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Madhya Pradesh High Court · body

2005 DIGILAW 644 (MP)

Gaya Prasad Pandey v. Yatindra Kumar Chaturvedi

2005-06-22

A.K.SHRIVASTAVA, R.V.RAVEENDRAN

body2005
JUDGMENT A.K. Shrivastava, J. 1. This appeal has been preferred by the claimants for the enhancement of the award under Section 173 of the Motor Vehicles Act, 1988 (in short 'the Act') being dissatisfied by the amount of award passed by IInd Motor Accident Claims Tribunal, Rewa (hereinafter referred to as 'the Tribunal') in Claim Case No. 12/99. 2. In brief the case of appellants/claimants is that on 5th January, 1999 their son Satyanarayan (hereinafter referred to as 'the deceased') having age of 12 years, was going to the school (as he was the student of Class VI) in the jeep. The deceased and his friends requested the driver to stop the jeep and when the deceased was g alighting from the jeep, at that juncture the driver, all of a sudden started and drove the jeep in negligent manner, as a result of which the deceased fell down on the road and sustained injuries. He was carried to Medical College at Rewa, however, on the way, he breathed his last. 3. The claimants, who are the parents of the deceased, filed claim petition before the Tribunal and prayed to pass an award of Rs. 5,91,300/- along with interest towards compensation on account of the death of their son. 4. The owner and driver filed their joint written statement and the insurer filed its separate written statement, refuting the claim of the claimants. The owner and driver in their written statement denied the factum of accident by the jeep bearing No. M.P. 17A/3670. 5. The Tribunal after framing necessary issues and recording the evidence of the parties, came to hold that the deceased was also responsible for the accident and it is a case of contributory negligence. The Tribunal further came to hold that the deceased boy was negligent upto 25%. The learned Tribunal after marshalling the evidence passed an award to the tune of Rs. 50,000 with annual interest @ 12% from the date of the filing of the claim petition. Hence this appeal. 6. We have perused the record of the Tribunal and also the memorandum of appeal and the grounds taken therein. We have also heard Mr. Shukla, learned Counsel appearing for the insurer. According to us, the appeal deserves to be allowed in part. 7. In the present case, the deceased is a young boy of 12 years. Hence this appeal. 6. We have perused the record of the Tribunal and also the memorandum of appeal and the grounds taken therein. We have also heard Mr. Shukla, learned Counsel appearing for the insurer. According to us, the appeal deserves to be allowed in part. 7. In the present case, the deceased is a young boy of 12 years. There is positive evidence of the father who is claimant No. 1 Gaya Prasad Pandey in regard to the age of the deceased. Apart from the testimony of the father, Ext. P-4 has been filed which is a school certificate of the deceased in which his date of birth has been mentioned as 1st July, 1987, thus, we accordingly hold that the age of the deceased at the time of his death was 12 years. The finding of the Tribunal in that regard is hereby affirmed. 8. The claimant examined Badri Prasad Kushwaha who was also travelling in the said jeep along with the deceased. This witness is a boy of 16 years and is a student of IX Class. If the testimony of this witness is X-rayed in proper perspective, it would reveal that it was the driver of the offending jeep who was rash and negligent. After scanning the evidence of this witness, we do not have any scintilla of doubt that the deceased was not at all responsible or was negligent when he was alighting from the jeep. In very specific words, this witness has stated that when the jeep was stopped, though for a short time, at that juncture the deceased was alighting from the jeep and when he was in that process at that juncture the driver, all of a sudden started the jeep and drove it in a high speed, as a result of which the deceased fell down and received injuries. On going through the evidence of this witness, it is gathered that the student (including the deceased) requested the jeep driver to stop the jeep on a particular turn because they were required to get down from the jeep. It has also come in his evidence that the driver of the offending jeep did stop it for a short time and thereafter again drove in a high speed. It has also come in his evidence that the driver of the offending jeep did stop it for a short time and thereafter again drove in a high speed. If that is the position, according to us and we are of the firm opinion that the driver of the offending jeep was overall responsible and not the deceased. It is a matter for judicial notice that if a request is being made to stop the particular vehicle so that the person may get down from it and the driver by following the request, stops the vehicle, the person who is alighting would think that after he will be alighted, the vehicle will be moved. Since it has come in the evidence of this witness that the request to stop the jeep was accepted by the driver and eventually he stopped the jeep, at no stretch of time, the deceased would have thought that all of a sudden the driver of the offending jeep would start and drive the jeep in high speed without waiting and observing that the person has alighted. Thus, according to us, the Tribunal erred in holding that the deceased was also liable upto certain extent to the said accident. On deeper scrutiny of the evidence of this witness, it can safely be said that the driver of the offending vehicle was fully responsible for the accident and it occurred on account of his rash and negligent act. The finding of the Tribunal holding that the deceased was also negligent and it is a case of contributory negligency, is hereby set aside and we hold that the accident occurred on account of rash and negligent driving of the jeep driver. 9. The next question for consideration is that what should be the adequate compensation. The deceased was a young boy of 12 years and was student of VI Class, he belongs to a family of agriculturist since his father (appellant No. 1 is an agriculturist). Looking to the family status of the claimants, it would be proper to enhance the award from Rs. 50,000 as passed by the Tribunal, to Rs. 1,00,000.00 (Rupees one lac). The interest @ 6% per annum shall be paid by the respondents on the enhanced amount of Rs. 50,000 from the date of the filing of the claim petition. 10. Looking to the family status of the claimants, it would be proper to enhance the award from Rs. 50,000 as passed by the Tribunal, to Rs. 1,00,000.00 (Rupees one lac). The interest @ 6% per annum shall be paid by the respondents on the enhanced amount of Rs. 50,000 from the date of the filing of the claim petition. 10. Resultantly, the appeal is allowed in part to the extent indicated hereinabove with no order as to costs.