Illiyas Khan & Anr. v. Wasif Khan & Ors.

Judgment

1. appeal has been filed by the claimants seeking enhancement Present appeal has been filed by the claimants seeking enhancement appeal has been filed by the claimants seeking enhancement Present awarded by the learned Motor Accident Claims of compensation of Rs.6,45,000/- awarded by the learned Motor Accident Claims awarded by the learned Motor Accident Claims of compensation of Rs.6,45, Tribunal, Nuh (hereinafter referred to as “the learned Tribunal”) vide Award dated Tribunal, Nuh (hereinafter referred to as “the learned Tribunal”) vide Award dated Tribunal, Nuh (hereinafter referred to as “the learned Tribunal”) vide Award dated Tribunal, Nuh (hereinafter referred to as “the learned Tribunal”) vide Award dated

09.01.2019 passed in MACT Claim Petition No.629 dated 19.04.2016 filed under 09.01.2019 passed in MACT Claim Petition No.629 dated 19.04.2016 filed under 09.01.2019 passed in MACT Claim Petition No.629 dated 19.04.2016 filed under 09.01.2019 passed in MACT Claim Petition No.629 dated 19.04.2016 filed under t, (hereinafter referred to as “the Section 166 and 140 of the Motor Vehicles Act, (hereinafter referred to as “the Section 166 and 140 of the Motor Vehicles Ac Section 166 and 140 of the Motor Vehicles Ac 2019 (O&M) FAO-6025-2019 (O&M) -2- ; 50% was deducted Out of total awarded compensation of Rs.6,45,000/-; 50% was deducted Out of total awarded compensation of Rs.6,45,000/ Act”). Out of total awarded compensation of Rs.6,45,000/ towards contributory negligence, thereby granting compensation of Rs.3,22,500/- towards contributory negligence, thereby granting compensation of Rs.3,22,500/ towards contributory negligence, thereby granting compensation of Rs.3,22,500/ towards contributory negligence, thereby granting compensation of Rs.3,22,500/ to the appellants. The two claimants are the 39 to the appellants. The two claimants are the 39-year-old father and 35-year- -old mother of the deceased Mohd. Sajid, who was about 06 years and 03 months old at mother of the deceased Mohd. Sajid, who was about 06 years and 03 months old at mother of the deceased Mohd. Sajid, who was about 06 years and 03 months old at mother of the deceased Mohd. Sajid, who was about 06 years and 03 months old at the time of accident. the time of accident.

Brief facts of the case are that the learned Tribunal upon appraisal of Brief facts of the case are that the learned Tribunal upon appraisal of Brief facts of the case are that the learned Tribunal upon appraisal of Brief facts of the case are that the learned Tribunal upon appraisal of it had concluded the pleadings and oral and documentary evidence adduced before it had concluded the pleadings and oral and documentary evidence adduced before the pleadings and oral and documentary evidence adduced before that deceased Mohd. Sajid had died due to injuries suffered by him in a motor that deceased Mohd. Sajid had died due to injuries suffered by him in a motor that deceased Mohd. Sajid had died due to injuries suffered by him in a motor that deceased Mohd. Sajid had died due to injuries suffered by him in a motor vehicular accident that took place on 26.03.2016 due to rash and negligence vehicular accident that took place on 26.03.2016 due to rash and negligence vehicular accident that took place on 26.03.2016 due to rash and negligence vehicular accident that took place on 26.03.2016 due to rash and negligence driving of driving of driving of 5959 (hereinafter ‘the tanker bearing registration No.RJ-20GB-5959 (hereinafter ‘the tanker bearing registration No.RJ tanker bearing registration No.RJ ehicle’) being driven by respondent No.1; owned by respondent No.2; offending vehicle’) being driven by respondent No.1; owned by respondent No.2; ehicle’) being driven by respondent No.1; owned by respondent No.2; ehicle’) being driven by respondent No.1; owned by respondent No.2; and insured by responding No.3. The above compensation has been awarded along and insured by responding No.3. The above compensation has been awarded along and insured by responding No.3. The above compensation has been awarded along and insured by responding No.3. The above compensation has been awarded along with interest @ of 7% p.a. Liability to pay the compensation amount was affixed with interest @ of 7% p.a. Liability to pay the compensation amount was affixed with interest @ of 7% p.a. Liability to pay the compensation amount was affixed with interest @ of 7% p.a. Liability to pay the compensation amount was affixed e Company. Furthermore, Tribunal has held that the upon respondent No.3/Insurance Company. Furthermore, Tribunal has held that the e Company. Furthermore, Tribunal has held that the upon respondent No.3/Insuranc deceased is liable to reduction of 50% compensation towards contributory deceased is liable to reduction of 50% compensation towards contributory deceased is liable to reduction of 50% compensation towards contributory deceased is liable to reduction of 50% compensation towards contributory negligence as the accident had taken place when the deceased child was crossing negligence as the accident had taken place when the deceased child was crossing negligence as the accident had taken place when the deceased child was crossing negligence as the accident had taken place when the deceased child was crossing the Road.

