Smt. Ramwati vs Subhash @ Pintu and Others

B.C. Kandpal, J.—This appeal u/s 173 of the Motor Vehicle Act has been filed by the appellant/claimant against the judgment and award dated 29.06.2007 passed by M.A.C.T./District Judge, Udham Singh Nagar in M.A.C.P. No. 70 of 2005, Smt. Ramwati v. Subhash @ Pintu and Ors. whereby the Tribunal awarded a sum of Rs. 82,000/- in favour of the claimant/appellant.

Brief facts of the case are that on 06.02.2005, son of the claimant/appellant - Anand was coming from Barber shop, when he reached near Hydel Sub-station, a tractor bearing registration No. UP14W/4902, which was being driven by its driver in a very rash and negligent manner, hit Anand from behind. In this accident, Anand sustained serious injuries and died on the spot. The claimant is the mother of the deceased. According to the claimant, her husband died three year prior and the deceased was 13 years of age. Therefore, she filed claim petition for a sum of Rs. 2,00,000/- before the Tribunal as compensation in lieu to the death of his child.

Thereafter, notices were issued against the opposite parties. In spite of sufficient service upon opposite party Nos. 1 to 5, they did not appear before the Tribunal concerned. Therefore, the case against them proceeded ex-parte.

New India Assurance Company Ltd./opposite party No. 6 contested the claim petition by filing written statement before the Tribunal alleging therein that the Insurance Company was not informed about the accident by the insured. It has further alleged that the driver of the tractor was also not having the valid and effective driving licence. Therefore, the claim petition was liable to be dismissed against the Insurer/New India Assurance Company Ltd.

On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in great detail. Both the parties led the evidence in support of their cases. After hearing learned Counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition against the appellant for a sum of Rs. 82,000/- in favour of the claimants as compensation vide judgment and award dated 29.06.2007.

Feeling aggrieved by the aforesaid judgment and award, the appellant/claimant preferred this appeal before this Court for enhancing the amount of compensation.

Heard Sri Partiroop Pandey, learned Counsel for the appellants, Sri Sudhir Kumar Chaudhary, learned Counsel for the respondent Nos. 1 to 5, Sri M.K. Goyal, learned Counsel for the respondent No. 6 and perused the record.

As far as the factum of accident is concerned, it is not disputed that the deceased died due to rash and negligent driving of the driver of tractor. The Tribunal on the basis of the material available on record as well as considering the evidence came to the conclusion that the accident took place due to rash and negligent driving of the truck No. UP14W/4902 and there is no dispute about this. I am in total agreement with the finding recorded by the Tribunal in this regard.

I have going through the impugned judgment and award, the Tribunal after considering the age of the deceased as well as facts and circumstances of the case and in order to calculate the amount of compensation awarded a sum of Rs. 80,000/- and further awarded a sum of Rs. 2,000/- towards funeral expenses. Thus the Tribunal in total awarded a sum of Rs. 82,000/- along with interest @ 7% per annum from the date of filing the claim petition.

Learned Counsel for the appellants has pressed this appeal only on the point of quantum. In order to support his argument, he has placed before me the decision of Hon''ble Apex Court New India Assurance Company Ltd. v. Satender Singh and Ors. reported in (2008) 1 SCC (Cri) 96 wherein it has been held that "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."

Therefore, keeping in view the above observations of the Hon''ble Apex Court, in case, if the notional income of the deceased is to be taken into consideration as Rs. 15,000/- per annum, then after deducting 1/3rd out of it, the annual dependency of the claimants comes to Rs. 10,000/- per annum. In the schedule given u/s 163A of Motor Vehicles Act a multiplier in the case of infant death is ''15'' and if the multiplier of ''15'' is adopted then the amount of compensation comes to Rs. 10,000 X 15 = 1,50,000/-. This Court in A.O. No. 256 of 2006 has also applied the above formula in order to calculate the amount of compensation where the age of the deceased was 11 years and the said formula is also applicable in the present case.

As the claimant is entitled for a sum of Rs. 1,50,000/- as compensation, therefore, the amount awarded by the Tribunal under other different head shall not be payable to the claimant.

In view of the above, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the claimant is entitled to get a sum of Rs. 1,50,000/- as compensation, instead of Rs. 82,000/- as has been awarded by the Tribunal. The amount so awarded shall be payable by the Insurance Company along with interest @ 7% per annum from the date of filing the claim petition till the date of actual payment.

For the reasons recorded above, the appeal is partly allowed. No order as to costs.