A. Banerji, J.
1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939, filed by the UP. State Road Transport Corporation through its Deputy General Manager, Eastern Zone, Varanasi and through its Chairman, Lucknow.
2. Kumari Sarita alias Usha, under the guardianship of her material grand father Shiv Murat Mishra filed a claim petition for Rs. 25,000/- against the U.P. State Road Transport Corporation, hereinafter referred to as the Corporation, through its Chairman and Deputy General Manager, Eastern Zone, on the ground that Kumari Sarita the applicant was injured by the Roadways bus no, VTN 3237 as a result of which her right hand had to be amputated and the left hand was rendered unless and she hand a major defect in his speech. It was alleged that the driver of the Roadways bus was rash and negligent which resulted in the accident. The Corporation contested the claim petition and urged that there was no rash and negligent act by the driver and the accident was due to the sudden appearance of the applicant on the road before the bus and the accident took place in spite of the very best efforts made by the driver of the bus. The injuries on the two hands were admitted but it was alleged that the speech of the applicant was not affected by the accident as she was a dumb girl even before the accident. The corporation also took a plea that the amount awarded was excessive. A sum of Rs. 500/- was granted as ex-gratia payment.
3. The Motor Accidents Claims Tribunal, Azamgarh held that the accident took place due to the rash and negligent act of the driver. The injuries of the girl, barely eight years old, were much to severe. Her right hand had to be amputated 8 inches below her shoulder and her left hand had been rendered useless for any work. Her speech was also affected but the Court recorded a finding that there was no good evidence to show that her inability to speak was as a result of the accident. The Tribunal assessing her situation of helplessness thought it fit to award a sum of Rs. 25,000/- was compensation so that there would be sufficient amount for her by way of interest and that she could be looked after for the rest of her life. The Tribunal also awarded interest at the rate of 6 per annum from July 31, 1979 till the date of realisation.
4. In this appeal Mr. S.K. Sharma, learned Counsel for the Corporation raised three points. Firstly, that there was no rash or negligent act on the part of the driver and the Court had wrongly assessed to hold to the contrary. Secondly, that the girl herself and contributed to the accident and, therefore, the sum awarded was liable to be reduced by half, lastly, the sum of Rs. 25,000/- was excessive and there was no basis for awarding such an amount. I have also heard Shri Faujdar Rai, learned Counsel for the respondent who supported the order of the Tribunal and urged that the sum awarded could not be scaled down considering the circumstances of the present case.
5. The first two questions raised by the learned Counsel for the appellant pertain to questions of fact, Whether there was rash and negligent act on the part of the driver of the bus depends on the evidence on the record of the case and the circumstances apparent from the same. The question of contributory negligence again raises question of fact. Whether the child by her own act contributed to the accident. For this there has to be a specific plea in the written statement. I would therefore take up the question of contributory negligence.
6. In paragraph 25 of the written statement there is a statement that the driver of the bus made full efforts to avoid the accident but due to the mistake of the girl the accident could not be avoided. In paragraph 28 of the written statement, it was stated that the claimant suddenly came running in front of the bus and fell down. This was a mistake on the part of the claimant and her guardian, for she ran on the road carelessly and in such an event there is always a possibility of an accident and for this reason the Corporation was not liable to pay any amount as compensation. The question is whether the above pleading is sufficient to constitute a plea of contributory negligence. It is well settled that where negligence or contributory negligence is charged, full details must be given to the acts the party pleading relied as constituting negligence. See Prafulla Ranjan v. Hindustan Building Society AIR 1969 Cal. 214. The principle of contributory negligence implies that there is a positive act by the party, which resulted in the accident. The positive act which has been referred to in this case is that the claimant came running on the road from the left side carelessly and thus became a victim of the accident. The purport of the pleading in paragraph 28 is that the claimant herself was the cause of the accident. In other words, she contributed to the accident. The plea being there, it will have to be considered.