3. s that the learned Tribunal was in Ld. counsel for the appellants submits that the learned Tribunal was in Ld. counsel for the appellants submit Ld. counsel for the appellants submit error in making a deduction of 50% towards contributory negligence without any error in making a deduction of 50% towards contributory negligence without any error in making a deduction of 50% towards contributory negligence without any error in making a deduction of 50% towards contributory negligence without any pleading or any evidence to this effect. It is submitted that even no issue was pleading or any evidence to this effect. It is submitted that even no issue was pleading or any evidence to this effect. It is submitted that even no issue was pleading or any evidence to this effect. It is submitted that even no issue was is in error in foisting framed in this regard by the Tribunal. Therefore, the Tribunal is in error in foisting framed in this regard by the Tribunal. Therefore, the Tribunal framed in this regard by the Tribunal. Therefore, the Tribunal 50% contributory negligence upon the deceased child. Ld. Counsel argues that in 50% contributory negligence upon the deceased child. Ld. Counsel argues that in 50% contributory negligence upon the deceased child. Ld. Counsel argues that in 50% contributory negligence upon the deceased child. Ld. Counsel argues that in year- doing so the learned Tribunal has ignored that the deceased was a minor 10-year doing so the learned Tribunal has ignored that the deceased was a minor 10 doing so the learned Tribunal has ignored that the deceased was a minor 10 bad and old child only, who did not have the capacity to understand his good or bad and old child only, who did not have the capacity to understand his good or old child only, who did not have the capacity to understand his good or was incapable of taking rational decisions for himself. Moreover, contributory was incapable of taking rational decisions for himself. Moreover, contributory was incapable of taking rational decisions for himself. Moreover, contributory was incapable of taking rational decisions for himself. Moreover, contributory 2019 (O&M) FAO-6025-2019 (O&M) -3- negligence cannot be imposed in every case where anyone is crossing the road. It is negligence cannot be imposed in every case where anyone is crossing the road. It is negligence cannot be imposed in every case where anyone is crossing the road. It is negligence cannot be imposed in every case where anyone is crossing the road. It is contented that it was the over speed and rash and neglecting driving of respondent contented that it was the over speed and rash and neglecting driving of respondent contented that it was the over speed and rash and neglecting driving of respondent contented that it was the over speed and rash and neglecting driving of respondent o.1 which has caused the accident. Therefore, no contributory negligence can be No.1 which has caused the accident. Therefore, no contributory negligence can be o.1 which has caused the accident. Therefore, no contributory negligence can be o.1 which has caused the accident. Therefore, no contributory negligence can be imposed upon the deceased. It is contended that in this view of the matter fixing of imposed upon the deceased. It is contended that in this view of the matter fixing of imposed upon the deceased. It is contended that in this view of the matter fixing of imposed upon the deceased. It is contended that in this view of the matter fixing of 50% contributory liability upon the deceased child shows total lack of application 50% contributory liability upon the deceased child shows total lack of application 50% contributory liability upon the deceased child shows total lack of application 50% contributory liability upon the deceased child shows total lack of application ious mind. of judicious mind.

