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Monday, August 26, 2013

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. 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 v. Delhi Transport Corporation[3], 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 v. Susamma Thomas[4], 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 v. Association of Victims of Uphaar Tragedy[5], 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.=Accordingly, we pass the following order: I) The appeal is allowed and the impugned judgments and awards of both the Tribunal and High Court are set aside. II) The awarded amount of Rs.5,00,000/- with interest at the rate of 9% per annum should be paid to the appellants from the date of filing of the application till the date of payment. III) We direct the Insurance Company to issue the demand draft drawn on any Nationalized Bank by apportioning the compensation amount equally with proportionate interest and send it to the appellants within six weeks from the date of receipt of a copy of this judgment.

                                                          REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.7137 OF 2013
                  (Arising out of SLP(C) No.21139 of 2011)




   KISHAN GOPAL & ANR.                         … APPELLANTS


                                     Vs.


   LALA & ORS.                              … RESPONDENTS












                               J U D G M E N T






  V.Gopala Gowda, J.


       This  appeal  has  been  filed  by  the  appellants  questioning  the
  correctness of the judgment dated 15th March, 2011 passed in SBCMA No.1283
  of 2000 by the High  Court  of  Judicature  at  Rajasthan,  Jaipur  Bench,
  affirming the judgment and award dated 25.5.2000  of  the  Motor  Accident
  Claims Tribunal, Tonk (for short 'the  Tribunal')  in  MAC  case  No.7/93,
  urging various relevant facts and legal contentions in  support  of  their
  claim made in this appeal.
  2.  Necessary relevant facts are stated hereunder to appreciate  the  case
  of the appellants and also to find out whether the appellants are entitled
  for the reliefs as prayed in this appeal.
      The appellants are the parents of the deceased Tikaram, who died in  a road accident on 19.07.1992 on account of rash and  negligent  driving  of the motor vehicle tractor bearing registration No. RJX 5532 by the driver, as he was traveling in the trolley which was turned  upside  down  and  he fell down from the trolley and sustained grievous injuries  and  succumbed
 to the same. 
The FIR was registered with the Police Station  Uniara, Tonk
  being case  No.121/92.
After  investigation  in  the  case,  charge-sheet
  No.81/92 (Ex.2) was filed on 30.07.1992 against the first respondent,  the
  driver of the offending vehicle and its owner the respondent No.2. A  site
  map (Ex.3) was drawn up,  post-mortem of the deceased  was  conducted  and
  post-mortem Report was marked as Ex.7.
The claimants, being the appellants-
  parents, who have lost their son at the age  of  10  years  in  the  motor
  vehicle accident and the vehicle was insured with respondent  No.3  -  the
  Insurance Company, preferred claim petition under Section  140  read  with
  Section 166 of the Motor Vehicles Act, 1988  (in  short  the  'M.V.  Act')
  claiming compensation for Rs.15,63,000/- under the  headings  of  loss  of
  dependency, mental agony, loss of love and  affection,  expenses  incurred
  for carrying dead body and performing last rites of the  deceased  son  as
  per Hindu customs. 
Further, they have, inter alia, pleaded  that  the  son
  would have earned a sum of Rs.2000/- p.m. after the age of 18 years and he
  would have lived upto 70 years, therefore, multiplied by 52  for  claiming
  the financial assistance that he could have rendered to the  parents,  the
  same is worked out to Rs.12,48,000/-.
  3.   Notices were served upon respondent Nos.1 and 2, the driver  and  the
  owner of the offending vehicle. Despite service of notice upon  them  they
  did not choose to appear and contest the proceedings and  therefore,  they
  were placed ex-parte in the claim proceedings before the Tribunal.
  4. The Insurance Company appeared  and  filed  its  statement  of  counter
  denying the various averments of the claim petition and pleaded  that  the
  deceased son of the appellants was not studying and further disputed  that
  there was possibility of earning Rs.2000/- p.m. by the deceased.   It  was
  further pleaded that in the FIR, it is mentioned  that  deceased  boy  was
  going in the tractor-trolley, fell down from it on  account  of  rash  and
  negligent driving of the offending vehicle by the  first  respondent,  the
  deceased son sustained grievous injuries and  succumbed to the same. It is
  further stated  that the driver of the offending vehicle had no  right  to
  carry passenger in a tractor as it is exclusively required to be used  for
  the agricultural operation and therefore, there is  contravention  of  the
  terms and conditions of the insurance policy issued in favour of the owner
