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Case Number
Attorney(S)
  • For the Appellant: J. Sreyan Prasad, T.N. Raghupathy, V.C. Sabard, Advocates.
Judges
  • Range Gowda
  • Sabhahit, JJ.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: J. Sreyan Prasad, T.N. Raghupathy, V.C. Sabard, Advocates.
Judges
  • Range Gowda
  • Sabhahit, JJ.
Acts
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Smart Summary

Structured Summary of the Opinion (Appeal under Sec. 110D, Motor Vehicles Act)

Factual and Procedural Background

This appeal under Sec. 110D of the Motor Vehicles Act was instituted by the original claimants against the judgment and award dated 7-7-1975 of the District Judge and Member, Motor Accidents Claims Tribunal, Mysore, in M.V. Misc. No. 75 of 1972.

The claimants alleged that on 1-6-1972 at about 8 a.m., their son Ramesh (called Madhu), aged about five years, and other children were playing near a park on the footpath of Vasanthamahal Road, Nazarbad Mohalla, when a police jeep, coming from the northern direction and driven allegedly rashly and negligently, left the road on the left side and struck the boy. The boy was taken to hospital and died about six hours after the accident. The claimants sought Rs. 50,000 as damages. Respondent-1 was the driver, Respondent-2 the owner, and Respondent-3 the insurer.

Respondent-1 filed a statement of objections alleging that a boy flying a kite came suddenly from the opposite side chasing a cut kite and dashed against the rear portion of the jeep, so that the accident was inevitable. Respondents 2 and 3 adopted similar contentions and also argued that the claimed compensation was excessive.

The Tribunal framed issues including (1) maintainability, (2) whether the accident was due to rash and negligent driving or was inevitable, and (3) entitlement to compensation including quantum and from whom. The claimants examined six witnesses (including three eyewitnesses and the treating doctor). The respondents called no witnesses. The Tribunal held the petition maintainable but found the accident to be inevitable and dismissed the claimants' petition. The claimants appealed to this Court.

Legal Issues Presented

  1. Whether the petition before the Tribunal was maintainable.
  2. Whether the accident was due to the rash and negligent driving of Respondent-1 (driver) or whether it was an inevitable accident.
  3. If negligence is established, whether the claimants are entitled to compensation, and if so, the quantum and the respondent(s) liable to pay.

Arguments of the Parties

Appellants' (Claimants') Arguments

  • The Tribunal was not justified in finding the accident inevitable and erred in failing to hold that the jeep's driver was rash and negligent.
  • On the facts and the eyewitness testimony, the Tribunal should have awarded compensation to the parents of the deceased boy.

Respondents' Arguments

  • Respondent-1 (driver) contended in his statement of objections that a boy flying a kite suddenly crossed the road and was struck by the rear of the jeep, making the accident inevitable; accordingly he denied liability.
  • Respondents 2 and 3 (owner and insurer) supported the inevitability contention and additionally argued that the claimed amount of compensation was excessive.
  • Before this Court, the Government Pleader for the respondents supported the reasoning and findings of the Tribunal (i.e., that the accident was inevitable).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Upson's case (quotation of Lord Uthwatt) Principle that a driver is not entitled to ignore common forms of folly by others; a driver must take into account probable conduct of others on the road. The Court relied on this principle to hold that a diligent driver should anticipate children playing near parks and reduce speed; used to reject the claim of inevitability and to find actionable negligence by the driver.
Benham v. Gambling Leading authority that a conventional figure should be awarded for loss of expectation of future happy life in the case of children of tender years. The Court cited this as the foundational principle for awarding a conventional sum for a child's loss of future happy life when fixing compensation.
Naylor v. Yorkshire Electricity Board Raised the conventional award for loss of expectation of future happy life (to £500 in that case). Used as part of the line of authorities showing progressive increases in conventional awards and supporting the Court's exercise in fixing an appropriate conventional sum in Indian currency.
McCann v. Sheppard Further increased the conventional award for the loss of expectation of future happy life (to £750 by Court of Appeal). Referenced to demonstrate the trend in English jurisprudence of increasing conventional awards, informing the Court's assessment of an appropriate award.
M.P. Road Transport Corpn. v. Sudhakar Indian precedent where a one-year-old boy's death led to an award of Rs. 7,500 (reduced to Rs. 5,000 by the High Court). Referred to as an Indian comparative award for a very young child when assessing a fair conventional figure for the deceased five-year-old in the present case.
Concord of India Fire and General Ins. Co. Ltd. v. L.J. Machado Indian precedent awarding Rs. 6,000 for the death of a child of 8 years. Cited among Indian decisions to justify the Court's selection of Rs. 6,000 as the conventional award for the five-year-old deceased.
Krishnaji v. Subhadra Devi Indian precedent awarding Rs. 10,000 under this head for the death of a boy of 7 years. Included in the comparative survey of past awards to support the Court's reasoning when fixing the conventional compensation amount.
Manmohan Sarup Kaushal v. Mela Ram Indian precedent where the High Court of Delhi awarded Rs. 8,000 for the death of a girl of 11 years. Also cited as part of the comparative awards survey; used to inform the Court's decision to award Rs. 6,000 for a 5-year-old, given the fall in money value and past awards.

