S.K. Dubey, J.
1. The claimants have filed this appeal Under Section 173 of the Motor Vehicles Act, 1988 against the award dated 8.12.1989, passed in M.V. Case No. 3/ 87 by IIIrd Additional Motor, Accident Claims Tribunal, Sagar whereby the application for compensation filed Under Section 110-A of the Motor Vehicles Act, 1939 for the death of the young son aged seven years, namely, Vinod Kumar was dismissed.
2. Facts giving rise to this appeal are these: Appellants Nos. 1 and 2 are the parents while appellants Nos. 3, 4 and 5 are the sisters of the deceased. Deceased Vinod Kumar was the only son of his parents and there was no chance of having another son because of the T.T. operation. Vinod Kumar was a bright student of Upper K.G. who was going on his left side of the road on 19.2.1985 near Vijay Talkies Chouraha at Sagar to his school. There was a heavy traffic on the road including animals, viz, buffalos were going ahead of him. A jeep driven by respondent No. 4 and owned by respondent No. 2 was coming from the same direction which dashed the boy from the left side of the front bumper, the boy fell down on the road and received head injuries with a profused bleeding. He was taken to hospital in the same jeep but on way succumbed to-injuries. The appellants filed an application Under Section 110-A and claimed compensation of Rs. 14,65,000/- for the death of Vinod Kumar arising out of the use of motor vehicle. Respondents Nos. 2, 3, & 4 filed their joint written statement where in accident having occurred due to rash and negligent driving of the jeep by respondent No. 4 was denied. Plea of inevitable accident or the deceased himself was responsible for the accident was not raised in the written statement. On the pleadings of the parties Issue No. 1 was raised to the effect whether the death of Vinod was caused due to rash and negligent driving of the vehicle in a high speed by the respondent No. 4 or the accident occurred due to own fault of the deceased and its effect ?
3. During trial the claimants examined A.K. 2 Motilal Sahu and AW 4 Ganesh Prasad as an eye witness to the occurrence. Other witnesses examined were A.W. 3 Rakesh Kumar Yadav, the Principal of the Saraswati Vidya Mandir who proved the certificate Ex. P. 14 and stated on oath that the deceased was a bright student on whose death on condolence the school remained closed for a day. AW 5 Dr. R.C. Agarwal who treated Smt. Mithiles the mother of the deceased because she developed disease on account of death of her only son, AW6 Ram Prasad Saini, S.H.O., Police Station Gopalganj, Sagar who proved the First Information Report and also the fact that the respondent No. 4 the driver was being prosecuted for the offence Under Section 304A, I.P.C., AW7 Brindawan the grand-father of the deceased who proved the longivity of life of the family. AW 8 P.S. Dongre, D.S.P. who after the accident on seizure of the vehicle proved the technical report Ex. P. 10. He stated on oath that the blood-stains were found on the left front wheel and left side of the bumper, AW 1 Shiv Prasad Dwivedi and AW 9 Mithilesh Dwivedi, father and mother of the deceased. AW 10 Dr. Chouhan performed the autopy and proved the autopsy report Ex. P.1 and stated on oath that death of the boy was because of shock and haemorrhage. The witness stated that the injuries which were found on the occipital region of the deceased were caused by hard and blunt object like iron. The respondents examined Dr. Singhal Kamalchand Jain (NAW-1) who at the relevant time was holding the post of District Project Officer, Deneda Family Health & Welfare Project, Sagar, NAW-2 driver John Swarup and NAW-3 R.K. Dixit the clerk who was sitting in the jeep.
4. The Tribunal after appreciation of evidence recorded a finding that the accident did not occur due to rash and negligent act of the driver of the jeep and thus dismissed the claim. Hence this appeal.
5. The law is well-settled that in an accident arising out of the use of motor vehicle a plea of unavoidability and inevitability of an accident or of a contributory negligence must be specifically pleaded and proved. A party cannot be allowed to draw such an inference in absence of a specific pleading to this effect. See a Division Bench decision of this Court, in case of Nasruddin v. Kadar Ahmad 1986 A.C.J. 94 : I (1985) ACC 35. It is also well-settled that in a case where a motor vehicle dashes against a child as a result of which the child is killed a plea of inevitable accident or contributory negligence cannot raised as a driver has to keep a good look on all the directions of the road on sides and on the road in front of him and 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. See Gothelal Chourasia v. Gaijansingh 1988 A.C.J. 1120.