  of the offending vehicle. It is further stated by  the  Insurance  Company
  that the trolley was not  registered  and  the  driver  of  the  offending
  vehicle did not have the valid licence and hence,  it is not liable to pay
  compensation as claimed by the appellants. On the basis of the  pleadings,
  five issues were framed by the Tribunal for its determination.
  5. On behalf of the appellants, Kishan  Gopal the father of  the  deceased
     was examined as AW-1.  He has deposed in  his  evidence  narrating  the
     manner in which the  accident  took  place  and  marked  the  documents
     produced by him viz.  FIR, charge-sheet, Site Map, Notice under Section
     174, Insurance cover note, Mechanical Inspection,  post-mortem  Report,
     Notice under Section 133 and the Registration Certificate as Exhs. 1 to
     9 respectively. AW-2,  who  was  cultivating  in  the  adjoining  field
     situated near the place of accident  was  examined  on  behalf  of  the
     appellants and he has spoken about the incident and  deposed  that  the
     deceased boy was going in the tractor-trolley and the first respondent-
     driver was driving the tractor and the trolley turned down and he  fell
     down as the driver drove the tractor with high speed  negligently   and
     he had sustained grievous injuries  and  succumbed  to  the  same.  The
     respondent Insurance Company  have not adduced the rebuttal evidence in
     support of its pleaded case in its counter statement.  In  the  counter
     statement of the Insurance  Company,  it  is  pleaded  that  the  claim
     petition filed by the appellants  is a fabricated one in collusion with
     the driver  and  the  owner  of  the  offending  vehicle.   It  is  not
     forthcoming from the judgment of Tribunal that  the  Insurance  Company
     has filed the application under Section 170(b) of the M.V. Act  seeking
     permission from the Tribunal in the proceedings to  avail  the  defence
     available for the insured of  the  offending  vehicle  to  contest  the
     proceedings on merits. As could be seen from the record, the lawyer  of
     the Insurance Company  has  cross-examined  the  appellants'  witnesses
     before the Tribunal.
  6.  The Tribunal, on appreciation  of  pleadings  and  legal  evidence  on
     record, has answered the issue No.1, after adverting to  the  averments
     of the claim petition  and  evidence  on  record,  and  held  that  the
     appellants have not succeeded in proving that Tikaram died  because  of
     falling  from  the  tractor-trolley  which  was   driven   rashly   and
     negligently by the driver.  Issue No.2 was also answered  holding  that
     the appellants are not entitled for the compensation as claimed by them
     for the reason that the finding recorded on the issue No.1  is  in  the
     negative.
  7.   Aggrieved by the judgment and award of the Tribunal,  the  appellants
  filed an appeal before the High Court questioning the correctness  of  the
  findings recorded on the contentious  issue  Nos.1  &  2  contending  that
  rejection of the claim petition by it is not only erroneous  in  fact  but
  also suffers from error in law.  Therefore, they have approached the  High
  Court by filing an appeal for grant of just and reasonable compensation to
  them setting aside the judgment and award of the Tribunal.
  8.   The learned Judge of the High Court has not exercised  his  appellate
  jurisdiction by reappreciating the pleadings and evidence on record and he
  had mechanically concurred with the findings and reasons recorded  by  the
  Tribunal on the contentious issues  in  its  judgment  and  dismissed  the
  appeal by passing a cryptic order  without  adverting  to  the  pleadings,
  legal evidence and legal contentions urged on behalf of the parties.
  9.   The appellants are aggrieved  by  the  impugned  judgment  and  award
  passed by the High Court  and they have filed this appeal  urging  various
  tenable grounds.
       As per the Office Report dated 13th December, 2012, Notice was issued
  to all the respondents. M/s M.M. Kashyap and  Aftab  Ali  Khan,  Advocates
  have filed vakalatnama and memo of appearance on behalf of respondent Nos.
  1 and 3 respectively and also filed counter affidavits  on  their  behalf.
  Acknowledgement card duly signed by respondent No.2 has been received back
  in proof of the service of  notice  upon  him  but  no  one   has  entered
  appearance and filed vakalatnama or memo  of  appearance  on  his  behalf,
  therefore, it is reported that the service of notice on him is complete.
  10. This appeal was listed before this Court on 14.12.2012, when the Court
  was pleased to pass the following order:-
            “Send for the record of award dated 25.05.2000 passed by  Motor
        Accident Claims Tribunal, Tonk, Rajasthan in MACT Case No.7/1993.
            The Registry is directed to send requisition to  the  Presiding
        Officer of the Tribunal.  It is expected that the Presiding Officer
        will remit the record of the case without any delay.
            Put up after the receipt of the record.”




