U.L. Bhat, J.
1. Anilkumar, a boy aged 13 years riding a cycle, was knocked down and run over by bus KLX 3742 belonging to the K.S.R.T.C., on the National Highway at Athiyannur at about 5.15 p.m. on 19-5-1980. He died instantaneously. His parents filed a claim petition before the Motor Accidents claims Tribunal, Trivandrum claiming a sum of Rs. 1 lakh as compensation from the driver and the Corporation on the allegation that the accident occurred due to the rash and negligent driving of the bus. Subsequently, their other children were also impleaded as supplemental petitioners. The Corporation and the driver filed Separate statements denying any rashness or negligence on the part of the driver of the bus and alleging that the bus was driven slowly and cautiously and since no vehicle was coming from the opposite direction, driver of the bus decided to overtake two bullock-carts on the highway and the boy who was riding the cycle in between two bullock-carts suddenly tried to cross the road and in spite of the attempt of the driver of the bus to avoid collision by turning the bus to right side, the cycle hit the bus and the cyclist was run over by the rear wheel of the bus and the accident was solely on account of the negligence of the boy.
2. The Tribunal held that the occurrence took place on account of the negligence of the cyclist as well as the driver of the bus and it was a case of contributory negligence, apportioned the contribution of each as 50 per cent, determined the compensation at Rs. 60,000/- and directed the Corporation and the driver to pay Rs. 30,000/- with interest at 6 per cent from 18-11-1980, date of the petition. Parties were directed to suffer costs. This order is challenged by the Corporation as well as the claimants. According to the Corporation the accident occurred - solely due to the negligence of the boy and the bus driver was not at all rash or negligent and therefore claim could not have been allowed against the Corporation and the driver. Claimants are aggrieved by the finding of contributory negligence on the part of Anilkumar, the determination of compensation at Rs. 60,000/- and the apportionment thereof as well as the rate of interest awarded.
3. The accident took place on the National Highway at Athiyannur Nearby are bus stop and N.E.S. block office. The boy was cycling on the road from south to north. Bus also was proceeding in the same direction. The claim petition did not refer to the presence of bullock-carts on the road. In the written statement it was specifically averred that there were two bullock-carts and the boy was riding the cycle in between the two bullock-carts and suddenly tried to cross the road. According to the Tribunal bus came at an uncontrollable speed and without any caution and the cyclist was rash and negligent in trying to cross the road without verifying whether any vehicle was coming from behind.
4. We have already referred to the state of pleadings in the case. PWs 3 and 4 are the eyewitnesses examined on behalf of the claimants. DW 1 is the driver of the bus. DWs 2 and 3 are said to be eyewitnesses. PWs 3 and 4 were waiting at the bus stop opposite to the block office and raised their hands for the bus to stop. Bus did not stop but proceeded at a high speed. The boy was cycling behind the cart and the bus came from behind and hit the cycle and he was thrown off and rear wheel of the bus ran over him. PW 4 stated that he was standing 50 ft. away from the scene of accident. PW 4 denied that in front of and behind the cycle there were carts. PW 3 admitted there were two carts on the road. When PW 4 first saw the cycle and the bus were 50 ft. apart and the cyclist was going along the western edge of the tarred road and the right side of the bus hit the cycle.
5. DW 1 depose0d that the bus was full and was not going at a high speed. He slowed down the bus in front of the bus stop and had slowly moved the bus forward. There were two carts on the western side, that is the left side and the cyclist was going along the left side of the carts. When he overtook the cart he heard passengers saying that a boy was crossing the road in between the carts. He immediately applied the brake and swerved the bus towards right. Before the bus stopped, cycle hit the left bind wheel of the bus. He admitted that road was straight and there was a bus stop near block office. He had been convicted in the criminal case relating to the accident.
6. DW 2 deposed that he was waiting for the bus. He went forward to raise his hand for the bus to stop. There were two carts on the road and the bus overtook the carts. Cyclist was in between the two carts. The cyclist attempted to cross the road and hit the bus. Bus was swerved to the right side In cross-examination he stated that be did not see what happened to the boy. There is a side road and the boy was trying to go to the side road. This was not the case put forward by the Corporation or the driver. According to DW 3 claimed to be a standing passenger in the bus, there were two carts going on the left side and when the bus began to overtake the carts the boy on the cycle who was in between the two carts attempted to cross the road. The driver of the bus tried to swerve the bus to the right side and the passengers cried out. Bus was stopped immediately. The boy fell under the rear wheel of the bus- He denied that the bus came at an excessive speed. There were several standing passengers in front of him and behind him.
