Vyas Dev Misra, C.J.
1. This appeal under Section 110-D of the Motor Vehicles Act is directed against the judgment of Motor Accident Claims Tribunal Solan dismissing the claim of the appellant.
2. On 2nd Oct., 1970 the appellant, aged about 9 years, was standing on the left side of the Simla-Kalka highway near a bifurcation of Subathu Road at Saproon, Solan. Bus No. HRA-1242, owned by respondents 1 and 2, and driven by respondent No. 3, passed that site at about 10.30 A.M. The appellant was hit by the rear portion of the bus. The conductor of the bus gave a signal to the driver to stop the bus shouting that a child had been hit. The bus was stopped. The appellant who was lying unconscious on the road was picked up and removed to Civil Hospital, Solan. Thereafter the matter was reported to the police.
3. The appellant was saved from death by the expert treatment given to him at Solan. However, he lost his memory. He has also lost control on the movement of his limbs and is not in a position to look after himself any more.
4. An application under Section 110-A of the Motor Vehicles Act was made by the appellant through his mother claiming compensation to the tune of Rs. 1,50,000/-. It was alleged that the accident was the result of the negligence and/or rashness of the driver of the bus. The application was resisted. It was, inter alia, averred that the appellant, who was looking at the moving train, got frightened and hit the bus.
5. I need not refer to all the issues which were settled and tried. I am only concerned with two issues at the moment. These are :
'3. Whether the accident was caused due to rash and negligent driving of the bus by the driver of the bus? O.P.M.
4. To what compensation, if any, is the petitioner entitled to and against whom ?'
6. After recording the evidence produced by the parties, the Tribunal came to the conclusion that there was no negligence on the part of the driver, and so dismissed the application.
7. During the course of trial the scene of accident was inspected by the Tribunal. Later on a scaled plan for the site was got prepared from the Executive Engineer, Himachal Pradesh Public Works Department, Solan. This is Ex. C-1. Before I refer to the plan I will discuss the evidence on record.
8. The appellant examined one Ra-dhakrishan (P.W. 5) who runs a shop opposite to the place of accident. The respondents examined Ram Krishan driver (D.W. 1), conductor Rameshwar Prasad (D.W. 4) and two bus passengers, namely, B. R. Bhardwaj (D.W. 2), and Brij Lal Gupta (D.W. 3). Brij Lal Gupta had not noticed the appellant before the accident. He had come down the bus after the accident and had seen the appellant lying unconscious with the head towards the parapet and the legs towards the road. However, the rest of the witnesses did see the appellant before the accident.
9. Radha Krishan, P.W. 5, tells us that the appellant with his sister was standing at the parapet. Ram Krishan driver does not deny it. He states that two boys and a girl were 'standing in between the gap space of two parapets on the left side of the road.' Similar is the statement of conductor Rameshwar Parshad.
10. Now the place where the appellant with other children was standing is near the railway line. The distance between the parapet and the railway track is about 20 feet. It is unanimously averred by the driver, the conductor, as well as Mr. Bhardwaj that the children were looking at the train which was passing at that very time,
11. The question which arises for determination is whether it was the appellant who ran back from the place where he was standing and hit the bus, or it was the bus which hit the appellant
12. All the witnesses are unanimous that at the place of accident the bus, which was proceeding from Solan to Kalka, was on the descent. At this stage I will like to read the plan Ex. C-1. I may here add that I have some hazy notion c f the place of accident since one has to pass through it while travelling between Solan and Kalka. The plan shows practically two reverse bends in the road. At the junction of the two bends, a road bifurcates to Subathu and is known as Subathu Road. Another road which joins the bend is known as Circular Road and runs between shops situated on the side opposite to the railway track. As one goes from Solan to Kalka the railway track is on the left while Subathu Road and Circular Road are on the right of the Simla-Kalka highway. There are parapet walls near this bifurcation. One is towards the railway track. It may be noticed that the railway track is about 8 or 10 feet below the road. The other parapet wall is between Simla-Kalka highway and the Subathu Road. The parapet is not a running wall but it consists of small blocks of wall, which may be about 21 feet high, with a gap in between two blocks. The bus was moving from Solan to Kalka.
As one drives down from the side of Solan bifurcat on the wid h of the metalled road changes from 22feet to 11 feet and again to 22 feet nearabout the place of trijunction. From this width the bus has to take a turn towards Kalka leaving the Suba-thu Road. If I remember right, Suba-thu road is at a lower level than the National highway. As the vehicle takes a curve the width of the road goes down to 20 feet which within 40 metres is reduced to 11 feet. The width of the road thereafter is about 11 feet for another distance of about more than 120 metres, The kacha path on both sides of the metalled road is 3 feet wide and continues to be so for a distance of 40 metres and thereafter it widens to 5 feet for another distance of 120 metres. I have described this from the plan before me in order to appreciate the arguments of the parties as well as the impugned judgment.