4. Ld. counsel further submits that the Tribunal has erred even in Ld. counsel further submits that the Tribunal has erred even in Ld. counsel further submits that the Tribunal has erred even in Ld. counsel further submits that the Tribunal has erred even in determining the age of the deceased as 6 years and 3 months. It is submitted that in determining the age of the deceased as 6 years and 3 months. It is submitted that in determining the age of the deceased as 6 years and 3 months. It is submitted that in determining the age of the deceased as 6 years and 3 months. It is submitted that in the postmortem report Ex.P14 age of the deceased has been clearly mentione the postmortem report Ex.P d as age of the deceased has been clearly mentioned as 10 years. Even in the FIR N o. 88, dated 26.03.2016, the age of deceased is Even in the FIR No. 88, dated 26.03.2016, the age of deceased is o. 88, dated 26.03.2016, the age of deceased is mentioned as 10 years. Even claimant No.1, father of the deceased, while mentioned as 10 years. Even claimant No.1, father of the deceased, while mentioned as 10 years. Even claimant No.1, father of the deceased, while mentioned as 10 years. Even claimant No.1, father of the deceased, while appearing as PW4, has clearly stated that the deceased was 10 years old at the time appearing as PW4, has clearly stated that the deceased was 10 years old at the time appearing as PW4, has clearly stated that the deceased was 10 years old at the time appearing as PW4, has clearly stated that the deceased was 10 years old at the time unal has ignored all these factors and has of accident. However, the ld. Tribunal has ignored all these factors and has unal has ignored all these factors and has of accident. However, the ld. Trib wrongly assessed age of the deceased. wrongly assessed age of the deceased.

5. Ld. Counsel further contends that income of the deceased has been Ld. Counsel further contends that income of the deceased has been Ld. Counsel further contends that income of the deceased has been Ld. Counsel further contends that income of the deceased has been taken on the lower per annum, whereas the same ought to lower side as only ₹30000/- per annum, whereas the same ought to per annum, whereas the same ought to per annum. Even, interest of 7% is on the lower side have been taken as ₹50,000/- per annum. Even, interest of 7% is on the lower side per annum. Even, interest of 7% is on the lower side have been taken as and it should be enhanced to 18% per annum. It is, accordingly, prayed that the and it should be enhanced to 18% per annum. It is, accordingly, prayed that the and it should be enhanced to 18% per annum. It is, accordingly, prayed that the and it should be enhanced to 18% per annum. It is, accordingly, prayed that the impugned Award be modified and the present appeal be allowed. impugned Award be modified and the present appeal be allowed. impugned Award be modified and the present appeal be allowed.

6. Per contra, learned counsel for respondent No.3 Per contra, urance learned counsel for respondent No.3 – Insurance Company vehemently opposes the submissions advanced on behalf of the Company vehemently opposes the submissions advanced on behalf of the Company vehemently opposes the submissions advanced on behalf of the Company vehemently opposes the submissions advanced on behalf of the appellants and submits that the Tribunal has given cogent reasons in para 13 of the appellants and submits that the Tribunal has given cogent reasons in para 13 of the appellants and submits that the Tribunal has given cogent reasons in para 13 of the appellants and submits that the Tribunal has given cogent reasons in para 13 of the impugned Award in holding that there was contributory negligence on part of the impugned Award in holding that there was contributory negligence on part of the impugned Award in holding that there was contributory negligence on part of the impugned Award in holding that there was contributory negligence on part of the deceased and causing the accident in question. deceased and cau 2019 (O&M) FAO-6025-2019 (O&M) -4-

7. As regards quantum of compensation, ld. counsel relies upon As regards quantum of compensation, ld. counsel relies upon As regards quantum of compensation, ld. counsel relies upon As regards quantum of compensation, ld. counsel relies upon Surender Singh & Another Vs. Rajpal Singh & Others, judgment of this Court in Surender Singh & Another Vs. Rajpal Singh & Others, Surender Singh & Another Vs. Rajpal Singh & Others, judgment of this Court in , wherein in similar circumstances FAO No.3736 of 2018, decided on 11.03.2026, wherein in similar circumstances FAO No.3736 of 2018, decided on 11.03.2026 FAO No.3736 of 2018, decided on 11.03.2026 amount of ₹6,00,000/ awarded by way of compensation was upheld. It is ₹6,00,000/- awarded by way of compensation was upheld. It is awarded by way of compensation was upheld. It is accordingly prayed that the present appeal deserves to be dismissed being accordingly prayed that the present appeal deserves to be dismissed being accordingly prayed that the present appeal deserves to be dismissed being accordingly prayed that the present appeal deserves to be dismissed being meritless.

