1. This appeal by the claimant is directed against the judgment and award dated 20-10-1975, passed by The Member, Motor Accidents Claims Tribunal, South Kanara, Mangalore, in Miscellaneous (MVQ Case No. 21 of 1967, on his file, dismissing the petition of the claimant for compensation for the injuries suffered by him in the motor accident.
2. Injured Gunapala Shetty, a boy of 9 years, was going on 27-1-1967 along with his brother Dhanapala Shetty (PW-6) to the school. The school was on the eastern side. At that time, according to the claimant, a car bearing Registration No. MYX 655, which was being driven from west to east in a rash and negligent manner by its driver came and dashed against Gunapala Shetty from behind, as a result of which he fell down, sustaining severe injuries. He was removed in another taxi to PW 7 Dr. M. S. Naik, who advised that Gunapala Shetty should be taken to Wenlock Hospital, Mangalore. Accordingly Gunapala Shetty was taken to Wenlock Hospital. He was admitted there as an in-patient. From there, he was transferred to Bombay and be was treated there. It is the case of the injured that as a result of the injuries sustained in the accident, he lost his strength in his left leg and left hand and that he is not able to speak properly. It is his further case that he lest his memory and that he was unable to pass the examination. According to him, he has become crippled and invalid for life. On these averments, he claimed compensation of Rs. 75,000/-, before the Tribunal.
3. The claim was resisted by respondents 1 and 2. Respondent-1 K. Sanjeeva Rao was one of the owners of the vehicle who subsequently died and respondent-2 K. Shan, Shantharama Rao was driving the vehicle at the relevant point of time. The Insurance Company is arrayed as respondent 3. Respondents 1 and 2 resisted the claim by filing their statement of objections. According to them, the car in question belonged to the partnership firm M/s. K. Sanjeeva Rao, a registered partnership firm. They denied that the accident was the result of rash and negligent driving of the car by its driver. At the time of the accident, respondent-2 was going in the car from west to east fog his mid-day meal to his house, which was opposite to Kinnigoli Church. He was going from his cloth shop situated in the heart of the town. The said road was ascending for half a furlong or so. The accident happened in the ascent near the house of respondent-2. They further contended that the boy did not suffer all the injuries as alleged. They denied that he had become permanently invalid. According to them, the accident was not the result of the rash and negligent driving of the car by its driver, but it was entirely due to the negligent conduct of the boy himself.
4. It appears that after the case was remanded by this Court, the contending respondents viz., respondents 1 (a) and 2, amended their counter by filing an additional counter dated 24-9-75. They asserted that while the injured and his brother were proceeding to the school from west to east on the southern side and when the injured was going on the right side of Dhanapala Shetty, a cow came from the opposite direction and attempted to charge the injured. Being frightened, the injured suddenly tried to go towards the northern side and dashed against the car which was going on the correct side being driven slowly and carefully. The rest of the respondents adopted the additional counter, Respondent-3, the Insurance Company, contended that the accident happened on account of the negligence on the part of the injured himself. According to it, the vehicle in question did not appear to have been used as required by the terms of the policy and the claim was excessive.
5. On these pleadings, the Tribunal raised the following issues: -
(1) Was the car bearing Registration No. MYX 655 driven rashly and negligently and did the claimant sustain injuries as a consequence thereof?
(2) Was the accident due to the circumstances pleaded by respondents, 1 and 2 in para-8 of their statement and, therefore, not liable to pay any compensation?
(3) What are the injuries sustained by the claimant ?
(4) Is the petition not maintainable on the pound of non-jointer of necessary parties as pleaded?
(5) Are the terms and conditions of the Insurance Policy not complied with as contended by respondent-3 and are respondent-3 not liable?
(6) To what compensation, if any, is the claimant entitled?
