Amritsar Transport Co. (P), Ltd. and Another vs Smt. Swaran Kaur and Another

R.S. Sarkaria, J.—F.A.O. Nos. 160 and 161 of 1963 arise out of common facts, which may be set out as under :

On the 14th November, 1961, some school children, including Swaran Kaur (aged 10 years) and Gurmit Kaur, (aged 13 years) accompanied by their Headmistress, Shakuntla Devi, went to Gurdaspur to attend Children''s Day celebrations. After attending this function, they proceeded to their village in a bus. At about 3 P. M., the bus stopped on the roadside at village Gurdas Nangal Bus-Stand. All the children, together with their Headmistress Shakuntla Devi, alighted the bus on the left side of the road. They went towards the rear of the vehicle and wanted to cross the road. Another truck No. PNA-4997 driven at high speed by Kartar Singh came from Dhariwal side and knocked down the two children, Swaran Kaur and Gurmit Kaur and caused them injuries. Jasbir Kaur another child also out of fear fell down. After knocking down the children, the truck stopped at some distance from the scene of the accident. The injured were removed to the Civil Hospital, Gurdaspur, and wore medically examined, A.S.I. Bidhi Chand reached the Hospital and recorded the statement of Shakuntla Devi, and sent the same to the Police Station, on the basis of which, a case was registered under Sections 337,338/279, Indian Penal Code, against Kartar Singh. After investigation, the Police challaned him for trial in the Court of Shri N. K. Garg, Magistrate I Class, Gurdaspur, who convicted him u/s 388, Indian Penal Code, and sentenced him to 6 months'' rigorous imprisonment and a fin? of Rs. 210!-. It was also ordered that out of the fine, if realised, Rs. 50/- each will be paid to Swaran Kaur and Gurmit Kaur injured. The appeal of the convict was dismissed by the Sessions Judge, Gurdaspur, with the modification that the sentence of imprisonment was remitted.

Swaran Kaur and Gurmit Kaur injured made Application Nos. 14 and 15 of 1962 before the Motor Accidents Claims Tribunal, Punjab, for compensation. Both these cases were consolidated by the Tribunal and tried together on these issues :

Whether the accident was due to the negligence of the driver of PNA. 4997 in which Gurmit Kaur and Swaran Kaur received injuries.

What is the quantum of compensation due if any and from whom to whom.

He decided these issues in favour of the applicants, and, in the result, awarded Rs. 3135/- with half of the costs of the case to Gurmit Kaur, and Rs. 2760/- with half of the costs of the case to Swaran Kaur, and directed by virtue of Section 96 of the Motor Vehicles Act, that the amount of compensation with costs be paid by the Ruby General Insurance Co., Ltd., 21, Daryaganj, Delhi, within 3 months from the date of the award, failing which it would bear interest at 6 per cent per annum. It was added that the payment shall, however, be made to S. Gurbax Singh, father of Gurmit Kaur minor, and Shri Rabinder Singh father and next friend of Swaran Kaur minor. Against that judgment, the Amritsar Transport Company Ltd., and the Rubi General Insurance Company Ltd., have preferred these two appeals, which shall be disposed of by this judgment.

With the aid of Mr. R.C. Dogra, I have gone through the record. The main contention of Mr. Dogra is, that the accident in which the minor girls Gurmit Kaur and Swaran Kaur received injuries was totally due to the negligence of the victims. It is emphasised that when the injured alighted the bus, they were duty-bound to make sure that the road was clear it is argued that the evidence shows that a cloud of dust had been raised when the bus bringing the injured children stopped. The result was that Kartar Singh, driver of truck no. PNA-4997, could not have reasonably anticipated that the children would be crossing the road in that negligent manner. In the alternative, it is urged that even if there wis contributory negligence on the part of Kartar Singh driver, than also the injured were not entitled to any compensation, because, in India, contributory negligence is still a good defence. In support of his contentions, the learned counsel has referred to Jang Bahadur Singh v. Sunder Lai Mandal AIR 1932 Pat 258, and Shri Ram Pertap v. General Manager, Punjab Roadways, Ambala (1962) 64 P.L.R. 448 = AIR 1963 P&H. 125.

