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2021 DIGILAW 860 (RAJ)

Bagdaram v. Suresh Kumar

2021-04-16

DEVENDRA KACHHAWAHA

body2021
JUDGMENT 1. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed on behalf of the appellants-claimants against the judgment and award dated 02.02.2017 passed by the learned Judge, Motor Accident Claims Tribunal, Jaitaran, District Pali in Claim Case No. 13/2014 (483/2014) titled as "Bagdaram & Anr. Vs. Suresh Kumar & Anr." whereby, the Tribunal has awarded a sum of Rs.2,80,000/- as compensation in favour of the claimants. Hence, this appeal has been filed seeking enhancement of the amount of the compensation. 2. Briefly put the facts of the case giving rise to this appeal are that on the fateful day of 07.09.2013, the claimants with their son, namely, Aakash, aged 06 years, were going from Sangawas to Biratiya Khurd on motorcycle bearing registration number RJ-22-MM-6135 at around 10 a.m., when they reached near Haziwas Piao then, another motorcycle bearing registration number RJ-22-SQ-6302 came, being driven rashly and negligently by the non-applicant No.1, hit their motorcycle; and as a result of collision, Aakash sustained injuries on his head and body and he (Aakash) was succumbed to death during treatment. The claimants have further averred in the claim petition that at the time of accident, the non-applicant No.1 was driver himself was the owner of the motorcycle, who drove the vehicle for his own benefit; and at the time of accident, the said vehicle was insured with the non-applicant No.2. A total sum of Rs.35,84,000/- was claimed as compensation under various heads along with interest @ 18% per annum from the date of filing of the claim petition till the date of realisation of the amount jointly and severally from the non-applicants. 3. In its reply, the non-applicant No.1 mainly stated that no accident has been occurred from his vehicle, on the contrary, the accident has been occurred due to mistake of father of the deceased; that the vehicle was insured with the Insurance Company; that at the time of accident, the answering non-applicant having a valid and effective driving license. Therefore, by submitting written statement, he prayed for dismissal of the claim petition. 4. In its reply, on behalf of the non-applicant No.2, the averments as made in the claim petition were denied altogether. It was stated that no accident was occurred by the vehicle insured with it and the insured vehicle was allegedly involved in the accident. Therefore, by submitting written statement, he prayed for dismissal of the claim petition. 4. In its reply, on behalf of the non-applicant No.2, the averments as made in the claim petition were denied altogether. It was stated that no accident was occurred by the vehicle insured with it and the insured vehicle was allegedly involved in the accident. It was also stated that the vehicle was driven by violating the terms of the insurance policy. It was also mentioned that the claimants have made an exaggerated claim under various heads which is liable to be not allowable; the averments in regard to age of the deceased and regarding income have been allegedly wrongly. Therefore, by submitting reply, dismissal of the claim petition was prayed. 5. On the basis of the pleadings of the parties as made in the claim petition as well as in the reply of both the non-applicants, the learned Tribunal has proceeded to frame as many as five issues, which read as under:- 6. In support of the claim petition, statement of Bagdaram was recorded as AW-1 and in documentary evidence, exhibits 1 to 15 were exhibited. On behalf of the non-applicant No.2 Insurance Company, NAW-1 Narendra Singh was got examined. 7. After hearing the final arguments advanced on behalf of the parties and keeping in mind the various judgments cited on behalf of the non-applicant No.2 Insurance Company, the learned Tribunal has proceeded to determine the issues. Issue No.1 regarding death of Aakash due to accident was found to be proved on the basis of the oral and documentary evidence adduced on behalf of the parties and the same was decided in favour of the claimants. Issue No.2 regarding ownership of vehicle was found to be proved on the basis of reply submitted by Suresh admitting that he was owner of motorcycle bearing registration number RJ-22-SQ-6302 and, therefore, this issue was also decided in favour of the claimants. Issue No. 3 regarding liability of the Insurance Company was decided against the Insurance Company by disbelieving its objections. Issues No. 4 & 5 regarding quantum of compensation and relief were found to be proved and were decided in favour of the claimants and the claimants were held entitled for compensation in the sum of Rs.2,80,000/-. The learned Tribunal has made the award which reads as under:- 8. Issues No. 4 & 5 regarding quantum of compensation and relief were found to be proved and were decided in favour of the claimants and the claimants were held entitled for compensation in the sum of Rs.2,80,000/-. The learned Tribunal has made the award which reads as under:- 8. Heard learned counsel for the parties and perused the material available on record, including the judgment and award impugned. 