1. The Pandian Roadways Corporation has filed this appeal against an award of compensation passed by the Motor Accidents Claims Tribunal, Madurai in M. A. C. O. P. 112 of 1978.
2. On 13-2-1978 at about 8-30 a. m. the claimant was Traveling with his brother on a cycle. His younger brother was seated on the back seat. The cycle was coming from North to South near the Indian Bank colony, Natham Road, Maduari. At that time the city bus TMN 5186, belonging to the appellant and driven by the second respondent was coming from South to North. The cycle was proceeding on the left side of the road. At first they came in front of the city bus. On seeing the dogs the second respondent slowed down the bus and the dogs proceeded towards the cycle. In order to avoid the dogs, the brother of the injured slightly turned the cycle towards his right and he lost his balance. The three occupants of the cycle fell down. While the claimant fell down on the right side in front of the cycle, the other two brothers fell down on the left. At that time the front wheel of the bus came into contact with the right arm of the claimant and the tyre tore off all the muscles of the right hand and the bones were visible. If the driver of the bus had completely stopped the vehicle, the accident, according to the claimant, would not have taken place. The claimant, therefore, alleged that the injury to his hand was solely due to the negligence of the second respondent and that the appellant was vicariously liable. The compensation claimed was Rs. 50,000/- made up of Rs. 500/- for extra nourishment, Rs. 5000/- for pain and suffering and Rs. 44500/- for continuing or permanent disability and for loss of earning power.
3. The appellant denied any rashness or negligence on the part of the driver and contended in its statement before the tribunal that the accident was brought about solely by the careless manner in which the brother of the claimant was driving the cycle. An objection was also taken to the amount of compensation claimed.
4. On the allegations of the respective parties, the tribunal framed two points, which arose for consideration as follows :-
1. Whether the accident was due to the rash and negligent driving of the second respondent of the city bus TMN 5186, belonging to the first respondent? and
2. If so, what is the amount of compensation to be awarded and from which of the respondents, whether the Corporation or from its driver?
P. W. 3, the claimant's brother, who drove the cycle, in his evidence, stated that the driver of the bus saw them falling down and that he did not even stop the bus. He stated that the bus was at a distance of about 6 feet at the time of the brother falling down.
5. P. W. 4, who was an eye-witness, spoke to the boys falling down and the driver of the bus not stopping it. According to him, the bus was proceeding slowly, because there was a bus stop ahead and after seeing the dogs fighting he further slowed it down. He stated that the boys, who traveled on the cycle, got frightened, lost their balance and fell down. According to him, the bus was at a distance of about 10 feet when the boys fell down.
6. The driver of the bus gave evidence as R. W. 1. He also stated that the boys fell down when the bus was at a distance of about 3 or 4 feet, that he applied brakes and that the bus stopped at a distance of 1-1/2 or 2 feet. In cross-examination he admitted that even if the brake was applied immediately, the bus would stop at a distance of about 2 feet.
7. On an appreciation of the evidence the tribunal came to the conclusion that the last opportunity to avoid the accident was only with R. W. 1, the driver that the fighting of the street dogs and the consequent falling down of the claimant and his brothers from the cycle could not be treated as acts of negligence on their part and that the accident was solely due to the negligence of the driver. He gave Rs: 15000/- as compensation for the injuries sustained; Rs. 4000/- for pain and suffering and Rs. 500/- for extra nourishment that was required during the long period of the treatment. In all Rs. 19,500/- was awarded. The claimant was in the hospital for five months and subsequently had been visiting the hospital for treatment. The claimant is not in a position to use his forearm and right hand, like a normal person, and the extent of disability is about 40%. Taking into account all these aspects, the above amount of compensation has -been awarded.
8. In the present appeal, the learned counsel for the Pandiyan Roadways Corporation contended that this is a clear case in which the accident was solely due to three persons riding on a bicycle, that the bus was coming on its own side of the road, that the anxiety of the bus driver to avoid the injury even to the dogs would show that he was so careful as a reasonable man would be, and that the loss of control over the cycle and the falling of the claimant in front of the bus and the subsequent damage to his arm could not be attributed to the appellants driver.
9. For the respondents the submission was that the driver ought to have noticed the on-coming cycle and that if the driver had applied the brake instead of driving the vehicle further on, have been no scope for there would the accident.
10. In support learned counsel for the appellant relied on a decision of the Calcutta High Court in Sukhraji Bhuja v. Calcutta State Transport Corporation, : AIR1966Cal620 , in which it has been laid down that the duty of one driving omnibus was merely to take reasonable care not to do harm to others by the manner in which he drives the omnibus and that if somebody would swoop down all of a sudden in front of a fast vehicle like an omnibus without anything like a warning to the driver it would hardly be fair to accuse the driver of the bus of negligence. In that case, the deceased jumped off a running tram car and came into contact with the right rear wheel of the omnibus. It was held that the bus driver was not to be blamed. It was pointed out that if the deceased boy had put himself on the road long or sometime before the omnibus had reached the point where he was, the driver would have been negligent and that when the boy put himself on the road all of a sudden, the stigma of negligence could not be put upon the driver.
11. We do not see how this case is of any assistance to the appellant. As found on the facts therein, the boy jumped down from a moving vehicle and the driver of the bus could not have had an opportunity of anticipating it. It was, therefore, clear that the driver could not be found fault with.