8. No other argument is raised on behalf of learned counsel for the No other argument is raised on behalf of learned counsel for the No other argument is raised on behalf of learned counsel for the No other argument is raised on behalf of learned counsel for the sel for the parties and perused the case file in parties. I have heard learned counsel for the parties and perused the case file in sel for the parties and perused the case file in parties. I have heard learned coun detail. I find no merit in the submissions advanced on behalf of the appellants. detail. I find no merit in the submissions advanced on behalf of the appellants. detail. I find no merit in the submissions advanced on behalf of the appellants.

9. A perusal of the record of the case shows that it is the pleaded case of A perusal of the record of the case shows that it is the pleaded case of A perusal of the record of the case shows that it is the pleaded case of A perusal of the record of the case shows that it is the pleaded case of the appellants before the Tribunal that the deceased was 10 years old at the time of the appellants before the Tribunal that the deceased was 10 years old at the time of the appellants before the Tribunal that the deceased was 10 years old at the time of the appellants before the Tribunal that the deceased was 10 years old at the time of accident. However, the claimants had placed on record the Aadhar card of the accident. However, the claimants had placed on record the Aadhar card of the accident. However, the claimants had placed on record the Aadhar card of the accident. However, the claimants had placed on record the Aadhar card of the herein his date of birth is mentioned as 01.01.2010. deceased as Ex.P13, wherein his date of birth is mentioned as 01.01.2010. herein his date of birth is mentioned as 01.01.2010. deceased as Ex.P13, w Accordingly, the learned Tribunal had determined age of the deceased to be 6 Accordingly, the learned Tribunal had determined age of the deceased to be 6 Accordingly, the learned Tribunal had determined age of the deceased to be 6 Accordingly, the learned Tribunal had determined age of the deceased to be 6 years and 3 months at the time of accident i.e. on 26.03.2016. I find no error in the years and 3 months at the time of accident i.e. on 26.03.2016. I find no error in the years and 3 months at the time of accident i.e. on 26.03.2016. I find no error in the years and 3 months at the time of accident i.e. on 26.03.2016. I find no error in the same. It has been he learned counsel for the appellant that It has been vehemently argued by the learned counsel for the appellant that he learned counsel for the appellant that age of the deceased ought to have been taken as 10 years at the time of accident on age of the deceased ought to have been taken as 10 years at the time of accident on age of the deceased ought to have been taken as 10 years at the time of accident on age of the deceased ought to have been taken as 10 years at the time of accident on the basis of Post Mortem Report Ex.P14. However, for the sake of argument the basis of Post Mortem Report Ex.P14. However, for the sake of the basis of Post Mortem Report Ex.P14. However, for the sake of arguments, there shall be no change in even age of deceased is taken as 10 years, even then, there shall be no change in even age of deceased is taken as 10 years, even then, even age of deceased is taken as 10 years, even then, compensation to be awarded to the appellants. compensation to be awarded to the appellants