Court's Reasoning and Analysis

The Court proceeded through the following analytical steps, based solely on the evidence and arguments in the record:

  1. Evaluation of eyewitness testimony: The Court found that PWs 2, 3 and 4 (including two brothers of the deceased) gave consistent evidence that the boy Ramesh was on the footpath on the left side when the jeep left the tar road, went onto the kaccha (unpaved) area and the front left wheel of the jeep was on the footpath and was touching the head of the boy. PW 2's testimony was detailed and corroborated by PW 3 and PW 4. PW 5's testimony was inconsistent and unreliable (he stated the accident was on the right side and gave indications that he had not actually seen the accident), so the Court declined to rely on PW 5.
  2. Application of res ipsa loquitur: Given the consistent eyewitness evidence that the jeep left the tar road and struck the boy on the footpath, the Court held that the doctrine of res ipsa loquitur applied ("the thing speaks for itself"), which shifts the burden to the driver to explain why the vehicle went off the road. The driver had taken a positive stand in pleadings that a boy suddenly ran across and hit the rear of the jeep, but the driver did not give oral evidence ("desisted from entering the box"), calling for an adverse inference.
  3. Consideration of the driver's pleaded version and the probability of events: The Court noted that even accepting the driver's pleaded scenario (that a boy crossed and the driver swerved left to save him), the driver would not thereby be absolved. The Court quoted Lord Uthwatt in Upson's case to the effect that a driver must take into account the common forms of folly by others and cannot ignore the teachings of experience.
  4. Risk-avoiding conduct required: The Court observed evidence of parks on both sides of the road and boys flying kites; thus, a diligent driver should have slowed down to be able to halt if a child acted unpredictably. The driver, the Court found, did not slow down and could have stopped when seeing a boy; the driver’s swerving to the left (if that was his explanation) was improbable because swerving left would tend to chase the boy rather than avoid him. Considering these factors, the Court concluded the accident resulted from rash and negligent driving, not inevitability.
  5. Conclusion on liability: The Tribunal's conclusion that the accident was inevitable was held to be in error. The Court set aside that finding and found actionable negligence on the part of the driver, attracting liability.
  6. Assessment of damages: The Court surveyed authorities (both English and Indian) on conventional figures to be awarded for the loss of expectation of future happy life for children of tender years, noting progressive increases in figures in prior cases. Having regard to those decisions and the fall in the value of money, the Court considered Rs. 6,000 to be a just and proper conventional award for the death of Ramesh (aged five).
  7. Relief directed: The Court awarded Rs. 6,000 to the claimants with costs and interest at 6% per annum from the date of the petition until payment, and directed that the entire amount including costs and interest be paid by Respondent-3, the Karnataka Government Insurance Department.

Holding and Implications

APPEAL ALLOWED

The Court set aside the Tribunal's finding that the accident was inevitable and held that the accident resulted from the rash and negligent driving of Respondent-1 (the driver). The Tribunal's dismissal of the claim was overturned.

Direct consequences imposed by the Court (as stated in the opinion):

  • The claimants are awarded Rs. 6,000 as compensation for the death of their five-year-old son Ramesh (for loss of expectation of future happy life).
  • Interest at 6% per annum on the awarded sum is to be paid from the date of the petition until payment.
  • Costs were awarded to the claimants.
  • The entire sum awarded (compensation, interest and costs) is to be paid by Respondent-3 — The Karnataka Government Insurance Department.

The opinion does not indicate that the Court intended to announce any novel legal principle or broader precedent beyond applying established doctrines (res ipsa loquitur; the duty of drivers to anticipate common forms of folly; and conventional awards for loss of expectation of future happy life). The decision's immediate effect is the reversal of the Tribunal's finding of inevitability and the grant of the stated monetary relief to the claimants.

