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2008 DIGILAW 241 (UTT)

UMMED SINGH v. JAY BHAGWAN AGARWAL

2008-05-23

B.C.KANDPAL

body2008
JUDGMENT Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act has been filed by the appellants/claimants against the judgment and award dated 12.09.2006 passed by M.A.C.T./District Judge, Udham Singh Nagar in M.A.C.P. No. 195 of 2005 whereby the Tribunal awarded a sum of Rs. 52,000/- in favour of the claimants. 2. Brief facts of the case, according to the claimants are that on 04.08.2005 at about 02:00 p.m., Km. Asha Rana and Km. Sonam Rana were coming their school Nanakmatta to Sisaikher. When they reached near Bheem Dhaba at Sisai, Maruti Car No. UP04B/0321 which was being driven by its driver in a very rash and negligent manner hit both of them due to which Km. Asha Rana sustained serious injuries and thereafter died. At the time of the accident, she was 9 years of age. The claimants are the parents of the deceased. Therefore, they have filed the claim petition before the Tribunal concerned for Rs. 4.00 lacs for compensation. 3. The opposite party No.l – Jay Bhagwan Agarwal contested the claim petition by filing written statement before the Tribunal alleging therein that the accident took place due to negligence of the deceased. At the time of the accident, the car was being driven in a slow speed. It has further alleged that the car in question was insured with the United India Insurance Company Ltd., therefore, the liability to pay compensation, if any, lies upon the Insurance Company and not the owner of the vehicle. 4. The United India Insurance Company also contested the claim petition by filing its written statement alleging therein that the Insurance Company has no information about the accident. It has further alleged that the driver of the vehicle was also not having the valid and effective driving licence. Therefore, the claim petition was liable to be dismissed. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in great detail. Both the parties led the evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal allowed the claim petition and awarded a sum of Rs. 52,000/- in favour of the claimants as compensation vide judgment and award dated 12.09.2006. 6. Both the parties led the evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal allowed the claim petition and awarded a sum of Rs. 52,000/- in favour of the claimants as compensation vide judgment and award dated 12.09.2006. 6. Feeling aggrieved by the aforesaid judgment and award, the appellants/claimants have preferred this appeal before this Court for enhancement of compensation. 7. Heard Sri Deepak Rawat holding brief of Sri D.C.S. Rawat, learned counsel for the appellants, Sri Manish Dalakoti holding brief of Sri D.S. Patni, learned counsel for the respondents No. 2 and perused the record. 8. I have carefully gone through the impugned judgment and award as well as perused the entire record available before me. The Tribunal has decided Issue Nos. 1 and 2 together as they related to each other. The Tribunal in order to prove the negligence, relied upon the statement of Baljeet Singh (P.W.2) who has stated that on the date of accident, Km. Asha Rana was died due to rash and negligent driving of the driver of Maruti Car No. UP04B/0321. The opposite parties, did not produce any oral evidence in support of their case. Further the claimants filed the First Information Report, which reveals that the accident took place due to rash and negligent driving of Maruti Car No. UP04B/0321. In this way, the Tribunal decided these in favour of the claimants. As far as the driving licence is concerned, the photocopy of driving licence which is paper No. 7g/5 reveals that on the date of accident, the driver of the vehicle - Pankaj Agarwal was having the valid and effective driving which was valid from 03.08.1999 to 02.08.2019. It is also not disputed that on the date of accident, the vehicle in question was insured with the United India Insurance Company. In order to support their case, the claimants have produced cover note which is paper No. 7g/4 which indicate that the vehicle in question was insured with the United India Insurance Company Ltd. 9. The Tribunal after considering the age of the deceased and in order to calculate the amount of compensation awarded a sum of Rs. 50,000/- and further awarded a sum of Rs. 2,000/- towards funeral expenses. Thus the Tribunal in total awarded a sum of Rs. The Tribunal after considering the age of the deceased and in order to calculate the amount of compensation awarded a sum of Rs. 50,000/- and further awarded a sum of Rs. 2,000/- towards funeral expenses. Thus the Tribunal in total awarded a sum of Rs. 52,000/- along with interest @ 5% per annum from the date of filing the claim petition. 10. Learned counsel for the appellants has pressed this appeal only on the point of quantum. In order to support his argument, he has placed before me the decision of Hon’ble Apex Court New India Assurance Company Ltd. Vs. Satender Singh & others reported in (2008) 1 SCC (Cri) 96 wherein it has been held that “In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.” 11. Therefore, keeping in view the above observations of the Hon’ble Apex Court, in case, if the notional income of the deceased is to be taken into consideration as Rs. 15,000/- per annum, then after deducting 1/3rd out of it, the annual dependency of the claimants comes to Rs. 10,000/- per annum. In the schedule given under Section 163-A of Motor Vehicles Act a multiplier in the case of infant death is ‘15’ and if the multiplier of ‘15’ is adopted then the amount of compenation comes to Rs. 10,000 x 15 = 1,50,000/-. This Court in A.O. No. 256 of 2006 has also applied the above formula in order to calculate the amount of compensation where the age of the deceased was 11 years and the said formula is also applicable to the present case. 12. As the claimants are entilted for a sum of Rs. 1,50,000/- as compensation, therefore, the amount awarded by the Tribunal under other different head shall not be payable to the claimants. 13. 12. As the claimants are entilted for a sum of Rs. 1,50,000/- as compensation, therefore, the amount awarded by the Tribunal under other different head shall not be payable to the claimants. 13. In view of the above, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the claimants are entitled to get a sum of Rs. 1,50,000/- as compensation, instead of Rs. 52,000/- as has been awarded by the Tribunal. The amount so awarded shall be payable by the Insurance Company along with interest @ 7.5% per annum from the date of filing the claim petition till the date of actual payment.