The main legal point established in the judgment is the application of the principle of negligence in determining liability for personal injury in a motor vehicle accident, including the duty to take care, foreseeability of danger, and the standard of conduct expected from a reasonable person.

1. Appeal by plaintiffs.

2. The 1st plaintiff, a boy of 6 years sues, through his father and next friend the 2nd plaintiff, for damages for personal injuries sustained on noon, April 29,1956, when he was knocked down at Alwaye by the 1st defendant's lorry driven by the 2nd defendant. He was taken to the Alwaye Hospital and thence to the Bava Memorial Nursing Home, Ernakulam - he was unconscious even when he was taken to the Nursing Home - where he was treated for 56 days at a cost of Rs. 581 as 4 ps. 6. When at the Nursing Home a senior Doctor of the State Medical Service, Dr. A.K. Menon, was called in for consultation and was paid fee. Claiming Rs. 1000 also as general damages this suit is laid for Rs. 1681 as. 4 p. 6.

The 2nd defendant remained ex parte. The 1st defendant denied liability attributing negligence of the 1st plaintiff as the sole cause of the accident. Though the lorry had been insured with the State Insurance Department against third party risks, no information of the accident was given to it or even to the police by the defendants.

The evidence is that soon after 11.30 a. m. on the day of the accident, 20 to 25 boys from the nearby Arabic School gathered on the road-side to cross it. They waited to see a bus that was coming down from the south to pass. The 1st defendant's lorry was coming 75 to 100 yards behind the bus at a speed of 25 to 30 miles per hour. As soon as the bus passed the boys began to run across the road, and some had crossed the road when the accident took place.

3. Munsiff Mr. G. Kurien held,

"Since the road was straight at that place by about a furlong distance and since the 2nd defendant was driving the lorry from south to north and there was a gap of about 75 to 100 yards in between the bus and the lorry, 2nd defendant, if he has exercised reasonable diligence or care, could have pulled up the lorry by applying the brakes and avoided the danger. At any rate, when he found that about 20 to 25 boys were waiting there to cross the road, as a driver he must have been put on the alert. He could have reduced the speed and driven the lorry in such a manner as to have it under control if any mishap is going to happen by the crossing of the boys across the road. In the peculiar circumstances of this case, it is clear that the 2nd defendant had omitted to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do. I find that 2nd defendant was negligent in driving the lorry and his negligent driving resulted in the accident ... in this case, the 1st plaintiff was less than 6 years of age on the date of the accident. As a general proposition, children are incapable of negligence and therefore equally of contributory negligence. The reason is that children could not be expected to take that care which the law expects of adults and act which in the case of adults might amount to negligence cannot be set down against the children so as to deny them redress. The law has necessarily to make allowance for their inexperience and infirmity of judgment...

"An amount of Rs. 681 as 4 ps. 6 has been claimed by the plaintiff towards consulting fees for doctors and hospitalisation charges. So far as the consulting fee is concerned, there is no bill or any other evidence. Pw. 3, Dr. A.K. Menon, says that he was paid consulting fees. At any rate, the consulting fees must be included in the bill of the hospitalisation charges and so separate consulting fee is not allowable. Pw. 4 from whose institution Ext. P-1 series bills had been issued swears that the amount had been paid and for the treatment of the boy this was necessary. But in the bill, mixture given to the mother of the 1st plaintiff also is charged. That comes to Rs. 2 as. 10. The same has to be deducted. The balance comes to Rs. 578 as. 10 ps. 6. This the plaintiff is entitled to realise from defendants 1 and 2. The next claim is Rs. 1000 being for mental shock and shortened e