7. The evidence on the record comprises of one eye witness Shri Radhey Shyam Mistri in PW 1 and the Driver of the bus Sita Ram Singh DW 1. The Driver's version was that he was driving the vehicle at a slow speed, but suddenly the child, Sarita alias Usha appeared from the left side and she fell down on the road and the driver tried to avoid the accident by turning the vehicle to the right but a wheel of the bus ran over her outstretched hands. The eye witness Radhey Shyam, on the other hand, stated that the accident took place only 5-6 paces away from his shop the bus was coming at a speed, the girl who was going from east to the west was knocked down by the bus at the entrance of a lane on the west i.e. extreme right side of the road and the front wheel passed over her hand. The question is did the claimant do any such act which contributed to the accident. After all men, women and children are expected to use the road and cross the road. The driver of a motor vehicle is expected to be careful, alert and avoid hitting or knocking down any person on the road. The accident took place in a congested locality on the matn Azamgarh Varanasi highway at about 11.30 in the morning. It was broad day light and a small child was crossing the road. The driver was expected to take care to avoid knocking down anyone on the road. What is significant in this case is that the claimant was knocked down or, the right side of the main road. This means that she had almost crossed the road. The driver instead of turning to the left of the road had veered to the extreme right of the road. The driver's plea that he swerved the bus to the right in order to avert the accident would have held force had the claimant been knocked down by the left side of the bus or had come . under the left front wheel, but in- fact she had been knocked down and came under the right front wheel. If the bus had swerved to the right as claimed by the driver, then the possibility of the claimant coming under the right front wheel was Unlikely. It was therefore not a case of contributory negligence but a case where the driver had been negligent. I, therefore, find no force in this contention of the learned Counsel.
8. Now coming to the question of rash and negligent act, I have perused the evidence and considered the arguments of the learned Counsel, and I am not satisfied that the finding arrived at by the Tribunal is erroneous or suffers from any error of law. Three facts are relevant the bus was being driven in a crowded locality, the child crossed the road in front of the bus and the driver could not avert the accident and the wheel of the bus, crushed the hands of the child.
9. A controversy was raised as to the speed of the bus at time of the accident while the claimant's witness stated that the bus was being driven at a high speed the driver claimed that it was being run at a speed between 10 and 15 km. per hour. The Tribunal rejected the statement of the driver. I think the driver's version was not wholly correct or reliable. No one in his senses would be driving a passenger bus at a high speed in a crowded or congested locality but then the bus could not have been proceeding at such a low speed as claimed by the driver, for then he should have stopped the bus and averted the accident. The very fact he could not stop the bus, even if his version is accepted, is a relevant circumstance to negative his plea that he was not negligent. While driving in a congested locality, one needs greater caution and care and one has to be alert to apply the brake and stop the vehicle. Had the driver done this, possibly there may not have been the accident. I am therefore not able to subscribe to the stand of the driver that he was driving the bus at a very low speed.
10. The next point is whether the driver made an attempt to avoid the accident. The driver Sita Ram Singh, has stated so. His version is that on seeing the child crossing the road he swerved the bus to the right and brought it to a halt but then the accident took place and the wheel of the bus crushed the hand of the child. The Tribunal has held that the accident took place on the western patri of the road i.e., not on the left side of the Azamgarh Varanasi road, but on the right side thereof. The driver's plea was that in order to avoid the accident he had to swerve to the right and that is how the vehicle came to the wrong side of the road. The Tribunal has not accepted this statement as convincing. I have considered the evidence, and the argument of the learned Counsel on this point. If the bus was being driven slowly, as claimed, it could have been stopped at once. If was being driven at speed, it is possible that the driver may have gone to the extreme right of the road. But then there is evidence that the bus knocked down the child. The child was lucky that she did not receive multiple injuries on other parts of her body. Only her hands were crushed. This could be possible only when the child was knocked down and the driver could not avert going over her hands in other words it was a case of negligent and rash driving. The evidence of the driver, would not be reliable considering the fact that he was interested in saving himself. I am therefore of the view that the finding of the Tribunal re-rash and negligent act, is liable to be accepted.
11. Learned Counsel for the appellant cited a case Mahadeo Hari v. The State of Maharashtra : 1972CriLJ49 . This was a case under Section 308-A, IPC. The Court observed that the victim had suddenly crossed the road without taking note of the approaching bus and there was every possibility of his dashing against the bus without the driver becoming aware of his crossing till it was too late. 'If a person suddenly crosses the road the bus driver, however slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent.' This observation was made in a case where the accident took place in the city of Bombay on a 40 feet wide road at about 11 in the night. In the present case the accident took place in broad day light and in a crowded area on the highway. In the Bombay case the accident occurred at about 11 in the night when the bus was being driven with the aid of the head lights. It may be that he might not have been aware of any one intruding on the road till the time of accident but such a plea will not be available to a person driving in broad daylight through a congested area on the highway near a village. In the present case it is not a fact that the driver did not see the girl crossing the road in front of the bus, He admits that he saw her. He also stated that he tried to stop the bus but then he could not stop the bus to prevent the accident. I am, therefore of the view that the case cited by the learned Counsel for the appellant is distinguishable on facts.