10. earned Tribunal has assessed notional income of the deceased as The learned Tribunal has assessed notional income of the deceased as earned Tribunal has assessed notional income of the deceased as The l per annum by placing reliance upon the landmark judgment of the ₹30,000/- per annum by placing reliance upon the landmark judgment of the per annum by placing reliance upon the landmark judgment of the per annum by placing reliance upon the landmark judgment of the Gopal and another Vs Lala and others, 2013 Hon’ble Supreme Court in Kishan Gopal and another Vs Lala and others, 2013 Gopal and another Vs Lala and others, 2013 Hon’ble Supreme Court in Nothing to the contrary has been shown by the appellants, which ACJ 2594 (SC). Nothing to the contrary has been shown by the appellants, which Nothing to the contrary has been shown by the appellants, which ACJ 2594 (SC). per annum. would merit enhancement of the income of the deceased as ₹50,000/- per annum. would merit enhancement of the income of the deceased as would merit enhancement of the income of the deceased as 2019 (O&M) FAO-6025-2019 (O&M) -5- ibunal has correctly Keeping in view, the age of the deceased, the learned Tribunal has correctly Keeping in view, the age of the deceased, the learned Tr Keeping in view, the age of the deceased, the learned Tr applied multiplier of 15, which is also in consonance with the Constitutional Bench applied multiplier of 15, which is also in consonance with the Constitutional Bench applied multiplier of 15, which is also in consonance with the Constitutional Bench applied multiplier of 15, which is also in consonance with the Constitutional Bench National Insurance Company Ltd. Vs. judgment of the Hon’ble Supreme Court in National Insurance Company Ltd. Vs. National Insurance Company Ltd. Vs. judgment of the Hon’ble Supreme Court in Pranay Sethi & Ors. [(2017) 16 SCC 680]; Pranay Sethi & Ors. thereby calculating compensation thereby calculating compensation amount to be ₹4,50,000/ (30000 × 15). Learned Tribunal has further awarded an ₹4,50,000/- (30000 × 15). Learned Tribunal has further awarded an (30000 × 15). Learned Tribunal has further awarded an each) to both the claimants by way of loss of amount of Rs. 80,000/- (₹40,000/- each) to both the claimants by way of loss of each) to both the claimants by way of loss of amount of Rs. 80,000/ filial consortium; ₹1,00,000/- towards non-pecuniary damages; a filial consortium; pecuniary damages; and ₹15,000/ ₹15,000/- as total towards funeral expenses and transportation, thereby awarding ₹6,45,000/- as total towards funeral expenses and transportation, thereby awarding towards funeral expenses and transportation, thereby awarding compensation in the following manner: - compensation in the following manner: Heads Sr. No. Heads Notional Income Notional Income 1. Compensation after multiplier of Compensation after multiplier of 2. 15 is applied 15 is Loss of filial consortium Loss of filial consortium

4. 5.

6. Non pecuniary damages Non pecuniary damages Funeral expenses and cost of Funeral expenses and cost of transportation transportation Total Total Calculation (in Rs.) Calculation (in Rs.) ₹ ₹30000/- per annum ₹30000 × 15 = ₹4,50,000/- ₹ each i.e. amounting to ₹40,000/- each i.e. amounting to ₹ ₹ ₹80,000/- ₹1,00,000/- ₹ ₹15,000/- ₹ ₹6,45,000/- ₹

