High Court · 2010

Judgment

M.A.C.M.A.No. 2988 of 2007 has been filed by the claimants seeking enhancement of the compensation awarded by the XXII Additional Chief Judge-cum-The Motor Accidents Claims Tribunal, City Criminal Courts, Hyderabad, in O.P.No. 1239 of 2006 by his Award dated 10.09.2007, whereas M.A.C.M.A.No. 61 of 2008 has

been preferred by the insurance company aggrieved by the decision of the Tribunal in awarding the compensation. The brief facts, which led to filing these two appeals, are given below: The claimants filed O.P.No. 1239 of 2006 on the file of the Tribunal, under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.3,00,000/- for the death of their son Thara Singh (hereinafter referred to as ‘the deceased’) in an accident that took place on 03.02.2006, when Sri K. Ram Singh and the deceased was proceeding on a scooter bearing No. AP 13V 4472, one Toyota Qualis bearing No. AP 11W 6932 came in a rash and negligent manner and dashed against the said scooter, as a result, they both sustained injuries and the deceased succumbed to the injuries on the way to Osmania General Hospital. At the time of accident, the deceased was studying II Class and he was aged about 7 years. Respondent No.1, the owner of the offending vehicle remained absent and was set ex parte. Respondent No.2, the insurance Company, filed a counter- affidavit contending that the driver of the vehicle had no valid driving licence and that the accident did not occur in the manner in which the claimants had narrated it and thus, prayed for dismissal of the O.P. Based on the pleadings of the parties, the Tribunal framed the following issues for trial. (1) Whether the accident took place on 03.02.2006 at about 17.30 hours due to rash and negligent driving of Toyota Qualis bearing No. AP 133V 4472 by its driver? (2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? (3) To what relief? During trial, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked. On behalf of Respondent No.2, Ex.B1 policy was marked with consent. P.W.1, who is the father of the deceased, was not an eye witness to the accident. P.W.2 is an eye witness. He deposed that on

03.02.2006, he was proceeding on his scooter from Balanagar to Uthkunta Thanda, at about 05.30 p.m., when they reached in front of Bhavani temple at that time one Toyota Qualis bearing No. AP 11W 6932 proceeding towards Jadcherla side dashed the scooter and the deceased succumbed to the injuries on the way to Osmania General Hospital, Hyderabad. According to him, the accident occurred due to rash and negligent driving of Toyota Qualis bearing No. AP 11W 6932 by its driver. During the course of cross-examination, it was brought on record that in total three persons were going on the scooter. Though the plea of contributory negligence was taken by the learned counsel appearing for the Insurance Company, the Tribunal, in the absence of any material in that regard, rejected the said plea and held that the accident took place due to rash and negligent driving of the driver of the Toyota Qualis. With regard to the compensation, the Tribunal held that Respondents 1 and 2, being the owner and insurer of the offending vehicle, are liable to pay compensation, as the accident occurred during the currency of Ex.B1 policy. Since the deceased in this case was a non-earning member, the Tribunal, relying on the decision reported in New India Assurance Company Limited v. Satender (2007 ACJ 160) held that the claimants are liable to receive compensation of Rs.1,80,000/- for the death of their son, with interest at 6% per annum from the date of filing the petition till the date of depositing the same into the Court. Learned counsel for the appellants-claimants in M.A.C.M.A.No. 2988 of 2007 contends that the Tribunal ought to have relied upon the decision reported in Manju Devi v. Musafir Paswan[1], wherein while dealing with the death of a boy aged about 13 years, the Supreme Court awarded compensation of Rs.2,25,000/-. He further contends that the compensation awarded by the Tribunal at Rs.1,80,000/- is a meager amount. On the other hand, the learned Standing Counsel for the Insurance company-appellant in M.A.C.M.A.No. 61 of 2008 contends that the Tribunal ought to have dismissed the claim petition for non- joinder of owner and insurer of the scooter bearing No. AP 13V 4472 as parties to the claim. According to him, at the time of accident, three persons were travelling on the scooter which itself is in violation of the terms and conditions of the insurance policy. Insofar as M.A.C.M.A.No. 61 of 2008 filed by the Insurance company is concerned, when a minor child is travelling with his/her parents or relatives, it cannot be presumed to be a triple riding. In the circumstances, the appeal is liable to be dismissed. Insofar as M.A.C.M.A.No. 2988 of 2007 is concerned, admittedly, the age of the deceased at the time of accident was 7 years and though the deceased was a non-earning member, as per Schedule-II of Section 163 of the Act, the Tribunal has rightly taken the notional income of the deceased as Rs.15,000/- and applied the multiplier for the age of 7 years as ‘15’. The Supreme Court in Manju Devi v. Musafir Paswan (cited supra) also took the notional income for a non-earning person at Rs.15,000/- per annum and adopted multiplier of ‘15’ and awarded Rs.2,25,000/- as compensation. Therefore, following the same, in this case also, the loss of dependency was assessed as Rs.2,25,000/- (Rs. 15,000/- x 15). Therefore, the compensation awarded by the Tribunal is enhanced from Rs.1,80,000/- to Rs. 2,25,000/- . The enhanced amount of compensation shall carry interest at 7% per annum from the date of petition till the date of realization. ___________________________ GHULAM MOHAMMED, J. 30th December 2010 [1] 2005 ACJ 99