B.K. Somasekhara, J.
1. The decision of the Motor Accidents Claims Tribunal, Krishna at Vijayawada in O.P. No. 263 of 1986 dated 20.2.1990 is challenged by the claimant-appellant, who had laid a claim under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act') for recovery of Rs. 2,00,000, alleging that she suffered injuries and disabilities due to the rash and negligent driving of the A.P.S.R.T.C. bus AAZ 5835 by the driver (respondent No. 2). The respondents resisted the claim. There was another similar petition filed by one Ratala Bhamini in O.P. No. 265 of 1986. After an inquiry the Tribunal came to the conclusion that the allegation of rash and negligent driving of the vehicle by the respondent No. 2 was not established and although it was found that the claimants in both the petitions were entitled to recover certain amounts, in the present case Rs. 7,500 were awarded for no fault liability under Section 92-A of the Act, and whereas the other petition was dismissed. Only the claimant in O.P. No. 263 of 1986 has challenged the award and the final decision in the matter.
2. Learned counsel for the appellant tried to challenge the award, whereas the learned advocate for the respondent No. 1 did her best to support the award.
3. The accident occurred on 22.4.1986 at 11 a.m. on Machilipatnam-Vijayawaida road while the claimant and another petitioner Ratala Bhamini were crossing the road from northern side to southern side near Ashoknagar at Vijayawada, and while the respondent No. 2 was driving the A.P.S.R.T.C. bus AAZ 5835 from eastern direction, i.e., on the Machilipatnam side towards Vijayawada. Issue No. 1 dealt with the question relating to the allegation of rash and negligent driving of the bus by the respondent No. 2, driver and to read:
(1) Whether the accident was due to the rash and negligent driving of the vehicle AAZ 5835?
Out of the evidence produced before the Tribunal, the testimony of the claimants in the two petitions, viz., PWs 2 and 3 (PW 3 is the appellant herein) and the testimony of RW 1 (respondent No. 2) were the basis for the Tribunal to record the finding on issue No. 1 in the negative. The Tribunal has found from such evidence that PWs 2 and 3 are the two girls related to each other, had their house on the southern side of the road, there was a tailoring shop on the northern side of the road, the two girls had gone to tailoring shop at the relevant time, and while crossing the road from northern side to southern side from behind the lorry, which was parked on the northern side of the road near the tailoring shop, they were hit by the A.P.S.R.T.C. bus driven by the respondent No. 2, driver. The testimony of PWs 2 and 3 in relation to certain matters is found to be little inconsistent. However, as a whole the evidence coming out as above is noted. Even according to the respondent No. 2, driver, while he was driving the vehicle near the place of the accident, PWs 2 and 3 suddenly emerged from behind the lorry from the northern side while crossing the road and thus, the accident occurred. However, his theory that the girls had a fall and sustained injuries is not accepted. The medical evidence in the case in addition to the testimony of PWs 2 and 3 justifies the finding that PW 3, the claimant-appellant, had sustained severe injuries leading to disabilities and supports the circumstances that the bus hit the two girls in the course, of the accident and it was not merely a fall while crossing the road. The Tribunal in such a situation accepted the defence of the respondents that the accident was not due to the rash and negligent driving' of the bus by the respondent No. 2 but it was due to PWs 2 and 3 suddenly emerging from behind a lorry parked on the road while crossing the road from northern side to southern side. The Tribunal has dealt with the question in paras 9 to 16 of the judgment. In sum and substance, the Tribunal has come to the conclusion that the lorry was parked on the northern side of the road near the tailoring shop, the bus was moving from eastern side to western side and PWs 2 and 3, after going to the tailoring shop on the northern side, were crossing the road to go to their house and suddenly emerged from behind the lorry and in spite of the respondent No. 2 trying to stop the bus from a distance of 20 yards, he could not have stopped it in such a situation. The Tribunal has also found that the respondent No. 2, who was prosecuted in C.C. No. 42 of 1987 for the offence punishable under Section 338, Indian Penal Code on the file of the Special Judicial Magistrate of II Class, Vijayawada, was acquitted as disclosed from Exh. B-l, certified copy of the judgment, and as a whole, issue No. 1 was held against the claimants.