  11.  This appeal was listed before the Court  on  12th  August,  2013.  On
  behalf of the appellants we have heard Mr.Praveen  Kumar  Jain,  Advocate.
  None appeared on behalf of the respondents and this Court  granted  leave.
  Though  respondent  Nos.1  &  3  have  filed  their   counter   affidavits
  reiterating the averments made in the  counter  statement   filed  by  the
  Insurance Company before the Tribunal extracting certain portion from  the
  FIR and Statements of Evidence of AW-1 – the father of the deceased and AW-
  2 - the brother of the  deceased  and  placed  strong  reliance  upon  the
  definition of 'trailer' as defined under Section 2(46) of  the  M.V.  Act,
  and   that  the  trolley  of  the  tractor  is  not  registered  with  the
  registering Authority. The tractor with  trolley  can  be  used  only  for
  agricultural purposes but not for carrying passengers which  would  be  in
  contravention of the provisions of the M.V. Act and terms  and  conditions
  of the policy issued covering the Motor Vehicle Tracter. Therefore, it  is
  stated by the Insurance Company that  by  allowing  the  deceased  boy  to
  travel in the trolley of the tractor, the driver has violated the terms  &
  conditions of the insurance policy and law and it has also placed reliance
  upon the decision of this Court in National Insurance  Co.Ltd.  v.  Baljit
  Kaur[1], in support of its defence wherein this Court has  held  that  the
  passengers, who travel in the goods carriage and die in the  accident  are
  not entitled to get any compensation from the Insurance Company under  the
  policy.
  12. Respondent No.1 has filed counter  affidavit,  stating  the  following
  averments, the  relevant  paragraphs  are  extracted   hereunder  for  our
  perusal:-
            “2...That there is contradiction in statement  of  Kishan  Gopal
            AW1 and Babu AW2 as Babu stated that Tikaram deceased fell  down
            due to rash  and  negligent  driving  of  tractor  by  Lala  the
            Deponent herewith.  Whereas Kishan  Gopal  stated  that  Tikaram
            fell down due to rash and negligent driving of tractor by  which
            tractor got turned.


            3.    That deceased Tikaram was not studying in School and there
            is no possibility of earning Rs.2000/- per month.


            4. That as passenger cannot travel  in  tractor  and  death  was
            caused sitting in trolly which is not allowed.   The  petitioner
            cannot claim any compensation  for  the  negligence  of  Tikaram
            sitting in trolly.  Tractor can only be  used  for  agricultural
            purposes.


            5.  That driver had no valid licence.


           6.    That learned Tribunal in its award  rightly  gave  finding
           that there is contradiction in statement of Kishan Gopal AW1 and
           Babu AW2 as Kishan Gopal stated that his son died as his son was
           hit by Lala driving the tractor fast and  negligently.   Whereas
           Babu  stated  that  Lala  was   driving   tractor   rashly   and
           negligently because of which the tractor got turned down and  in
           the accident Tikaram died.  As per the contradictions  the  case
           was not proved by the petitioner before the  Tribunal.  Further,
           there are contradictions in the statement of witnesses and FIR.


           7. That the Insurance Company did not appear to prove  the  fact
           that Lala was    not   having valid licence to drive tractor.


           8.  That Insurance Company has to prove        that  driver  has
           not got valid licence.  The  finding    to this effect given  by
           learned     Tribunal is right.