Show full summary ...

    Madhu Alias M.C Madappa & Anr. v. Mahadeva & Ors.

    1. This appeal is instituted under Sec. 110D of the Motor Vehicles Act by the original claimants and is directed against the judgment and award d/7-7-1975 passed by the District Judge and Member, Motor Accidents Claims Tribunal, Mysore, in M.V Misc. No. 75 of 1972 on his file.

    2. The claimants averred in the petition that their son Ramesh and other children were playing near the park on the foot-path of Vasanthamahal road, Nazarbad Mohalla on 1-6-72 at about 8 a.m when the Police jeep coming from the northern direction and driven rashly and negligently went off the road on the left side and hit the young boy Ramesh (Madhu) causing him fatal injuries. The boy was removed to the hospital where he succumbed to the injuries within about six hours after the accident. On these allegations, a sum of Rs. 50,000 as damages was claimed from the respondents. Respondent-1 is the driver. Respondent-2 is the owner and Respt-3 is the insurer of the jeep.

    3. Respondent-1, by his statement of objections filed on 31-7-73, contended that the boy who was flying a kite came suddenly from the opposite side in chase of the kite which had been cut off and dashed against the rear portion of the jeep and sustained injuries. Thus, he denied his liability contending that the accident was inevitable. Respondents 2 and 3 contended similarly. They also asserted that the compensation claimed was too high.

    4. The Tribunal raised the following issues for decision on the basis of the pleadings before it.

    (1) Is the petition maintainable?

    (2) Is the accident due to the rash and negligent driving of the first respondent? or is it an inevitable accident?

    (3) Are the claimants entitled to any compensation, and if so, the quantum and from whom?

    5. The claimants examined as many as six witnesses. PW. 1 is the doctor who treated the boy. PWs. 2, 3 and 4 are the eye-witnesses so also PW. 5. PW. 6 is the mother of the deceased boy, being one of the claimants. As against this, the respondents did not examine any witnesses on their behalf.

    6. The Tribunal, appreciating the evidence on record, held that the accident was inevitable and as such, the claimants were not entitled to any compensation. It, however, held that the petition was maintainable, by its judgment d. 7-7-75. Aggrieved by the said judgment and award dismissing the petition, the claimants have come up in appeal before this Court.

    7. The learned Advocate appearing on behalf of the appellants-claimants vehemently contended that the Tribunal was not justified in holding that the accident was not the result of rash and negligent driving of the jeep in question. He further, submitted that on the facts of this case, the Tribunal ought to have awarded compensation for the death of Ramesh to the claimants who are the parents of the deceased boy.

    8. As against that, the learned Govt. Pleader appearing for the respondents argued supporting the reasoning and findings of the learned Member of the Tribunal.

    9. The points, therefore, that arise for our consideration in this appeal are:

    10. Whether the Tribunal was justified in holding that the accident was inevitable; if not, what is the quantum of compensation to which the claimants are entitled to?

    11. PW. 2 Chikkanna has deposed that on the date of the accident at about 8 a.m, he was going on the road by the side of Nazarbad Police Station having taken coffee in Mylari Hotel and then saw a disturbance and further found the boy Ramesh underneath the side wheel of the jeep lying injured on the face. The boy was unconscious. The legs of Ramesh were on the footpath and the head was on the road. The road runs north to south and the jeep was facing south. The jeep was on the left side of the road and the front left wheel of the jeep was on the footpath and the rest was on the road. He took the child to the shop of a doctor in the first instance and since that doctor did not attend on the child immediately, he took the child to the Mission Hospital. He has further deposed that Ramesh expired at about 4 p.m on the same day. In the cross-examination it is elicited that the left front wheel of the jeep was touching the head of the boy. He has further stated that his statement was recorded by the police. It is also elicited that there are parks on both the left and right sides of the road. Boys were flying kites in the area. Thus, it emerges from his evidence that the jeep actually left the tar road and went on the kaccha road before it caused the accident to the young boy Ramesh. It is also, established that it was a busy locality having parks on either side of the road and that boys were flying kites by the road side. The evidence of PW. 2 is corroborated in the testimony of PW. 3 Swamy and PW. 4 Vasu. Both of them are the brothers of the deceased boy Ramesh. They have deposed similarly. Nothing is elicited in the cross-examination of these witnesses to disbelieve their evidence. It is true that, the evidence of PW. 5 is not consistent with the evidence of these eye witnesses. By reading the evidence of PW. 5, we get an impression that he has not seen the accident at all. He has positively stated that the accident happened on the right side of the road to the jeep which is not the case of the claimants nor of the other side. Hence, it is not proper to place any reliance on the evidence of this witness who could not even properly describe the scene of occurrence. The other witnesses examined on behalf of the claimants have consistently deposed, as stated above, that the boy Ramesh was on the foot-path on the left side of the road when the jeep went off the road and hit him. If that be so, it attracts the doctrine of resipsa loquitur (the thing speaks for itself) and the burden shifts on to the driver tot explain why he went off the road in causing he accident, in this case, the driver has desisted from entering the box. It may also be mentioned further that the driver, in his statement of objections has taken a positive stand that the boy Ramesh came suddenly running across the road and hit the jeep on the rear side. If that were so it was his duty to step into the box and explain, the circumstances. Non-appearance of the driver in the box would attract adverse inference against him. That apart the positive testimony of the witnesses discussed above would clearly establish that there was actionable negligence on the part of the driver in leaving the road and going on the kaccha road while hitting the boy.

