Juveniles are very much in the news these days. Those under 18 years of age are considered as not fully matured and treated with kid-gloves. The contention is that they are not totally aware of the consequences of their actions. It may or may not be true and that discussion is best left for another day. Today, however, we argue about the fine balance between knowledge, safety, bravado and care.
A boy of 11 years was travelling by the Bombay B.E.S.T. bus. He was standing near the door. As is common in heavy AND crazy traffic, the bus driver needed to brake suddenly. The boy lost his grip. He fell out. He landed on the road and was run over by another vehicle.
YOU BE THE JUDGE.
Consider the facts. A boy of 11, but not a child.Travelling alone or without a proper chaperone. Was he aware of the dangers of standing near the door of a moving bus? Or not? Was he just showing-off, as most youngsters are prone to do? Was he not paying attention to possible danger?
What about the other driver? The one under whose car the boy was crushed to death. In Mumbai’s traffic, where everyone is cheek-by-jowl, is it not impossible to be involved in such a tragedy? And who should bear the blame?
The boy?His parents?The bus driver?The other driver?Or the person who caused the dangerous situation, in the first place, that the bus driver was forced to apply brakes on an emergency basis? The BEST?
The court held against the BEST. This is where the question of negligence and the duty of care dovetail in law. Negligence is defined as wilful disregard in the course of duty. It involves the knowledge that something can go wrong if proper care is not taken. Invariably, in such cases, the law has a fall-back position. It takes refuge behind the argument of what a “prudent” man would do in similar circumstances. Common sense being an uncommon commodity, prudence is the catch-all phrase. And then the courts decide on who had the greater responsibility.
A child’s life is lost in terrible circumstances. It happens everyday. In our young days our Dad would not allow us to travel by train, ‘foot-board’ travelling as it was then called, for fear that our school bags would be caught on the track equipment, mainly poles. Here, a bus would be relatively safe. But did the boy’s parents caution him against standing near the door?
The other driver’s defence would be that he cannot be held responsible if a human lands in front of his car, literally from thin air. Why then the BEST?
When a company or even an individual provides a service, he has a duty of care. The conductor should ensure that the child is away from the door of a moving bus. Many will argue that,in this day and age, it is an impossibility. But then, we go back to our worn-out phrase: ‘If there is a malady, there has to be a remedy’.
Obviously the Traffic Accident Tribunal pinned the blame on the Bombay Municipal Corporation (as it was known in 1985) since the BEST is owned by them. The Corporation was the respondent in the matter, not the driver. It was a clever move by the deceased boy’s advocate and is one more instance of not only finding the right forum but also the correct entity to file suit against, for both, retribution and costs.