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Rajasthan High Court · body

2011 DIGILAW 2135 (RAJ)

Oriental Insurance Co. Ltd. v. Saroj

2011-10-11

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the Oriental Insurance Company Ltd. against the award dated 3.12.2009 passed by the Motor Accident Claims Tribunal (Fast Track), Kotputli whereby the claim petition filed by respondent No.1 and 2 was allowed and compensation in the sum of Rs.2,25,000/- was awarded on account of accidental death of their daughter Santosh @ Sheetal. The daughter of the claimants died on account of accident involving truck No.HR 35D 339 which was insured with the appellant insurance company. The appellants filed an application under Section 170 of the Motor Vehicles Act, which was allowed. The Tribunal held that the accident took place due to rash and negligent driving of the tractor and accordingly granted compensation of Rs.2,25,000 with interest @ 7.5% per annum from the date of filing of claim petition. 2. Shri Amarnath Pareek, learned counsel for the appellant has argued that the accident took place due to own negligence of the child and her parents and if proper care would have been taken, accident could have been averted. The child was playing on the road, which is meant for traffic purpose. It was argued that the learned Tribunal while awarding compensation of Rs.2,25,000/- has not applied the multiplier system. The deceased was 6 years of old at the time of accident and if the compensation was awarded on the basis of multiplier system, compensation would come to much lesser amount. It is argued that as per Section 163A of the Motor Vehicles Act, it is necessary to deduct 1/3rd of the income towards personal expenses, but the learned Tribunal has failed to give effect to the said provision and thus committed illegality while passing the award. It is argued that a girl child of 6 years cannot said to have been any earning and as such the compensation could not be awarded under the head of loss of income. Further compensation under the head love and affection etc. also could not be so erroneous. Thus, awarding compensation of Rs.2,25,000/- by the Tribunal is wholly unjustified. 3. Shri Amar Nath Pareek, learned counsel for the appellant in support of his arguments has relied on the judgment of Supreme Court in Oriental Insurance Co. Further compensation under the head love and affection etc. also could not be so erroneous. Thus, awarding compensation of Rs.2,25,000/- by the Tribunal is wholly unjustified. 3. Shri Amar Nath Pareek, learned counsel for the appellant in support of his arguments has relied on the judgment of Supreme Court in Oriental Insurance Co. Ltd. vs. Syed Ibrahim & Ors.- 2007 ACJ 2816 and argued that in that case, the Supreme Court reversed the judgment of High Court enhancing the compensation of Rs.51,500/- to Rs.1,52,000 in the case of accidental death of a child aged 7 years. Learned counsel relied on the judgment of Supreme Court in New India Assurance Co. Ltd. vs. Satender & Ors.- 2006(8) Supreme 870 Satender, in which case the compensation of Rs.1,80,000/- was granted in the case of a child aged 9 years. Learned counsel also relied on the judgment of this Court in Nanu Ram & Anr. vs. Bhojraj Gurjar & Anr., S.B. Civil Misc. Appeal No.1693/2005 decided on 24.5.2007, in which case also for the age group between 5-10 years, compensation of Rs.1,80,000/- was held to be justified. Learned counsel also cited the judgment of this Court in Abdul Zabbar & Anr. vs. Kulwant Singh & Ors.-2011(1) TAC 480 (Raj.) = 2011(1) CCR 160 (Raj.) and argued that this Court relying on the judgment of Supreme Court in Manju Devi & Anr. vs. Musafir Paswan & Anr.-2005(1) TAC 609 has held that in case of a child upto 5 years old, amount of Rs.1,00,000/- would be justified as compensation. It is therefore prayed that the amount of Rs.2,25,000/-, being not justified be decreased. 4. Shri G.L. Sharma, learned counsel for the respondents has opposed the appeal. He has relied on the judgment of Supreme Court in R.K. Malik & Anr. vs. Kiran Pal & Ors.-2009 INDLAW SC 656 = 2009(2) CCR 1044 (SC) and argued that in that case the Supreme Court upheld the judgment of High Court which had enhanced the compensation by Rs.75,000/- wherein the Tribunal had awarded a sum of Rs.1,55,000/- to the children between the age group of 10-15 years, Rs.1,65,000 between 15-18 years and those less than 10 years, a sum of Rs.1,05,000, Rs.1,30,000 and Rs.1,31,000 respectively. Learned counsel also relied on the judgment of Supreme Court in M.S. Grewal & Anr. Learned counsel also relied on the judgment of Supreme Court in M.S. Grewal & Anr. vs. Deep Chand Sood & Ors.