Shrivastava J.-
This judgment governs the disposal of another connected First Appeal No. 38 of 1959, which arises out of the same judgment. The appellant Antoo filed a suit for recovery of compensation for injury caused to him by a truck which was owned by respondents Nos. 1 and 2 and was driven by respondent No. 1 Jagatsingh. Respondent No. 3 is the Insurance Company. For convenience, we shall refer to the parties as they were arrayed in the trial Court.
2. The following facts are no longer in dispute. On 23-12-1955, at about 6 p. m,, the defendant Jagatsingh was driving his truck, No. CPN 123 from Mandla towards Jabalpur. When he had crossed the turning which took him to the Jabalpur Road and proceeded about a hundred yards the unfortunate accident happened. The plaintiff, who was then aged about six years, was hit by the truck and one of its wheels ran over his left foot which was crushed and ultimately had to be amputated below the knee.
3. The plaintiff's case is that the truck was being driven rashly and negligently; that the defendant Jagatsingh did not take proper care to avoid the accident; and that, as a-result, the plaintiff has been incapacitated for life. He claimed Rs.60 for medical expenses, Rs.5,000 for suffering and pain and Rs.9,040 as general damages. He impleaded defendant No. 1 as the driver and defendant No. 2 as owner of the truck. Later, the Insurance Company was also impleaded as defendant No 3.
4. The defendants denied that the truck was being driven at a rash speed or that the driver was in any way negligent. It was pleaded that the plaintiff with other boys, was playing in the middle of the road and had himself dashed against the truck. The damages were denied. The Insurance Company, in addition, pleaded that the claim was barred by limitation.
5. The trial Court found that defendant No. 1 was responsible for the accident and was liable to pay damages. The damages were assessed at Rs.2,500 for suffering and Rs.1,800 for earning capacity being affected by the loss of leg and decreed the claim for Rs.4,300 only. As against the Insurance Company, the claim was dismissed as barred by time.
6. The plaintiff, in his appeal, contends that the damages assessed are too low and further that the claim has wrongly been held barred by time. Defendants Nos. 1 and 2 in their appeal contend that defendant No. 1 did not drive the truck rashly and they are not liable for damages. In addition, they also state that the Insurance Company is liable, if they are held liable. The Insurance Company supports the defendants' contention that the accident was not due to negligence of the driver and contests the claim of the plaintiff as well as defendants Nos. 1 and 2 that it is liable. On the arguments of the parties, the points which call for decision are:
(i) Whether the accident was due to the negligence of defendant No. 1; (ii) What should be the quantum of damages; and (iii) Is the Insurance Company liable to pay the amount of decree, if any ?
7. point No.(i):The version of the accident as given by defendant No. 1 Jagatsingh in the witness-box is that after stopping for some time at the place of Madho (D. W. 3), he proceeded towards the school when he saw four or five boys playing in the middle of the street. He says he was driving at five miles per hour and had applied his brakes when he was ten yards from the boys. All the boys ran towards the right, but the plaintiff ran towards the left. He tried to steer towards the left but was unable to go far enough as an electric pole stopped him from steering further to the left. He then stopped his truck three yards from the place. His witness Sitaram (D. W. 2), who was sitting with him in the truck, says much the same thing. The trial Court has disbelieved this version. We have read the statement of Sitaram carefully and have no hesitation in agreeing with the trial Court that he is not a reliable witness. He was examined in the criminal case and as would appear from the cross-examination, he contradicted his earlier statement (Ex. P-2) in several particulars. There, he had clearly stated that he did not see how the boy came under the wheels. In view of this statement, he cannot be believed when he says that the plaintiff himself turned to run to the left and thus came under the wheel.
8. The statement of defendant No. 1 that he was driving the truck at five miles per hour is obviously untrue. He stated in the criminal Court that he was driving at fifteen miles per hour. The trial Court found on the evidence of the plaintiffs witnesses that the speed was 25 miles per hour. All 1 witnesses for the plaintiff state that the truck was being driven with great spew though some of them say in cross-examination that the speed was 10 to 20 mil per hour. However, it is clear from their statements that they cannot estimate the speed. Beading their statements as a whole and taking into account fact that the truck stopped at a distance of 10 feet after the brakes had b applied for some distance before the accident, we agree that the truck must has been running at a fairly high speed.
9. As defendant No. 1 himself admits, he had seen the boys playing fro a distance of fifty yards. It appears from the statements of Jaithu (P. W,3) and Swetamber (P. W. 4) that the boys were playing nearabout the middle the road on the tarred portion and were running here and there. All to witnesses of the plaintiff state that defendant No. 1 did not blow the horn. I is not of much consequence that the truck was to the left or right of the tare portion which was hardly 10 feet wide; but seeing the boys in the middle of to road, defendant No. 1 should have acted with sufficient anticipation. To responsibility of a driver of a motor vehicle when he sees infant playing on to road becomes greater and he must take into account the fact that their behavior would be uncertain. The driver is under a duty to take reasonable care If avoid harm to the children. Things would have been different if the boys has 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. That would be a car of inevitable accident. That was not so in the present case. The boys win right in the middle of the road and were playing. The driver should have slowed down well in time to allow the boys to run away from the road. It may be correct that he made a last effort to save the boys but could not succeed of account of the electric pole; but that does not exonerate him from his responsibility to have taken special care on seeing infants playing on the road. Shri A. P. Sen for respondents Nos. 1 and 2 contended that the accident was due to contributory negligence of the-plaintiff and so the defendants should be his liable for damages. We do not find that the plaintiff unexpectedly turned to the left as alleged by defendant No. 1. We find that the proximate cause of the accident was the negligence of defendant No. 1 in not slowing down the vehicle to a speed which could stop it in case the boys remained on the longer than expected. We might have taken a different view of the matter if the accident had occurred to an adult pedestrian who bad behaved in an uncertain manner after receiving a warning by horn being blown; but in the case of children of tender age, we cannot accept the same standard of care. The on this point is thus stated on page 550 of 1year's Law of Torts (Fifth Edition 1957):
"The conduct of a child in bringing about its own injury may not be a conscious act of volition or may not be below the standard of care or judgment that can be expected of children. Therefore the defence of contributory negligence will be more difficult to make out against a child than against an adult."