6. Before remand, the evidence of the claimant Sundara Shetty PW 1, Bhaskara Bhandary PW 2, Sheena Shetty PW 3, Baba. Kukkyan and respondent-2 were recorded by the then Member of the Motor Accidents Claims Tribunal, Thereafter, the evidence of DW 2 S. D. Patil, P. S. L, was also recorded. On that basis, the then Member of the Tribunal Shri K. Channabasappa answered the relevant issues holding that the claimant failed to prove that the vehicle in question was driven rashly and negligently causing the accident in question. In that view, he dismissed the petition by his judgment and order dated 29-6-1972. Aggrieved by the same, the claimant came up in appeal before this Court in Miscellaneous First Appeal No. 662 of 1972. This. Court, on bearing the Counsel, by its order dated 3-12-1974, set aside the said order, and remanded the case for fresh trial with a direction that opportunity should be given to both the parties to, adduce additional evidence if they so desired. After remand, the claimant examined the injured PW 5 Gunapala Shetty, PW 6 Dharmapala Shetty who is the brother of PW 5, PW 7 Dr. M. S. Naik, PW 8 Mathias D'Costa the Head Master and PW 9 Dr. Gopalakrishna Bhat and got further marked Exhibits P-2 to P-26. The evidence of respondent-4 K. Yeshwantha Rao was also recorded as DW 3 and the contending respondents got further marked Exhibits D-8 to D-13, Thereafter, the Member of the Tribunal, on hearing the arguments addressed before him, answered the issues raised in the case as under :--
No. (2) Yes. (3) The injured dhrmapala Shetty did sustain some injuries in the accident. (4) As Yeshwantha Rao is a party as opponent-4 (respondent-4), this issue does not survive. (5) The terms and conditions of the insurance policy have been complied with. (6) No. Even if the injured is held to be entitled to get compensation, all the opponents/respondents are liable to pay Rs. 10,210.14 p., as compensation.
7. Even after the remand, The member of the Tribunal, having held that the claimant Jailed to establish that the accident was the result of the rash and negligent driving of the car in question by its driver, dismissed the petition for compensation. Aggrieved by the said judgment and order of dismissal, the claimant has come up in appeal again under S. 110-D of the Motor Vehicles Act. 1939, before this Court.
8. The learned counsel Shri & Krishna Bhat. appearing for the appellant, strenuously urged before us that in view of the oral and documentary evidence on record. the Tribunal was not justified in coming to the conclusion that the accident was not the result of the rash and negligent driving of the car in question by its driver. In that view, he further submitted that the compensation suggested by the Tribunal, at any rate, should have been awarded. He also submitted that the compensation suggested by the Tribunal was very much on the lower side having regard to the nature of the injuries.
9. As against that, the learned counsel Shri Padubidri Raghavendra Rao, appearing for the owner of the car, argued supporting the finding of the -tribunal on the issue of actionable negligence on the part of the driver of the car in question. He further submitted, alternatively, that in view of the lack of evidence on record, the compensation suggested, if at all, by the Tribunal, is quite just and reasonable.
10. The learned Counsel appearing for the Insurance Company submitted that the vehicle was transferred by the original owner In whose favour the policy was issued and, as such, the Insurance Company was not liable for any compensation.
11. In the circumstances, therefore the points that arise for our consideration in this appeal are:
(1) Whether the Tribunal is justified in holding that the accident is not the result of rash and negligent driving of the car in question by its driver ?
(2) If not, whether the compensation suggested by the Tribunal is just and proper ?
If compensation is due, whether the Insurance Company is liable to pay the same?
12. It may also be mentioned in This context that respondent-I (one of the partners) died during the pendency of the appeal before this Court earlier and his legal heirs were brought on record.
13. It is the case of claimant Gunapala Shetty, represented by his father, that he was a boy of 9 years at the time of the accident; that he, with his brother Dharmapala Shetty, was going to the school after mid-day recess and that the car came from behind and hit him, thus causing the accident. It is on these averments that the claimant has stated in the petition that the accident was the result of rash and negligent driving of the car in question by its driver.
14. These averments are denied by K. Shantharama Rao, driver of the car, who is arrayed as respondent-2. According to him, the boys were going on the right side mud road and suddenly a black cow charged the boys and being afraid Gunapala Shetty ran towards his left on the road and dashed against the car resulting in the accident. Thus, he denied his liability.
