M.P. State Road Transport ... vs Abdul Rahman And Ors.
on 21 March, 1997
Madhya Pradesh High Court
M.P. State Road Transport ... vs Abdul Rahman And Ors. on 21 March, 1997
Equivalent citations: AIR 1997 MP 248, 1997 (2) MPLJ 224
Author: D Misra
Bench: S Dubey, D Misra
JUDGMENT Dipak Misra, J.
1. In these two appeals the Madhya Pradesh State Roadways Corporation (here-in-after referred to
as 'Corporation') and its Depot Manager call in question the warrantableness of the awards passed
by the First M.A.C.T., Bilaspur at Camp Korba in C.T. No. 56/88 and 58/88 granting compensation
in favour of respondents/claimants No. 1 and 2 in M.A. No. 558/96 and respondents/claimants Nos.
1 to 3 in M. A. No. 559/96 respectively. As the claims have arisen from the same accident and the
appeals are interlinked and interconnected, findings being common in respect of some common
major issues, they are disposed of by this common judgment which will govern both the cases.
2. The respondent No. 1 and 2 in M.A. No. 558/96 filed an application for grant of compensation
against the Corporation, its representative and the driver and also against respondent No. 4, the
owner of the Motorcycle which had collided with Bus No. MPE-2583 belonging to the Corporation
driven by respondent No. 3 alleging that on 9-9-88 at about 11.30 p.m. while Mohd. Riyaz, a child of
four years was going with his uncle Mohd. Matin and Mohd. Lukman on the Motorcycle owned by
respondent No. 4, the accident took place as a result, Mohd. Riyaz and Mohd. Matin sustained
injuries and ultimately succumbed to the same. The claim of the claimants was resisted by the
Corporation contending, inter-alia, that the Bus was being driven in moderate speed but the
Motorcycle was carrying three persons and was in high speed, and due to the rash and negligent
driving of the rider, the Motorcycle dashed against the Bus and the fatal accident occurred. It was
also pleaded that the person driving the same by violating traffic rules. With these assertions the
Corporation denied the liability. The respondent No. 4, the owner of the Motorcycle, filed an
independent written statement refuting the claim and praying for absolution.
3. As far as M.A. No. 559/96 is concerned the claimants, the legal heirs of Abdul Matin have claimed
compensation as the accident had occurred due to rash and negligent driving of the driver of the
Bus. The Corporation filed written statement refuting the claim of the claimants. Similar written
statement was also filed by the owner of the Motorcycle denying the liability.
4. The Tribunal on consideration of the materials came to hold that the rider of the Motorcycle was
driving in high speed and the driver of the Bus was also very rash and negligent. The Tribunal
weighing various aspects arrived at the conclusion that the legal heirs of Riyaz were entitled to get
compensation of Rs. 1,52,000/-and the legal representatives of Abdul Matin were entitled to receive
Rs. 22,3000/-. However, the Tribunal equally apportioned the liability on the Corporation and on
the owner of the Motorcycle on the basis of their negligence.
5. Mr. A. G. Dhande, learned counsel for the appellants assailing the Award has strenuously urged
that there was contributory negligence by the deceased persons and, therefore, the Corporation
should not have been saddled with the liability. He has also canvassed that the finding of the
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M.P. State Road Transport ... vs Abdul Rahman And Ors. on 21 March, 1997
Tribunal is, in fact, contributory negligence on the part of both the drivers though he has proceeded
on the assumption of composite negligence. The counsel has vehemently criticised the method of
calculation adopted by the Tribunal in respect of both the deceased persons on the ground that they
are based on no norms and are alien to the basic concept of computation.
6. Dr. N.K. Shukla, learned counsel appearing for the respondents in both the appeals supporting
the award has put forth that the question of contributory negligence is not attracted in a case of child
of four years, the deceased in M.A. No. 558/96 and as far as Mohd. Matin, the deceased in M.A. No.
559/96 is concerned, he was not at the wheel and, therefore, he cannot be held responsible for
contributory negligence. It is further submitted by him that as the Tribunal has recorded a finding
that due to rash and negligent driving of the driver of the Bus as well as the Motorcycle the accident
had occurred, the question of Contributory negligence of the child and the other deceased does not
arise, and the finding of the Tribunal should not be interfered with as the same has been based on
proper appreciation of materials on record. Combating the contention of the learned counsel for the
Corporation relating to quantum Dr. Shukla has taken the stand that when the just compensation
has been awarded there is no justification for reducing the same. He has also referred to the
cross-objection preferred by him challenging the findings of the Tribunal on certain aspects, more
particularly, with regard to apportionment of liability on the tort-feasors.