Or in Salmond on Torts (Twelfth Edition) on page 454:
"When the plaintiff is a child or other person under some form of personal incapacity, it is sufficient if he shows as much care as a person of that kind may reasonably be expect-ed to show; and be will not lose his remedy merely because a person of full capacity might by using greater care or skill have avoided the accident."
Contributory negligence of a child is seldom a good defence to such a tort, though in some cases the defence of inevitable accident may prevail. In the instant case, we agree with the finding of the trial Court that defendant No. 1 was negligent in driving and this was the cause of injury to the plaintiff.
10. Point No. (ii): Turning now to the question of damages, we find that the plaintiff had claimed Rs.60 for costs of medicines; Rs.5,000 for mental suffering and Rs.9,040 as general damages. The trial Court allowed nothing for medicines, but allowed Rs.2,500 for mental suffering and pain and Rs.1,800 under the third head. The quantum of damages allowed is challenged by both the parties.
11. Shri R. K. Pandey for respondent No. 3 Insurance Company contends that the damages claimed under the second and third heads are both general damages and there is no claim made for loss of earning etc. which the Court has awarded. On reading the third paragraph of the plaint as a whole, it is clear to us that the plaintiff claimed damages for loss of earning when he referred to his expectation of life being 60 years and probable income at Rs.60 per month. It is on this basis that the Court allowed damages for loss of earning caused on account of amputation of the leg. The pleadings are sufficient to support this demand for damages.
12. The trial Court found that the plaintiff would have earned Rs.60 a month for thirty years between the age of twenty and fifty. The loss was assessed at Rs.5 a month which appears to us as unreasonably low. Under Schedule I to the Workmen's Compensation Act, the loss of earning capacity on account of loss of leg below the knee is stated to be fifty per cent, of the normal earning capacity. We consider this as a fair indication of the loss in this case. We accept the finding of the trial Court about the expectation of the plaintiff's life and his probable earning after the age of twenty. The damages must accordingly be assessed at a sum which will bring a return of Rs.30 per month for thirty years commencing from the time the plaintiff becomes twenty years old i.e. ten years hence. We shall assume the rate of interest to be four per cent. Referring to Archer's Loan Payment Tables, we find that an annuity of Re. 1 per year for thirty years at 4 per cent, can be secured by an investment of RS.17.29 and a sum of Re. 1 ten years hence is worth '675 today. On this date, the necessary amount comes to Rs.4,200.
13. The trial Court has allowed Rs.2,500 as damages for mental suffering and pain. The compensation on this account must necessarily be arbitrary to some extent. The amount appears to be on the high side; but we do not consider any interference is called for. The total amount for damages thus works out to Rs.6,100 only.
14. Point No. (Hi): Coming to the third point regarding the liability of the Insurance Company, we must first refer to section 96 of the Motor Vehicles Act which governs the case of such companies. It is true that the injured person is not a party to the contract between the insurer and the insured and could not have claimed any relief on the basis of the contract between them. However the special provision in the Motor Vehicles Act gives him a right of relief against the insurer. This was considered necessary in the interest of general public under that section. It is not necessary for the plaintiff to implead the company as a defendant. All that he need do is to give it a notice through Court and the company may then apply to be ranked as a defendant, if it likes. If it does not t choose to be impleaded, it is nonetheless liable to pay the amount of decree. I: The defences of the company have been limited to those specified in that section. 1' It has been held in British India General Insurance Co. Ltd. v. Itbar Singh AIR 1959 SO 1331, that the insurer is precluded from raising any other defences to the action.
15. In the instant case, the plaintiff impleaded the Insurance Company on i an objection being taken by defendants Nos. 1 and 2. The claim against i defendants Nos. 1 and 2 was in time being within one year of the accident; but when the company was impleaded, more than one year had passed. The trial r Court thus held that the claim against the company was barred under Article 22 I of the Limitation Act. This finding, however, ignores the provisions Ld I-section 96 of the Motor Vehicles Act. The necessary notice was given and the I. Company was added as a party. The plaintiff's request to implead the insurer I does not make any difference. The proceedings in our opinion are substantially I in accordance with section 96. The insurer should be deemed to have come on I record as a defendant under that section. The insurer has not, in this case, raised any of the defences permissible to him. The question of limitation does not arise, as the claim against the other defendants was in time and the liability of the insurer is co-extensive with theirs. Accordingly, we hold that the Insurance Company is also liable for the claim.
16. In the result, the appeal is allowed. The decree of the trial Court is set aside and instead it is decreed that all the three defendants do pay to the plaintiff a sum of Rs.6,700. As about half the claim has succeeded, we direct that the costs, except court-fees in suit and the plaintiff's appeal, shall be borne by the parties as incurred throughout. The suit and the appeal by the plaintiff were filed in forma pauper's. The court-fees for both shall be recovered from the parties in proportion to their failure.
17. The connected First Appeal No. 38 of 1959 filed by defendants Nos. 1 and 2 is dismissed with costs.
Appeal allowed.