Mohammad Rafiq, J. - (1.) FOR stated reasons, delay in filing the appeal is condoned. Application under Sec. 5 of the Limitation Act stands allowed. Challenge, in this appeal, is made to award dated 03.02.2006 of learned Additional District Judge (Fast Track) No. 3, Tonk (Motor Accident Claims Tribunal), in MAC Case No. 1154/2005 (2903/2001) on the ground that learned Tribunal has wrongly deducted 25% out of awarded sum of Rs. 1,57,000/ -, for contributory, negligence of the deceased child, who was three years of age at the relevant point of time.
(2.) CONTENTION of the learned counsel for appellants is that deceased, who, at the time of accident, was three years of age, can hardly be held responsible for contributory negligence. Learned counsel for appellants has cited judgments of Karnataka and Madras High Courts in R. Srinivasa vs. K.M. Parasivamurthy & Ors., : AIR 1976 Karnataka 92 and President, Malikdhinar English Medium School vs. A. Babudeen, : 2005 (2) T.A.C. 655 (Mad.) to argue that child cannot be held responsible for contributory negligence. Learned counsel for respondent opposed the appeal and submitted that learned Tribunal has awarded a just and reasonable compensation.
(3.) IT may be that due to tender age, children made an error of judgment but that alone cannot be a reason to hold the child responsible for contributory negligence. In R. Srinivasa, supra, Karnataka High Court held that a boy of six years cannot be held guilty of contributory negligence. An older child may be, but it depends on circumstances of each case. Such guilt is available only if the boy is of such an age as reasonably expected to take precaution for his safety. In President, Malikdhinar English Medium School supra, Madras High Court held that a child aged 3 1/2 years can hardly be blamed for such an accident, even partly. Driver was duty bound to take care of children and ensure that such an accident would not happen.;