4. In a situation like this, it is the appreciation of evidence by the Tribunal which should yield the result. There is only ocular evidence in the case in relation to the question of negligence comprising the testimony of PWs 2 and 3, the victims of the accident wherein PW 2 was aged 13 years and PW 3 was aged 6 years at the relevant time. Both of them have consistently stated that the bus hit them while they were crossing the road after passing the lorry from behind. They have denied the defence theory as above. As against that, the testimony of the respondent No. 2 is to the effect that while he was driving the vehicle slowly at the rate of 15 km. per hour and blowing horn, the claimants suddenly ran across the road from behind the lorry which was on his right side and when he saw the claimants at a distance of 20 yards, he applied the brakes and stopped the bus and actually they did not come into contact with the bus and PW 3 was found to be fallen on the ground and PW 2 was found standing near PW 3. According to him, the conductor took PW 3 to the hospital, whereas he went to police station and gave a report. This is the evidence which was before the Tribunal for appreciation.
5. The Tribunal has made a note that having due regard to the age of the two claimants, there has been some inconsistency in their testimony. The Tribunal has totally ignored the implications of Section 118 of the Evidence Act to deal with the evidence of a child witness. PW 3 being a child witness, although a claimant in the case, was to be dealt with under Section 118 of the Evidence Act. Although the Evidence Act is said to be not technically applicable to the proceedings before a Tribunal, the principles of evidence and the law of evidence are held to be applicable as the wisdom and the reasoning of a human being have to flow from the logic in the rule of evidence. When the Tribunal has to deal with a child witness like PW 3, the Presiding Officer was bound to put questions and satisfy himself that the witness was capable of understanding the questions and was able to give rational reasons and it was necessary to append a certificate in that regard in the evidence. The deposition of PW 3 does not show that any such procedure was followed. It is mandatory under Section 118 of the Evidence Act that the court should satisfy about the understanding of the questions by the witness and there is rationality in answering questions due to tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind [P. 1797, Vol. 2, Sarkar on Evidence, 1994 reprint]. In the absence of such a record, the Tribunal could not have dealt with the testimony of such a witness to draw inferences against the same. Surprisingly, the Tribunal has also administered oath to PW 3, who is a child witness, without following Section 118 of the Evidence Act who is not expected to be punished for 'perjury' for taking false oath. With such evidence, the Tribunal has drawn inferences against the witness. Furthermore, even the PW 2, who was aged 13 years at the relevant time, is a child within the meaning of Section 2, Sub-clause (h) of the Juvenile Justice Act, 1986 and technically speaking, she was also entitled to the benefit of Section 118 of the Evidence Act. A girl aged up to 18 years is held to be a child by a Division Bench of this Court in Ailaiah v. State of A.P., : 1994(2)ALT519 (to which I was a member). Even in regard to her, the Tribunal was bound to follow the procedure contemplated under Section 118 of the Evidence Act. Therefore, while appreciating the evidence the Tribunal fell into serious legal error to draw inference against PWs 2 and 3 under the circumstances.
