Raj Kumar Upadhyay and Another vs Krishnanand Bhatt and Others

B.C. Kandpal, J.—This appeal, u/s 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 13-9-2006, passed by M.A.C.T./District Judge, U.S. Nagar, in MACT Case No. 109/2005.

Brief facts of the case are that on 19-4-2005 at 12.40 P.M. when deceased-Km. Pooja was going to her house from Railway Primary School, Lalkuan, Nainital, all of a sudden near Mishra Govt. Fair Price Shop, Tractor No. U.A. 04B-5306 came there at a high speed and dashed Km. Pooja due to which she sustained grievous injuries and just while reaching at Base Hospital she succumbed to injuries. The deceased at the time of accident was 11 years of age. The claimant filed petition for award of compensation of Rs. 10,00,000/-.

The Opposite Party No. 1/ owner of the offending truck filed written statement and alleged that the tractor was insured with New India Assurance Company and its driver had valid driving license. Therefore, the insurance company is liable to pay compensation, if any.

The Opposite Party No. 2/ New India Assurance Company also contested the petition by filing its written statement and alleged that the driver of the tractor was not having valid driving license and the said tractor was insured only for agricultural work. It has further alleged that the information of the accident was not given to the insurance company and on these grounds the insurer cannot be held liable to pay compensation.

On the pleadings of parties, the learned Tribunal framed issues in the petition. Thereafter, parties adduced evidence in support of their cases. The Tribunal after hearing learned Counsel for the parties and considering the evidence on record, came to the conclusion that the tractor in question was having valid documents and its driver had valid driving license and awarded a sum of Rs. 52,000/- as compensation along with interest @ 5% per annum from the date of petition till the date of actual payment payable by New India Assurance Company.

Feeling aggrieved the claimants have preferred this appeal for enhancement of the compensation.

Heard learned Counsel for the parties and perused the record.

Learned Counsel for the claimants/appellants has submitted that the Tribunal has awarded a meager amount of compensation. In support of his submission he has invited my attention towards the decision of Hobn''ble Apex Court in the matter of New India Assurance Company Ltd. v. Satender Singh and Ors. reported in (2008) 1 SCC (Cri) 96.

The Hon''ble Apex Court in the above cited case, has held as under:

In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.

The Hon''ble Apex Court in the above cited case applying the principles indicated in the matter of State of Haryana and Another Vs. Jasbir Kaur and Others, , has awarded a sum of Rs. 1,80,000/- for the death of a child of 9 years of age. Perusal of record reveals that in the instant case the deceased Km. Pooja, at the time of accident, was 11 years of age. Therefore, keeping in view the above observation of the Hon''ble Apex Court, and the age of the deceased, I am of the view that the learned Tribunal has awarded a meager amount of compensation for the death of the deceased and the claimants should be awarded a sum of Rs. 1,50,000/- as compensation.

The Tribunal has awarded interest @ 5% per annum which is on lesser side and in my opinion the claimants are entitled to an interest @ 7.5% per annum on the above amount of compensation.

Accordingly, the appeal is allowed. The claimant is awarded a sum of Rs. 1,50,000/- as compensation payable by the New India Assurance Company Ltd., instead of Rs. 52,000/-, as has been awarded by the Tribunal. The claimants shall also be entitled to get interest @ 7.5% per annum on the above amount of compensation from the date of presentation of petition till the date of actual payment, instead of @ 5% per annum awarded by the Tribunal. The impugned judgment and award dated 13-9-2006 stands modified accordingly.