15. The point, therefore, that directly comes up for consideration before us is : Whether it is the car that dashed against the boy or it is the boy that dashed against the car
16. It is necessary, in this context, to read the evidence of the driver of the car who has been examined as DW 1. He has stated speaking about the manner of accident thus:
'I hold a valid driving license since January, 1963. The said car met with an accident on 27-1-1967 at 2.00 P. M. At that time, I was proceeding to my house from our shop. The distance between our shop and the house is about 2 furlongs. I was driving the said car then slowly and on the left side of the road. When the car was at a distance of 10 to 15 feet from our house, I saw 2 children proceeding towards the school on my right side of the road. They were about 5 or 6 feet away from me then. At that time, a cow came on the front side of those boys and attempted to butt the boys. Then suddenly one boy ran towards his left side towards my car, Noticing that I applied brakes. Even then the boy dashed against the front grill of my car and fell down. Within about 1 or 2 feet from the place of impact, I stopped the car .......'
In his cross-examination, it is elicited thus :
' When I first saw the boys, the cow was about 5 or 6 feet away from them. It was running towards the boy. 1 was expecting that the cow would go near the boys.'
It is further elicited that the children were moving hither and thither on the road. It is also elicited thus:
'......... After the accident, I did not see that cow. While driving, I had to take a turn to the south to go to my house. It is not true that at the time of taking the turn towards my house, I got terrified by seeing
the boys and pressed the accelerator instead of brake and the car suddenly picked up speed and dashed against the boy. It is not true that the boy fell in the middle of the Car and the car passed over him to a distance of about 10 feet before it stopped. it is not true that no cow had come near the boys and that I am falsely stating ... . . . . It is not true that I influenced the police officials and got false records prepared .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
17. Thus, the admitted facts by K. Shantharama Rao, (DW 1), the driver of the car, are :
(1) that he was proceeding in the school zone;
(2) that the boys were running hither and thither;
(3) that he saw two boys moving on the tarred portion of the road; and
(4)that he further saw that a cow was coming to charge them.
18. It is in these circumstances that we have to consider whether it is the car, driven by RW 1, that hit the boy or whether it is the boy, according to RW 1, who hit the car.
19.The law, in these circumstances, is well settled. The Tribunal appears to think that the speed of a car can be considered rash if it is driven fast. With due regard to the Tribunal, it is not correct.
20. 'Speed' is a relative term. What is Proper speed depends on the context of each case. As is observed by his Lordship Venkatarama Iyer, who delivered the judgment for the Bench of the Madras High Court in the case of Gobald Motor Service Ltd., a company registered under the Indian Companies Act, by its Managing Directors N. Veeraswami Chettiar and Anr. v. R.M.K. Velusami and Ors. : AIR1953Mad981 :
'A speed that would be reasonable on the line concrete road would not be expected on a road which is full of ruts and under a state of repair. What might be regarded as a safe speed in an uninhabited area might become dangerous in a congested area. The weed which might be harmless during the restful hours of the which might be reckless during the business hours of the day. Whether in a given case the speed was excessive or not must be determined on a consideration of all the circumstances.'
21. Speaking on the same aspect, Lord Du Paroq, in London Passenger Transport Board v. Upson (1949 AC 155 at p. 178) has observed :
'...... no speed is reasonable which is not adjusted to the circumstances of the moment, including the fact that the driver is approaching a pedestrian crossing and may have to Pull up quickly and within a very short distance .......'
22. It is settled law that when a driver is approaching a school zone, he should be circumspect and must be prepared to pull up his vehicle within a second's notice. The evidence on record and the admission of the driver himself show that the school boys were running hither and thither, on the road. It was, therefore, his duty to so adjust his speed as to be able to stop his Vehicle within a moment's time in case of exigency. The driver has admitted that he saw the two boys going by the edge of the road. He has further admitted that he saw a cow coming to charge them and further expected that the cow was about to butt them. in the circum. stances, the prudent course for the driver of the car was to pull up the car, at once. In the instant case, unfortunately, though there was a passing thought in his mind to apply brakes, in his haste, perhaps, he pushed the accelerator which resulted in the car, spurting forward and hitting the boy and it is the grill Of the car that hit the boy.
23. This becomes probabilised because the witness- Bhaskara Bhandary, examined as PW 2, in his evidence, has stated thus:
'Q. Why was the speed increased then?
