HDFC Ergo General Insurance Co. Ltd. and Others vs Gopal and Others

Pratap Krishna Lohra, J.—The genesis of these two cross-appeals is the impugned award dated 14th of October 2014, passed by the Motor Accident Claims Tribunal, Shahpura, District Bhilwara.

Appellants, in both the appeals, feeling dismayed with the impugned award, preferred these appeals under Section 173 of the Motor Vehicles Act, 1988 (for short, ''Act'') for seeking redressal of their respective grievances. Appellant-insurer in CMA No. 141/15 has shown its discontentment for the amount of compensation awarded by the learned Tribunal by categorizing the same as excessive besides assailing finding on other issues, whereas appellant-claimants in CMA No. 34/15 have ventilated their grievances against the impugned award seeking enhancement of the amount of compensation awarded by the learned Tribunal.

Succinctly stated, the facts of the case are that on fateful day of 21st of May 2009 at 11:30 AM, when son of claimants Omprakash, aged 11 years, was on his way from home towards a pond at village Baseda for taking bath, a tractor bearing No. RJ-06-RA-1039, coming from behind, hit him. The impact of the tractor on the person of Omprakash was so severe that the same caused grave and serious injuries on his head and other body parts, and ultimately he succumbed to the injuries. Attributing rash and negligent driving to the driver of the tractor for cause of accident, the claimants filed a claim petition before the learned Tribunal quantifying total amount of compensation as Rs. 16,51,000. In order to work out the said amount of compensation, claimants have pleaded that, at the time of death, deceased Omprakash was pursuing his studies and his untimely death has dashed their all hopes of a secured life during the evening phase of their life with the earnings of the deceased.

The claim is contested by owner and driver of the vehicle as well as by the insurer. The driver and owner of the vehicle in their return have completely repudiated the theory of rash and negligent driving of the insured vehicle and submitted that deceased himself was responsible for the occurrence of accident. The insurer, while refuting the age of the deceased, has pleaded in the return that as per autopsy report he was 9 years old only and consequently averred in the return that the amount of compensation claimed by the claimants is exorbitant for which they are not entitled. A specific plea is also raised in the reply that the driver of the insured vehicle was not having a valid driving licence and as such it is a case of violation of the terms of insurance policy and liability to pay compensation cannot be fastened on the insurer. The learned Tribunal, on consideration of the rival pleadings, settled four issues for determination.

On behalf of claimants, AW1 Mr. Gopal appeared in the witness box and authenticated the claim. To impeach the evidence of the claimants, neither any oral, nor documentary evidence is tendered by the non-claimants including the insurer.

The learned Tribunal on conclusion of the evidence of rival parties, decided Issue No. 1 relating to rash and negligent driving of the insured vehicle in favour of the claimants. For determining Issue No. 1 favouring the cause of the claimants, the learned Tribunal has relied upon the statements of AW1 Mr. Gopal, which remained unimpeached during the trial. The learned Tribunal also decided Issue No. 2 and 3 against the insurer and in favour of the claimants. Switching on to Issue No. 4 relating to quantum of compensation, the learned Tribunal, while considering the age of the deceased as 9 years, awarded lump sum amount of compensation to the tune of Rs. 3 lacs. For the mental agony and deprivation of love and affection of their child, the claimants were awarded compensation of Rs. 20,000 and an amount of Rs. 5,000 was awarded for funeral expenses, thus, quantifying total amount of compensation as Rs. 3,25,000.

I have heard learned counsel for the parties and perused the impugned award.

The case in hand depicts a gory tragedy in the family of claimants inasmuch as inapt handling of the insured vehicle has engulfed the life of their son Omprakash in a road accident when he was only 9 years old. It is trite that a driver owes a duty of care to pedestrians and that duty is of higher magnitude when the pedestrian happens to be a child of tender age. When a child is seen by the driver of a heavy vehicle, the psychology of child''s mind during that time should also be visualized by the driver. From the evidence available on record, it is amply clear that claimant, father of deceased, has deposed attributing negligence to the driver of the insured vehicle and his testimony remained uncontroverted. Even assuming it that father of the deceased was not an ocular witness, his testimony cannot be disbelieved/discarded in absence of any contrary evidence. A very vital fact that the driver of the insured vehicle, though contested the claim, has not chosen to appear in the witness box to dislodge the version of the claimants, has persuaded me to apply the doctrine of res ipsa loquitur for concluding that accident occurred due to rash and negligent driving of the insured vehicle. In these situations, I do not feel persuaded to interfere with the findings of the learned Tribunal on Issue No. 1. As regards Issue No. 2 and 3, the learned Tribunal has discussed the matter threadbare and, after considering many legal precedents of this Court as well as of Hon''ble Apex Court, has overturned the objections of the insurer, which is a just finding requiring no interference.

