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2013 DIGILAW 1666 (RAJ)

Ratan v. Rakesh Jain

2013-09-19

PREM SHANKER ASOPA

body2013
Hon'ble ASOPA, J.—Heard learned counsel for the parties. 2. The instant miscellaneous appeal has been filed against the judgment dated 15th June, 2005 passed by Judge, Motor Accidents Claims Tribunal & (Essential Commodities Act) Jaipur (hereinafter to be referred as 'Tribunal') in Claim Case No.1322/2004 (845/2002); Ratan & Anr. vs. Rakesh Jain & Anr. for enhancement of the award from Rs.50,000/-. 3. Briefly stated the facts of the case are as under: 3a. The claimant-appellants have filed a claim petitioner before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (hereinafter to be referred as 'Act of 1988') against the respondent-non-claimants, claiming compensation to the tune of Rs.11,40,000/-, on account of the loss suffered by them due to the death of their 6 years old minor daughter Kum. Chikwa in the accident which took place on 3.1.2000 when she was crossing the road to take water at Jai Club Circlr, Ashok Marg, C-Scheme, Jaipur, the Maruti Car No.RJ-14-4c-4914 which was being driven and owned by the respondent No.1 in rash and negligent manner and hit Ku. Chikwa by coming from the wrong side, as a result of which, she died. At the relevant time, the car was insured with the respondent No.2. First Information Report to the accident was came to be registered at the concerned Police Station and after investigation, the police filed challan against the driver of the Maruti Car holding him negligent in driving the vehicle. 3b. It was pleaded by the claimants in their claim petition that deceased was helping the family by making broom to the tune of Rs.500/- per month and at the time of her death she was aged about 6 years only. 3c. The respondent-non-claimant No.1, the driver/owner of the Maruti Car submitted his reply to the claim petition and denied the averments of the same. It was pleaded that no such accident was took place with his car and the car was being driven by the driver Ramji Lal and when he reached near Jai Club, a minor girl met with an accident with some other white Maruti Car. Certain other objections were also raised and prayed for dismissal of the claim petition. The respondent No.2 Insurance Company also filed the reply to the claim petition and also denied he averments of he same. Certain other objections were also raised and prayed for dismissal of the claim petition. The respondent No.2 Insurance Company also filed the reply to the claim petition and also denied he averments of he same. It was also pleaded that the insured has committed breach of policy condition, as information regarding the accident was not furnished by him. In the First Information Report, the vehicle number has not been mentioned. The vehicle in question has been involved by filing private complaint by the claimants. The vehicle involved in the accident has not been seized by the police and mechanical inspection has not been conducted for the said vehicle. The plea of contributory negligence was also raised. Certain other objections were also raised and prayed for dismissal of the claim petition. 4. On the basis of the pleadings of the parties, the Tribunal has framed as many as 5 issues and proceeded to record the evidence of the parties. The issues framed by the Tribunal are as under: ^^1- vk;k iz'uxr okgu ek:fr dkj uacj vkj-ts- 14 4lh 4914 ds pkyd foi{kh la[;k ,d ds }kjk fnukad 3-1-2000 dks t; Dyc ds ikl v'kksd ekxZ] lh-Ldhe] t;iqj ij mä okgu dks mis{kk@mrkoysiu ls pykdj dh xbZ nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i dq- fpdok dh e`R;q gqbZ\ 2- vk;k mä okgu pkyd rc mä okgu Lokeh foi{kh la[;k ,d ds fu;kstu esa gksdj mlh ds fgrkFkZ ,oa ykHkkFkZ dk;Z dj jgk Fkk\ 3- vk;k foi{kh la[;k nks chek dEiuh }kjk vius fyf[kr dFku dh izkjfHkd vkifÙk;ksa ,oa fo'ks"k dFku ds eísutj chek daiuh vius nkf;Ro ls eqä gks ldrh gS] ugha rks bldk izHkko\ 4- vk;k nkosnkj vius nkos@nkok esa vafdr iz'uxr jkf'k ;k vU; dksbZ U;k;leer jkf'k ik ldk gS gka rks dkSu dkSu nkosnkj fdruh fdruh jkf'k] fdl fdl foi{kh ls ,oa fdl izdkj ls ik ldrs gSa\ 5- vuqrks"k\** 5. In support of their claim, claimant-appellants have examined AW-1 Ratan, AW-2 Smt. Udi and AW-3 Shankar Singh and some documents were also got exhibited. On behalf of the non-claimants, neither oral nor documentary evidence was adduced. As such, the pleadings and evidence of the appellants remained un-controverted. 6. In support of their claim, claimant-appellants have examined AW-1 Ratan, AW-2 Smt. Udi and AW-3 Shankar Singh and some documents were also got exhibited. On behalf of the non-claimants, neither oral nor documentary evidence was adduced. As such, the pleadings and evidence of the appellants remained un-controverted. 