12. The learned counsel referred us to two other decisions viz., Delhi Transport Corporation v. Shabir Ahmed, 1972 Ace CJ 465 and the Motor Owners insurance Co. Ltd. v. Suit. Sharda Thacker, 1974 Acc CJ 239 . In the first case, which was decided by the Delhi High Court, a person was crossing the road. He had hardly gone 4 to 5 yards when he saw a bus coming on the road. The bus had to reach the place to which the person crossing was also going. On seeing the bus, he stopped going further and turned his cycle back to the other side. It was at that stage he was hit by the bus. It was held that it would not be justifiable to say that the bus driver should have anticipated that the cyclist would retrace his steps on seeing the bus approaching him, nor it would be proper to say that the driver should have slowed down the bus sufficiently in order to stop the bus immediately, particularly in view of the fact that the bus had stopped at the point of impact.
13. In the other decision, the Motor Owners Insurance Co. Ltd. v. Smt. Sharda Thacker, 1974 Acc CJ 239, decided by a learned single Judge of the Orissa High Court, the driver had cleared the traffic safely. But somebody for some reason or other got below the chassis and was run over by the rear wheel. The Court held that the driver was helpless against such unforeseen circumstances and that there could be no actionable wrong. Even here, it is clear that the driver was not to be blamed, because after proceeding up to a particular point, he could not see any person falling under the rear wheel, and injuring himself. There was no possibility or scope for avoiding the accident. Thus, these two cases also are of no assistance to the appellant.
14. The Tribunal has used the expression 'last opportunity'. The tribunal seems to consider that, between the cyclist and the bus driver, the bus driver had the last opportunity to avoid the accident and, therefore, he has to be held liable. The rule of 'last opportunity' was first laid down in Davies v. Mann, (1842) 10 M & W 546 : 152 ER 588. The applicability of this doctrine was set at rest by a decision of the House of Lords in Boy Andrew (Owners) v. St. Rognvald, 1948 AC 140. The decision of the House of Lords dealt with a case of collision between two ships. One ship was trying to overtake the other and under the rules applicable to the ships, a ship which was being overtaken had to keep to its course. Unfortunately, the ship that was being overtaken suddenly swerved and, therefore, there was a collision between the overtaking vessel and the overtaken vessel. The overtaken vessel sank with al 1 hands. The cause of this swerve was not known. It was held that both the vessels by, synchronous faulty navigation contributed to causing the accident, the overtaken vessel by failing to keep her course and the overtaking vessel by making a pass too close, and that there was no question of considering which of the vessels had the last opportunity of avoiding the result of the other's negligence. The report of the Law Revision Committee (Cmd 6032 of 1939 at page 16) running as follows was cited:-
'In truth, there is no such rule ......... the question, as in all questions of liability for a tortious act, is, not who had the last opportunity of avoiding the mischief, but whose act caused the wrong?'
It was pointed out by the House of Lords that the suggested test of 'last opportunity' seems to have been inaptly phrased and likely in some cases to lead to error.
15. After referring to this decision, it was pointed out by the Court of appeal in Davies v. Swan Motor Co. (Swansee) Ltd. James, Third Party, 19492 KB 291, that the doctrine of 'last opportunity', fell into disrepute and was superseded by the simple test; what was the cause or what were the causes of the damage? Thus, causation was the decisive factor.
16. In the present case, we have to find out as to what is the cause of, the accident. The accident here is the running over the arm of the boy aged about 6. The driver was in a position to look out as to what was happening in the front. He saw the dogs fighting and he must have seen the boys coming on the cycle. If only he had stopped the vehicle, as a prudent man would have, he would have avoided the accident. The fact that he alleges that he did not see the boy falling until he came too close is not decisive of the question of negligence. Admittedly the cyclist was coming at a slow speed and there was also a bus stop ahead. When he saw the boys coming in front and the dogs fighting with each other, he could have easily anticipated that the dogs would not be stationary before an on-coming bus and even likely to run this way or that. He should have, immediately stopped the bus, so that neither the dogs nor the boys would have been injured. It is this doctrine of 'last opportunity' having gone into disrepute that is referred to in the decision of the Federal Court of Malayasia in Chan Loo Khee v. Lai Siew San, 1971 Acc CJ 408. It is unnecessary to deal with the said decision except to mention that in that case a car which had been stopped by the driver on a highway and which was mistaken by the on-coming traffic as one on the move, was damaged, the Court held that leaving the vehicle in the middle of the road was the cause of the accident and the on-coming traffic was not responsible for it.
17. It has been pointed out that a higher degree of care is due from those who know of or ought to anticipate the presence of disabled or immature persons. See Halsbury's Laws of England, 3rd Edn. Vol. 28, page 11, para 9. This is such a case. When three immature persons were riding on a cycle, and were disturbed by a dog fight, the reaction of any person acting reasonably would have 'been to stop the vehicle, especially when the vehicle had slowed down because of the dogs and the presence of a bus stop at a short distance. It has therefore to be held that this is a clear case of negligence on the part of the bus driver.
18. It is also argued that there was contributory negligence on the part of the claimant, as he was one of the three persons going on a cycle, which was against the rules. Assuming that three boys should not have gone together on a cycle, it does not mean that the bus driver is entitled to injure them. If they had contravened any rule of the road, that would have to be dealt with by the appropriate authorities and not by the bus driver hitting and injuring them. A boy of six cannot be forward in, be guilty of any negligence as he has not attained the age of discretion to realise the consequences of his acts.
19. Further the contention regarding contributory negligence had not been taken before the tribunal. Being a matter on which evidence would have to be led and considered, if such a plea had been taken at the appropriate stage, we do not feel called upon to go into it further.
20. We do not find any circumstance, on the basis of which we can reduce the quantum of compensation, when the boy's right arm has more or less become useless and he has been on prolonged treatment. The damage is permanent so to say, and we, therefore, find no justification for reducing the estimate of compensation from Rs. 19,500/-.
21. The appeal is accordingly dismissed. There will be no order as to costs.
22. Appeal dismissed.