11. I find no ground is made out for enhancement of compensation. I find no ground is made out for enhancement of compensation. I find no ground is made out for enhancement of compensation. I find no ground is made out for enhancement of compensation. Perusal of record of the case shows that it was the pleaded case of the appellants Perusal of record of the case shows that it was the pleaded case of the appellants Perusal of record of the case shows that it was the pleaded case of the appellants Perusal of record of the case shows that it was the pleaded case of the appellants before the learned Tribunal that prior to the accident, the deceased was a student before the learned Tribunal that prior to the accident, the deceased was a student before the learned Tribunal that prior to the accident, the deceased was a student before the learned Tribunal that prior to the accident, the deceased was a student nt with a bright future ahead of him. However, nothing and was an intelligent student with a bright future ahead of him. However, nothing nt with a bright future ahead of him. However, nothing and was an intelligent stude has been brought to the notice of this Court to show that deceased was a student at has been brought to the notice of this Court to show that deceased was a student at has been brought to the notice of this Court to show that deceased was a student at has been brought to the notice of this Court to show that deceased was a student at the time of accident. It is not even the assertion of the appellants that deceased was the time of accident. It is not even the assertion of the appellants that deceased was the time of accident. It is not even the assertion of the appellants that deceased was the time of accident. It is not even the assertion of the appellants that deceased was ation, no error can be found in the amount of earning anything. In this situation, no error can be found in the amount of ation, no error can be found in the amount of earning anything. In this situ awarded to the claimants along with interest @7% compensation of ₹6,45,000/- awarded to the claimants along with interest @7% awarded to the claimants along with interest @7% compensation of per annum. In this regard, reference is made to judgments of the Hon'ble Supreme per annum. In this regard, reference is made to judgments of the Hon'ble Supreme per annum. In this regard, reference is made to judgments of the Hon'ble Supreme per annum. In this regard, reference is made to judgments of the Hon'ble Supreme ance Company Limited Rajendra Singh and others vs National Insurance Company Limited Rajendra Singh and others vs National Insur Court in Rajendra Singh and others vs National Insur 2019 (O&M) FAO-6025-2019 (O&M) -6- wherein deceased was 12 years old and the and others, 2020 (3) RCR (Civil) 26 - wherein deceased was 12 years old and the wherein deceased was 12 years old and the and others, 2020 (3) RCR (Civil) 26 Kishan Gopal and another Court had awarded compensation of Rs.2.95 lacs; and Kishan Gopal and another Court had awarded compensation of Rs.2.95 lacs; and Court had awarded compensation of Rs.2.95 lacs; and wherein deceased was 10 years old and vs Lala and others, 2013 ACJ 2594 (SC) -wherein deceased was 10 years old and wherein deceased was 10 years old and vs Lala and others, 2013 ACJ 2594 (SC) Shashi Bala Vs. compensation of Rs.5 lacs was awarded; and of this Court in Shashi Bala Vs. compensation of Rs.5 lacs was awarded; and of this Court in compensation of Rs.5 lacs was awarded; and of this Court in wherein deceased was 17 years Sudarshan Kumar and Others, 2015 ACJ 1728 – wherein deceased was 17 years Sudarshan Kumar and Others, 2015 ACJ 1728 Sudarshan Kumar and Others, 2015 ACJ 1728 old and compensation of Rs.5.00 lacs was awarded. old and compensation of Rs.5.00 lacs was awarded. old and compensation of Rs.5.00 lacs was awarded. 12 negligence, learned Now, coming to the question of contributory negligence, learned Now, coming to the question of contributory Now, coming to the question of contributory counsel for the appellants has been at great pains to impress upon this Court, that counsel for the appellants has been at great pains to impress upon this Court, that counsel for the appellants has been at great pains to impress upon this Court, that counsel for the appellants has been at great pains to impress upon this Court, that there was no contributory negligence on part of the deceased child, who was only there was no contributory negligence on part of the deceased child, who was only there was no contributory negligence on part of the deceased child, who was only there was no contributory negligence on part of the deceased child, who was only 10 years old and was crossing the road, when the accident had transpired. 10 years old and was crossing the road, when the accident had transpire 10 years old and was crossing the road, when the accident had transpire 10 years old and was crossing the road, when the accident had transpire However, I find no merit in the said submission on behalf of the appellants. In this However, I find no merit in the said submission on behalf of the appellants. In this However, I find no merit in the said submission on behalf of the appellants. In this However, I find no merit in the said submission on behalf of the appellants. In this regard, the findings/observations of the learned Tribunal in Para 13 and 14 of the regard, the findings/observations of the learned Tribunal in Para 13 and 14 of the regard, the findings/observations of the learned Tribunal in Para 13 and 14 of the regard, the findings/observations of the learned Tribunal in Para 13 and 14 of the impugned Award are comprehensive and cogent, which read as follows:- impugned Award are comprehensive and cogent, which read as follows: impugned Award are comprehensive and cogent, which read as follows:

13. “13. Kusum Lata and others vs. Satbir and others In case titled Kusum Lata and others vs. Satbir and others Kusum Lata and others vs. Satbir and others , the Hon'ble Supreme Court of India has held that 2011(3) SCC 646, the Hon'ble Supreme Court of India has held that , the Hon'ble Supreme Court of India has held that 2011(3) SCC 646 in a case relating to motor accident claims, the claimants are not in a case relating to motor accident claims, the claimants are not in a case relating to motor accident claims, the claimants are not in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal required to prove the case as it is required to be done in a criminal required to prove the case as it is required to be done in a criminal required to prove the case as it is required to be done in a criminal l. Strict proof of an accident caused by a particular vehicle in a trial. Strict proof of an accident caused by a particular vehicle in a l. Strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants. It particular manner may not be possible to be done by the claimants. It particular manner may not be possible to be done by the claimants. It particular manner may not be possible to be done by the claimants. It was further held that the claimants were merely to establish their case was further held that the claimants were merely to establish their case was further held that the claimants were merely to establish their case was further held that the claimants were merely to establish their case ty and the standard of on the touchstone of preponderance of probability and the standard of on the touchstone of preponderance of probabili on the touchstone of preponderance of probabili proof beyond reasonable doubt could not have been applied. The proof beyond reasonable doubt could not have been applied. The proof beyond reasonable doubt could not have been applied. The proof beyond reasonable doubt could not have been applied. The evidence on record clearly shows that the accident had taken place in evidence on record clearly shows that the accident had taken place in evidence on record clearly shows that the accident had taken place in evidence on record clearly shows that the accident had taken place in commercial area. The speed limit in such an area is a residential-cum-commercial area. The speed limit in such an area is commercial area. The speed limit in such an area is a residential at a high speed can be risky. The child always controlled and driving at a high speed can be risky. The child at a high speed can be risky. The child always controlled and driving in question was crossing the street to go back to the shop of his father. in question was crossing the street to go back to the shop of his father. in question was crossing the street to go back to the shop of his father. in question was crossing the street to go back to the shop of his father. Now it has to be seen whether the deceased had contributed in any Now it has to be seen whether the deceased had contributed in any Now it has to be seen whether the deceased had contributed in any Now it has to be seen whether the deceased had contributed in any manner to the present accident as claimed by respondent number 3. manner to the present accident as claimed by respondent number 3. manner to the present accident as claimed by respondent number 3. manner to the present accident as claimed by respondent number 3. 2019 (O&M) FAO-6025-2019 (O&M) -7- on of contributory negligence arises only when there has The question of contributory negligence arises only when there has on of contributory negligence arises only when there has The questi been some act or omission on the claimant's part which has materially been some act or omission on the claimant's part which has materially been some act or omission on the claimant's part which has materially been some act or omission on the claimant's part which has materially contributed to the damage caused and is of such a nature that it may contributed to the damage caused and is of such a nature that it may contributed to the damage caused and is of such a nature that it may contributed to the damage caused and is of such a nature that it may ce means properly be described as 'negligence'. Contributory negligence means properly be described as 'negligence'. Contributory negligen properly be described as 'negligence'. Contributory negligen the failure by a person to use reasonable care for the safety of either the failure by a person to use reasonable care for the safety of either the failure by a person to use reasonable care for the safety of either the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an himself or his property, so that he becomes blameworthy in part as an himself or his property, so that he becomes blameworthy in part as an himself or his property, so that he becomes blameworthy in part as an "author of his own wrong". "author of his own wrong".