-2001 ACJ 1719 and submits that in that case the Tribunal while allowing the appeal directed the school to pay a sum of Rs.5,00,000 each to petitioners, whose children were taken to picnic on the river bank by the school administration and 14 of them were drowned. It is therefore prayed that the award of compensation of Rs.2,55,000 cannot be said to be just and reasonable. 5. I have given my anxious consideration to the rival submissions and perused the impugned award. 6. The judgment of Supreme Court M.S. Grewal, supra arose out of a writ petition, which was a case of accidental death due to drowning and not by motor accident, under Motor Vehicles Act, where different standards may have been applied, but in the present case, the Tribunal has dealt with and decided the matter within four corners of the Motor Vehicles Act, 1988 and therefore this Court has also to consider the appeal filed by the appellant within those parameters. Even in the judgment of Supreme Court in R.K. Malik, supra relied on by learned counsel for the respondents for three children between age group of 5-10 years, or less than 10, the Tribunal awarded a sum of Rs.1,05,000/-, Rs.1,10,000/- and Rs.1,31,000/-. Though their age was not mentioned, but it appears that the first child, who was awarded Rs.1,05,000/- may have been more than 5 years in age. However, for the rest two, the amount of Rs.130,000/- and Rs.1,31,000/- was awarded by the Tribunal. Adding the enhanced amount of Rs.75,000/- thereto by the High Court, total amount of compensation would come up to Rs.2,05,000-2,06,000 and such judgment of High Court was upheld by the Supreme Court. In Satender & Ors., supra, a case that was decided in the year 2006 by the Supreme Court, a sum of Rs.1,80,000/- was awarded for the accidental death of a child of 9 years age. 7. In the present case it is clearly proved that the age of Santosh @ Sheetal at the relevant time when she died was 6 years. While she was playing outside her house, she met with an accident with the tractor insured with the appellant insurance company. She was a student of IInd standard. 7. In the present case it is clearly proved that the age of Santosh @ Sheetal at the relevant time when she died was 6 years. While she was playing outside her house, she met with an accident with the tractor insured with the appellant insurance company. She was a student of IInd standard. The Tribunal has awarded Rs.2,25,000 as compensation relying on the judgment of this Court/Supreme Court in Lalaram & Anr. vs. Ganpat Lal & Anr.-ACCT 2007(1) 93. In that case, age of the child was more than 10 years and therefore by taking notional income, the multiplier of 15 was applied and thus the amount of Rs.2,25,000 was awarded. In the present case, however, the age of child was only 6 years. This Court in Smt. Malti & 52 Ors. vs. M.K. Vasu and 52 Ors.-WLC 2008(1) page 589, after discussing the law and various precedents of the Supreme Court in Manju Devi & Anr. vs. Musafir Paswan & Anr.-2005(1) TAC 609; U.P. State Road Transport Corporation vs. Trilok Chandra reported in 1996 ACJ 831 = RLW 1996(2) SC 130; Lata Wadhwa & Ors. vs. State of Bihar & Ors.-2001 ACJ 1735; New India Assurance Co. Ltd. vs. Satender & Ors.-2007(1) TAC 11 (SC) Satender, State of Harayana & Anr. vs. Jasbir Kaur & Ors.- 2003(7) SCC 484 granted compensation of Rs.1,80,000/- for the children, who fell within the age of 5-10 years. That judgment was rendered on 24.5.2007. More than four years have gone by now since then. This Court can take judicial notice of this factor that due to inflation, value of rupee has certainly diminished during this period and gone down. Therefore, a sum of Rs.2,00,000/-, in my considered view, would be just and reasonable amount of compensation in the facts and circumstances of this case. 8. The appeal is accordingly allowed in part. The amount of Rs.2,25,000/- awarded as compensation to the claimant-respondents by the Motor Accident Claims Tribunal is reduced to Rs.2,00,000/-. The claimants shall be entitled to receive interest @ 7.5% with the said amount from the date of filing claim petition.