1. This is an appeal under Section 110-D of the Motor Vehicles Act from an award of Rs. 20,000/-made against the appellants by the Motor Accidents Claims Tribunal, Rewa.
2. The relevant facts are that Munna, the respondent, suffered bodily injuries on November 9, 1962 by the impact of a truck which was driven by the appellant No. 2 Munnilal Gupta. The truck was owned by the appellant No. 1 Bishwanath Gupta and was insured with the appellant No. 3, the New India General Insurance Company. The accident took place at about 4.30 p.m. on the main market road of Harpalpur. The road runs from west to east through the market and on each side of the road are houses. The house of Munna is on the light side of the road.
The truck was moving from west to east. Munna was hit in front of his house by the truck. As a result of the impact, Munna suffered serious Injuries on his left leg. The flesh and skin were peeled off and bones became visible. He was first locally treated and then was removed to Chhatarpur hospital where he remained for about twenty days. Thereafter, he was removed to Gwalior for treatment where he was treated in Kamla Raje Hospital from December 4, 1962 to March 29, 1963. The injury resulted in permanent deformity and disability of the left leg. We shall refer to it in more detail later.
3. An application was made by Munna through his father as guardian claiming Rs. 30,000/- as damages on the ground that the accident took place because of the negligence of the driver. To this application, the appellants were impleaded as non-applicants. According to the case set up on behalf of Munna, he was playing on the right side of the road in front of his house and the truck came at a very high speed and the driver could not control it and Munna's left leg came under the left front wheel of the truck. In answer to this case, the appellants pleaded that Munna, along with some other children, was playing on the left side of the road; the truck was coming at a reasonable speed when suddenly Munna crossed the road; the driver tried to avoid the accident and swerved the truck from the left to the right side of the road, but in spite of all care. Munna received an impact from back portion of the truck as a result of which he suffered injuries. The Tribunal accepted the version of the accident given on behalf of Munna. It also held that even on the facts pleaded by the appellants, there was negligence. The damages were assessed at Rs. 20,000/-.
4. The respondent's version of the case is supported by Omprakash Agarwal (P.W. 3), Ramsahay (P.W. 4), the father of the respondent and Ramlal (P.W. 6), the uncle of the respondent. It was accepted by Omprakash Agarwal (P.W. 3) that there is a turning on the road 40 to 50 yards behind the place of the accident and a railway crossing 60 yards ahead. The road, as already stated, runs through a market. In these circumstances, it is not believable that the truck came at a speed of 50 miles per hour and ran over the child while he was playing in front of his house on the right side of the road. It is more reasonable to accept the version as given by the appellants. The appellants examined the driver Munnilal as (D.W. 2) and another person who was sitting on the front seat with him, namely, Badriprasad (D.W. 1). According to the statements of these witnesses, the respondent Munna along with some other children of his age was playing on the left side of the road. Seeing the truck and after the horn was blown, some children crossed the road. Munna remained on the left side, but when horn was blown again, he too suddenly crossed the road. The driver swerved the truck towards the right, but could not avoid the accident and Munna was injured by the impact of the truck. These witnesses also stated that Munna collided with the hind portion of the truck. This part of the evidence is not believable, for as deposed by the witnesses for the respondent, the child was actually taken out from the left front portion of the truck. Whether he was hit by the left front wheel of the truck or by some other part of the left front side is not very clear. The driver was not in a position to stop the truck at once and the truck stopped only on the right extremity of the road after it collided with the house of Munna's father. This is clear from the photograph Ex. P-1, taken soon after the accident.
5. On these facts, the question is, whether the driver was negligent?
It is not contended nor is it the fact that the children along with Munna were playing at a place which may not have been visible to the driver while he was approaching the place of the accident. Indeed, the driver Munnilal admitted that the children including Munna were all visible while playing on the road on the left side. Some children crossed the road on seeing the truck. In such a situation, a reasonable driver would have foreseen that there was a possibility of the remaining children also crossing the road on the approach of the truck and he would have driven the truck at such a speed and with such a care that he may have been in a position to stop the truck at once in case that necessity arose. The driver in the instant case was not driving the truck with that care and attention. The speed of the truck, according to the evidence of the driver, was ten to twelve' miles, but it was not reasonably low as is quite clear from the fact that the truck could not be immediately stopped and it only stopped after it collided with the chabutra of the house of Munna's father.
6. A driver owes a duty of care to pedestrians and that duty is higher when pedestrians happen to be children of tender years, for their behaviour on the approach of a motor vehicle is uncertain. The English Highway Code, made by the Ministry of Transport under Section 45 of the Road Traffic Act, 1930, contains many useful directions for the guidance of persons using roads. Charlesworth quotes the following direction from para 25 of the Code:
'When there are pedestrians about, the driver or rider must be ready in case they step from a street refuge or a foot-path, or from behind a vehicle or other obstruction, and also prepared for children, knowing that they may be expected to run suddenly on to the road'.