              9.      That   petitioner   is   not    entitled    for    any
  compensation.


            10. That the above special leave petition                    may
  kindly be dismissed.”




  13.       The ground urged by the appellants in this appeal  is  that  the
  High Court has erred in concurring with the  finding of fact  recorded  by
  the Tribunal in its judgment on the contentious issue Nos.1  &  2.  It  is
  erroneous for the  reason  that  the  same  is  contrary  to   substantive
  evidence on record in favour of the appellants and no rebuttal evidence is
  adduced by the Insurance Company in the case to accept its  defence  pleas
  and record the finding  on the  contentious  issue  Nos.1  and  2  in  its
  favour. Further, it is urged that both the Tribunal  and  the  High  Court
  have not taken into consideration the relevant indisputed  fact  that  the
  criminal  case  is  registered  against  respondent  No.1-the  driver  and
  respondent no.2-the owner of the vehicle and  the  charge-sheet  is  filed
  against them. Both AW-1 and AW-2  adduced  evidence  before  the  Tribunal
  stating that the deceased son of  the  appellants  was  traveling  in  the
  trolley of the tractor,  it  was  turned  down  on  account  of  rash  and
  negligent driving of the offending vehicle by respondent No.1 and he  fell
  down from the trolley and the tractor  tyre  ran  over  the  body  and  he
  sustained grievous injuries and succumbed to  the  same.  Further,  it  is
  urged that in the absence of evidence of either the driver or the owner of
  the tractor and also in the absence of rebuttal evidence on behalf of  the
  Insurance Company in  support  of  its  pleadings,  the  finding  of  fact
  recorded by the Tribunal stating that the accident did not take  place  on
  account of rash and negligent driving of  the  offending  vehicle  by  the
  driver is erroneous, as it has failed to consider the evidence  on  record
  in a proper perspective in favour of the appellants. The finding  recorded
  by the Tribunal without appreciating the entire evidence of AW-1 and  AW-2
  on record, by picking  bits and piece of certain sentences  from  evidence
  of the witnesses and FIR Exh.1 and answered  the  contentious  issue  No.1
  against the appellants which approach of it is erroneous, which finding is
  erroneously  affirmed  by  the  High  Court,  mechanically   without   re-
  appreciating the evidence  and  assigning  valid  and  cogent  reasons  in
  support of its conclusion in concurring with the Tribunal. Further, it  is
  contended that the Tribunal has since answered the contentious issue  No.1
  holding that the death of Tikaram is not due to rash and negligent driving
  of the  tractor  by  its  driver  is  not  proved,  it  has  answered  the
  contentious issue No.2 stating that the question of awarding  compensation
  as claimed by the appellants does  not  arise  and  consequently,  it  has
  rejected the claim petition, which decision of it is not only  erroneouos,
  but, also suffers from error in law.  Therefore, the learned  counsel  for
  the appellants has requested this  Court  to  award  just  and  reasonable
  compensation in favour of the appellants by allowing this appeal.
  14.       On behalf of respondent Nos.1 and 3 counter affidavits have been
  filed but none appeared at the time of hearing. After hearing the  learned
  counsel for the appellants, this appeal was reserved for judgment.  On the
  basis of the factual and rival legal contentions urged on  behalf  of  the
  appellants, the following points are  framed  for  consideration  of  this
  Court:-
         I) Whether the findings of fact recorded on issue Nos.1 & 2  framed
         by the Tribunal, which finding is affirmed by the High Court in the
         impugned judgment is vitiated on account of erroneous reasoning?
         II) Whether the appellants are entitled for compensation, if so  to
         what amount?
         III) What award?