6. After hearing arguments of the parties, the Tribunal decided all the issues in favour of the claimant-appellants but while deciding issue No.4 so far as it relates to quantum, a compensation to the tune of Rs.50,000/- was awarded to the claimants by observing that the living standard of the claimants-appellants is below standard and interest has also been disallowed vide judgment dated 15.6.2005. However, from the aforesaid Rs.50,000/- awarded in case of a child death of 6 years, the No Fault Claim of Rs.50,000/- was adjusted and as a consequence of which, the parents of the child has not been granted any further amount. 7. Submission of the learned counsel for the claimant-appellants is that considering the latest judgment of the Apex Court, passed in Civil Appeal No.7137/2013; Kishan Gopal & Anr. vs. Lala & Ors. decided on 26.08.2013 = 2014(1) RLW 411 (SC), wherein the Apex Court in case of death of 10 years son, no compensation was awarded by the Tribunal which was upheld by the High Court in appeal but the Supreme Court after reversing the findings on issue No.1 and 2 as given by the Tribunal and upheld by the High Court, awarded in all Rs.5,00,000/- in case of the death of 10 years son, therefore, in case of the death of 6 years female child, the amount of Rs.50,000/- as awarded by the Tribunal is too much on lower side and the same needs to be enhanced. 8. Learned counsel for the non-claimants-respondents submits that the award of Rs.50,000/- in case of a death of female poor child of 6 years who was a non-earning member is just and proper. 9. I have gone through the record of the appeal and further considered the submissions of the parties as well as aforesaid judgment of the Apex Court cited by the learned counsel for the appellants. 10. Before proceeding further, I would like to refer para No.17 and 18 of the judgment of the Apex Court cited by the learned counsel for the appellants in Kishan Gopal & Anr. (supra), which are as follows:- 17. 10. Before proceeding further, I would like to refer para No.17 and 18 of the judgment of the Apex Court cited by the learned counsel for the appellants in Kishan Gopal & Anr. (supra), which are as follows:- 17. In our considered view, the Tribunal has ignored certain relevant facts and evidence on record while considering the case of the appellants. The High Court though it has got power to re-appreciate the pleadings and evidence on record, has declined to do so and mechanically endorsed the findings of fact on contentious issue Nos.1 & 2 after referring to certain stray sentences from the evidence of AW-1 and the FIR and it has erroneously held that there is a contradiction between the FIR, the claim petition and the evidence of the appellants. It has concurred with the finding of fact recorded on the contentious issues and accepted dismissal of the petition. The concurrent findings of fact are erroneous and invalid and therefore, the same call for our interference in this appeal. The approach of the High Court to the claim of the appellants is very casual as it did not advert to the oral and documentary evidence placed on record on behalf of the appellants, particularly, in the absence of rebuttal evidence adduced by the Insurance Company, hence the same is liable to set aside and accordingly we set aside the same. 18. Point Nos.2 and 3 are answered together in favour of the appellants for the following reasons:- The Tribunal having answered the contentious issue No.1, against the appellants in its judgment the same is concurred with by the High Court by assigning erroneous reasons and it has affirmed dismissal of the claim petition of the appellants holding that the accident did not take place on account of the rash and negligent driving of the offending vehicle by the first respondent and therefore the contentious issue Nos.1 and 2 are answered in the negative against the appellants and it has not awarded compensation in favour of the appellants. Since we have set aside the findings and reasons recorded by both the Tribunal and the High Court on the contentious issue Nos.1 & 2 by recording our reasons in the preceding paragraphs of this judgment and we have answered the point in favour of the appellants and also examined the claim of the appellants to award just and reasonable compensation in favour of the appellants as they have lost their affectionate 10 year old son. For this purpose, it would be necessary for us to refer to Second Schedule under Section 163-A of the M.V. Act, at clause No.6 which refers to notional income for compensation to those persons who had no income prior to accident. The relevant portion of clause No.6 states as under: “6. Notional income for compensation to those who had no income prior to accident: .............. (a) Non-earning persons – Rs.15,000/- p.a.” The aforesaid clause of the Second Schedule to Section 163-A of the M.V. Act, is considered by this Court in the case of Lata Wadhwa & Ors. vs. State of Bihar & Ors. ( (2001) 8 SCC 197 ), while examining the tortuous liability of the tort-feasor has examined the criteria for awarding compensation for death of children in accident between age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs.12,000/- p.a. and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs.25,000/-was awarded. Thus, a total sum of Rs.1,57,000/- was awarded in that case. After noting the submission made on behalf of TISCO in the said case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs to which under the conventional heads a sum of Rs.50,000/- should be added and thus total amount in each case would be Rs.2 lakhs. Further, in the case referred to supra it has observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to the fact the contribution of the deceased child was taken Rs.12,000/- p.a. appears to be on the lower side and held that the contribution of such children should be Rs.24,000/- p.a. In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma vs. Delhi Transport Corporation ( (2009) 6 SCC 121 = 2009(4) RLW 2785 (SC)), the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC vs. Susamma Thomas ( (1994) 2 SCC 176 ), which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants. The said amount will carry interest at the rate of 9% p.a. by applying the law laid down in the case of Municipal Council of Delhi vs. Association of Victims of Uphaar Tragedy ((2011) 14 SCC 481), for the reason that the Insurance Company has been contesting the claim of the appellants from 1992-2013 without settling their legitimate claim for nearly about 21 years, if the Insurance Company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the appellants is legally justified." 11. That in the aforesaid judgment, the Supreme Court has taken into consideration the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000/- and further, considered the other facts that the deceased boy had he been alive would have certainly contributed substantially to the family of the appellant by working and in the young age of the parents. In the instant case, the deceased was a female child of 6 years and on the date of accident i.e. 03.01.2000 and age of her mother was 44 years and her father was 47 years and further on the date of filing of the appeal i.e. 26.11.2002, the same was 46 and 49 years respectively, therefore, I am of the further view that the legislation did not make any difference while fixing the notional income of non-earnign member as Rs.15,000/-, between the boy and girl, poor and rich immense contribution to the family has been made while fixing the said Rs.15,000/- notional income fixed in the year 1994, therefore, no further discrimination can be made on account of sex and status of the child. The Supreme Court in the aforesaid judgment of Kishan Gopal & Anr. (supra), for the reason of that the rupee value has come down drastically from the year 1994 enhanced the notional income of the non-earning member from Rs.15,000/- to Rs.30,000/-. In the present period, the life expectancy which is much higher than the earlier period, therefore, the age of 46 and 49 of the parents of the deceased cannot be said to be old age. Further, the deceasd female girl had she been alive, would have been admitted in the school and thereafter, in the college and further on completion of study would have got the suitable job and certainly contributed substantially to her family, therefore, I allow the instant appeal and the amount is enhanced from Rs.50,000/- to Rs.5,00,000/- as per the judgment of the Apex Court passed in Kishan Gopal & Anr. (supra) and the non-earning member notional income is required to be enhanced to Rs.30,000/- and then, multiplier of 15 is to be applied. The calculation of the total amount is as follows :- (i) Notional income - 30,000/- (ii) Multiplier - 15 (iii) Compensated amount - 30,000x15 = Rs.4,50,000/- (iv) Funeral expenses, loss of love, affection and rights of a child aged 6 years, the claimant-appellants are entitled for Rs.50,000/- Total compensation is Rs.5,00,000/-. The calculation of the total amount is as follows :- (i) Notional income - 30,000/- (ii) Multiplier - 15 (iii) Compensated amount - 30,000x15 = Rs.4,50,000/- (iv) Funeral expenses, loss of love, affection and rights of a child aged 6 years, the claimant-appellants are entitled for Rs.50,000/- Total compensation is Rs.5,00,000/-. The Tribunal has awarded an amount of Rs.50,000/- as compensation, the claimant-appellants are further entitled for the amount of Rs.4,50,000/-, from the date of filing the application, as compensation of Rs.50,000/- has already been awarded under No Fault Liability as well as the same amount in the main award, therefore, the claimant-appellants are entitled for interest @ 9% per annum on the enhanced amount of Rs.4,50,000/- from the date of filing of the application till the date of payment.