7. The Tribunal was not prepared to accept fully the evidence of any of these witnesses. The case of the driver of the bus and the Corporation that the bus was travelling slowly and cautiously cannot be accepted in view of the available materials as also the contents of the scene mahazar prepared in connection with the criminal investigation. The scene mahazar shows that the tarred road has a width of 6.55 metres and the mud parts of the road on the west and east have a width of 1 60 metres and 2.30 metres respectively. From the rear wheel of the bus there is a tyre mark southwards to a distance of 12 metres. There are marks of body being dragged along a distance of 5 metres out of the 12 metres. These circumstances would clearly show that after applying brakes bus stopped only after proceeding 12 metres. This would clearly show that the bus was travelling at an excessive and uncontrollable speed. There was certainly a rash and negligent way of driving the bus when the bus had reached a busy place near bus stop and was behind carts and cycle.
8. The case of the claimants that the boy was behind both the carts and the bus came and hit the cycle behind those carts cannot be accepted. That is because the scene mahazar would indicate that the scene- is situated 85 cms. West of the east edge of the tarred road. The accident occurred in the eastern part of the tarred road, which is the wrong side for the cycle as well as the bus. If the boy was behind the carts or had not tried to cross the road the impact could not have taken place at that place. In these circumstances the Tribunal was justified in holding that the boy tried to cross the road and the bus hit him and he was run over. The impact took place on account of the cyclist as well as the driver of the bus.
9. Learned Counsel for the claimants would contend that since the cyclist was only 13 years old be cannot be found guilty of contributory negligence. Contributory negligence means there has been some act or omission on the part of the plaintiff or claimant which has naturally contributed to the accident and the damage caused and is of such a nature that it may properly be described as negligence of the sense of careless conduct and not negligence in its usual meaning. It means failure by him to use reasonable care for the safety of himself so that he becomes, at least partially the author of his own wrong. He need not owe any duty of care to anyone. It is sufficient if he failed to take reasonable care for his own safety in respect of the particular danger, which in fact occurred, so that he thereby contributed to his own injury. It is argued that law has always looked upon the children with a degree of lemency. Children on account of their age, immaturity, state of mental development and inexperience may not always be regarded as capable of taking some precautions for their own safety. In the case of an ordinary adult person, the standard is what should be expected from a reasonable person. But in the case of a child, the standard is what may reasonably be expected, having regard to the age and mental development of the child. Whether the injured child in a given case would have been capable of taking such precautions has to be decided taking into consideration age, situation, mental development and other relevant circumstances.
10. Learned Counsel referred us to certain decisions. Gough v. Thorne 1967 ACJ 183 (CA, England), related to the case of a thirteen and half year old girl who was leading her two younger brothers A lorry came and stopped on the right side. Lorry driver gave signal to the girl to cross the road and she crossed the road with her younger brothers A car came and hit them. It was held that ordinarily a child of that age could not be expected to pause to see for herself whether it was safe to proceed ahead and she was not entirely negligent in acting on the signal of the lorry driver without herself looking out to see whether any vehicle was coming. The question of contributory negligence did not arise in this case. In Veeran v. T.V.K. Moorthy 1965 KLT 1172, a group of children were crossing the road and the driver of the lorry who could see them at a distance of 75 to 100 yards knocked down a seven year old child. The court held that the duty to take care is a restriction on the driver obliging him to behave as a reasonably careful person. The question of contributory negligence could not arise in this case. In M.A. Rahim v. Sayarl Bai 1972 ACJ 470 (Madras), a twelve-year-old boy coming out of his school was knocked down by a bus. The court held that the vehicle driver should have been extremely cautious and careful of children coming out of the school. The question of contributory negligence was not considered. The decision