  15. The first  point  is  required  to  be  answered  in  favour  of  the
  appellants by assigning the following reasons:-
      The deceased son of the appellants died in an accident, while  he  was
  traveling in a trolley of the tractor bearing No.RJX-5532  on  19.07.1992,
  the trolley turned down on account of rash and negligent  driving  of  the
  tractor by the  driver-respondent  No.1.  In  this  regard,  the  FIR  was
  registered being FIR No.121/92 with the Uniara Police Station,  Tonk.   On
  the basis of the said FIR, the investigation was made by the Investigation
  Officer and charge-sheet No.81/92 was  filed  on  30.07.1992  against  the
  driver and the owner of the offending vehicle for the offences  punishable
  under Sections 279 and 304-A IPC  read  with  certain  provisions  of  the
  M.V.Act.   The FIR and the charge-sheet were produced in the  evidence  of
  the first appellant-the father of the deceased, who was examined as  AW-1.
  He has also produced and marked the site map (Ex.3),  action  taken  under
  Section 174 (Ex.4), Insurance cover note Ex.5, Mechanical inspection  Ex.6
  and post-mortem report Ex.7 as exhibits in the  evidence  to  substantiate
  the case of the appellants to show that accident took place on account  of
  rash and negligent driving of driver of the  tractor.   AW-2  -  Babu  s/o
  Kishan Gopal, r/o Bhat-Ka Nada, Tehsil  Uniara,  Dist.  Tonk,  who  is  an
  agriculturist by occupation, is examined on behalf of the appellants,  who
  has deposed before the Tribunal  and  he  has  stated  that  the  deceased
  Tikaram was traveling in the trolley of the tractor, which was  driven  by
  the first respondent in a high speed, rashly and negligently on account of
  which the vehicle got turned down and the tyre of tractor ran over Tikaram
  on account of which, he sustained grievous injuries and  succumbed to  the
  same. The  following  evidence  is   elicited  from  AW-2  in  his  cross-
  examination by the lawyer  of  the  Insurance  Company  to  the  following
  effect;
        “that at the time of accident he was carrying paddy and he  was  one
        field away from the place  of  accident  and  he  reached  there  by
        running.  Before him, several other persons also reached the site of
        the accident and he was examined by the  Investigating  Officer  and
        the same is accepted as true after understanding the same”.