A .I was told by the regular, driver of that Car that Shantharama Rao had pressed the accelerator instead of pressing the brakes then.'
24. It may be noticed in this context that in spite of the observation made by this Court in the remand order, the regular driver of the car is not examined even after remand. This Court, in the course of the remand order, has observed in para-3 that the regular driver of the car, who was admittedly in the car was not examined. If the regular driver of the car had not expressed so before the boy (PW 2), it is normal to expect that the driver would have stepped into the witness-box and denied the said answer of PW 2. That probabilises the fact that the regular driver of the car told the boy that Shantharama Rao pressed the accelerator instead of jamming the brake& That being so, without more it becomes clear that the accident is the result of the rash and negligent driving of the car in question by its driver, especially so having regard to the great responsibility cast on the driver of the car while passing through the school zone in the circumstances in which Shantharama Rao was driving the car.
25. It is well established that it is enough for the, driver to try to be careful in driving. He should further anticipate common folly of others which he knows, by experience, would generally occur.
26. Lord Uthwatt. in the case of London. Passenger Transport -Board v. Upson .(1949 AC 155 at p. 173) has observed :
'A driver is not, of course, bound to anticipate folly in. all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take'
27. In 'Clerk and Lindsell on Torts', 12th Edition, 11 I, the learned Authors have observed :
'There has also been a tendency in recent years to stress the fact that the reasonable man will not assume that other people will always act carefully and he will therefore be prepared for lapses and unreasonable acts on the part of others ......'
28. The facts of the present case demanded greater care on the part of the driver of the car because children of tenders years cannot even be imputed with contributory negligence. They have not attained that age of discretion and what generally the adults can understand as rash or negligent acts cannot even be imputed to them as they are not in a position to understand the consequences of their acts. Many dangers which are open and obvious to the adults may be concealed and secret traps for the children. Hence, when a driver drives in the school zone, there is a greater responsibility cast on him to see that the speed of his vehicle is so controlled as to be able to stop the vehicle within a moment's notice. It is for that reason that we hold that the driver of the car, on his own showing, was rash and negligent in driving the car, which resulted in the accident, on the facts of the present case.
29. The mahzar, marked as Exhibit P-2 in the case, would clearly indicate that the car went about 10 feet before it halted and the driver in his evidence has stated that he was going at low speed of about 5 Kms. per hour or so and this again would probabilise that instead of pressing the brakes he pressed the accelerator because actually before the impact took place he was going at low speed. That further probabilises the rash and negligent act on the part of the driver of the car.
30. That being so, it is not necessary for us to discuss in detail the evidence of the other witnesses. Hence, we are constrained to hold, differing from the Tribunal, that the accident was the result of the rash and negligent driving of the car in question by its driver Shantharama Rao.
31. That leads us to the question of quantum of compensation. The earliest Doctor who examined the injured boy is PW 7 Dr.W S. Naik: He has stated thus
' I was called to the place of the accident to examine him. I found that the boy was unconscious, I thought it advisable that he should be sent to Govt. Wenlock Hospital. I accompanied him when he was
taken to the Wenlock Hospital and got him admitted. , The boy was examined by the Doctor at the hospital in my presence. I see the wound certificate Exhibit P-1. The wounds sustained by the injured are as noted in Ext. P-1. I had seen the injured boy before the accident. He was having normal health. I saw him also after the boy was discharged. I noted that he was slurring of speech. His gait is not normal I cannot say anything about his sense of understanding. The defects which I noticed after the discharge cannot be cured by ordinary treatment.,,
32. Exhibit C-1 is thus proved in the evidence of Dr. Naik who was present when the injuries. were examined by the Doctor in the Wenlock Hospital. Dr. Naik accompanied the boy from the spot of accident. Exhibit C-1 mentions the following injuries:
'(1) Lacerated wound on the right forehead measuring 1' X 1/2' X 1/2' X-ray skull --No evidence of fracture.
(2) Superficial abrasion on the right side of the face measuring 4' x 2'.
(3) Pt. was unconscious and irritable.
Pupils - Right contracted not reacting to light. Left- dilated not reacting to light Slow respiration- 12/Min. Puls- 100/Min.
