Nati and Another vs Babu Lal and Another

Manak Mohta, J.—The present appeal has been filed by the claimants-appellants against the judgment and award dated 7.4.2007 passed by learned Judge, Motor Accidents Claims Tribunal, Jodhpur (in short ''the Tribunal'') in Claim Case No. 35 of 2007 whereby the learned Tribunal has awarded a sum of Rs. 1,80,000 as compensation in favour of claimants-appellants and the said amount has been ordered to be payable jointly and severally by the respondents along with interest at the rate of 6 per cent per annum from the date of filing of the claim petition, i.e., 2.1.2007.

Briefly stated the facts relevant for the disposal of the appeal are that in the morning of 26.11.2006, Jitendra Kumar alias Jitu was going from Sursagar to Kailana to meet his relatives. Jitendra was travelling in city bus bearing No. RJ 19-P 3657 after paying the regular fare. The city bus was being driven by Babu Lal, non-claimant No. 1-respondent No. 1. When the bus reached near the Kailana circle at about 10-10.15 a.m., Jitendra (deceased) asked the conductor of the bus to stop the bus. The driver of the bus stopped the bus at the circle itself and as soon as he stepped down one foot from the bus, the driver started the bus as a result thereof Jitendra fell down and the rear wheel of the bus hit over his head causing grievous injury to him. He was admitted in Mahatma Gandhi Hospital, Jodhpur where he succumbed to his injuries. It was stated in the claim petition that Jitendra Kumar was of 14 years and he was studying at the time of accident, he was having a bright future, he would have earned more income of becoming a doctor or executive officer in future and in ensuing years he would have been a prospective bread-earner of the family if he had not died in accident. Due to his untimely death in accident, the claimants suffered monetary loss as well as suffered mental shock.

A claim petition u/s 163-A of the Motor Vehicles Act was filed by parents of the deceased before the learned Motor Accidents Claims Tribunal, Jodhpur against the driver-cum-registered owner, respondent No. 1 and the insurer, respondent No. 2 of the offending city bus and a total amount of Rs. 4,07,500 was claimed as compensation on different heads. It was prayed that reasonable compensation may be awarded and respondents may be held responsible jointly and severally to make payment for the same.

After issuance of notice of the claim petition, the driver-cum-registered owner of the offending bus, the respondent No. 1, appeared and submitted his reply and denied the averments made in the claim petition but admitted the fact of the occurrence of accident and further stated that he cannot be held responsible for causing the accident. It was also stated that the said bus was insured with respondent No. 2 at the time of accident, therefore, in case situation arises for the payment of compensation, then insurance company is responsible for the same. It was prayed to dismiss the claim petition against him.

The insurance company, respondent No. 2, also submitted its reply denying the averments made in the claim petition but admitted the factum of the city bus being insured with them, however, in reply further stated that the accident occurred due to negligence of Jitendra (deceased) as he stepped down from the running bus, as a result of which he fell down. Further, it also took the stand that the driver of the said vehicle was not having a valid and effective driving licence. It was submitted that insurance company cannot be made liable for the compensation and prayed to dismiss the claim petition.

On the basis of pleadings of parties, the learned Tribunal framed the relevant issues.

During trial, statement of claimant Ramchandra was recorded as AW 1 and certain documents, Exhs. 1 to 10, were got exhibited. No evidence was led in defence by the respondents.

The learned Tribunal at the conclusion of trial held that the accident was caused by the concerned bus being driven by respondent No. 1 in which Jitendra lost his life out of use of the said motor vehicle. The learned Tribunal also overruled the other defences taken by the insurance company and it was found that the said vehicle was insured with respondent No. 2. Thus, it was held that the claimants were entitled to receive compensation from the respondents u/s 163-A of Motor Vehicles Act and vide its judgment and award dated 7.4.2007 awarded a lump sum amount of Rs. 1,80,000 as compensation in favour of the claimants plus interest at the rate of 6 per cent per annum from the date of filing of claim petition, i.e., 2.1.2007 till the date of realisation against both respondents as stated above. Being aggrieved and dissatisfied with the quantum of compensation awarded by learned Tribunal, this appeal has been preferred by claimants for enhancement of compensation amount. Notice of this appeal was given to the respondents and arguments were heard.

