R.C. Patnaik, J.
1. These three appeals arise out of the decisions of the Motor Accident Claims Tribunal dismissing the applications of the claimants for compensation claimed for injuries sustained by them and for the death of a eight months old baby.
2. On 22-7-1977, Abdul Jahangir Khan, Hapara Khanam and Sk. Allah Bakhas with the deceased daughter were travelling in an autorickshaw bearing registration number O. S. C. 1558 from Nirgundi to Paramahansa. There was an unmanned railway level crossing atMatagajapur. Around 6.45 p. m. while the autorickshaw was . negotiating to cross the leval crossing, a train coming on the track dashed against its front portion, dragged it to some distance and threw the passengers to the ground. Abdul Jahangir suffered fracture of his right clavicle and some lacerated wounds all over his body. He was aged about. 14 years and a student of Class X at the time of accident. Hazara sustained certain injuries on her head. Allah Bakash and Hazara lost their daughter aged eight months. Abdul claimed Rupees 8,000.00, Hazara claimed Rupees 2,000.00 for the pain, suffering and the injuries and Allah claimed Rupees 12,000.00 for the loss of the daughter alleging negligence of the driver,
3. The owner of the vehicle did not contest. The insurer pleaded inevitable accident and refuted that the driver was negligent. The claimants examined themselves as P. Ws. 1, 2 and, 3. . They were the only eye-witnesses examined. The respondents did not lead any evidence. The tribunal, however, rejected the claims holding that negligence of the driver had not been established,
4. In Halsbury's Laws of England, 3rd Edn. 'Vol. 28 at page 81, the law relating to inevitable accident is stated thus: To establish a defence of inevitable accident the defendant must either show what caused the accident and that the result was inevitable, or he must show all possible causes, one or more of which produced the effect, and with regard to each, of such possible causes he must show that the result could not have been avoided.
The Supreme Court in the case of Pushpabai v. Ranjit. G. & P. Co., AIR 1977 SC 1735 accepted the aforesaid statement of law and observed (Para 5):--
'The burden rests on the opposite party to prove the inevitable accident. To succeed in such a defence, the opposite party will have to establish that the cause of the accident could not have been avoided by exercise of ordinary care and caution.'
5. The facts of the case are such that the maxim 'res ipsa, loquitur' can be invoked. The fact that the autorickshaw was on the railway track at the time of the accident is itself indicative of negligence of the driver. It established lack of reasonable care and caution. The driver- foolhardily wanted to cross the track before the train arrived at the spot and if for some reasons or other the engine of the autorickshaw stopped functioning, the negligence of the driver has to be found. A prudent person would not have ventured to cross the level crossing when the train was coming on. No evidence having been adduced: to rebut the presumption, the only conclusion that can be reached is that the accident took place on account of the negligence of the driver. The fact that at the moment when the autorickshaw came on the track, the train was at a distance of 25 cubits showed the dare-devilry of the driver. The Tribunal was, therefore, in error in negativing the negligence of the driver.
6. I have given my anxious considerations to the amount of compensation receivable, by the claimants. Some evidence has, been adduced by the claimants by examining, themselves. Abdul suffered a fracture of the clavicle. Ext. 1 supports the story. For the pain, suffering and the expenses that might have been incurred, for the treatment, I award a sum of Rs. 5,000.00 to him who was a student of Class X at the time of accident. Hazara received head injuries, lost consciousness at the spot and also sustained injuries on her body. She has alleged that she was under treatment for about 2 to 3 months and was getting some abnormal sensation inside the ear. For the, pain, suffering and the expenses that were incurred and for: the uneasy feelings that Hazara is experiencing, I award a sum of Rupees 2,000 as compensation to her. In the accident, Allah Baksh and Hazra lost their daughter aged eight months. They claimed Rs. 12,000.00 on. the grounds of loss of affection, future service and pecuniary benefits. A daughter is of considerable assistance to her parents in our community especially in a middle class or lower middle class family. She , does the house-hold chores. Like any daughter, she is a nurse, a comforter and a maid at the time of need. The parents were deprived of her affection, care and services. But at the same time, one cannot be oblivious of the uncertainties of the life, he inscrutable future, I, therefore, award a sum of Rs. 8,000.00 for the loss of, the child. The compensation so determined is payable by the insurer, respondent No. 2. The claimants are also entitled to interest at the rate of10 per cent per annum, from the dateof application, on the amount awarded.If the amount is not paid or depositedwithin two months from today, thecompensation amount shall carry interest at the rate of 18 per cent per annumthereafter.
7. In the result, the appeals are allowed with costs. Hearing fee is assessed at Rs. 2,00.00 in each of the appeals.