in S.D. Joshi v. Union of India 1975 ACJ 518 (P & H), related to an eleven year old boy who was cycling on the road and hit by a truck which was overtaking him. The question of contributory negligence did not arise since there was no absence of care and caution on the part of the cyclist. In Amul Ramachandra Gandhi v. Abhasbhai Kasambhai Diwan 1979 ACJ 460 (Gujarat) a twelve-year-old boy was walking along the road eight feet away from the footpath and a truck came from behind and knocked him down. The court observed that children normally are forgetful of the perils of crossing and walking on the road and therefore the boy was not guilty of contributory negligence. In Ramathal v. K.S.R.T.C. 1986 ACJ 186 (Kerala) : 1986(2) ACC 309, two boys aged 16 and 5 respectively, while trying to cross the road, were hit by a vehicle in the middle of the road. The trial court held that the accident occurred due to the act of negligence on the part of the defendant and this Court affirmed the finding. The incident was at an important junction in the periphery of a city with large flow of traffic, particularly, after the end of the day. This court held that pedestrian crossing has to be anticipated and necessary precautions scrupulously taken while vehicles pass near such a junction. It was found to be a case where the bus driver tried to overtake a parked bus at an excessive speed and knocked down the boys. In K.L. Kasar v. Haribhau Savlaram Shejwal 1985 ACJ 82 (Bombay) : 1985 (1) ACC 492, a fifteen year old boy who was riding a cycle overtook the lorry and the bullock-cart moving slowly ahead of him and another lorry came and hit him. In this case also question of contributory negligence did not arise. In Madhukar Sadashiv Vaghe v. Ahmedabad Municipal Trans. Service 1985 ACJ 682 (Gujarat), a group of children in a mischievous mood boarded a bus and then alighted pushing each other. A twelve-year-old boy fell down and was run over and injured when the bus was moving. The court held that in those circumstances there was a particular duty on the part of the driver to be cautious and circumspect and the driver ought to have stopped the bus when the children were moving towards the exit and the boy could not be regarded as responsible for his act.
11. In Usman Gani Mohammad v. State of Maharashtra 1980 ACJ 35 (SC), a fifteen-year-old domestic servant was leading two children of 9 and 7 years and crossing the road. A vehicle came and knocked them down. The court held that the driver did not Maintain proper look-out and was not attentive on the carriageway though he was in a position to see them from a distance. The court did not consider the question of contributory negligence. In Minor Rehana Rahimbhai Kasambhai v. Transport Manager, Ahmedabad Municipal Transport Service 1976 ACJ 156 (Gujarat), a sixteen-year-old girl riding a cycle was hit from behind. Negligence was apportioned in the ratio of I: 3. In Gobinda Prosad Mukherjee v. Sujit Bhowmick 1978 ACJ 160 (Calcutta), a fourteen year old boy boarded a moving bus and sustained injury. Negligence was apportioned in the ratio of 1 : 2. In Tekdharprasad v. State of Madhya Pradesh 1967 ACJ 10 (MP), a six-year-old boy was trying to cross the road and was run over by the vehicle. The child was going on the right side of the road and then suddenly tried to cross the road. It was held that there was no negligence on the part of the driver. In Motor owners' Insurance Co. Ltd. v. Sharda Thackar 1974 ACJ 239 (Orissa), an eleven-year-old boy riding a cycle was run over by a vehicle, which came at a high speed. On the facts it was held that there was no negligence on the part of the driver. The question of contributory negligence did not arise for consideration. In Shuhhakar Sridhar Shastry v. Mysore State Road Transport Corporation 1975 ACJ 50 (Karnataka), a student studying in B. Com. degree class, while riding a cycle suddenly turned to the right side and it was held that the accident occurred because cyclist crossed over to the right side before the accident occurred.
12. We do not think that the above decisions are of much assistance to us in arriving at a conclusion on the facts of this case. We have indicated that children of tender years because of their age, immaturity, inexperience and other attributes cannot be regarded as capable of exercising care and judgment expected of reasonable adults. However, we do not think that a thirteen year old boy riding a cycle on the National Highway should be regarded as a person incapable of exercising reasonable judgment or understanding the traffic rules and adhering to the degree of care and caution expected of a user of road. We see nothing in the evidence and circumstances of the case to indicate that he was incapable of judgment.