6. As regards the testimony of the respondent No. 2, the Tribunal has given lot of weight due to certain circumstances, viz., that the two girls were crossing the road from one direction to the other and emerged from behind the lorry which was parked there, whereas the respondent No. 2 was driving the vehicle slowly at a distance of 20 yards and, therefore, he could not stop. Surprisingly, the Presiding Officer of the Tribunal has given prima facie value to the testimony of the driver of the bus, who was to satisfy the court about his diligence in driving the vehicle and he did all that was necessary for a reasonable and prudent man who ought to have exercised such a care at the relevant time. The manner in which the accident occurred leading to serious injuries to PW 3 shows that but for the negligence of the driver the accident would not have occurred. The accident occurred during broad daylight at 10 a.m. or 11 a.m. on the road in the township of Vijayawada. At that hour, normally, it is expected that there will be heavy traffic and people will be crossing the roads for various reasons. Therefore, by operating the doctrine of res ips loquitur to the accident which itself spoke about the negligence of the respondent No. 2, the burden to prove that there was no negligence on his part was quite heavy on him. Since the driver was the best person to say as to how the accident occurred, he should be presumed to have the special means of knowledge regarding the cause of the accident even from the principle to be borrowed from Section 106 of the Evidence Act. In such a situation, the question is whether his testimony itself was sufficient to exonerate him of the prima facie negligence on his part. The so-called report given by him to the police after the accident was not before the Tribunal. If he had really lodged a report, it would have contained the reasons for the cause of the accident and the care and the diligence which the driver exercised at the relevant time. For the reasons best known to him, he has not taken pains to either produce or keep such a document before the court. Admittedly, the conductor of the bus was there, who is said to have taken PW 3 to the hospital and he was not examined to corroborate the testimony of the respondent No. 2, the driver. It was a passenger bus, where there must have been passengers. Even the police might have examined some passengers during investigation and none of them was examined by the respondents to corroborate the testimony of RW 1. With all this, the Tribunal has believed the testimony of the respondent No. 2, driver. It is well settled that there cannot be any negligence or contributory negligence as against a child of tender age [Srinivasa v. Parasiva Murthy, 1976 ACJ 45 (Karnataka)]. It is equally applicable to some extent to PW 3 also. It is also settled that in the absence of any documentary evidence or corroborative evidence, the court has to consider the circumstantial evidence and consider the totality of the circumstances to draw inferences. That is not done by the Tribunal. The Tribunal appears to have been impressed by the circumstance that the driver of the vehicle, on seeing the two girls crossing the road from a distance of 20 yards, applied brakes and stopped the vehicle. There is no evidence in support of it. Neither the spot mahajar nor the spot sketch being part of the criminal proceedings were before the Tribunal to know whether any brake marks were available at the spot, whether there were indications on the spot to know as to whether the bus was stopped after hitting the two girls and as to whether the girls were found to be fallen after the accident and the location of the lorry, road, etc. Added to this, the circumstance of the driver not giving report to police or any report made by him to official superiors and failure to examine the conductor or the passengers of the bus are obstructive of any favourable circumstance, if existing in support of the driver's version. If a driver in charge of a bus and the passengers therein and while driving the bus on a road in a broad daylight cannot stop the bus within a distance of 20 yards on seeing the two girls crossing the road, it is inevitably to be recorded about his want of competence to be entrusted with such a public transport. Circumstances are not uncommon that the vehicles will be and can be stopped in few seconds, however, subject to the consequences of the vehicle like skidding, drawing, rolling, crawling, toppling, etc., regarding which marks will be left on the road. Nothing of the kind is found in this case. Therefore, the finding of the Tribunal on issue No. 1 that the accident had occurred not due to the rash and negligent driving of the respondent No. 2 cannot be supported.
7. The Tribunal has assessed the compensation at Rs. 1,16,000 insofar as the claimant-appellant is concerned. It was rejected and reduced to Rs. 7,500 as no fault liability only due to the finding on issue No. 1 in favour of the driver. Now that the finding is going to be set aside, the appellant-claimant should be awarded that amount as compensation, particularly when there is no cross-appeal or cross-objections or any acceptable argument challenging such a finding.
8. Regarding awarding of interest, it is contended by the learned Counsel for the respondent Corporation that the claimant-appellant is not entitled to any interest relying upon the decisions of the Supreme Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., : [1995]1SCR75 and Alma Ram v. Ishwar Singh, : (1994)IIILLJ972SC , wherein it was held that no interest can be allowed on future expenditure and secondly, if the delay in disposal was not due to the respondents and when it is due to the delay by the court. In this case, on the face of it, the appellant had not taken steps to expedite the matter and clearly the respondents were at no fault for the delay. However, in the nature of the case the claimant being quite young and being assisted by the guardian cannot be totally deprived of the interest, the rate of which cannot exceed 12 per cent per annum under the circumstances.
9. In the result, the award of the Tribunal is set aside. The appeal is allowed and the following award is passed.
10. The claimant-appellant shall be entitled to recover Rs. 1,16,000 with interest at the rate of 12 per cent per annum from the date of petition till the date of payment, regarding which the liability of the respondents shall be joint and several. There shall be no order as to costs. This shall be subject to depositing the amount in the light of the directions given by the Supreme Court in General Manager, Kerala State Road Transport Corpn. v. Susamma Thomas, : AIR1994SC1631 .