(Charlesworth on Negligence, 4th Edition page 97)
The duty of care laid in the aforesaid passage is also applicable to Indian conditions. In Antoo v. Jagat Singh, 1962 MPLJ 657 a Division Bench of this Court said:
'The responsibility of a driver of a motor vehicle when he sees infants playing on the roads becomes greater and he must take into account the fact that their behaviour would be uncertain. The driver is under a duty to take reasonable care to avoid harm to the children. Things would have been different if the boys had suddenly appeared on the road or one of them had crossed all of a sudden while they were quietly standing on one side of the road.'
And, in Veeran v. Krishnamoorthy, AIR 1966 Ker 172 a learned Judge of the Kerala High Court observed:
'It has been settled time out of mind that men must use care in driving vehicles on highways. A special care is called for where pedestrians are likely to cross the road and a much greater care if the pedestrians assembled on the side of the road for crossing are school boys of young age.'
As to speed it was well said by Lord Du Parco in London Passenger Transport Board v. Upson, 1949-1 All ER 60 at pages 73-74.
'No speed is reasonable which is not adjusted to the circumstances of the movement including the fact that the driver is approaching a pedestrian crossing and may have to pull up quickly and within a very short distance.'
7. Learned counsel for the appellants argued that the observations quoted from Antoo's case, 1962 MPLJ 657 supported his case that the driver was not negligent as Munna suddenly crossed the road. There is no merit in this contention. If the children had been quietly standing on one side of the road and then one of them had suddenly crossed, the position may or may not have been different, but in the instant case the children were all playing. Some of them first crossed the road, and, therefore, the possibility of the remaining children running and crossing the road on approach of the truck was quite foreseeable and should have been anticipated by the driver.
8. Having regard to the facts and circumstances of the case and to the principles that we have stated above, we have no hesitation in holding that the driver Munnilal (appellant No. 2) was guilty of negligence and the injury to the respondent Munna was caused because of his negligence. It is not disputed that on that finding, all the appellants would be liable to payment of damages.
9. The next question is aboutquantum of damages. No special damages were claimed by the respondent inhis application. He claimed generaldamages to the extent of Rs. 30,000/-and the Tribunal awarded a sum ofRs. 20,000/- as damages. The Tribunal,however, did not give any reason infixing the figure of Rs. 20,000/-. Wehave, therefore, to see whether the estimate made by the Tribunal is inordinately high as contended by the appellants.
10. We must first refer to the nature of injury sustained by the respondent. The fact that emerges from the evidence is that the flesh and skin on both sides of the knee joint were completely peeled off and the bones had become visible. It also appears that the knee cap was dislocated if not fractured. Munna was treated in Government Hospital, Chhatarpur during the whole of November. In Chhatarpur Hospital he was advised to be taken to Gwalior where better medical facilities are available. It has been already stated that he was treated at Kamla Raje Hospital, Gwalior, from December 4, 1962 to March 29, 1963. Dr. Sudhakar (P.W. 5), who was House Surgeon in Kamla Raje Hospital and who brought all the relevant papers, deposed about the nature of treatment given to Munna. He expressed his opinion as follows:
'The left foot of Munna due to injury cannot regain to normal. Munna can walk with a limp, but he cannot walk straight. Munna can stand straight but there would be a deformity. If Munna tries to stand on the left injured foot, he cannot maintain balance on his left injured foot. The condition of Munna which is stated above will remain so for the whole of his remaining life.'
We have seen Munna, who was present here at the time of hearing. There is a substantial wasting of muscles above and below the knee joint and apparent deformity. The boy walks with a marked limp. The deformity and disability, as deposed by Dr. Sudhakar (P.W. 5), are permanent. The boy will never be normal.
11. The question in these circumstances is as to what should be the award for the non-pecuniary damage. It is well settled that the victim is entitled to claim damages for the loss of limb, pain and suffering, loss of amenities and the injury itself. These are the heads under which damages are to be awarded. But from its very nature, there is always an uncertainty in making an award of damages for non-pecuniary damage. For removing the uncertainty to some extent, the Courts have devised certain working rules for assessing the damages. These rules were stated by a Division Bench of this Court in Vinod Kumar v. Ved Mitra, 1970 MPLJ 306 = (AIR 1970 Madh Pra 172) as follows:
'Now the task of assessment of damages for non-pecuniary damage in personal injury is a difficult one, for human suffering resulting from any serious bodily injury cannot from its very nature be valued in terms of money. But as the injured can be awarded only monetary compensation, the Courts make an endeavour as best as they can to quantify non-pecuniary damage in terms of money having regard to the injury and the damage resulting from it. In the process of application, the wide discretion that the Courts exercise in making awards of compensation, like any other judicial discretion, has canalized itself into a set of rules. These rules are: (1) The amount of compensation awarded must be reasonable and must be assessed with moderation. (2) Regard must be had to awards made in comparable cases; and (3) The sums awarded should to a considerable extent be conventional. It is only by adherance to these self-imposed rules that the Courts can decide like cases in like manner and bring about a measure of predictability of their awards. These considerations are of great importance if administration of justice in this field is to command the respect of the community.'
