Judgment:
K.G. Balakrishnan, J.
1. The claimant in M.A.C. No. 223 of 1982 of the Motor Accidents Claims Tribunal, Manjeri is the appellant, Petitioner, a 14 year old girl, represented by her mother as guardian, filed the petition alleging that on 4-3-1982 at about 6 p.m. the car belonging to the 2nd respondent, the Kerala State Electricity Board, it hit the petitioner from behind and caused serious injury to her. The petitioner alleged that the offending vehicle was driven by the first respondent in a rash and negligent manner. The petitioner was a pedestrian and was proceeding to south through the eastern side of the road. The car was being driven from north to south. The case of the petitioner is that the car hit all on a sudden and the accident caused fracture on the femur of the left leg of the petitioner. The petitioner was admitted in the Medical College Hospital, Calicut, where she was under treatment for a period of six months. The petitioner claimed a sum of Rs. 25,000/- as compensation.
2. The first and second respondent filed a joint written statement denying all the allegations in the petition. They alleged that while the vehicle was moving very slowly the driver felt that something had hit on the car from behind and he immediately stopped the car and found that a girl had fallen on the ground and her thigh had hit against a stone on the road. The first respondent understood that the injured was driven playfully by someone and she had jumped without seeing the car and hit herself against the backside of the car and sustained injury. The first respondent paid Rs. 500/- out of sheer compasion and rendered other assistance. The compensation claimed was stated to be excessive.
3. The Motor Accidents Claims Tribunal held that there was no negligence on the part of the first respondent and that the accident might have happened while the petitioner had crossed the road. The Tribunal was also of the view that the petitioner would be entitled to get a compensation of Rs. 1000/-, had she been able to prove the negligence of the first respondent. Since negligence was found against, the claim petition was dismissed.
4. Admittedly the petitioner was pedestrian walking through the eastern side of the road, The petitioner's definite case is that the car came in a rash and negligent manner and hit her from behind. The Motor Accidents Claims Tribunal has committed a serious flaw in appreciating the evidence in this case. According to the tribunal if the car was coming from behind, it would not have hit on the left leg of the petitioner. This finding is palpably wrong. If a pedestrian was walking, the vehicle could either hit on the right or left leg. It depends on the posture of the body of the victim's at the time of collision. If while walking, the victim's left leg was behind the body, naturally the vehicle would hit only on the left leg. Moreover, whenever the offending vehicle comes all on a sudden, there would be an involuntary reflex action and the body would twitch and move suddenly to save from the calamity. It may not be possible to predict as to what portion of the moving body would come into contact with the vehicle. To find out the absence of negligence of the driver in this manner would be highly improper and is an approach divorced from the reality of the situation. The case set up by the first respondent is highly artificial. The first respondent had even gone to the extent of stating that the petitioner was playfully driven by somebody and hit against a stone and caused fracture on her leg. From the nature of the injury it is highly improbable to accept this contention. It is also important to note that the first respondent immediately stopped the car and on seeing the condition of the victim paid Rs. 500/- and left the place. This is a case where the petitioner Was hit by the offending car from behind and it is clear that the car was driven in a rash and negligent manner. Even according to the respondent the car was driven through a crowded area. Then the first respondent should have taken extra caution and care in driving the vehicle, and there is absolutely no evidence to show that the accident happened while the petitioner attempted to cross the road. Not even a suggestion has been made to the petitioner in this regard while she was examined. The evidence of PW 3, an eye witness of the occurrence, clearly shows that the car came in a rash and negligent manner and this witness ran away from the road, least he should also be hit by the car. The finding of the Tribunal is palpably wrong and we hold that the accident Occurred as a result of the rash and negligent driving of the first respondent.
5. The petitioner sustained serious injuries. The case sheet of the petitioner has been produced and marked as Ext. XI. It shows that there was severe pain and swelling on the right thigh and there was inability to stand up. On further probe it was found that there was fracture of the femur of the left leg. The affected area of her body was put in plaster for about 3 months. The petitioner alleged that she suffered excruciating pain and suffering during this period. The Tribunal found that, a sum of Rs. 1000/- would be a fair and reasonable amount. We are of the view that the quantum of damages fixed by the Tribunal is too low. The petitioner claimed a sum of Rs. 10,000/- as compensation towards pain and suffering. She has also claimed Rs. 10,000/-for loss of earning capacity. Of course the petitioner was only a 14 years old girl and was not an earning member. Though the petitioner gave evidence before the Tribunal that she had difficulty in walking, she could not produce a valid medical certificate to show the permanent disability if any. Under these circumstances, it may not be possible for the petitioner to recover any amount towards compensation for permanent disability and loss of earning power. It is satisfactorily proved that the petitioner was under prolonged treatment and had undergone pain and suffering. A sum of Rs. 10,000/- would be adequate and reasonable compensation for the mental agony, pain and suffering of the petitioner.
6. We set aside the order passed by the Motor Accidents Claims Tribunal and order that the 2nd respondent, who is the owner of the vehicle, shall pay the petitioner a sum of Rs. 10,000/- as compensation. The petitioner is entitled to interest at the rate of 12% per annum for the compensation amount from the date of the petition i.e. 15-9-1982 till realisation. The petitioner is also entitled to costs including advocate fee, which we fix at Rs. 1000/-.