12. Learned Counsel cited another decision of their Lordships of the Supreme Court in the case of Syed Akbar v. State of Karnataka : 1979CriLJ1374 . In this case the court was considering the question of negligence in a case of torts and further considering whether the principle of res ipsa loquitur was applicable. It was a case of accident with a motor vehicle and the accident took place at about 8.30 p.m. between a passenger bus and a girl, aged 4 years, who ran across the road. The driver swerved the vehicle towards the extreme right and in spite of this the child was hit and died on the spot and the driver was prosecuted under Section 304-A, IPC The trial court convicted him under Section 304-A, on appeal the Sessions Judge upheld the conviction and in revision the High Court endorsed the view of the Sessions Judge. On appeal the Supreme Court held that the prosecution had failed to prove beyond reasonable doubt that the appellant had caused the death of the child by negligent or rash driving. 'All had happened in fraction of a moment and even if the worst was assumed against the appellant, the highest that could be said was that a misjudgment on his part too slight to be branded as culpable negligence, could well account for the accident resulting in the death of the child'. Learned Counsel placed reliance on this to urge that the burden of proving that the defendant was negligent and the accident occurred by his negligence remained with the plaintiff and it was for the court to determine from the evidence before it whether any negligence was disclosed. This case although somewhat similar, has still some distinctive features. The bus was being driven at about 9 in the night and one can presume that the head light of the vehicle was in use. It is possible for a driver driving a bus on the highway, and at a speed, to have failed to observe timely a small child moving on the road from a distance and, therefore, it could be concluded that the whole thing happened in such a short spell of time that a rash or negligent act could not be presumed on the part of the driver. As indicated above, in the present case the bus was being driven in broad day light and through a congested area and there was no question of not having seen the child the driver admits in this case of having seen the child and according to him he swerved the bus to the right but he could not avert the accident. The bus could not be brought to a halt and the wheel of the bus crushed her hands. Once the plea is taken that the bus was being driven slowly and in broad day light in a congested area, it was for the driver to have taken all precautions. Where even after noticing the child crossing the road the driver a fails to stop the vehicle, it would be proper to hold that there was a rash and negligent act on his part. Consequently, the finding of the Tribunal on this point is upheld.
13. On the question of compensation being excessive it has to be noticed the nature of injuries by the child. One arm amputated, the other limb useless. She has been deprived of the user of both hands. An utter dependant on others for even her daily chores. She has to be helped all her life for being dressed and fed, for her daily washing etc. What a pitiable situation 'How will she able to look after herself or care for herself? Marriage for her is out of question. Someone has to look after her all her life one can Imagine the plight of this child. If in these circumstances the Tribunal has awarded Rs. 25,000/- as compensation, it cannot be called excessive. True, the Tribunal assessed her need to be atleast Rs. 100/- per month but would that sum be enough where she has to be looked after and aided for everything? I do not think so. Her accident is tantamount to her living death. I am not taking into account her loss of speech, for the tribunal has not been convinced from the evidence of the record that the loss of speech was due to the accident. A sum of Rs. 100/- per month, in the circumstances of the present case appears to be paltry amount. The Tribunal has not been very fair to assess her need at Rs. one hundred per month. Apart from feeding and clothing herself, her primary need would be for someone to help her in her daily chores. This would be more accentuated for the fact that she is unable to speak, as well. But I am satisfied that the amount awarded to her, i.e. Rs. 26,000/- is a proper amount. If properly invested, may be in the Post Office Savings Scheme, yielding 12 per annum, it would give her approximately Rs. 3,000/- per annum, i.e., Rs. 250/- per month, for the rest of her life. Considering the fact that the purchasing power of the rupee is eroding, every year, a sum of Rs. 250/- may not be enough to buy her the necessities in the year 2000 AD. The contention of the learned Counsel for the appellant that a sum of Rs. 15,000/- would have sufficed to yield an income Rs. 100/- per month, may appear tenable but it ignores that the child would need service of someone all her life to aid her and the needs of the claimant cannot be met with a sum of Rs. one hundred per month when she will grow up and become a woman and has to lead helpless life. I have, therefore no hesitation that the amount of Rs. 25,000/- awarded in this case is not only just but also proper.
14. A sum of Rs. 500/- was paid as ex-gratia soon after the accident. The respondent would thus be entitled to receive Rs. 24,500/- only from the appellant. Learned Counsel for the appellants stated that a sum of Rs. 15,000/-has been deposited by the appellant. The appellants will deposit the balance amount of Rs. 9,500/- further, along with interest at the rate of 6 per cent per annum till the date of the deposit.
15. For the reasons indicated above, I find no merits in this appeal. It is accordingly dismissed but 1 leave the parties to bear their own costs.