Arshdeep Kaur and Another vs Jaspal Singh and Others

Vijender Singh Malik, J.—This is an appeal brought by the claimant Arshdeep Kaur through her father Balram Singh, with Balram Singh as her co-appellant, challenging the award dated 24.4.2010 passed by the Motor Accidents Claims Tribunal, Faridkot (for short, ''the Tribunal'') vide which an amount of Rs. 7,25,000 was assessed as compensation in favour of the appellant but awarded half of it as she was also held negligent as her grandfather, with whom she was crossing the road, failed to take necessary precautions and safety measures while making the child cross the road. Though this appeal has been brought challenging this aspect as also for enhancement of compensation, learned counsel for the appellants has pressed for the relief to the extent that the findings of contributory negligence should be reversed and the entire amount awarded as compensation should be allowed to claimant-appellant, Arshdeep Kaur. The case as set up by the claimant is as under:

On 25.9.2008, Arshdeep Kaur, a minor girl aged about 6/7 years, was coming from her school at about 12.30 p.m. in the day along with her grandfather, Nachhattar Singh. When they were opposite the floor mill of Chinder Singh in the area of village Sandhwan, they were walking on the berm of the road and while the children were crossing the road, a truck bearing registration No. RJ 19-1G 0434 came there. It was driven in a rash and negligent manner by Jaspal Singh, respondent No. 1, and had hit Arshdeep Kaur and crossed over her left foot. After first aid, she was referred to GGS Medical College & Hospital, Faridkot where she remained admitted from 25.9.2008 to 31.10.2008. Her left leg had to be amputated there. The matter was reported to the police on 29.9.2008 on which, a case bearing F.I.R. No. 181 was registered at Police Station Sadar, Kotkapura for an offence punishable under sections 279, 337 and 338, Indian Penal Code. A sum of Rs. 15,00,000 was claimed as compensation.

Jaspal Singh, who is both respondent No. 1 and respondent No. 2, has filed the written statement denying the accident. He has also denied the claimant to have suffered any injury. The averments of the claimant in the petition have been termed as false.

Respondent No. 3, the insurer, has denied the maintainability of the claim petition. It has been claimed that the claim petition is vague and incomplete. The averments of the claimants in the petition have been denied in reply on merits. The F.I.R. is claimed to be false and frivolous. The involvement of the truck in question is denied.

On the pleadings of the parties, the following issues were framed by learned Tribunal:

(1) Whether on 25.9.2008, at 12.30 p.m. in the area of village Sandhwan, the claimant Arshdeep Kaur, daughter of Balram Singh, had suffered injuries on account of her accident with the offending truck being driven by respondent No. 1 rashly and negligently? OPP

(2) Whether the claimant-injured is entitled to the grant of compensation as prayed for; if so, to what amount and against whom? OPP

(3) Whether the respondent No. 1 was not holding a valid and effective driving licence at the time of the alleged accident; if so, its effect? OPR (3)

(4) Relief.

Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal has held the accident to have been an outcome of rash and negligent driving of the truck. However, it has reached the conclusion that the accident is an outcome of contributory negligence of the driver of the truck as well as the claimant, as her grandfather failed to take necessary precautions and observe safety measures while making the child cross the road. The learned Tribunal assessed the compensation in a sum of Rs. 7,25,000 but awarded half of it, i.e., Rs. 3,62,500 on account of the aforesaid finding on the negligence aspect.

Aggrieved by the aforesaid finding on negligence and withholding of half of the amount of compensation, the claimant has brought this appeal.

I have heard Mr. Binderjit Singh, the learned counsel for the appellant, Ms. Kamal Bir Gill, learned counsel for the respondent Nos. 1 to 2, and Ms. Vandana Malhotra, learned counsel for respondent No. 3, insurance company. I have gone through the record carefully.

As I have already mentioned, learned counsel for the appellant has pressed this appeal qua the deduction of half of the amount assessed as compensation by the Tribunal for its finding on the question of negligence. Learned counsel for appellant has nothing to say on the quantum of compensation assessed in a sum of Rs. 7,25,000. He has submitted that the negligence is found by the Tribunal to be of Nachhattar Singh, the grandfather of the child, who was with her at the time of accident. He has submitted that the learned Tribunal has concluded that the grandfather of the child failed to take necessary precautions and safety measures while making the child cross the road. He has submitted that if the grandfather of the child had not been there with the child, the finding would have been otherwise. He has submitted that the Tribunal has fallen in gross error in coming to this conclusion. He has submitted that negligence, if any, on the part of Nachhattar Singh could not amount to contributory negligence on the part of child for which the amount found as just compensation could be reduced to half.

Learned counsel for respondent No. 3 has submitted, on the other hand, that the learned Tribunal has rightly found the child to be guilty of contributory negligence. According to her, the statement of Nachhattar Singh in his cross-examination makes the picture very clear. She has stated that Nachhattar Singh appearing as AW 1 has admitted that he was bringing the claimant back at around 12.30 noon. According to her, the statement of Nachhattar Singh further reads that he was on the side of the road towards the school and truck was coming from the side of Kotkapura and was going towards Faridkot. She has submitted that as per his version, the truck had hit the child while the child was crossing the road. She has submitted that if Nachhattar Singh was there with the child, he should have observed the rules of traffic and should not have allowed the child to cross the road at the time when a truck was coming there from the side of Kotkapura. She has submitted that this statement itself is sufficient to conclude that Nachhattar Singh was negligent in allowing the child to cross the road without looking to the traffic on the road.

The facts of the case make it clear that the site of accident is by the side of the school. The school appears to be there abutting the road on which the accident took place. The school and the site of accident is inside the village abadi. When some vehicle approaches abadi of a village and crosses the same, the driver of the vehicle should be extra careful in driving the vehicle because in villages, children come to the road while playing. The amount of care and caution required on the part of Jaspal Singh in driving the truck in question through abadi of the village was not observed by him and the case clearly appears to be of negligence of Jaspal Singh in driving his truck at the time of accident.

It is also a fact that only Arshdeep Kaur was involved in the accident and Nachhattar Singh was not hit by the truck as stated by PW 1. He was still by the side of the school when Arshdeep Kaur started crossing the road and was hit by the truck. Nachhattar Singh cannot be said to have told Arshdeep Kaur to cross the road while himself remaining on the side of the road towards the school. Children are by nature very active and they go to their homes from the school running and leaping. The amount of caution required from a grown up person while crossing the road cannot be expected from a child of the age of 6 1/2 years. The child cannot be held to have been negligent in any degree on account of violation of any traffic rule by Nachhattar Singh. Therefore, the finding of learned Tribunal on the aspect of negligence cannot be sustained. The accident is, therefore, held to be an outcome of rash and negligent driving of truck bearing No. RJ 19-1G 0434 driven by Jaspal Singh, respondent No. 1. Consequently, no cut could be imposed in the amount found as compensation on account of the injuries suffered by the appellant. The appeal is, therefore, allowed and the appellant is held entitled to the amount of Rs. 7,25,000 as compensation instead of Rs. 3,62,500 with the interest as allowed by the Tribunal.