1. On May 13, 1970 at 7-30 A. M. a group of children were standing on the eastern footpath in D. Subbaiah road in Mysore City. Of them Srinivasa, aged about 6 years, was standing on the road close to the foot-path. Then lorry bearing No.MYX 5628 came from Chamaraja Double Road, which was running South to North and took a turn to D. Subbaiah road, proceeded a distance of 40 yards and struck Srinivasa and injured his legs. The driver of the lorry Thimmegowda disappeared from the scene leaving the lorry there. The relatives of Srinivasa who had come to attend a marriage in a house opposite to D. Subbaiah road, which was situated on the western side, came to the spot and took him to the K. R. hospital and admitted him there. He was operated upon on the same day and thereafter remained in the hospital for 41/2 months. In spite of the best medical treatment, the left leg of Srinivasa became permanently incapacitated.
2. In respect of the injuries suffered by Srinivasa, his father filed an application under Section 110-A of the Motor Vehicles Act claiming compensation of Rs. 50,000/-.
3. The owner of the lorry (Parashiva Murthy) contended that the accident was not due to the rash and negligent driving, but it was due to the boy suddenly crossing the road from left side of the road to the right and again back to the left side of the road towards the footpath. The same was the defence taken up by the Insurance Company (the Madras Motor and General Insurance Company, Madras). In substance, the defence of the insured and the insurer was that the accident was due to the contributory negligence on the part of the boy Srinivasa.
4. The Tribunal has found that the driver of the lorry was negligent, relying on the evidence of P. Ws. 2, 3 and 4. Having held thus, the tribunal awarded a sum of Rs. 15,000/- as compensation. As against this decision, owner of the vehicle and the Insurance Company have filed M. P. A. 422 of 1974 and the claimant has filed M. P. A. No. 20 of 1973.
5. The accident appended in D. Subbaiah road 40 yards away from the intersection of D. Subbaiah road and Chamaraja Double road. The lorry at the time of the accident was moving towards south after taking turn from Chamaraja Double road. P. Ws. 2, 3 and 4 are relatives of Srinivasa. P. W. 2 was sitting on the pail of a house opposite to the place of accident. P. W. 3 was standing just in front of that house and P. W. 4 was coming towards the house. These witnesses have stated that they were there in connection with a marriage in that house. According to them, Srinivasa crossed the road from west to east, namely, from the side of the house to the east of the road and was standing near the foot-path on the eastern side of the road. At that time a group of boys were also standing on the foot-path. Their evidence shows that the lorry took a turn in great speed and struck the boy. There is nothing to disbelieve the evidence of these witnesses though they are relatives of the boys. The driver of the lorry has not been examined in this case. Therefore, the finding of the Tribunal that the driver of the lorry was negligent cannot be interfered with.
6. Then the question whether the little boy was himself guilty of contributory negligence remains to be considered. We are afraid we cannot agree with the defence of the owner of the lorry. In the first place, there is no evidence in support of it. In the second place, a very young boy cannot be guilty of contributory negligence. An older child may be; but it depends upon 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. In this case Srinivasa being 6 years old at the time of the accident, he cannot be blamed for contributory negligence. On the other hand, in this case the evidence shows that the driver of the lorry struck the boy when he was standing just near the footpath and that was a clear case of rash and negligent driving.
7. The next question relates to the quantum of compensation to be awarded. Srinivasa was an inpatient in the hospital for 41 months. The father of the boy (claimant) who is examined as P. W. 11 has produced Exs. P-8 and P-9 to show the expenses that he incurred during the period the boy was in the hospital. Ex. P-9 is a note-book in which he has noted down the expenses that he incurred amounting to Rs. 2,716.50. The tribunal has not acted upon Ex. P-9 on the ground that some of the entries found therein may not represent the true facts. The Tribunal has awarded only a sum of Rs. 9001on this account. Taking into consideration the length of time the boy was in the hospital, we think it proper and just to award compensation of Rs. 2,000/- in regard to the expenses.
8. After the boy was discharged from the hospital, the evidence shows, he was treated for a considerable length of time. The expenses incurred in this behalf have been entered in Ex. P-8 by the father of the boy amounting to Rupees 1.154.55, which he has claimed in this behalf. The tribunal has awarded Rupees 1.1001- on this account and we think that it is just and proper and therefore we see no reason to interfere with that auestion.
9. The medical evidence in this case shows that the boy required further medical treatment involving major operation. In this behalf the tribunal has awarded Rs. 2.500/-. Taking into consideration the nature of the injury the boy has suffered, we think it just and proper to award a compensation of Rs. 3.0001and accordingly we award compensation of Rs. 3,000/- instead of Rs. 2,500/-.
10. In regard to the pain and suffering, the tribunal has awarded Rupees 2,500/- as compensation and in our opinion that is proper and just compensation.
11. The medical evidence shows that there is a permanent deformity to Srinivasa and that the boy is incapacitated. For this the tribunal has awarded Rupees 8,000/- as compensation. Having regard to the age of the boy, we think it proper to award a compensation of Rs. 10,000/- on this score. Accordingly we award compensation of Rs. 10,000/- instead of Rupees 8,000/-. On the whole, the claimant is entitled to a total compensation of Rupees 18,600/-. This amount is payable by the owner of the vehicle, the Insurance company as well as the driver. As the vehicle was insured, this amount shall be said by the Insurance Company. This amount carries interest at 6% per annum from the date of application. namely, 8-7-1970 till, the date of realisation.
12. For the reasons stated above, M. F. A. No. 422/74 is dismissed with, costs. Advocate's fee Rs. 100k M. F. A. No. 20/73 is allowed in part as indicated above. The Award made by the Tribunal will be modified accordingly. The parties will bear their own costs in this appeal.
13. The claimant, namely, the father of the boy Srinivasa, is entitled to draw a sum of Rs. 10,000/- out of the abovesaid amount and the balance, of the amount shall be deposited in any Nationalised Bank in fixed deposit preferably for a period of 10 years in the name of the boy Srinivasa.
14. One first appeal partly allowed;
another first appeal dismissed.