In reply, Mr. J.N. Seth. the learned counsel for Respondent No. 1, has pointed out that the existence or non-existence of a mushroom of dust will not make any difference. A duty was cast on the truck driver to make sure that the road in front of hi n was clear before running past the passenger bus that had brought the children. As a rule, all vehicles are expected to slow down and pass with extra caution at any bus-stand, particularly whan passengers and children from a bus coming from the opposite side are alighting. My attention has also been drawn to the fact that Kartar Singh driver has been convicted u/s 338, Indian Penal Code, for rash and negligent driving and knocking down Gurmit Kaur and Swaran Kaur injured. The conviction of the truck driver by the criminal Court is also a relevant circumstance. The learned counsel has also argued that it was fortunate that the injured did not prefer any appeal, because compensation awarded by the Tribunal is far too in-commensurate with the injuries sustained by the minor girls, whose chances of being married in a decent family and leading a happy life have been ruined for ever. In support of his contentions, Mr. Seth has referred to State of Punjab and Another Vs. Smt. Phool Kumari and Others,

It appears to me that the contentions of Mr. Dogra cannot, and that of Mr. Seth must prevail. It is admitted by Kartar Singh, R.W.I, that the girls were knocked down by the truck lie was driving. In cross-examination, he admitted that the speed of his truck at the time of the accident was, about 27 or 28 miles per hour. Witness applied the brakes and the truck stooped at 3 or 4 yards from the scene of the accident.

Gurmit Kaur injured, A.W.2, stated that after alighting the lorry, which brought them back from Gurdaspur, the witness along with Swaran Kaur and Jasbir Kaur were crossing the road when the truck hit her and Swaran Kaur. She was knocked down unconscious and she regained consciousness in the hospital, where she remained under treatment for 3 or 4 months. Witness could not walk properly even at the date of her deposition. The injury had left a big scar and a perment deformity in her foot. Their teachers Shakuntla Devi was with them. Cross-examined, witness stated that they crossed the road when their teachers asked them to do so. Two girls had safely crossed the road, while the witness and others were in the process of doing so. Witness did not hear the noise of the approaching truck, nor did she see it coming. A similar statement was made by Swaran Kaur injured, A.W.4. In cross-examination, she denied if their teachress had asked them to wait and see whether the road was clear or not. In fact, the teachress led them and the girls followed her. In reply to a question put by the Tribunal, witness stated that there was no dust when they were crossing the road.

Shakuntla Devi, A.W.3, was the chief witness She testified that when they got down from the bus, it started off and raised dust, as a result of which, they could not see the approaching truck which had come at a terrific speed without blowing any horn. At least, witness did not hear any blowing of the horn. Gurmit Kaur and Swaran Kaur were hit by the truck. Cross-examined, witness stated that she had not said about the raising of dust in her statement before the Police. Witness had told the girls to wait till the dust cleared off. Again said that she had only asked the children to be alert in crossing road. The dust was still there when they were about to cross the road. She was leading the girls.

The credit of non of these witnesses was successfully impeached in cross-examination. They had emerged unscathed from the ordeal. The learned Tribunal has rightly placed reliance on their testimony. He has correctly observed that the driver, Kartar Singh, was a highly interested party and his word could not be taken as a gospel of truth. In the absence of any independent evidence to corroborate the driver''s evidence, therefore, the Tribunal had to accept the evidence of the applicants. The Tribunal has, however, found "that Shakuntla Devi teachress did not take sufficient precaution to warn the girls at the time of crossing. The girls also followed the teachress without making sure as to whether the road was safe to cross or not." The Tribunal thus found ''that there was an element of contributory negligence on their (victims'') part.'' At the same time, he found ''that the driver of the truck had not taken the required precaution while crossing the bus and had been running the truck at 25/26 miles an hour''. (In fact, the driver admitted in cross-examination that the speed of his truck might be 28 miles per hour). "He should have anticipated" observes the Tribunal, "that some passengers must have alighted the bus and they might risk crossing the road unmindful of the approach of his truck, especially when he had not been blowing the horn. In this respect, I accept the statements of the A Ws that the truck had come without blowing horn. If there was dust, there was more reason for the driver to have made sure that the road was clear or he should have stopped the truck till the dust had been cleared. Thus from the evidence it appears that there has been negligence on either side."