13. Radha Krishan, P.W. 5, has not given the approximate speed of the bus at the time of the accident. The driver (Ram Krishan, D.W. 1) also does not tell us the speed of the bus. Similarly B. R. Bhardwaj, D.W. 2, is silent on this aspect. Only conductor Ramesh-war Prasad, D.W. 4, and Brij Lal Gupta, D.W. 2, give us some approximate idea of the speed of the bus. Whereas the conductor claims that the speed of the bus was 20 to 25 kilometres per hour, Brij Lal Gupta, D.W. 3, estimates it at about 30 kilometres per hour. Shri B. R. Bhardwaj states that the speed of the bus was about 25 to 30 kilometres per hour.
14. The best person to tell the speed of the bus was the driver himself. But for some unknown reason he is silent. We have, therefore, to enter into a realm of a bit of conjectures. The bus was plying on the National highway in these hills. It was going down the hill at the place of the accident. The speed was likely to be not less than 30 kilometres per hour and could have been up to about 40 kilometres per hour as is the usual practice. There is no evidence to show whether any other vehicle was coming from the opposite direction or was following the bus. In other words, the whole of the highway was at that time lying open for driving.
15. I find that the Tribunal came to the conclusion that the bus could not have afforded to pick up speed in thepeculiar circumstances and must have been running at a slow speed. However, it does not refer to the approximate speed at which the bus might have been running at that particular moment. The only reason given for the slow speed is :
'In view of the peculiarity of the place the driver who was moving on the tarred part of the road could not have afforded to pick up speed and must have been steering the bus at a slow speed.'
16. Slow speed or high speed is a comparative term. What may be a slow speed on a straight levelled road may indeed look high speed on the hilly roads having turns. Be that as it may, the speed, as I have already stated, could not have been less than 30 kilometres per hour and might have been between 30 to 40 kilometres per hour on this descent.
17. The next question which arises for decision is how fast the bus was when it was passing by the side of the appellant? According to Bhardwaj, D.W. 2, the distance between the parapet and the bus was about 5 to 6 feet None else gives us the distance between the bus and the children when the bus was passing by the side of the appellant. The driver is also silent. As I have already observed, the kacha portion on the side of the metalled road is 3 feet wide. There is no evidence to show that the children or the appellant rushed back from the side of the parapet. Rameshwar Prashad conductor (D. W. 4) describes the accident thus:
'When we were passing through Saproon area I saw two children stand-ing between two parapets. They were patching the passing train and when the bus was almost to cross them one of the child struck against the bus on the back side of the rear door and thereafter he was struck with parapet and fell down on the road. When the boy fell down on the road his feet were towards the bus and the head was towards the parapet. After this I gave bell and the driver of the bus stopped the bus at some distance.'
18. This is the only relevant evidence on record before me.
19. I have already described thescene of the accident with the help ofthe plan. While taking the turn towards Kalka side the bus in a normal course would have to go to its left since it was a left turn. Apparently as the bus was passing by the side of the appellant, who must have been quite near, he was pulled in by the rush of the air which is a natural consequence. It may be remembered that when a bus moves it pushes the air in front and its rear portion sucks in the air because of the vacuum created. This is a scientific phenomenon. The bus moving at the speed of even 30 kilometres per hour at that place and being very near to the outer side of the me-talled road will result in the child like the appellant being pulled in. And that is the reason why the conductor saw the appellant being hit by the bus and thereafter the appellant hitting the parapet wall and lying with head towards the parapet wall and the feet towards the metalled road.
20. The negligence of the driver consists in not taking sufficient care which was called for by the circumstances. He was going down the hill and faking a curve on a road which was narrowing. He had seen the children standing on one side of the road near the parapet. He should have ensured that his speed as well as the distance between the bus and the children should remain such that the appellant was not pulled in by the disturbance created in the air by the moving vehicle. It is true that the driver immediately took the boy to the hospital. That was indeed very good of him and it is for that reason that the boy is still alive. But then removing the injured immediately to the hospital or even reporting the accident to the police (there is no evidence on record that the driver reported the matter to the police) does not by itself show that he was not guilty of negligence. The conclusion of the Tribunal that this conduct showed that the driver had no guilty conscience, is not a reasonable conclusion and does not show that the driver was not guilty of negligence.
21. I would, therefore, set aside the impugned judgment dismissing the application of the appellant for compensation.
22. Since the parties have produced the full evidence on record in respect of the amount of compensation and asthe matter is a very old one I will proceed to determine the compensation.
