STATE OF ORISSA Vs. GAYA JANARDAN BEHERA AND ORS.

JUDGEMENT

(1.) THE State of Orissa has preferred this appeal against the judgment passed by the Second Motor Accidents Claims Tribunal, Puri in Misc. Case No. 76/73 (142/72)

(2.) AT about 10 a.m. on 7.11.72 the bus ORU 2050, belonging to the State Transport Service, Cuttack Zone, dashed against the deceased boy near Kalpana Cinema at Bhubaneswar as a result of which the boy died at the spot. The father mother and the two minor sisters of the deceased preferred the claim for compensation on the allegation that the said accident was caused due to the rash and negligent driving of the said bus as a result of which the deceased died at the spot. On behalf of the claimants three witnesses, including the lather of the deceased, were examined, and on behalf of the Appellant only the driver and the cleaner of the bus were examined. The court on a lengthy discussion and consideration of the evidence and materials on record arrived at the finding that the accident was entirely due to the rash and negligent driving of the said bus as a result of which the deceased died at the spot. On behalf of the claimants three witnesses, including the father of the deceased, were examined, and one on behalf of the Appellant only the driver and the cleaner of the bus were examined. The Court on a lengthy discussion and consideration of the evidence and materials on record arrived at the finding that the accident was entirely due to the rash and negligent driving of the vehicle and the boy was not in any way responsible for the said accident. The Court below has found that the deceased boy was aged about 10 years and was the only son of his parents. Basing its finding on the life expectancy of the parents of the deceased at 70 years and calculating the minimum contribution for 20 years which the deceased would have made, had he survived, towards his parents till their last day at the rate of Rs. 1.50 per day, it estimated the compensation on this account at Rs. 16,200/ -. On that it granted Rs. 2,000/ -as solatium to relieve the mental shock and distress of the claimants due to the death of the deceased. From the total compensation amount of Rs. 18,200/ - thus assessed it directed deduction of 15 per cent therefrom on account of lump sum payment and uncertainties of life, and ultimately ordered payment of a sum of Rs. 15,470/ - with interest at the rate of 6 percent per annum from the date of application till the payment of the said amount to the claimants. He has also directed payment of Rs. 400/ - to the claimants on account of their cost in this claim case.

(3.) WHILE holding the driver responsible for rash and negligent driving of the bus, I am, on the evidence on record, inclined to hold that the deceased boy was also guilty of contributory negligence in this case. The deceased was a boy of more than 10 years old and he certainly was alive of the danger of crossing the road right in front of a running bus. The claimants ease, that the deceased was walking on his extreme right side of the road on its clay portion and the bus coming from his back side suddenly swerved towards its right and dashed against the boy and killed him in that process, cannot at all be believed in view of the admission of P.W. 3 (one of the claimant's witness) that the accident took place in the middle of the road and the vehicle was on its left side of the road on the pitch portion at the time of accident. On the above admission of P.W. 3 and the case put forward and admissions made by the driver as stated above it becomes evident that the boy some how came in front of the bus and while he was moving in front of it at a short distance away from the bus it dashed against him as the driver did not act with care, caution and watchfulness, and so the accident took place. As the boy acted in a negligent manner in coming in front of the bus while it was moving in that busy locality, he too was responsible to some extent for the said accident. Therefore he has to be held guilty for contributory negligence.