In the first place the evidence on the record does not show that there was any real negligence on the part of the victims other than slight carelessness. Secondly, even if the victims and their incharge failed to exercise extra caution, then also that will not absolve the truck driver of his duty to take due care in the circumstances of the case. Gross and clear negligence on his part was established, inasmuch as he did not lessen his speed, which according to his own admission was about 28 miles per hour, but according to the evidence of Shakuntla Devi, A.W. 3, was a terrific speed. He knew that a bus was unloading the passengers who might be crossing the road. If the scene was enveloped in a could of dust, there was all the more reason for the truck driver to slow down and make the crossing after the dust had cleared off. Thirdly the Tribunal has found it as a fact that the truck driver did not blow any horn to warn the victims of its approach. The learned Tribunal has overlooked the fact that in applying the test of contributory negligence, different standards apply in the case of children. It is true that no enactment analogous to the English Law Reforms (Contributory Negligence) Act. 1945, has so for been enacted in India. Even without it, Courts in India will apply the principles underlying that enactment on the ground of equity, justice and good conscience. The aforesaid English Act enacts that where ("any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of such damages shall not be defeated by reason of the fault of the person suffering the damage, but the damages recovered in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant''s share in the responsibility for the damage"), ''Fault'' has been defined in the said Act as "negligence, breach of statutory duty, or other act or omission which gives rise to a lability in tort or would, apart from this Act, give rise to a defence of contributory negligence". (The net result of the Act is that even to a plaintiff who is guilty of contributory negligence, the more just rule of division of loss according to fault is adopted). The old common law rule which in such cases totally denied any compensation to the plaintiff was, in the words of Lord Justice Scott, ''harsh and often cruel'' See Sparks v. Edwara Ash Ld. (1943) I.K.B. 223. The new rule is founded on equity and commiseration.

Thus, even if it is assumed for the sake of argument that there was some contributory carelessness on the part of'' the victims, then also the equitable principle of English Law Reform (Contributory Negligence) Act, 1945, would apply to the facts of the case. The meagerness of the compensation awarded to the two victims can he justified only if it is assumed that there was contributory negligence on their part. However, as I have already observed above, the conduct of the children in bringing about their injuries could not be called a conscious act of volition. At any rate, it could not be below the standard of care or judgment expected of such minor children. In cases where contributory negligence is attributed to the child applicant claiming compensation, a very grave and serious onus rests on the respondent setting up that defence such a defence is very difficult to make out, and in the present case, in my judgment, it had not been established.

In Harrold v. Watney (1898) 2 Q.B. 320. the defendant was held liable for keeping a public nuisance in the shape of a ruined fence near a highway and the plaintiff, a boy of four, being injured by putting his foot on it.

A driver (of motor truck, passing through a bus-stand where children are alighting from a bus is expected to anticipate the risk of children coming across the road, and is thus duty bound not only to warn the children by blowing the horn etc.,-to keep off the, road, but also to reduce the speed to such an extent that it would enable him to stop the vehicle dead instantly). Thus, from whatever angle the matter may be looked at the injuries were caused to Swaran Kaur and Gurmit Kaur minors in an accident which was the direct result of the rash and negligent driving of Kartar Singh driver.

The rulings cited by the learned counsel for the appellants proceed on different facts. In Jang Bahadur Singh''s case AIR 1932 Pat 258 a person was holding the rains of a horse and waiting towards the left side of the road for the syce to come and take charge of the horse. At that very time, a motor bus driven by defendant 2 and belonging to defendant 1 was coming from the opposite direction. On seeing the bus, the person incharge of the horse raised his hand giving a signal to the driver to stope the bus to enable him to remove the horse from the road. The driver did not pay any need and came driving the bus rashly and negligently towards the wrong side of the road, blowing the horn and passed by the side of that horse. The horse got frightened and the bus dashed against the horse causing it permanent injury. The owner of the horse brought an action for damages in tort against defendants 1 and 2. It was held that the motor-driver, defendant 2, was guilty of negligence and his negligence was the effective cause of the injury complained of It was further laid down that the doctrine of res ipsa loquitur did not apply as the cause of the accident was not unknown. I fail to see how this ruling helps the appellants.

Similarly, in Shri Ram Pertap''s case (1962) 64 P.L.R. 448 = AIR 1963 P&H. 125 it was held that a skid of a motor vehicle in itself does not excuse the motor accident and it may not suffice by itself, to displace the prima facie inference of negligence arising from the vehicle being where it has no right to be; for a skid may be caused by bad, careless or fast driving. The skid is this by itself a neutral factor and it may or may not be due to the driver''s negligence. I wonder, how this ruling advances the case of the appellants.

On the other hand, in State of Punjab and Another Vs. Smt. Phool Kumari and Others, where the collation between two motor vehicles occurred due to the negligence of the drivers of both the vehicles, it was laid down that the liability to make good the damage or loss shall be proportionate to the degree to which each driver was at fault.

For the foregoing reasons, I do not find any force in these appeals, which fails and are dismissed with costs.