JUDGMENT Umeshwar Pandey, J.
1. This first appeal from order has been preferred against the judgment and order dated 8.2.1978 passed by the Motor Accidents Claims Tribunal, Ghazipur, U.P. (District Judge, Ghazipur).
2. The brief facts are that there was an accident on the Ghazipur-Varanasi Road on 29.11.1974 wherein a small child of about 5 years of age was run over and died instantaneously. The driver of the truck, Nanhakoo sped away the truck and could be apprehended only on a long chase given by the family members of the deceased. An F.I.R. was lodged on the same day. The parents of the child preferred the claim petition for an award of Rs. 50,000. The Tribunal after recording the evidence and due hearing of all the parties, found that it was not the truck driver, Nanhakoo, who was negligent but the deceased child was negligent due to which this accident had resulted. Accordingly, the court below having not found merit in the claim petition, dismissed the same and passed the impugned judgment.
3. Aggrieved with the aforesaid judgment and order of the learned Tribunal, the present appeal has been preferred.
4. I have heard Mr. S.O.P. Agrawal, learned counsel for the appellants and Mr. Arvind Kumar, learned counsel for respondent No. 3. None has, however, come to represent respondent No. 1, the owner of the vehicle and respondent No. 2, the truck driver.
5. From a perusal of the judgment of the Tribunal, it appears that learned District Judge, while appreciating the evidence, has afforded himself more in the manner as is done in criminal cases and has not cared to look into the preponderance of probabilities that have emerged from the evidence of the respective parties. Such sort of appreciation of evidence in a motor accident claim case is wholly uncalled for. It is not a criminal matter. There is evidence on record that the driver Nanhakoo, when apprehended on a long chase after accident, was found in a drunken state. The driver, who was the respondent in the claim petition, did not come to contest the petition at all. This fact of the driver of offending vehicle being under the influence of intoxication, had to be controverted only by the said driver and none else. After the police did not get him medically examined for use of alcohol at that particular point of lime, it cannot be said that he was not under the influence of liquor. If this fact alone is proved on record by the statement of the claimant, negligence of the driver in driving the truck is established. The court below was wholly unjustified in holding that the driver of the vehicle could not be proved to be negligent while driving the truck. The evidence available on record of the original case, which has been summoned and has been perused by me, go to establish that the driver was extremely negligent while driving the truck and the claim petition should not have been dismissed only on that score.
6. The victim child, who died in this accident, is only about 5 years of age. The learned counsel for the appellant contends that there could not be any presumption of negligence against a small child of about 5 years of age. He has placed reliance upon the case-law of Karnataka High Court in the case of Srinivasa v. Parasiva Murthy, 1976 ACJ 45 (Karnataka). In this case the Division Bench of Karnataka High Court has held that a very young boy cannot be held guilty of contributory negligence though an older boy may be guilty of such negligence. But a child of 6 years could not be presumed to be guilty of contributory negligence if such an accident takes place. It is because the precautions are expected from an adult, but not from a child of 5 years who does not have road sense or the experience like his elders. In such a situation, the child should not be found guilty of such contributory negligence. In the present case, the victim child is 5 years of age and as such he cannot be held guilty of contributory negligence.
7. In view of the fact that the learned Tribunal has dismissed the claim of the claimants only on the fact that there was no negligence in the driving of the vehicle, I am inclined to set aside the judgment of the court below and send back the matter to the Tribunal for passing suitable order in the light of the aforesaid observations made in this judgment and also to fix the quantum of compensation that could be awarded in this case in favour of the claimants. Since the matter is very old and the court below has to decide the case on the basis of evidence already on record, time of six months should be given to decide the whole issue without fail.
8. The appeal is allowed with no order as to costs. The judgment and order dated 8.2.1978 of the court below is hereby set aside and the case is sent back to the Tribunal (District Judge, Ghazipur) for a fresh decision with the help of the evidence already on record and in the light of the observation made in this judgment.