Beliya and Others vs M.P.S.R.T. Corporation and Another

Oza, J.—This appeal has been filed by the Appellants against the order passed by the Motor Accidents Claims Tribunal, Indore dismissing the application for compensation filed by the Appellants.

The present Appellants are the parents of deceased Magan, a boy of 7 years of age on the date of the accident, i.e. 26.3.1973. It is alleged by the Appellants that the boy was standing on extreme left side of the road on the Indore-Dhar Road near Jawahar Tekri when M.P. State Road Transport Corporation''s bus No. M.P.F. 6952 coming from Indore and driven by Respondent No. 2 Amolakdas at a high speed and in a negligent manner knocked down the boy who died instantaneously on the spot: The accident was reported at the police station Chhatripura and the post mortem examination of the dead body was performed at M.Y. Hospital. The Respondents Nos. 1 and 2 in their written statement pleaded that the bus was not being driven at a high speed. It was also pleaded that the bus was going on its side at a moderate speed. It was further stated tha a truck was standing and the boy came from behind the truck and therefore was not visible at all to the diryer and the boy dashed against the bus on its rear side. Consequently, it was pleaded that the Respondents are not responsible for the accident.

The learned Tribunal found that the accident took place on account of the negligence of the boy himself and therefore dismissed the petition filed by the Appellants. The learned Tribunal did not accept the story that a truck was standing and the boy appeared suddenly from behind the truck, but felt that the boy attempted to cross the road and he collided against the bus on its rear side on account of his own negligence.

Apart from the evidence led by the Appellants, i.e. of P.W. 2 Thavira and P. W. 4. Indorilal, even the facts stated by D.W.I Amolakdas (Respondent No. 2) and Bhagirath examined by the Respondent and alleged to be a passenger in the bus, clearly go to show that the driver did not notice the boy coming on the road. According to his own version in the written statement and in his deposition in the Court Amolakdas stated that he only heard the sound of knocking down and thereafter stopped and found the boy lying dead behind. He clearly therefore admits that he had not seen the boy crossing the road. A plea was raised in the written statement to indicate that a truck was standing and the boy appeared from behind the truck. But "it is not very clear from the plea as well as from the statement of Amolakdas as to the side on which the truck was standing. Nor is there any evidence about the truck standing on the road. The circumstance that the driver of the bus was driving the vehicle in a manner in which he could not notice the boy 7 years old crossing the road clearly goes to establish that the driver of the bus was negligent in driving the vehicle. It is also not in dispute that the place where the accident took place is a place where a number of stone-crushers are working and labourers reside nearby. It is not the case of the Respondents also that it is a solitary road were ordinarily pedestrian traffic was not expected. Under these circumstances it was for the driver of the vehicle to establish the special circumstances under which he could not notice the boy on the road. The plea about the presence of the truck itself is very vague. The bus going from Indore towards Dhar and according to the evidence of the Appellants the boy was standing on the left side of the road-whereas the statement of Amolakdas does not show as to on what side of the road the truck was standing. But what he has said is that it was standing on the right hand side. If the boy was standing on the left hand side of the road, the explanation that he suddenly appeared from behind the truck would not be available if the truck was standing on the right hand side of the road. In the cross-examination the driver admitted that the truck was facing Indore. That shows therefore that it was opposite to the bus and was therefore standing on the right hand side of the bus. He also admits in his cross-examination that he did not see the boy on the road. He only saw him after the accident. In the written statement initially in paragraph 9 it was stated that the boy collided on the middle of the body of the vehicle where as in his statement Amolakdas stated that it was an error and he collided on the back side of the body.

It was contended by learned Counsel for the Respondents that even the witness examined by the Appellants, P.W. 4 In-dorilal, admitted that a truck was standing. A perusal of his evidence indicates that in the examination inchief he stated that there was no truck at that time. In cross-examination he spoke about a truck standing; but according to him the truck was not standing on the road. In fact, the plea in the written statement was not that the boy was visible as he suddenly appeared from behind the truck, but the plea was that the boy came from behind and collided on the back side of the bus. It was emphatically pleaded that it was not the bus which collided against the boy but it was the boy himself who ran and collided against the bus. The same appears to be the plea of the driver in his statement. It cannot be doubted that the boy running from behind would not himself come and collide against the bus when the bus was moving even at a moderate speed as alleged by Respondent No. 2. Consquently, as stated earlier the circumstances that appear from the evidence are that the boy who was standing on the side of the road was crossing the road and the driver did not notice him and ultimately Knocked him down and it is only after the noise of the knocking down of the boy that the driver saw him lying dead behind. This circumstance in our opinion is sufficient to hold that the driver was driving the bus from a place where children were expected to be around in a manner in which he could not even notice a boy of seven years crossing the road. Consequently, it cannot be doubted that the accident occurred on account of the negligence of the driver.

The learned Member of the Claims Tribunal probably felt that if the boy had stopped the accident could have been averted and therefore he applied the doctrine of contributory negligence. It was not disputed before us that this doctrine would not be applicable in the case of a boy of 7 years of age. Apart from it there is nothig to indicate that seeing the boy on the road the driver blew the horn or did what was necessary for the driver of a vehicle to do as admittedly the driver did not notice the boy at all. Consequently, it could not be said that the accident occurred on account of negligence of the boy or on account of any contributory negligence attributable to the boy.

As regards compensation, the learned Tribunal did not go into that question at all, It is clear that the victim of the accident was the son of labourer. There is no evidence clearly to indicate as to how much pecuniary loss the parents would have suffered on account of the death of this boy. Both the learned Counsel concede that in such cases a lumpsum amount of compensation is generally awarded. Learned Counsel appearing for the Appellants contended on reference to some cases that award of Rs. 5,000/- or 6,000/- was generally given in such cases where as learned Counsel for the Respondent contended that in the circumstances of the case an amount of Rs. 3,000/- would be the reasonable amount. It is clear from the evidence that this boy of 7 years was the only son of the parents who are labourers. Apparently, the loss of this son is going to affect the family and in the circumstances of the case, in our opinion, keeping in view the fact that the boy comes from the family of labourers an amount of Rs. 4,000/- (Four thousand) would be adequate compensation.

In the result, the appeal is allowed. An awared of Rs. 4,000/- (Four thousand) in favour of the Appellants is granted against the Respondents. The Appellants shall also be entitled to interest on this amount at the rate of 6 p.c. p.a. from the date of the application for compensation upto the date of realization. The Respondents shall also pay costs of this appeal and counsel fee Rs. 100/-, if certified.