(1) This appeal arises out of Claims Tribunal, Madras. The Claims Tribunal (Chief Judge, Court of Small Causes, Madras) awarded compensation in a sum of Rs. 10864-47 to the respondent herein, as he was involved in an accident which occurred at about 2 p.m. on 26-4-1962, the result being that he became a permanently disabled man.
(2) The claimant's (respondent herein) case before the Tribunal was that on the date of the accident i.e., 26-4-1962, while he was coming from Raja Annamalai Chettiar Road to Dasaprakash Hotel on the Poonamallee High road, the taxi suddenly knocked him down, inflicting severe injuries with the result that he was confined in a hospital for a period of ten months. Though the doctors treated him for his injuries, he was not able to move his limbs freely with the result he has now become a lame man. He, therefore, claimed compensation against the owner of taxi and also the Insurance company with whom the taxi has been insured. The question that was considered by the Tribunal was whether there was rash and negligent driving of the car by the driver. Evidence was adduced before the Tribunal that at 2 p. M. On 26-4-1962, the traffic constable stopped the taxi coming from Aminjikarai towards Central Station, opposite the Dasaprakash Hotel. He allowed the traffic emanating from Raja Annamalai Chettiar road towards Aminjikarai. Then he stopped the traffic emanating from Raja Annamalai Chettiar Road and allowed the main traffic, that is, vehicles proceeding from Aminjikarai to Central station. The moment the traffic constable gave his release the taxi began to rush in and when it was proceeding towards Central station, the pedestrian, that is, the respondent herein, was knocked down with the result that he became a permanently disabled man.
(3) The learned counsel for the appellant contended before me that it is purely an accident, and that just a few minutes before the accident the taxi was stationary under the directions of the traffic constable. At the time the traffic constable gave the release order to proceed from the Poonamallee High road towards Aminjikarai he was travelling in a normal speed of about 20 miles an hour, and while he was proceeding towards Central station, the respondent herein suddenly emerged from Raja Annamalai Chettiar Road with an umbrella and involved himself in an accident. Therefore neither the driver no the owner is responsible for this accident.
(4) The traffic constable gave evidence stating that the moment he gave release order, the taxi began to run. But at the same time he saw a man crossing the Poonamallee High Road holding an umbrella. At that time he said that there was no heavy traffic when the respondent came to the centre of the road. When there is no traffic in the centre of the road, the driver should have been careful in looking whether any person is moving across him or across the road. Ordinarily a person who drives a vehicle on a highway was a duty to take reasonable & proper precaution in the use of the vehicle and failure to observe such precautions will give a cause of action to any person who suffers damages. The driver must exercise not only care but also skill. He must observe the ordinary rules of the road. He should not drive at an excessive speed. What is an excessive speed will depend upon all the surrounding circumstances of the case. The driver must keep a proper look-out for pedestrians or other users of the road. He must whenever expedient give warning of his approach as at cross roads. Even if another user of the road is negligent he must exercise due skill in trying to avoid the consequence of that negligence. Failure on the part of the driver in any such matter would be a breach of duty on his part and he would be liable for the damages caused by his negligence. What will amount to a breach of duty will always depend upon the circumstances of the case and there is not rule limiting the degree of care that is necessary to exercise. A speed of 40 miles an hour may be perfectly safe on a main High Road. But a speed of ten miles an hour may amount to gross negligence in a crowded thoroughfare.
(5) In an action for damages for injuries suffered as a result of negligence, it is the plaintiff who alleges negligence and the burden of proof rests upon him. He must prove that the driver of the defendant's vehicle has done some careless act or omitted to do something which if he had exercised the ordinary care which a prudent man would expect he should have done and as a result of that carelessness of commission or omission the plaintiff had suffered damages.
(6) It is the duty of persons who are driving over a crossing for foot passengers which is at the entrance of a street, to drive slowly, cautiously and carefully; but it is also the duty of a foot passenger to use due care and caution in going upon a crossing at the entrance of a street so as not to get among the carriages and thus receive the injury.
(7) The learned counsel for the appellant rightly pointed out to me the observations of Denning L. J. in Davies v. Swan Motor Co. Ltd.; 1949 1 All ER 620 , which run thus :
'When a man steps into the road he owes a duty to himself to take care for his own safety, but he does not owe to a motorist who is going at an excessive speed any duty to avoid being run down.'
The sentence 'he does not owe to a motorist who is going at an excessive speed any duty to avoid being run down', has to be applied to the facts in the instant case.
(8) No doubt, the learned counsel for the appellant brought to my notice that in a subsequent decision in Nance v. British Columbia Electric Rly. Co., 1951 2 All ER 448 , their Lordships interpreted the previous sentence thus:-
'If it is to be interpreted in a contrary sense, their Lordships cannot agree with it.:'
But I do not see any useful purpose will be served by making use of the sentence. But I am convinced that the driver was negligent in not looking across the road to observe whether any pedestrian is crossing the road. The moment the traffic constable gave him signal the driver began to speed off his taxi without considering the serious consequences of the passengers, who are likely to cross the road. No doubt, the learned counsel for the appellant argued before me that it was contributory negligence. But I do not see any specific pleading nor any particular arguments addressed before the tribunal about contributory negligence. When once I come to the conclusion that the driver of the taxi was negligent at the time of the accident, the owner of the taxi is certainly liable for compensation or damages.
(9) The next question that arises for consideration is whether the quantum of compensation, awarded by the Tribunal is excessive or not. The learned Chief Judge, Court Small Causes, various heads of compensation, such as reasonable expenses including expenses for medical treatment, nursing, medical appliances and also for loss of earnings as a result of his injury and suffering which the claimant has undergone up to the date of trial and which he is also likely to undergo thereafter. There is no doubt that the respondent is not entitled to receive compensation under these various heads. The only question that is before me is whether the amount awarded by the tribunal is excessive or not.
(10) It has been repeatedly held in the House of Lords and in the Courts of Appeal and for instance in Flint v. Lovell, 1935 1 KB 354 as follows :-
'In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.'
It is useful to refer to the following observation of Denning L. J. In McCarthy v. Coldair Ltd, 1951 C.A.. No. 271:--
'I think Mr. Everett put the test graphically and rightly when he said that this court would interfere if it said to itself 'Good Gracious me as high as that.'
In another case, Taylor v. Mayor, Aldermen and Burgesses of Southampton the same Lord said:
'When I heard the facts of this case, I said to myself 'Good gracious me as low as that for these injuries.'(1952 C. A. No. 89)
(11) When I make use of these observations, I cannot say that the amount of Rs. 10864.47 awarded to the respondent herein is either 'Good gracious me as high as that' or 'Good gracious me as low as that for the injuries'. I think therefore the amount awarded to the respondent is the just and reasonable compensation. This appeal is dismissed and in the circumstances of the case each party will bear his own costs.
(12) Appeal dismissed.