6. In para-5 of the written statement in reply to para-5 of the claim petition it is stated that on the date of the accident the death of the deceased was not caused due to rash and negligent driving of the respondent/driver, or because the vehicle was being driven in a high speed but the deceased died because of his own negligence. The circumstances in which the accident occurred were not pleaded. However, at the trial the respondents made out a case beyond the pleadings by stating that the deceased fell down because of the dash by a buffalo as a result of which he received injuries. The persons who were there asked the driver of jeep to take the deceased to the hospital. An effort was made that the accident did not occur by the jeep which on the pleadings of the parties, in our opinion, is not correct. AW 2 Motilal Sahu and AW 4 Ganesh Prasad categorically stated that the deceased was dashed by the jeep. The blood stains found on the left front wheel and left side of the front bumper prove that it is the jeep which dashed the boy who received injuries because of that there was profused bleeding. NAW 2 the driver admitted that if anything dashes with the bumper a driver cannot see but only after hearing of sound of striking he comes to know that something has striken. He stated that he did not hear sound of striking anything with the bumper while NAW-3 has admitted that he heard the sound of striking with the bumper, thereafter the driver applied the brakes to stop the jeep which could be stopped after about two feet. NAW-3 further admitted that he could not see whether the jeep had dashed the boy or not. He also stated about the traffic on the road, animals were going on and that the jeep was going in a speed of 10 kms. per hour. When the road was so busy ten kilometers speed will be held a high speed, the driver ought to have taken extra care while driving the vehicle to avert the accident. Speed of 40-50 kilometers on a highway cannot be said to be excessive but on a crowdy road speed of even ten kilometers may be considered to be excessive. See the decision of this Court in case of State of M.P. v. Ashadevi and Ors. 1989 J.L.J. 541 : II (1988) ACC 337 (DB) M.P. Though, it is true that in most of the cases a person is said to be guilty of negligent and rash driving if he is found to have been driving the vehicle at a high or fast speed but speed need not necessarily be confused with the question of rash and negligent driving. As speed alone is not the criteria for deciding whether the driver of the vehicle which led to the accident was rash and negligent. It has to be decided on several factors like width of the road density of the traffic and the care which a driver has taken as a reasonable prudent man to avert the accident which has to be decided on the evidence brought on record.
7. In the circumstances of the case and on the evidence adduced on record when the road was crowdy and bumpy, animals were also going ahead of the child and the driver of the jeep dashed from behind the child by bumper the driver ought to have taken a reasonable care like a prudent man to avert the accident of which he did not take, therefore, it cannot be said that the driver was not rash and negligent. The Tribunal illegally and on conjectures beyond the pleadings held that the driver of the jeep was not responsible for the accident.
8. Even assuming for the sake of argument, the driver was not negligent, in the facts and circumstances of the case the principle of res-ipsa loquitur, a rule of evidence departing from the normal rule that it is for the plaintiff to prove negligence, can be taken into aid to avoid hardship to the claimant as the true cause of accident was not known to him, but, that was solely within the knowledge of the driver of the jeep who caused the accident which could not be proved by the claimants by establishing the negligence as the purport of the principle is that the accident speaks for itself or tells its own story. In such cases, it is sufficient to prove accident and nothing more, then a driver has to explain the accident. See the decision of this Court in case of Dhanwanti v. Kulwant 1993 J.L.J. 788. In the case in hand, we are satisfied that the respondents have not discharged the burden that the driver was not at fault, he took all reasonable and proper care like a prudent man to avert the accident. Therefore, for this reason also, it is the driver who was responsible for the accident.
9. Coming to the question of compensation, though the Tribunal has not recorded any finding on the evidence adduced, but, on that count we are not inclined to remand back the case, because the incident occurred in 1985, award was passed in 1989, appeal was filed in 1990 which has come up for hearing in 1996. In case of a child there can be no exact uniform rule of measuring the value of the human life and the measure or damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits after the child attains majority. See the decision of the Supreme Court in case of C.K. Subramonia Iyer and Ors. v. T. Kunhikuttan Nair and Ors. A.I.R. 1970 S.C 376. In case of Mangilal v. Pramod and Ors. 1988 J.L.J. 121 : II (1988) ACC 306 (DB) M.P.: 1988 ACJ 507, a Division Bench of this Court following the decision of this Court in case of Saminder Kaur's case 1987 A.C.J. 7, considered the importance of the term 'compensation' and has explained the word 'just' occurring in the section is of a very wide amptitude. It is true that a claimant should not be permitted to make a fortune out of mis-fortune that has be fallen him but as pointed out by the Supreme Court in concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 A.C.J. 55, the determination of the quantum of compensation must be liberal, not niggardly since the law values life and limb in free country in generous scales.
10. The deceased was a bright student and was the only son of his parents. It was the desire of the parents that their son may become a doctor or engineer but because of death of the boy they have lost all hopes. However, as there is no data in respect of the pecuniary advantage which the claimants would have received we are of the opinion that the claimants should be awarded a 'just' compensation of Rs. 25,000/- which is the intention of the Parliament that even in case of 'no fault liability' Under Section 140 of the Motor Vehicles Act, 1988 in case of death arising out of motor accident claimants should get a minimum compensation of Rs. 25,000/-. See the decisions of this Court in case of Rukniabai v. Rahul and Anr. 1988 (1) TAC 469 and Ram Singh v. Sheikh Sikander 1990 (1) MPWN 143. On the amount of Rs. 25,000/- the claimants shall be entitled to interest at the rate of 12% per annum from the date of application till realisation. The respondents shall deposit the amount within a period of three months from today, of course, after deducting the amount of Rs. 15,000/- which has been deposited on 13.1.1988 with its proportionate interest.
11. In the result, the appeal is allowed, the award passed by the Tribunal is set aside and is substituted by the order of this Court. Respondents to bear the costs throughout. Counsel's fee Rs. 500/-, if pre-certified.