7. To appreciate the rival contentions raised at the bar we have carefully perused the Award. We
notice that the Tribunal has addressed itself with regard to the rash and negligent driving of the
driver of the Corporation as well as the person driving the Motorcycle. On scrutiny of the evidence
the Tribunal has arrived at the conclusion that Prahlad Singh, the driver of the Bus, was driving the
Bus in a high speed. Similar finding has also been reached as far as the driving of Mohd. Lukman the
rider of the Motorcycle, is concerned. On a perusal of the evidence we are of the considered view
that the finding of the Tribunal in this regard is defensible and cannot be regarded as fallacious.
8. Shri Dhande, learned counsel for the appellants has seriously contended that the deceased
persons suffered their late because of their contributory negligence inasmuch as they accompanied
the rash and negligent rider.
9. We would first address ourselves with regard to the submissions relating to contributory
negligence on the part of Riyaz Mohd., a child of four years. This aspect has engaged the attention of
many an eminent author who have dealt with the same dexterously. In Halsbury Laws of England,
Third Edition Volume 28 para 98 at page 93, it has been observed as follows :--
"A distinction must be drawn between children and adults, for an act which would constitute
contributory negligence on the part of an adult may fail to do so in the case of a child of young
person, the reason being that a child cannot be expected to be as careful for his own safety as an
adult. Where a child is of such an age as to be naturally ignorant of danger or to be unable to fend
for contributory negligence with regard to a matter beyond his appreciation, but quite young
children are held responsible for not exercising that care which may reasonable be expected of them.
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M.P. State Road Transport ... vs Abdul Rahman And Ors. on 21 March, 1997
Where a child in doing an act which contributed to the accident was only following the instincts
natural to his age and the circumstances, he is not guilty of contributory negligence, but the taking
of reasonable precautions by the defendant to protect a child against his own propensities may
afford evidence that the defendant was not negligent, and is, therefore, not liable".
In the case of Gough v. Thorne, 1967 Acc CJ 183 while dealing with the negligence on the part of a
child and the degree of child's responsibilities, Lord Denning, M.R. in his inimitable stayle spoke
thus:--
"I am afraid that I cannot agree with the Judge, A very young child cannot be guilty of contributory
negligence. An older child may be; but it depends on the circumstances. A Judge should only find a
child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to
take precautions for his or her own safety; and then he or she is only to be found guilty if blame
should be attached to him or her. A child has not the road sense or the experience of his or her
elders. He or she is not to be found guilty unless he or she is blameworthy."
In Jones v. Lawrence, 1970 Acc CJ 358 while delineating with the concept of culpable want of care
by child Cumming Bruce, J. has held that a child of seven years and three months has the propensity
to forget altogether what had been talked to him; and becomes momentarily forgetful of the peril of
the crossing of the roads and. therefore, the theory of contributory negligence has to be negatived. In
the case of Macanmara v. E.S.B., 1975 IR 1-18 the Court observed that in cases where contributory
negligence is alleged against a child it is the duty of the trial Judge to rule in each particular case
whether taking into consideration the age and mental development of the child, it is expected of him
to lake some precaution of his own safely and consequently be capable of being guilty of
contributory negligence.
We may also refer to the case of Tillander v. Gosilene, 1977 Acc CJ 306 a judgment rendered by
Ontario High Court, Canada Wherein it has been held that a child of tender age could neither be said
to do an act negligently or intentionally.
In this connection we may quote with profit a passage from the book by Clerk & Lindsell on Torts, in
regard to liability of the children :--
"Liability to children :-- An occupier must be prepared for children to be less careful than adults.
Something which would not be a danger to an adult may very well be one to a child; and a warning
sufficient for an adult may be insufficient for a child. In Moleney v. Lambeth London Borough
Council, an occupier was held liable to a four-year-old boy who fell through the bars of a balustrade.
If a person of the size of the plaintiff lost his balance he was liable to go through the gap. The
staircase did not comply with the occupier's duty of care to a child of that age. But in Ward v.
Hertforshire C.C. it was held there was no liability to a child aged eight who fell against a
long-standing brick and flint wall in a school's playground. The wall was not inherently dangerous
and the presence of a supervisor would not have prevented the accident."
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M.P. State Road Transport ... vs Abdul Rahman And Ors. on 21 March, 1997
10. Back home, there arc catena of authorities which deal with the concept of contributory
negligence in relation to a child. In the case of Delhi Transport Corporation v. Ku. Lalita, 1983 Acc
CJ 253 : (AIR 1982 Delhi 558) Court held thus (at p. 561 of AIR):
"Infants must, it seems, be treated as a category apart. In many cases infants have been held not
guilty of contributory negligence where adults, would on similar facts, have been deemed to be
contributory negligence. The test is what degree of care for his own safety can an infant of the
particular age reasonably be expected to take? The age of the child is a circumstance which must be
considered in deciding whether it has been guilty of contributory negligence.
