1103 of 1988 is dismissed. No costs.