Adverting to the amount of compensation awarded by the learned Tribunal, there is a tug of war between the rival fractions for reducing the amount of compensation, or for enhancing the amount of compensation. Learned counsel for the insurer, Mr. Jagdish Vyas, has placed reliance on a decision of the learned Single Judge of this Court in Malti (Smt.) and Ors. v. M.K. Vasu and Ors. [2008 RAR 386 (Raj.)] and a decision of Hon''ble Apex Court in Reshma Kumari and Others Vs. Madan Mohan and Another, . On the contrary, learned counsel for the claimants, Mr. Manish Pitaliya, has placed reliance on a decision of Hon''ble Apex Court in Kishan Gopal and Another Vs. Lala and Others, and a decision of learned Single Judge of this Court in case of United India Insurance Co. Ltd. v. Naveen and Ors. [2014(1) ACTC (Raj.) 310].

Upon consideration of the legal precedents, on which the learned counsel for the parties have placed reliance, in the backdrop of facts and circumstances of the instant case, the prime duty of this Court is to see what would be just compensation under Section 166 of the Act. In Kishan Gopal and Anr. (supra), Hon''ble Apex Court, in case of death of a child aged 10 years, has applied multiplier of 15 while considering the age of mother as 36 years and found that Rs. 5 lacs would be fair, just and reasonable compensation. In United India Insurance Co. Ltd. (supra), following the verdict in case of Kishan Gopal and Anr., the learned Single Judge of this Court also awarded Rs. 5 lacs in case of death of a child aged 10 years. The case of Malti (Smt.) and Ors. (supra), on which learned counsel for the insurer has relied, cannot help the cause of the insurer in view of changed scenario. In its latest verdict, Hon''ble Apex Court in Reshma Kumari (supra), while considering the age of the deceased upto 15 years, approved multiplier of 15 as per Second Schedule of the Act subject to correction as pointed out in column (6) of the table in Sarla Verma''s case irrespective of claim under Section 166 or 163A of the Act. The Court held:

If the multiplier as indicated in Column (4) of the Table read with para 42 of the Report in Sarla Verma is followed, the wide variations in the selection of multiplier in the claims of compensation in fatal accident cases can be avoided. A standard method for selection of multiplier is surely better than a criss-cross of varying methods. It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma for the selection of multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. If for the selection of multiplier, Column (4) of the Table in Sarla Verma is followed, there is no likelihood of the claimants who have chosen to apply under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply under Section 163-A. As regards the cases where the age of the victim happens to be up to 15 years, we are of the considered opinion that in such cases irrespective of Section 163-A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed. This is to ensure that the claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166, the multiplier as indicated in Column (4) of the Table in Sarla Verma should be followed.

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43.1. In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the Table prepared in Sarla Verma read with para 42 of that judgment.

43.2. In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed.

43.3. As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act."

In that background, the amount of compensation determined by the learned Tribunal in the instant case appears to be just and reasonable, and therefore, I am not persuaded to interfere with the impugned award in Appeal No. 141/15 preferred by the insurer.

The appeal laid by the claimants is based on ocular evidence of a solitary witness, the first claimant, without placing on record any material to show academic profile of the deceased and other antecedents to highlight his mental aptitude, has made me to believe that the amount of compensation quantified by the learned Tribunal is not liable to be enhanced. In totality, the learned Tribunal has determined a fair, reasonable and equitable compensation by accepting legal standards and not forensic lottery. Obviously, ''just compensation'' does not mean ''perfect'' or ''absolute'' compensation. Therefore, in appeal preferred by the claimants also no interference is warranted.

Resultantly, both these appeals fail and are hereby dismissed.