In the case of a child of lender age conduct on [he part of such child contributing to an accident may
not preclude it from recovering in full in circumstances in which similar conduct would preclude a
grown up person from doing so. What is negligence in a grown up person is not necessarily
negligence in a child."
The High court of Punjab and Haryana in me case of K.L. Pasrija v. Oriental Fire and General
Insurance Co. Ltd., 1986 Acc CJ 252 held, that a child cannot be held guilty of contributory
negligence.
In the case of Muthuswamy v. S.A.R. Annamalai, 1990 Acc CJ 974: (AIR 1990 Madras 201) while
discussing with regard to contributory negligence on the part of a child, aged about six the Court laid
down as under (at p. 205 of AIR) "It follows from the above decisions and the principles elucidated
in them that at the age of 6, a child cannot be reasonably expected to take precaution for his own
safety. The child would have little knowledge of the hazards of road traffic. At that age, the child
would act more by instinct than by reason. The question whether a child is of sufficient age and
intelligence to a child to realise and appreciate the risks he runs, so as to be capable of being guilty of
contributory negligence is a question of fact in each case".
In this contest we may refer to the observations made by M.B. Lal, J in the case of Gothelal
Chourasia v. Gajjanansingh, 1988 Acc CJ 1120 (Madh Pra) which read thus :--
"In this regard it will suffice to say that a duty casts upon the driver of a motor vehicle while driving
the vehicle on a highway that he must drive the vehicle with reasonable care strictly observing the
traffic regulations and rules of the road. He is also expected to keep a good look-out on all the
directions of the road, on sides and on stretch of road in front of him. As such in all possible manner
he has to take care of the pedestrian and his duty becomes higher when the pedestrians are children
of tender age, because the behaviour of children is uncertain on the approach of a motor vehicle".
In this regard we may also refer to the decisions rendered in the cases of Ramkumari Sharma v.
Ramkishan, 1985 Acc CJ 493 (Raj); Amritsar Transport Co. (P) Ltd. v. Swaran Kumar, 1969 Acc CJ
82 (Punj & Hry); Motor Insurance Co. Ltd. v. A. N. Pattammal, 1972 Acc CJ 380 (Madras);
Mohanlal v. Ku Babi, 1967 Acc CJ 123 (Punjab) and Sunil Kumar v. Roshanlal, 1973 Acc CJ41: (AIR
1973 Delhi 141) wherein it has been held that a child of tender age cannot be treated at par with an
adult and the standard to be affixed has to be different and the concept of contributory negligence
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M.P. State Road Transport ... vs Abdul Rahman And Ors. on 21 March, 1997
would have no applicability.
11. From the aforesaid discussion relating to contributory negligence on the part of a child of tender
age there is no doubt that the concept of contributory negligence cannot be made applicable to a
child. A child functions according to his own reasoning and his intelligence. Logicality and
rationality are not expected from a child as a child of tender age has no continuous thinking process
and is governed by his impulse, instinct and innocence. Can one ever conceive that a child, if would
have been aware of the peril, would ever commit an act which is dangerous or hazardous for him?
The answer has to be a categorical 'No', because a child's action is childlike and really innocent.
Possibly for that reason, it has been said :--
"The Maker of the Stars and Sea, become a Child earth for me?"
A child remains a child in spite of all training and directions and if anything sparkles it is the glory of
his innocence which makes him indifferent to the risks which an adult apprehends and pays
attention.
In view of our aforesaid analysis, we conclude and hold that Riyaz, the child of four, was not liable
for contributory negligence.
12. With regard to the contributory negligence on the part of Mohd. Matin, fact remains -- he was
not riding the Motorcycle and was a pillion rider. It has been held in the case of Manjit Kaur v.
Gurumail Singh, 1985 Acc CJ 800: (AIR 1985 Punj & Hry 216) that a pillion rider has no
contributory negligence in causing accident. In the case of S.D. Balaji v. General Manager,
Karnataka State Roadways Transport Corporation, Bangalore, 1985 Acc CJ 150 the High Court of
Karnataka has ruled that pillion rider ordinarily has nothing to do with occurrence, and hence the
concept of contributory negligence cannot be made applicable to him. In the instant case, there is no
evidence whatsoever, that Mohd. Matin had any role to play in causing the accident. In absence of
such a fact, we are of the considered view, that the claim of the legal representatives of Mohd. Matin
cannot be denied on the ground of contributory negligence.
13. Before we deal with cross-objection filed by the claimants/respondents, we will address
ourselves with regard to the quantum. We find in M.A. No. 558/96, the Tribunal has awarded Rs.
1,52,000/- for the death of a child of four years. The calculation has been based on yearly income of
Rs. 15,000/- and Rs. 10,000/- has been fixed towards contribution for the family multiplier of 15
has been applied to the said multiplicand Rs. 2000/- has been awarded towards funeral expenses.