13. The boy was initially riding on the western side of the road, namely, the left side. Whether he was in between the two carts or behind the two carts is not of much importance. The evidence in the light of the contents of the scene mahazar would clearly indicate that be suddenly crossed the road in spite of the bus coming from behind. That was certainly a rash and negligent act on his part since he did not look out to the traffic behind him. He was therefore negligent in his conduct. The negligence of the cyclist us well as the driver of the bus was the real cause of the accident. The Tribunal was justified in its finding regarding contributory negligence.
14. The Tribunal assessed the contribution at 50 per cent. The Tribunal did not advert to relevant circumstances in making the assessment. The doctrine of apportionment could certainly be applied in the case of contributory negligence. In considering the question of apportionment regard must be had to all the relevant circumstances existing at the time and the situation of parties who are found to be negligent. The bus was trying to cross the two carts and a cycle. It was being driven at an excessively high speed considering the length of the tyre mark on the road. Driver of the bus should have slowed down and shown considerable degree of care and caution in the process of overtaking. He did not do so. The cyclist tried to cross the road or overtake the carts or at least one of the carts without heeding the traffic behind him. In these circumstances we hold that the responsibility of the driver of the bus was more than that of the young cyclist and he should share a higher degree of blame than the boy. Having regard to all these facts and circumstances we hold that apportionment must be in the ratio of 40: 60.
15. The Tribunal assessed average life span as 65 years Learned Counsel for the appellants invited our attention to two decisions of this Court in Stale Insurance Officer v. Thankamma John 1981 ACJ 77 (Kerala) and Vasanthy G. Kamath v. K.S.R.T. Corporation 1981 ACJ 353 (Kerala), where this Court accepted the case of life span in India being 65-70 years as also the observation of the Supreme Court in Jyotsna Dey v. State of Assam 1987 ACJ 172 (SC) : 1987 (I) ACC 173 that the life span can be assessed as 70 years in the absence of evidence. No evidence at all was adduced in this behalf in the present case. We do not think there is any ground made out to interfere with the assessment of life span made by the Tribunal.
16. Learned Counsel for the appellants would challenge the value of dependency determined at Rs. 60,000/-. The Tribunal regarded the boy at a brilliant boy, on the basis of Exh. A-3, marks list. He had just passed out of 8th standard. He secured 58 marks in Malayalam, 58 marks in English, 72 marks in Hindi, 54 marks in Social Studies, 75 marks in Science and 64 marks in Mathematics. A student who secures these marks cannot be regarded as brilliant. He can be regarded only as a student above average. Headmaster has noted in Exh. A-3 that he was a brilliant student, a conclusion which is not supported by the marks. Exh. A-4, extract of the admission register, described the father as a government servant. The Tribunal formed the opinion that the boy would have become an Engineer or Doctor or somebody else will placed in life. The Tribunal also took into consideration the fact that the boy would have married at the age of 25-30 and would have had to support his wife also. The Tribunal assessed the loss of monetary benefit to the parents as Rs. 500/- per month for a span of ten years as the parents were aged 49 and 39 at the time of accident. Even though the materials are not sufficient to enable us to conclude that the boy would have become an Engineer, Doctor or somebody else well placed in life, assessment of loss of monetary benefit made by the Tribunal does not appear to be excessive so as to warrant interference in appeal.
17. Claimants are also aggrieved at the rate of interest fixed by the Tribunal at 6 per cent. Our attention has been invited to a number of decisions of this Court and the Supreme. Court where interest was awarded at 12 per cent. See Vadakke M. Kelappan v. Vijay an 1986 ACJ 669 (Kerala) : 1986 (2) ACC 334 (Ker), Padmanabhan Nair v. Narayanikutty 1988 ACJ 58 (Kerala) : 1988 (I) ACC 487, Chameli Wall v. Delhi Municipal Corporation 1985 ACJ 645 (SC) : 1985 (2) ACC 373. Jagbir Singh y. General Manager, Punjab Roadways 1987 ACJ 15 (SC) and Jyotsna Dey v. State of Assam 1987 ACJ 172 (SC) : 1987 (1) ACC 173. Having regard to the bank rates, interest bearing on National Savings Certificate and other securities, we are of the opinion that in the circumstances of the case the Tribunal should have awarded 12 per cent interest.
18. In the result, we modify the award by fixing the compensation at Rs. 36,000/- (that is 60 per cent of Rs. 60,000/-) with interest at 12 per cent from 18-11-1980 till payment. In the circumstances parties will bear their costs.