    12. In the cross-examination of PW. 2, it is no doubt elicited that a boy suddenly crossed the road from right to left and the driver of the jeep in order to save that boy, swerved the jeep towards left and hit Ramesh. In the first place, that is not the stand taken by the driver. Even assuming that it is a fact, even so, the responsibility of the driver cannot be absolved. It is laid down by Lord Uthwatt in Upson's case(1) thus:

    “A driver is not of course bound to anticipate folly (of others) in all its forms, but, he is not entitled to put out of consideration the teachings of experience as to the form these follies commonly take.”

    13. It is in evidence that boys were flying kites at the place. It is further in evidence that there were parks on either side of the road. Any diligent driver could observe the boys flying kites on either side of the road. In that case, it was the duty of the driver to chock up the speed, so as to be in a position to halt the vehicle in case of any common folly committed by any of the boys on the road. The driver, in the instant case, has not done so. If he were diligent, he could have halted the jeep when he saw that a boy was crossing the road. Besides, if really a boy crossed from right to left, it is not probable that the driver should swerve the vehicle to the left which amounts only chasing the boy in trying to hit him. Thus, considered either way, we are satisfied that the accident has happened as a result of rash and negligent driving of the jeep. The learned Member of the Tribunal clearly erred in holding to the contrary that the accident was an inevitable One. We are constrained to set aside that finding.

    14. The next point that arises for our consideration is the quantum of compensation to which the parents of the deceased boy are entitled. It is well settled that in the case of children of tender years, compensation to be awarded is only for the loss of expectation of future happy life, which, of course, forms a conventional figure. The leading case on the subject is that of Benham v. Gambling(2), wherein the House of Lords has laid down that a conventional figure should be awarded under this head and in that case, £ 200 were awarded. Since then, however, the Courts in England as well as in our country have raised this figure due to the fall in the value of money. The House of Lords in England, in the case of Naylor v. Yorkshire Electricity Board(3), raised the conventional award to £ 500. In the case of Mc Cann v. Sheppard(4), the same was raised to £ 750 by the Court of Appeal. In our country, in the case of M.P Road Transport Corptn. v. Sudhakar(5) Sudhakar, a boy of one year was killed and the Court awarded Rs. 7,500 which was, however, reduced to Rs. 5,000 by the High Court. In the case of Concord of India Fire and General Insc Co. Ltd. v. L.J Machado(6), Rs. 6,000 were awarded for the death of a child of 8 years by this Court. In the case of Krishnaji v. Subhadra Devi(7), the High Court of Patna awarded Rs. 10,000 under this head for the death of a boy of 7 years. In the case of Manmohan Sarup Kaushal v. Mela Ram(8), the High Court of Delhi awarded Rs. 8,000 for the death of a girl of 11 years. Having regard to the fall in the money value, we find it just and proper to award Rs. 6,000 for the death of Ramesh a boy of five years, to the claimants under this head. Compensation cannot be awarded under any other head. In the result, therefore, we set aside the order of the Tribunal and award Rs. 6,000 to the claimants with costs along with interest at 6 per cent per annum on the said sum awarded from the date of the petition till the date of payment. We further direct that the entire sum awarded along with costs and interest shall be paid over by Respondent-3—The Karnataka Government Insurance Department.

    15. The appeal is accordingly allowed.

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    Comments

    Madhu Alias M.C Madappa & Anr. v. Mahadeva & Ors.
    (Apr 11, 1978)