We are constrained to hold that this computation cannot stand close scrutiny. We are of the
considered view, the maximum compensation which would become payable to the legal
representative of Riyaz is Rs. 50,000/-and Rs. 2000/- for funeral expenses. We have quantified the
compensation at Rs. 50,000/- as we are of the view, that would be the just compensation for a child
of four years, in this regard us may refer the judgment rendered in M.A. No. 91 l/94 (Smt. Barsa
Munni v. Sukritram Sahu). This Court has held as under :--
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M.P. State Road Transport ... vs Abdul Rahman And Ors. on 21 March, 1997
"Loss of Human life or limb of a human body has to be valued liberally and not miserly. The
determination of compensation has to be in accordance with the statutory entitlement envisaged
under Section 168 of the Act. Only such amount that, on the basis of the evidence adduced in the
case, "appears to be just" should be awarded by the Tribunal The word 'Just' occurring in Section is
of very wide amplitude. However, the award of compensation should not be punitive or a windfall,
but should be reasonable, fair and just. Where there is no material for determination of
compensation the minimum compensation of Rs. 50,000/- as fixed in case of 'no fault' for a human
life by the Parliament under Section 140 of the Act should be taken as a guide for determining the
compensation in a fatal accident case without going into the estimation of dependency and applying
the multiplier method".
As far as M.A. No. 559/96 is concerned, we notice that the Tribunal has fixed the quantum on the
basis of monthly contribution of Rs. 12,000/-p.m. and has applied multiplier of 18. He has awarded
Rs. 5,000/- towards consortium and Rs. 2,000/- towards funeral expenses. On a consideration of
the facts, we are of the view, that the multiplier of 18 should not have been applied and there should
have been application of multiplier of 16. Thus, the sum on this head would become 12000 x 16 =
1,92,000. The compensation of other heads remain undisturbed.
14. Presently, we shall advert to the cross-objection preferred by the claimants/respondents. Dr.
Shukla has contended that as the accident has occurred due to negligence of the driver of the Bus
belonging to the Corporation and the Motorcycle driven by Mohd. Lukman, this is a case of
composite negligence. Once we have held that, deceased Matin and Riyaz had no contributory
negligence it becomes a clear case of composite negligence on the part of both the vehicle owners.
Once it is a case of composite negligence, the question of apportionment of liability does not arise.
The owners of both the vehicles become joint tort-feasors and, therefore, jointly and severally liable.
This view has been taken in the cases of K. Gopalkrishnan v. Sankara Narayanan, 1969 Acv CJ 34 :
(AIR 1968 Madras 436), Golak Chandra Das v. Kausalya Naik, 1978-Acc CJ 48 (Orissa), Karunakar
Pradhan v. Sarojini Mishra, 1980 Acc, CJ 121 (Orissa), A. Shivrudrappa v. The General Manager,
Mysore Road Transport Corporation, 1973 Acc CJ 302 (Mysore).
15. This Court in the case of Manjula Devi Bhuta v. Manjusri Raha 1968 MPLJ 302 has held that in a
case of composite negligence both the tort-feasors are jointly and severally liable for the whole loss.
Again in the case of Bisarti Bai v. M.P. State Road Transport Corporation, 1990 Acc CJ 103 (Madh
Pra), this Court has laid down that in the case of composite negligence liability cannot be
apportioned. Recently, in the case of M.P.S.R.T. Corporation v. Smt. Vaijanti, 1994 (2) Vibha 210,
one of us (Hon'ble Shri Justice S.K. Dubey) speaking for the Court has stated thus "It is well-settled
that in cases of composite negligence, liability cannot be apportioned, and the joint tort-feasors are
jointly and severally liable".
Applying the aforesaid principles to the cases at hand, we are of the considered view that the
apportionment of liability should not have been done by the Tribunal and each of the tort-feasors
should have been held jointly and severally liable. Accordingly we accept the cross-objection and
hold that both the tort-feasors are jointly and severally liable.
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M.P. State Road Transport ... vs Abdul Rahman And Ors. on 21 March, 1997
16. As we have already determined that the appellant as well as the owner of Motorcycle are jointly
and severally liable. We direct the Corporation to deposit the amount as determined by us within a
period of three months which shall be disbursed keeping in view the principles enunciated by the
Supreme Court in the case of General Manager, Karala State Road Transport Corporation,
Trivendrum v. Mrs. Susamma Thomas AIR 1994 SC 1631 and Lila Ben Udaisingh Gohel v. Oriental
Insurance Co. Ltd. (1996) 3 SCC 608 : (AIR 1996 SC 1605).
17. Consequently, the appeals are allowed in part and the cross-objection is allowed to the extent
indicated above. However, in the peculiar facts and circumstances of the cases, there shall be no
order as to costs.
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