MACMA/61/2008 of United India Insurance Co Ltd Vs Sri K.Huniya Naik on 30 December 2010

COMMON JUDGMENT:

M.A.C.M.A.No. 2988 of 2007 has been filed by the claimants seeking enhancement of the compensation awarded by the XXIIAdditional Chief Judge-cum-The Motor Accidents Claims Tribunal,City Criminal Courts, Hyderabad, in O.P.No. 1239 of 2006 by hisAward dated 10.09.2007, whereas M.A.C.M.A.No. 61 of 2008 hasbeen preferred by the insurance company aggrieved by the decision ofthe Tribunal in awarding the compensation.

The brief facts, which led to filing these two appeals, are givenbelow:

The claimants filed O.P.No. 1239 of 2006 on the file of theTribunal, under Section 166 of the Motor Vehicles Act, 1988, seekingcompensation of Rs.3,00,000/- for the death of their son Thara Singh(hereinafter referred to as ‘the deceased’) in an accident that tookplace on 03.02.2006, when Sri K. Ram Singh and the deceased wasproceeding on a scooter bearing No. AP 13V 4472, one Toyota Qualisbearing No. AP 11W 6932 came in a rash and negligent manner anddashed against the said scooter, as a result, they both sustainedinjuries and the deceased succumbed to the injuries on the way toOsmania General Hospital. At the time of accident, the deceased wasstudying II Class and he was aged about 7 years.

Respondent No.1, the owner of the offending vehicle remainedabsent 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 drivinglicence and that the accident did not occur in the manner in which theclaimants had narrated it and thus, prayed for dismissal of the O.P.

Based on the pleadings of the parties, the Tribunal framed thefollowing issues for trial.

(1) Whether the accident took place on 03.02.2006 at about17.30 hours due to rash and negligent driving of ToyotaQualis bearing No. AP 133V 4472 by its driver?17.30 hours due to rash and negligent driving of ToyotaQualis bearing No. AP 133V 4472 by its driver?

(2) Whether the petitioners are entitled to claim compensation,if so, what amount and from whom?if so, what amount and from whom?

(3) To what relief?

During trial, on behalf of the claimants, P.Ws.1 and 2 wereexamined and Exs.A1 to A4 were marked. On behalf of RespondentNo.2, Ex.B1 policy was marked with consent.

P.W.1, who is the father of the deceased, was not an eyewitness to the accident. P.W.2 is an eye witness. He deposed that on03.02.2006, he was proceeding on his scooter from Balanagar toUthkunta Thanda, at about 05.30 p.m., when they reached in front ofBhavani temple at that time one Toyota Qualis bearing No. AP 11W6932 proceeding towards Jadcherla side dashed the scooter and thedeceased succumbed to the injuries on the way to Osmania GeneralHospital, Hyderabad. According to him, the accident occurred due torash and negligent driving of Toyota Qualis bearing No. AP 11W 6932by its driver. During the course of cross-examination, it was brought onrecord that in total three persons were going on the scooter. Thoughthe plea of contributory negligence was taken by the learned counselappearing for the Insurance Company, the Tribunal, in the absence ofany material in that regard, rejected the said plea and held that theaccident took place due to rash and negligent driving of the driver ofthe Toyota Qualis.

With regard to the compensation, the Tribunal held thatRespondents 1 and 2, being the owner and insurer of the offendingvehicle, are liable to pay compensation, as the accident occurredduring the currency of Ex.B1 policy. Since the deceased in this casewas a non-earning member, the Tribunal, relying on the decisionreported in New India Assurance Company Limited v. Satender (2007 ACJ 160) held that the claimants are liable to receivecompensation of Rs.1,80,000/- for the death of their son, with interestat 6% per annum from the date of filing the petition till the date ofdepositing the same into the Court.

Arguments

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 thedecision reported in Manju Devi v. Musafir Paswan[[1]], wherein whiledealing with the death of a boy aged about 13 years, the SupremeCourt awarded compensation of Rs.2,25,000/-. He further contendsthat the compensation awarded by the Tribunal at Rs.1,80,000/- is ameager amount.

On the other hand, the learned Standing Counsel for theInsurance company-appellant in M.A.C.M.A.No. 61 of 2008 contendsthat the Tribunal ought to have dismissed the claim petition for non-joinder of owner and insurer of the scooter bearing No. AP 13V 4472as parties to the claim. According to him, at the time of accident, threepersons were travelling on the scooter which itself is in violation of theterms and conditions of the insurance policy.

Insofar as M.A.C.M.A.No. 61 of 2008 filed by the Insurancecompany is concerned, when a minor child is travelling with his/herparents or relatives, it cannot be presumed to be a triple riding. In thecircumstances, 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 yearsand though the deceased was a non-earning member, as perSchedule-II of Section 163 of the Act, the Tribunal has rightly taken thenotional income of the deceased as Rs.15,000/- and applied themultiplier for the age of 7 years as ‘15’. The Supreme Court in ManjuDevi v. Musafir Paswan (cited supra) also took the notional incomefor a non-earning person at Rs.15,000/- per annum and adoptedmultiplier 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 isenhanced from Rs.1,80,000/- to Rs. 2,25,000/- . The enhanced amountof compensation shall carry interest at 7% per annum from the date ofpetition till the date of realization.

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GHULAM MOHAMMED, J.

30[th] December 2010

ksld

[1]2005 ACJ 99