9. Learned counsel for the appellants-claimants stated that in the present case, the appellants'-claimants' son namely, Aakash, six years old child was expired due to the injuries sustained in the accident caused by the motorcycle bearing registration number RJ-22-SQ-6302, owned by the respondent-non-applicant No.1 Suresh, when the claimants with their son Aakash were going from Sangawas to Biratiya Khurd; that only a sum of Rs.2,80,000/- was awarded as compensation by the learned Tribunal. In support of his claim seeking enhancement of the amount of compensation, learned counsel for the appellants-claimants has relied upon a judgment rendered by Hon'ble the Apex Court in the case of Kishan Gopal & Anr. Vs. Lala & Ors. [Civil Appeal No. 7137/2013, decided on 26.08.2013] and stated that by the cited judgment, Hon'ble the Supreme Court has allowed a sum of Rs.5,00,000/- in favour of the claimants along with interest 9% per annum and, in alternate, according to the guidelines issued by the Rajasthan State Legal Services Authority. 10. In reply, learned counsel for the respondent No.2 (Insurance Company) stated that in the cited judgment, the age of the victim was 10 years old child, who expired due to accident. He further stated that as per the postmortem report, the age of the deceased (son of appellants-claimants) was determined as five years. Lastly, he prays that looking to the facts and circumstances of this case, appropriate award may be passed, while keeping in view the latest guidelines issued by Hon'ble the Supreme Court in the cases of death of children and, in alternate, according to the guidelines issued by the Rajasthan State Legal Services Authority. 11. Lastly, he prays that looking to the facts and circumstances of this case, appropriate award may be passed, while keeping in view the latest guidelines issued by Hon'ble the Supreme Court in the cases of death of children and, in alternate, according to the guidelines issued by the Rajasthan State Legal Services Authority. 11. Upon perusal of the record of the case, this Court finds that there is no specific denial either on behalf of the respondent No.1 - Suresh Kumar (owner cum driver of the offending vehicle) nor on behalf of the respondent No.2 - Insurance Company regarding the age of the deceased Aakash, therefore, the age of the deceased Aakash is treated to be six years, as averred by the claimants. This Court is of the opinion that the age of the deceased Aakash as mentioned in the postmortem report cannot be taken as conclusive proof, therefore, there is no reason to disbelieve the averments of the claimants-parents that the age of the deceased Aakash was six years. This Court also finds that there is no cross-appeal either on behalf of the owner of the vehicle or on behalf of the Insurance Company to challenge the remaining grounds as made by the appellants-claimants. It is not disputed anywhere by the Insurance Company that the driver of the offending vehicle, namely, Suresh Kumar was not having a valid and effective license to drive the vehicle. Moreover, there was no evidence to this effect that at the time of accident, the offending vehicle was driven in violation of the terms of the insurance policy. 12. Both the learned counsel, in alternative, requested this Court to pass the award keeping in view the guidelines issued by the Rajasthan State Legal Services Authority. 13. For ready reference, the relevant portion of the revised guidelines as issued by the Rajasthan State Legal Services Authority is reproduced here as under:- "5. DEATH CASES: (a) ........................................................... (b) ............................................................ (c) In case of Child Death: a) Up to the age of 5 years - Rs.2.50 lac b) Between 5 years to 10 years - 3.50 lac c) Between 10 years to 15 years - Rs. 05 lac (As per Judgment of the Hon'ble Supreme Court in Kishan Gopal Vs. La la, (2014) 1 SCC 244 )" 14. (b) ............................................................ (c) In case of Child Death: a) Up to the age of 5 years - Rs.2.50 lac b) Between 5 years to 10 years - 3.50 lac c) Between 10 years to 15 years - Rs. 05 lac (As per Judgment of the Hon'ble Supreme Court in Kishan Gopal Vs. La la, (2014) 1 SCC 244 )" 14. Accordingly and in view of the observations made hereinabove, this Court is of the opinion that the claimants deserves to be allowed a sum of Rs. 3,50,000/- (as per guidelines of RSLSA) as compensation on account of death of their child aged six years instead of Rs.2,80,000/- as awarded by the Tribunal (under the heads of compensation for the death of child to the extent of Rs. 1,80,000/- and under compensation towards love and affection to the extent of Rs. 1,00,000/-). Meaning thereby, the claimants are now held entitled to get the amount of Rs. 3,50,000/- in total as per guidelines issued by Rajasthan State Legal Services Authority. The amount of Rs. 3,50,000/- in total shall carry interest @ 6% per annum from the date of filing of the claim petition (i.e., 16.01.2014) till the actual date of realisation of the amount. 15. As a result of the discussions foregoing, this appeal is partly allowed. The respondent No.2 (Insurance Company) is directed to deposit the amount of Rs. 3,50,000/- in total along with interest @ 6% (as per guidelines of RSLSA) from the date of filing of the claim petition with the Tribunal concerned, within a period of eight weeks from today.