12. Having regard to these rules, we must now refer to the comparable cases for assessing damages for non-pecuniary damage. In Deepti Tiwari v. Banwarilal, 1966 MPLJ 464 = (AIR 1966 Madh Pra 239) a young girl of 15 years suffered a fracture of the spine. She was put under plaster for three months. After recovery her gait became normal and there was no disability in walking. There was, however, a partial permanent disability as regards playing Badminton or strenuous games and riding a bicycle. On these facts she was awarded a sum of Rs. 4,000/- as general damages. In Vinod Kumar's case 1970 MPLJ 306 = (AIR 1970 Madh Pra 172) (supra) a student of 17 years of age was knocked down by a truck from behind. His left leg came under the wheel resulting in a compound fracture of the lower one-third Tibia and Fibula bones. The leg was kept in plaster for nearly three months. The fracture healed well and there was no mal-union. There was partial disability of the use of the left ankle joint There was apparently no deformity and the disability lay only in playing heavy outdoor games or participating in heavy physical exercise. In that case a sum of Rupees 5,000/- was awarded. In Antoo's case, 1962 MPLJ 657 (supra) the victim was a child of six years. His left foot was crushed which had to be amputated. The award in that case was Rs. 2,500/-. The estimation of damages for non-pecuniary damages in Antoo's case 1962 MPLJ 657 appears to be somewhat low as compared to the cases of Deepti Tiwari 1966 MPLJ 464 = (AIR 1966 Madh Pra 239) and Vinod Kumar, 1970 MFLJ 306 = (AIR 1970 Madh Pra 172), In the latter two cases although there was no deformity and no serious disability awards of Rs 4,000/- and 5,000/-were upheld.
13. In the present case, we have already stated that the injury has resulted in a marked deformity and substantial disability of the left leg. In our opinion, having regard to the circumstances of the instant case, a sum of Rs. 6,000/- would be a fair estimate of the compensation for non-pecuniary damage
14. in addition to compensation payable for non-pecuniary damage, the respondent is also entitled to be compensated for loss of earning capacity. It cannot be doubted that the injury to his leg, which is a permanent disability, is likely to affect his earning capacity when he comes of age. His chances of being taken in service are considerably reduced. The respondent's father is a gold-smith and even if the respondent carries on his family occupation, then also his earning capacity would not be normal. According to the evidence of the father, the respondent, if he after attaining majority had carried on the family occupation, he would have earned about Rs. 200/- per month had he been normal. The profession of a gold-smith does not need the leg so much as the use of hands. However, a disabled leg is a handicap for any profession and, therefore, we are not prepared to accept that if the respondent follows his family occupation, his earnings would not be affected. In the circumstances of the case, we think that the disability would at least be 25 per cent even if the respondent, on attaining majority follows the family occupation.
15. The respondent may be in a position to earn when he attains the age of twenty and he may be expected to earn till the age of sixty. The respondent must be compensated for 25 per cent loss of earning capacity for forty years on the basis that his nor mal earning capacity would have been Rs. 200/ per month. The annual sum that would compensate the loss of earning capacity thus works out to Rupees 600/- per year. According to Archer's Loan Repayment and Compound Interest Tables (Tenth Edition, page 74) an investment of Rs. 12,000/- at 4 per cent interest would bring an annuity of Rs. 600/- per year for forty years. This sum of Rs 12,000/- must considerably be reduced having regard to the fact, that the loss of earning capacity will start not now but after a lapse of years when the boy attains the age of 20. Regard must also be taken to chances of life and other uncertain factors Taking into account the facts and circumstances of the case, we are of opinion that a sum of Rs. 6,000/- would be a fair compensation for the loss of earning capacity.
16. Thus, in our opinion, the respondent should have been awarded a sum of Rs. 12,000/- in all as damages for the injury suffered by him. The award of Rs. 20,000/- in our opinion, is inordinately high and, therefore, a case for interference in appeal is made out.
17. In the result, the appeal is partly allowed. The award made by the Tribunal is modified to this extent that the respondent shall receive a sum of Rs. 12,000/- in all as compensation from the appellants. The respondent will also be entitled to interest at the rate of 3 per cent on the amount of Rs. 12,000/- from the date of the application made by him before the Claims Tribunal till the recovery of the amount Having regard to the partial success and failure, the parties shall bear their own costs of this appeal. The costs of the Tribunal shall be paid as directed by the Tribunal in the award.