Muthusamy and another vs S.A.R. Annamalai and others

These appeals arise out of an award passed by the Motor Accidents Claims 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.

Facts briefly are : On 10-7-1980, Balasubramaniam, son of the appellants 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. Balasubra-maniam sustained serious injuries and succumbed 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 S. IIOA of the Motor Vehicles Act (hereinafter

referred to as the Act) in the Court of Motor Accidents Claims Tribunal (Additional District Judge) Salem, claiming a compensation of Rs.

50,000/-.

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.

Before the Tribunal, the first appellant examined himself as P. W. 1 and examined an eye-witness to the occurrence as P.W. 2. They had

exhibits 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 contribution of each. Regarding the compensation, the Tribunal assessed the sum at 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.

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, 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.

6-7. Thiru N. Rosi Naidu, learned counsel for the 1st and 2nd respondents and Thiru V. Narayanaswamy, learned counsel for the 3rd respondent

met the above contentions with reference to the facts of the case, and relied upon certain decisions, which I shall refer to the course of the

discussion.

Contention No. 1 :

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 6 years.

8A. 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

returning 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 stand-still, 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 appellants.

This takes us to the question whether a child aged six years could be said to be negligent under these circumstances. In Halsbury''s Law of

England, 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 may fail

to do so in the case of a child or young 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 of them. Where a child in doing an act which contributed to the accident was only following the instincts natural

to 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 decisions in which the principles regarding contributory negligence of children have been laid down. In Gough v.

Thorne, 1967 ACJ 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 backoning 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 lent 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 observations :

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 precautions 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 observed 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.

Nearer to us, we have a judgment of the Bench of the Gujarat High Court in Amul Ramchandra Gandhi Vs. Abhasbhai Kasambhai Diwan and

Others, where as boy aged 12 years 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 ias a matter of course.

The Bench decision of the High Court of Delhi in Delhi Trans. Corpn. v. Kumari Lalita, 1983 ACJ 253 : AIR 1982 Delhi 558 also brings out

the principles underlying 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 of 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 (at p. 561 of AIR) :

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. Roads on which schools open are accident prone areas. There is no standard of care

required of children. The individual circumstances 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 test.

12, In Jones v. Lawrence, 1970 ACJ 358 a 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 limitk 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 school. The concerned school Mistress who had also been examined, had added that though road discipline was taught in schools,

infants of 7 years and three months had propensity to forget altogether what they had been 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, Cumming Bruce, J. observed :

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, however, of infants of seven years

and three months to forget altogether what they have been taught was sensibly described by his school mistress. She made an observation that if a

child of that age wants to get anywhere, he will forget all he has been taught. She said such children do not remember if something else is upper

most in their minds. She was only describing what I regard as the normal experience of children of the age of seven years and three months..... In

my view the defendant has failed as a matter of probability to show that the infant plaintiff was culpable or that his behaviour was anything other

than that of a normal child who is, regretfully, momentarily forgetful of the perils of crossing a road.

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

precautions 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.

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 an English Medium school and the parents of the deceased are educated. We know

that lessons on road sense is not part of the school curriculam in the second standard. Even, if it was, as observed by Camming Bruce. J. in Jones

v. Lawrence, 1970 ACJ 358 a child of 6 would forget in a situation like this, all that had been taught and if the child wanted to go anywhere, that

thought alone would be uppermost in his mind. The deceased had got down from the cart on his way back from school and now he had merely to

cross the road to reach his house. The thought of reaching his house would be the only thought that 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

Ramchandra Gandhi Vs. Abhasbhai Kasambhai Diwan and Others, 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 thej possibility of the two children

crossing the; road after getting down from the cart. In these circumstance, we cannot hold that the deceased was dupable and had contributed to

the accident.

CONTENTION NO. 2,

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 predominently

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 predominently happy life as here-under:--

Since the deceased was only aged 6 years 8 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. 1 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 two sons. So in my view the petitioners are 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, bov. 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 appellants 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 son of a

family having 5 daughters, it could be reasonably presumed that the deceased would have effectively shared the parents'' responsibility towards the

daughters. 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 five

daughters, this would be the bearest 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 come 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 Others Vs. Managing Director, Pandian Roadways Corporation and Another, has held that

the legal representatives of the deceased are not entitled for any compensation for pain and suffering 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.

CONTENTION NO. 3.

Learned counsel for the appellants prayed for interest on the compensation awarded by the Tribunal. Learned counselfor 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 cent 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.

In the result, C.M.A. 809 of 1982 is partly allowed. The compensation awarded to the appellants is enhanced by Rs. 6,000. They will,

therefore, be entitled to a total compensation of Rs. 12,000 with interest at 9 per cent on the enhanced amount of Rs. 6,000 from the date of filing

of the petition viz., 27-10-1980 till the date of deposit. The second respondent shall initially pay the amount. No costs.

A.A.O. 1103 of 1988 is dismissed. No costs.

Order accordingly.