                  AW-1, the father of the deceased boy has also spoken about
 the manner in which accident took place  and his son Tikaram died  and  had
 produced the documentary evidence referred to supra in justification of the
 case pleaded by the appellants.   In  his  evidence,  he  has  stated  that
 Tikaram was sitting in the trolley of  the  tractor  and  the  tractor  was
 driven by its driver rashly  and  negligently   on  account  of  which  the
 trolley turned down and his son sustained grievous injuries and died.   The
 suggestion put to AW-1 in  his  cross-examination  by  the  lawyer  of  the
 Insurance Company to the following effect
                 “this is correct that when accident took place  I  was  at
      home.  It is the incident of 5 p.m. when my son  had  gone  to  graze
      cattle.  My son was made to sit in the trolley by the tractor wala.”
 The lawyer of the Insurance Company has not challenged the evidence of AW-2
 that the deceased was traveling in the trolley of the tractor and  accident
 took place on  account  of  rash  and  negligent  driving  of  the  driver.
 Therefore, the fact of accident that took place on 19.07.1992 at 5.00  p.m.
 is not challenged by the lawyer of the Insurance  Company  at  all.   Apart
 from the said fact, no rebuttal evidence adduced by the  Insurance  Company
 before the Tribunal in the claim proceedings.  It  has  also  not  obtained
 permission from the Tribunal under  Section  170(b)  of  the  M.V.  Act  to
 contest the case on the defence of  the  insured  as  the  driver  and  the
 insured both remained ex-parte in the proceedings before the  Tribunal  and
 therefore, it could not have contested the case on merits as held  by  this
 Court in the case of National  Insurance  Company  vs.  Nicolletta  Rohtagi
 reported in 2002(7) SCC 456.  It is also not clear in the counter statement
 filed by the Insurance Company before the Tribunal that the claim  petition
 was filed by the appellants  on  account  of  collusion  between  them  and
 respondent  Nos.1  and  2,  the  driver  and  the  owner  of  the   vehicle
 respectively.
  16. In view of the aforesaid facts, the Tribunal  should  have  considered
  both oral and documentary evidence referred to supra and  appreciated  the
  same in the proper perspective and recorded the finding on the contentious
  issue No. 1 & 2 in the affirmative. But it has recorded the finding in the
  negative on the  above  issues  by  adverting  to  certain  statements  of
  evidence of AW-1 and referring to certain alleged discrepancies in the FIR
  without appreciating entire evidence of AW-1 and AW-2 on  record  properly
  and also not assigned valid reasons in not accepting their testimony.  The
  Tribunal should have taken into consideration the pleadings of the parties
  and legal evidence on record in its entirety and  held that  the  accident
  took place on 19.07.1992, due to which Tikaram sustained grievous injuries
  and succumbed to the same and the case was registered by the Uniara Police
  Station under Sections 279 and 304-A, IPC read with Sections 133  and  181
  of the M.V. Act against the first and second respondents. The registration
  of FIR and filing of the charge-sheet against respondent Nos.1 & 2 are not
  in dispute, therefore, the Tribunal should have no option  but  to  accept
  the entire evidence on record and recorded the finding on the  contentious
  issue Nos.1 and 2 in favour of the appellants.  Further,  it  should  have
  held that the deceased son died in the tractor accident, driven  by  first
  respondent  rashly  and  negligently,  but  it  has  answered  the   above
  contentious issue Nos. 1 & 2 in the negative and therefore, we have to set
  aside  the  said   erroneous  findings  as  the  Tribunal  has  failed  to
  appreciate the entire evidence  both  oral  and  documentary  properly  to
  answer the issue Nos.1 & 2 in the affirmative.  From the  perusal  of  the
  evidence elicited in the cross-examination of AW-1 – the father  and  AW-2
  who reached the spot immediately after  the  accident,  he  had  seen  the
  accident and  narrated  that  the  deceased  boy  had  sustained  grievous
  injuries in the accident and succumbed  to  the  same.   The  evidence  on
  record proved  that  the  deceased  sustained  grievous  injuries  in  the
  accident on account of which he died.  The  Insurance  Company  by  cross-
  examining the witness No. AW-2 has categorically admitted the accident, as
  its counsel had put the suggestion to him the relevant portion of which is
  extracted above, which portion of evidence clearly go to show that in  the
  accident the deceased died, but the Tribunal has failed to appreciate  the
  evidence of AW-2 and also the  documentary  evidence  referred  to  supra,
  while recording the finding of fact on the  contentious  issue  No.1.  The
  counter affidavit of respondent No.1 filed in these proceedings cannot  be
  relied upon by this Court at this stage as he did  not  choose  to  appear
  before the Tribunal, though he had filed statement of counter and  neither
  he nor the  Insurance  Company  adduced  rebuttal  evidence  by  obtaining
  permission from the Tribunal under Section 170(b) of M.V. Act to avail the
  defence of the insured respondent  No.2,  as  the  Insurance  Company  has
  limited defence as provided under Section 149(2) of the M.V. Act.  But  on
  the other hand, by reading the averments  from  the  paragraphs  extracted
  from the affidavit of respondent No.1, the driver would support  the  case
  of the appellants.
  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. v.
  State of Bihar & Ors.[2], 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. 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 v. Delhi Transport Corporation[3], 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 v. Susamma Thomas[4], 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 v. Association of Victims of Uphaar Tragedy[5], 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.


  19.  Accordingly, we pass the following order:


        I) The appeal is allowed and the impugned judgments and  awards  of
        both the Tribunal and High Court are set aside.
        II) The awarded amount of Rs.5,00,000/- with interest at  the  rate
        of 9% per annum should be paid to the appellants from the  date  of
        filing of the application till the date of payment.
        III)  We direct the Insurance Company to  issue  the  demand  draft
        drawn on any Nationalized Bank  by  apportioning  the  compensation
        amount equally with proportionate  interest  and  send  it  to  the
        appellants within six weeks from the date of receipt of a  copy  of
        this judgment.




                                ….........................................J.
                                                              [G.S. SINGHVI]








                                                        ...................J
                                                           [V. GOPALA GOWDA]




  New Delhi,
  August 26, 2013.
-----------------------
[1]   (2004) 2 SCC 1
[2]    (2001) 8 SCC 197
[3]    (2009) 6 SCC 121
[4]    (1994) 2 SCC 176
[5]    (2011) 14 SCC 481

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