During the course of arguments, the learned Counsel for appellants submitted that the learned Tribunal has not properly considered and appreciated the material available on record, while awarding compensation. It was contended that it was well proved on record that the deceased was a young boy of 14 years and he was studying. It was expected that he would have become a breadwinner, if he had not died in accident and the claimants would have been benefited by his income. But due to untimely death, the claimants have suffered a loss. It was also contended that in case of non-earning members of like age, the Hon''ble Supreme Court and the High Courts have granted in various judgments a lump sum amount of Rs. 2,25,000 as the compensation. Special reference was given with regard to judgment given in Manju Devi v. Musafir Paswan 2005 ACJ 99 (SC). In that case, the age of the deceased was 13 years and the Supreme Court has granted Rs. 2,25,000 as compensation. It was also contended that in a recent case, this Court has laid down the criterion for awarding compensation according to age. Reference was made to judgment given in Malti v. M.K. Vasu 2008 WLC (1) (Raj) 589. It was submitted that in case of age between 10 and 15 years of the deceased, a lump sum award of Rs. 2,25,000 has been awarded. Learned Counsel for the applicant also cited other judgments given in Leela Devi v. Sohanlal ACTC 2007 (2) 886 ; Kamlesh and Others Vs. R.S.R.T.C. and Others, and National Insurance Co. Ltd. v. Bhit Singh ACTC 2001, 215. It was also urged that the learned Tribunal has awarded 6 per cent per annum interest, without asserting any cause. Thus, interest be awarded at 12 per cent per annum on total compensation amount from the date of filing of claim application. On these submissions prayer was made to allow the appeal and it was prayed that the compensation awarded by the Claims Tribunal may be modified and enhanced with interest.

On the other hand, learned Counsel for the respondents, refuted the contentions and it was stated that in this case, the age of the deceased was not proved. In spite of that the Tribunal has granted reasonable compensation of Rs. 1,80,000, now there is no scope of further enhancement and prayed to dismiss the appeal.

I have considered the rival contentions and perused the finding and the conclusion drawn thereon. The main question for consideration which arises in appeal is whether the awarded compensation is not just and adequate and it requires enhancement? I have perused the statement of the claimant. It has been established that the age of the deceased was 14 years at the time of accident and he was studying in 7th class. There was no rebuttal from the respondents side. The statement of father cannot be disbelieved. Thus, the contentions of respondents are not sustainable. Though it has been stated that along with study he was also earning, but the earnings were not found proved. But even in the case of non-earning persons of like age, Hon''ble Supreme Court and High Courts have awarded compensation while considering the notional income of the deceased. In this case also deceased was studying in the 7th class and his future was bright, he would have been a good earner. Thus, the claimants have been deprived from the income of the deceased. Considering his age they were entitled to receive compensation of Rs. 2,25,000. This Court has awarded Rs. 2,25,000 as compensation in case deceased was of like age. Learned Tribunal has relied, while determining the compensation on the decision of the Apex Court in New India Assurance Co. Ltd. Vs. Satender and Others, But that was a case where compensation was to be awarded u/s 166 of Motor Vehicles Act and in that case the age of deceased was 9 years only. Considering the facts, compensation was awarded but that is not the position in the present case. Here in this case the claim has been filed u/s 163-A of the Motor Vehicles Act and the age of the deceased was found to be 14 years. Therefore, the said judgment was not applicable. Thus, the conclusion drawn by the learned Tribunal is not sustainable. It is a fit case, where the awarded compensation of Rs. 1,80,000 be enhanced to Rs. 2,25,000, the conclusion also finds support by the above-mentioned judgments. The learned Tribunal further has awarded 6 per cent per annum interest, that is on lower side and without giving any cause that is not tenable. Claimants are entitled to receive 7.5 per cent per annum interest on the total compensation amount.

It is also well established that the vehicle was insured with the insurance company. Thus, the owner and the insurer are jointly and severally held responsible to pay the enhanced amount of compensation along with interest at the rate of 7.5 per cent per annum on total compensation amount from the date of filing of the application.

On the basis of aforesaid discussion, the appeal is partly allowed and the judgment and award is modified to this extent that awarded compensation of Rs. 1,80,000 is enhanced to Rs. 2,25,000. Further the claimant will also get interest at the rate of 7.5 per cent per annum from the date of filing of the petition. Both the respondents are held jointly and severally responsible for the payment of same. As the vehicle is insured, therefore, the insurance company is directed to make payment within two months from the date of the order, failing which claimant will be entitled to recover the same as per law.

Considering the facts of the case, cost of the appeal made easy.