The driver of a motor vehicle is expected to be careful, alert, and avoid hitting or knocking down any person on the road, especially in congested areas.

AMITABH BANERJEE, J.

( 1 ) THIS is an appeal under S. 110-B of the Motor Vehicles Act, 1939, filed by the U. P. State Road Transport Corporation through its Deputy General Manager, Eastern Zone, Varanasi and through its Chairman, Lucknow.

( 2 ) KM. Sarita alias Usha, under the guardianship of her maternal grandfather Shiv murat Mishra, filed a claim petition for Rs. 25,000/- against the U. P. State Road Transport Corporation, hereinafter referred to as the Corporation, through its Chairman and Deputy General Manager, Eastern Zone, on the ground that Km. Sarita the applicant was injured by the Roadways bus No. VTN 3237 as a result of which her right hand had to be amputated and the left hand was rendered useless and she had a major defect in her speach. It was alleged that the driver of the Roadways bus was rash and negligent which resulted in the accident. The Corporation contested the claim petition and urged that there was no rash and negligent act by the driver and the accident was due to the sudden appearance of the applicant on the road before the bus and the accident took place in spite of the very best efforts made by the driver of the bus. The injuries on the two hands were admitted but it was alleged that the speach of the applicant was not affected by the accident as she was a dumb girl even before the accident. The Corporation also took a plea that the amount awarded was excessive. A sum of Rs. 500/- was granted as ex gratia payment.

( 3 ) THE Motor Accidents Claims Tribunal, Azamgarh held that the accident took place due to the rash and negligent act of the driver. The injuries of the girl, barely eight years old, were much too severe. Her right hand had to be amputated 8 inches below her shoulder and her left hand had been rendered useless for any work. Her speech was also affected but the Court recorded a finding that there was no good evidence to show that her inability to speak was as a result of the accident. The Tribunal assessing her situation of helplessness, though it fit to award a sum of Rs. 25,000/- as, compensation so that there would be sufficient, amount for her by way of interest and that she could be looked after for the rest of her life. The Tribunal also awarded interest at the rate of 6 per cent per annum from July 31, 1979 till the date of realisation.

( 4 ) IN this appeal Mr. S. K. Sharma, learned counsel for the Corporation raised three points. Firstly, that there was no rash or negligent act on the part of the driver and the Court had wrongly assessed to hold to the contrary. Secondly, that the girl herself had contributed to the accident and, therefore, the sum awarded was liable to be reduced by half. Lastly, the sum of Rs. 25,000/- was excessive and there was no basis for awarding such an amount. I have also heard Shri Faujdar Rai, learned counsel for the respondent who supported the order of the Tribunal and urged that the sum awarded could not be scaled down considering the circumstances of the present case.

( 5 ) THE first two questions raised by the learned counsel for the appellant pertain to questions of fact. Whether there was rash and negligent act on the part of the driver of the bus depends on the evidence on the record of the case and the circumstances apparent from the same. The question of contributory negligence again raises question of fact whether the child by her own act contributed to the accident. For this there has to be a specific plea in the written statement. I would therefore take up the question of contributory negligence.

( 6 ) IN para 25 of the written statement there is a statement that the driver of the bus made full efforts to avoid the accident but due to the mistake of the girl the accident could not be avoided. In para 28 of the written statement, it was stated that the claimant suddenly came running in front of the bus and fell down. This was a mistake on the part of the claimant and her guardian, for she ran on the road carelessly and in such an event the