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2007 DIGILAW 633 (UTT)

Bachan Singh v. Sachin

2007-12-31

PRAFULLA C.PANT, RAJEEV GUPTA

body2007
Judgment Prafulla C. Pant, J. This is appeal preferred under Section 173 of the Motor Vehicles Act, 1988 is directed against the Award dated 08-08-2006 passed by the Motor Accident Claims Tribunal/District Judge, Tehri Garhwal in Motor Accident Claim Case No. 69 of 2005, whereby the claimant's claim petition, moved under Section 166 of the aforesaid Act, is dismissed. 2. Heard learned counsel for the parties and perused the record of the Tribunal. 3. Brief facts of the case are that the appellant moved a claim petition, which was received by the Motor Accident Claims Tribunal, Tehri Garhwal on 15-07-2005, claiming compensation to the tune of Rs. 2,20,000/-. As per the claim petition, appellant (claimant) was traveling on 31-01-2000 in a Bus bearing registration No. UP08-3088 alongwith his wife and son Bhajan Singh (deceased). The Bus was on its way from Ghuttu to Ghansali. When it reached near Pandalgarh, do to the rash and negligent driving on the part of the driver of the Bus, it fell down the hill in which wife and son of the claimant died. Separate Claim Petitions were filed by the claimant claiming compensation on account of death of his wife and son. A claim petition, filed for compensation on account of the death of his wife, was registered as Claim Petition No. 70 of 2005; while the one, relating to minor child, was registered as Claim Petition No. 69 of 2005. In Claim Petition No. 70 of 2005, the Tribunal awarded a sum of Rs. 1,67,000/- as an amount of compensation to be paid by United India Insurance Company Ltd. to the claimant, while in the present case in question, the claim petition was dismissed for the reason that the deceased child was aged 3 years and the claimant was not dependent on the deceased child. The vehicle was insured at the time of the accident with United India Insurance Company Ltd. 4. From the record, it appears that respondent NO.2 United India Insurance Company Ltd. contested the case and filed its written statement in which the factum of accident was denied for want of knowledge. It is further pleaded in the written statement that the amount claimed is excessive. It is also pleaded that the driver of the vehicle had no valid license to drive the vehicle. It is further pleaded in the written statement that the amount claimed is excessive. It is also pleaded that the driver of the vehicle had no valid license to drive the vehicle. However, in para 10 of the written statement, it is stated that there were 51 passengers, who were travelling in the Bus while the capacity of the Bus was 42. As such, the terms of the policy were violated. 5. The owner of the vehicle also filed his written statement in which it was stated that the vehicle was insured with respondent NO.2. It is also pleaded in the written statement of the respondent NO.1 that the driver of the vehicle had a valid driving license. 6. On the basis of the pleadings of the parties, the Tribunal framed following issues: i. Whether the accident, in question, occurred on 31-01-2000 at about 1:30 p.m. at Panalgarh Tok on Ghansali-Ghuttu motor road, due to rash and negligent driving on the part of the driver of Bus registration No. UP08-3088 resulting in death of Bhajan Singh (son of the claimant)? ii. Whether the driver of the offending vehicle did not possess valid driving license and the owner did not possess valid permit and fitness certificates? iii. Whether the offending vehicle was over-loaded at the time of accident in violation of the conditions of the insurance policy? iv. To what amount of compensation and from whom the petitioner is entitled? 7. The Tribunal, after recording the evidence and hearing the parties, found that Bhajan Singh, son of the claimant, died in accident on 31-01-2000 at about 1:30 p.m. while travelling in the Bus bearing registration No. UP08-3088. It further held that the driver of the Bus was rash and negligent in driving the vehicle. It is further observed by the Tribunal that apart from the minor son of the claimant, Sarita (wife of the claimant) also died in the accident. After discussing the evidence of the eye-witnesses, the Tribunal further found that-as many as 33 persons died in the accident. On Issue No.2, the Tribunal found that the vehicle was being driven with valid papers. As to the over-loading of the Bus, the Tribunal decided Issue NO.3 in negative, as the respondents did not adduce evidence to prove the overloading of the passengers. On Issue No.2, the Tribunal found that the vehicle was being driven with valid papers. As to the over-loading of the Bus, the Tribunal decided Issue NO.3 in negative, as the respondents did not adduce evidence to prove the overloading of the passengers. However, the claim petition is dismissed by the Tribunal on the ground that the claimant, being father of the deceased infant child, was not dependent on him. 8. Aggrieved by the said Award, this appeal is filed by the claimant. 9. The learned counsel for the appellant drew attention of this Court to New India Assurance Company Ltd. Vs. Satender & others reported in AIR 2007 SC 324, wherein the Apex Court, in a case of death of a child of tender age (9 years), awarded compensation amounting to Rs. 1,80,000/- in favour of the Claimant. 10. Having considered the submission of the learned counsel for the appellant and after going through the aforesaid case law, we are of the view that the Tribunal has erred in law in dismissing the claim petition merely on the ground that the deceased was a minor son of the claimant and the claimant was not dependent on him. 11. In another case in Kaushlya Devi Vs. Karan Arora & others reported in 2007 AIR SCW 3424, the Apex Court, after considering the facts and circumstances of that case, which also related to death of a child in the motor accident, affirmed the award of compensation of Rs. 1,00,000/-. 12. The matter of determination of amount of compensation in the cases of young children of tender age is difficult as compared to the cases of the persons having certain income at the time of their death. In the cases of children, the Tribunal and Courts have to calculate the incalculable amount and, in such cases, some amount of conjectures and guess work is inevitable. Considering the facts and circumstances of this case and following the principle of law laid down in the aforementioned two cases, we think it just and proper that a sum of Rs. 1,00,000/- should be awarded as an amount of compensation to the claimant / appellant for the loss of his son in the accident. Considering the facts and circumstances of this case and following the principle of law laid down in the aforementioned two cases, we think it just and proper that a sum of Rs. 1,00,000/- should be awarded as an amount of compensation to the claimant / appellant for the loss of his son in the accident. Since the vehicle was admittedly insured with respondent No.2 United India Insurance Company Ltd. at the time of the accident, as such, the said respondent is liable to make the payment to the claimant. 13. For the reasons as discussed above, this appeal deserves to be allowed. Impugned Award dated 08-08-2006, passed in Motor Accident Claim Case No. 69 of 2005 by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, is set aside. The claim petition is allowed for a sum of Rs. 1,00,000/- (Rupees One Lakh only) with 6% per annum simple interest from the date of the application till the date payment is made. The amount awarded shall be paid by respondent NO.2 United India Insurance Company Ltd. 14. Accordingly, the appeal is allowed. No order as to costs.