23. The condition of the appellant is described by Dr. K. C. Sharma (P.W. 4), a medical specialist of Ripon Hospital, Simla. He is M.D. of Punjab University and is in service since Dec., 1962. He was working at Civil Hospital, Solan those days. He tells us that the appellant had received an injury on the right temporal region and had a fracture of wrist and leg when he examined him at 11 A.M. on 2nd Oct., 1970. The condition of the appellant is described as 'very very grave'. He was referred to P.G.I. Chandigarh and also to Snowdon Hospital, Simla. The appellant's condition at the time of his discharge is described thus :
'At the time of discharge the patient was not mentally sound, the memory was defective for recent and past events and speech was also slurred. This was due to head injury. The patient was constantly under my observation and he also got himself checked up at Simla, Snowdon Hospital and at P.G.I. Chandigarh. There was no improvement in his condition and after sometime he started getting fits involving half of the body and consequent to that he got weakness of the right sided limbs, I have seen the petitioner today also. He is quite unstable. He is still mentally unsound, and cannot attend to his daily routines. There is no likelihood of his improving later on.'
24. The appellant's mother Shrimati Devku, P.W. 9, deposes thus :
'As a result of the accident his health has deteriorated awfully, in spite of treatment. He cannot speak, move about and cannot even attend to his daily necessities. He cannot even keep himself. I have to attend to him for all his necessities, I have to even clean him after he eases himself, as he cannot himself attend to such function.....Bhagat Bahadur Gorkha hag been employed by us as a servant for attending to agricultural work and grazing tthe cattle.'
25. She goes on to depose that even her husband has become deranged and keeps on roaming aimlessly and does not attend to agricultural work. She was looking after the agricultural work in addition to the household chorea However, after the accident she is de-voting her full attention to her son. As a result they had to employ Bhagat Bahadur Gorkha who is being paid Rs. 60/- and meals. She claims to have spent Rs. 5,000/- to Rs. 6,000/- on the treatment of the appellant who had to be taken to P.G.I. Chandigarh as well as Snowdon Hospital, Simla. Of course she has kept no record of the expenses.
26. Because of the accident the expectancy of life of the appellant has been reduced. Normally the life expectancy is about 65 years and it must have been reduced to about 50 years. Moreover, there is no chance of the appellant ever marrying and earning. I have seen him today in the Court. He looks like an imbecile. He cannot control and co-ordinate the movements of his limbs and had to be helped by two persons to enter the court room. The speech and the memory seems to be very vitally affected. His gaze is unsteady. It is very difficult to award adequate compensation to such an injured. There are various imponderables, and conjecture has to play a part. But one has to be sure that the compensation does not amount to a profit and, at the same time, it should not be so meagre that it would not meet the situation which has arisen because of the accident. Though no similar case has been brought to my notice by the learned counsel for the appellant still some of the cases cited by him are a good guide. In Delhi Transport Undertaking v. Kumari Lalita 1973 Acc. C. J. 79 ( Delhi), a sum of Rs. 50,000/- was awarded as compensation to Kumari Lalita, a girl aged 8 years who suffered multiple fractures of leg, arm, scapula, forearm, humerus, and femur as well as a head injury for which she was crippled physically and mentally for life,
This judgment takes note of variousdecisions of different High Courts and Ineed not take note of those cases. Myattention has been drawn to some English cases in respect of the compensation awarded. However, they cannot bea good guide as regards the quantumof compensation. However, in Daish v.Albert, 1973 Acc. C.J. 185, the Court ofAppeal in England in somewhat similarcircumstances held that the injured isalso entitled to (sum for)the loss of the amenities oflife and such mental pain as hislimited awareness of it and his dreadful disabilities cause him. It was also taken into account that if the child had not been injured he would have earned.
27. In the instant case it is evident that a full time person will have to be employed to look after the injured for the rest of his life. Taking a conservative view the attendant will be available at about Rs. 125/- per month. Taking the reduced expectancy of life at about 50 years, the appellant has to be maintained for a period of about 40 years. This will bring the cost of the servant to Rs. 60,000/-. In addition to that the appellant's chance of earning: having been diminished to nil, his maintenance will have to be provided by others. Expenses have also been incurred on his treatment at Chandigarh and Simla. Taking an overall view of the matter, in my judgment a sum of Rs. 75,000/- will be a just compensation.
28. I would, therefore, accept the appeal, set aside the impugned judgment and award a sum of Rs. 75,000/-as compensation to the appellant. Since the appellant is not only a minor but is mentally unsound, I direct that a sum of Rs. 10,000/- be paid to the appellant's mother to meet the expenses already incurred by her, and the remaining amount be deposited either in a fixed deposit account or in securities which bring maximum return to the petitioner. I leave it to the Motor Accident Claims Tribunal to decide about it. Of course, it will be done after hearing the learned counsel for the appellant. Monthly returns from the deposits will be paid to the mother of the appellant to meet letter's expenses of maintenance etc. The appellant is also awarded interest at the rate of 6 per cent per annum on the amount awarded from the date of the petition till payment. The appellant will also have his costs throughout from the respondents, and this amount will be paid to appellant's mother.