(4)Patient was left with left sided hemiplegia after recovery.'
33. Thereafter, after the boy was discharged from the hospital, he was examined by PW 9 Dr. 1. Gopala Krishna Bhat. He has stated thus :-
'I examined one Gunapala Shetty on 7-875. 1 have noted the result of my examination in my report. Ext. P-25 is my report. The case was referred to me by the District Surgeon, Wenlock Hospital.
As per my conclusion, the boy has got certain disabilities involving the cerebellum as well as cerebrum. He has, as a result of these disabilities, slurred speech, difficulty in walking and attacks of unconsciousness. These disabilities are the result of a head injury. The disabilities are likely to be, permanent. The cerebella signs affect both the right upper limbs. That means his right hand is also affected. These liabilities are all due to brain injuries. These disabilities can cause loss of memory too. The boy will not be able to lead a normal life even after he becomes an adult.'
34. Thus, it is welt established by the evidence of PW 7 Dr. M. S. Naik and the evidence of PW 9 Dr. 1. Gopalakrishna Bhat that the boy has suffered head injury which has resulted in permanent disabilities, as stated above. Compensation, therefore, has to be awarded for the injuries sustained, pain and suffering, loss of amenities, the disabilities incurred and the loss of earning capacity.
35. The learned counsel appearing for the appellant invited our attention to a decision of the Delhi High Court in the case of Delhi Transport Undertaking v. Kumari Lalita (1973 Ace CJ 79), in which an injured girl of 8 years suffered multiple fractures of leg, arm, scapula, forearm, humerus and femur. She also suffered head injury on account of which she was crippled physically and mentally for life. She was mentally deranged and had no control on her bowels. She became unfit for child bearing. Claims Tribunal awarded Rs. 15,0001- as damages. It was enhanced to Rs. 50,0001- by the High Court of Delhi.
36. The injuries in the instant case are not so grievous. There is no fracture of the limbs, It cannot be said that the boy has became deranged nor crippled in mind and body. By reading the evidence given by the boy, we are satisfied that the claim made that the memory has failed does not stand to reason. Having regard to these factors, we are satisfied that the general damages of Rs. 30,,000/- for pain and suffering, injuries sustained, loss of amenities, disabilities incurred and the consequential loss of earning capacity, 'Would be quite just and proper.
37. The Tribunal hits suggested, after going through the vouchers, that special damages in all of Rs. 1,210/- should be awarded. Having regard to the serious nature of the injuries and the period for which he was in the hospital, we deem it just and proper to award him Rs. 2,000/- as special damages instead of Rs. 1,210/- proposed by the Tribunal.
38. In the result, therefore, the appeal is allowed. The judgment and order of the Tribunal are set aside. The claimant is awarded Rs. 32,000/- as global compensation along with interest at 6% per annum from the date of petition till payment as also the costs of the proceedings throughout. Under Section 110-B of the Motor Vehicles Act, we direct that the Insurance Company shall pay the entire amount of compensation awarded. The Advocate's fee before this Court is fixed at Rs. 300/- before the Tribunal.
39. It is no doubt true that the learned counsel appearing for the insurance Company submitted that the policy has lapsed. But that was obviously on mis-conception of evidence especially of Ext. D-2. Exhibit D-2 is a letter by the Insurance Company to the owner M/s. K. Sanjeeva Rao who purchased the car from its original owner Shri A. Prabhodh Naik. The policy was with regard to the car in the name of Shri A. Prabbodh Naik. After, the car was purchased, the vendee and the vendor intimated the Insurance Company and requested for transfer of the policy in the name of the vendee. Accordingly, the Insurance Company agreed and endorsed under Ext. D-2 the policy in the name of the vendee viz., M/s. K. Sanjeeva Rao (respondent-]). That being so, it is obvious that there is no substance in the contention raised before us by the learned counsel appearing for the Insurance Company that the policy had lapsed and we hold that the Insurance Company is liable to indemnify the owner. It may also be noted in this context that there is no whisper in the statement of objections ' filed by the Insurance Company that the policy had lapsed, for obvious reasons.
40. Appeal allowed.