14. 14. In case the vehicle was being driven at a permissible speed In case the vehicle was being driven at a permissible speed In case the vehicle was being driven at a permissible speed cident in question could have been avoided or in case of limit, the accident in question could have been avoided or in case of cident in question could have been avoided or in case of limit, the ac sudden appearance of the child on the road, the accident may have sudden appearance of the child on the road, the accident may have sudden appearance of the child on the road, the accident may have sudden appearance of the child on the road, the accident may have resulted in minor injuries. The accident could also have been avoided resulted in minor injuries. The accident could also have been avoided resulted in minor injuries. The accident could also have been avoided resulted in minor injuries. The accident could also have been avoided in case the child was accompanied by his parents or some elder in case the child was accompanied by his parents or some elder in case the child was accompanied by his parents or some elder in case the child was accompanied by his parents or some elder person, who would have taken the necessary precautions while person, who would have taken the necessary precautions while person, who would have taken the necessary precautions while person, who would have taken the necessary precautions while crossing the road. The said person, would have watched the traffic crossing the road. The said person, would have watched the traffic crossing the road. The said person, would have watched the traffic crossing the road. The said person, would have watched the traffic before crossing the road. In case any vehicle was approaching, the before crossing the road. In case any vehicle was approaching, the before crossing the road. In case any vehicle was approaching, the before crossing the road. In case any vehicle was approaching, the deceased should have waited before crossing the road. Had he been deceased should have waited before crossing the road. Had he deceased should have waited before crossing the road. Had he careful, the accident in question could have been avoided. It cannot careful, the accident in question could have been avoided. It cannot careful, the accident in question could have been avoided. It cannot careful, the accident in question could have been avoided. It cannot be denied that people cross the roads without caring for the traffic be denied that people cross the roads without caring for the traffic be denied that people cross the roads without caring for the traffic be denied that people cross the roads without caring for the traffic and expect the vehicle to stop on seeing them. It is quite possible that and expect the vehicle to stop on seeing them. It is quite possible that and expect the vehicle to stop on seeing them. It is quite possible that and expect the vehicle to stop on seeing them. It is quite possible that may not be able to stop the vehicle, which is coming at a speed, may not be able to stop the vehicle, which is coming at a speed, the vehicle, which is coming at a speed, immediately on application of brake. It is also possible that the driver immediately on application of brake. It is also possible that the driver immediately on application of brake. It is also possible that the driver immediately on application of brake. It is also possible that the driver of such a vehicle is unable to comprehend any sudden turn by another of such a vehicle is unable to comprehend any sudden turn by another of such a vehicle is unable to comprehend any sudden turn by another of such a vehicle is unable to comprehend any sudden turn by another vehicle on the road or sudden arrival of another vehicle from the side vehicle on the road or sudden arrival of another vehicle from the side vehicle on the road or sudden arrival of another vehicle from the side vehicle on the road or sudden arrival of another vehicle from the side unable to stop his vehicle to avoid such type of and therefore, is unable to stop his vehicle to avoid such type of unable to stop his vehicle to avoid such type of and therefore, is accidents. Nevertheless the fact remains that respondent No.1 has not accidents. Nevertheless the fact remains that respondent No.1 has not accidents. Nevertheless the fact remains that respondent No.1 has not accidents. Nevertheless the fact remains that respondent No.1 has not explained the manner, in which, the accident had taken place and it explained the manner, in which, the accident had taken place and it explained the manner, in which, the accident had taken place and it explained the manner, in which, the accident had taken place and it was his duty as well to be cautious and careful to avoid any accident. was his duty as well to be cautious and careful to avoid any accident was his duty as well to be cautious and careful to avoid any accident was his duty as well to be cautious and careful to avoid any accident Resultantly, it has to be presumed that the deceased, the claimants Resultantly, it has to be presumed that the deceased, the claimants Resultantly, it has to be presumed that the deceased, the claimants Resultantly, it has to be presumed that the deceased, the claimants and respondent No.1, were responsible for the present accident. In and respondent No.1, were responsible for the present accident. In and respondent No.1, were responsible for the present accident. In and respondent No.1, were responsible for the present accident. In these circumstances, claimants and respondent No.1 are liable to these circumstances, claimants and respondent No.1 are liable to these circumstances, claimants and respondent No.1 are liable to these circumstances, claimants and respondent No.1 are liable to share equal responsibility that is to say in the ratio of 50:50.” share equal responsibility that is to say in the ratio share equal responsibility that is to say in the ratio 2019 (O&M) FAO-6025-2019 (O&M) -8-

13. Learned counsel for the appellants is unable to dispute or controvert Learned counsel for the appellants is unable to dispute or controvert Learned counsel for the appellants is unable to dispute or controvert Learned counsel for the appellants is unable to dispute or controvert said facts, findings and legal position. In view of the same, I find no the above-said facts, findings and legal position. In view of the same, I find no said facts, findings and legal position. In view of the same, I find no said facts, findings and legal position. In view of the same, I find no on grounds of delay, as merit in the present appeal, which is accordingly dismissed on grounds of delay, as merit in the present appeal, which is accordingly merit in the present appeal, which is accordingly ll as on merits. well as on merits.

14. Pending application(s), if any, also stand(s) disposed of. Pending application(s), if any, also stand(s) disposed of. Pending application(s), if any, also stand(s) disposed of. April 20, 2026 tripti (NIDHI GUPTA) JUDGE Whether speaking/non-speaking : Speaking speaking : Speaking Whether speaking/non : Yes/No : Yes/No Whether reportable Whether reportable