MACMA/4143/2008 of Shaik Khasim Valli Vs M/s.Raghavendra Travels on 30 December 2014

JUDGMENT:

The Claimants who are parents of the deceased girl aged 8years by name Shaik Rihana, student of 3[rd] class, by the date ofaccident on 23.05.2004 filed claim in M.V.O.P.No.378 of 2004 on thefile of the learned Chairman of the Motor Accidents Claims Tribunal–cum-III Additional District Judge, Cuddapah, (for short, ‘Tribunal’),under Section 166 of the Motor Vehicle Act,1988 (for short, ‘the Act’),against the owner and Insurer of the Maxi Cab bearing No.AP09-X-4129 belongs to 1[st] respondent insured with the 2[nd] respondent for theclaim of Rs.1,00,000/- originally and during pendency of the petition,the claim was amended by enhancing to Rs.2,00,000/-, since thetribunal granted Rs.1,04,500/- in all by fixing contributory negligence of1/3[rd] on the part of the deceased and 2/3[rd] on the part of the driver ofthe crime vehicle of 1[st] respondent, with interest at 7.5% p.a. fixingliability against both the respondents by its award dated 29.12.2005,preferred the appeal with the contentions in the grounds of appeal thatthe tribunal gravely erred in fixing contributory negligence and thecompensation awarded is utterly low and unjust, hence, to allow theappeal by setting aside the award by granting the compensation asprayed for. The learned counsel for the appellants reiterated the samein the course of the hearing.

2. Whereas, it is the contention of the 2[nd] respondent-Insurer, fromthe 1[st] respondent-owner of the crime vehicle not chosen to contest,that the award of the tribunal holds good and for this Court while sittingin the appeal there is nothing to interfere, hence to dismiss the appeal.

3. Perused the material on record. The parties hereinafter arereferred to as arrayed before the Tribunal for the sake of convenience in the appeal.

4. Now the points that arise for consideration in the appeal are:

1. Whether the award of tribunal fixing contributory negligenceon the part of the deceased girl is unjust and unsustainable,if so, with what observations?on the part of the deceased girl is unjust and unsustainable,if so, with what observations?

2. Whether the compensation awarded by the tribunal inO.P.No.378 of 2004 dated 29.12.2005 is utterly low andunjust and requires interference by this Court while sitting inappeal and if so, with what compensation, with what rate ofinterest and with what observations?O.P.No.378 of 2004 dated 29.12.2005 is utterly low andunjust and requires interference by this Court while sitting inappeal and if so, with what compensation, with what rate ofinterest and with what observations?

3. To what result?

Point No.1:

5. The tribunal having held that there is contributory negligenceon the part of the deceased of 1/3[rd ]and the driver of the crime vehicleof 2/3[rd], arrived the compensation as referred supra. In fact, the mannerof accident speaks from Ex.A.3 chargesheet against the driver of thevehicle supported by the Ex.A.1 First Information Report but theevidence of eye witness-P.W.2 shows that it was outcome fromcrossing of the road by the deceased girl. No doubt on perusal of theEx.A.2 M.V.I. report with reference to Ex.A.3 chargesheet filed by thepolice, it shows that the girl was dragged on the road and succumbedto injuries sustained therein but that does not allow the deceased girlto escape from the contribution in crossing the road though the vehicledriver is also at fault. However, fixing of 33% contributory negligenceon the part of the deceased is excessive but 25% is just to be fixed and75% on the part of the vehicle driver of 1[st] respondent being the finderof last opportunity that too the deceased girl was crossing the road.

Point No.2:

6. Now therefrom coming to the quantum of compensation whatthe claimants claimed of Rs.2,00,000/- is no way excessive as thedeceased girl was hardly of 8 years the apple of her parents’ eye, and

as held by the Apex Court in New India Assurance Company Vs.Satender[[1]]assessed Rs.1,80,000/- for compensation of the death ofa child aged 9 years holding that the determination of damages forloss of human life is an extremely difficult task and it becomes all themore baffling when the deceased is a child and/or a non-earningperson and the future of a child is uncertain and where the deceasedwas a child, he was earning nothing but had a prospect to earn, so thequestion of assessment of compensation, therefore, becomes stifferand the figure of compensation in such cases involves a good deal ofguesswork and in cases where parents are claimants, relevant factorwould be age of parents. As per 25% compensation on the part of thedeceased, the claimants are entitled for the remaining percentage ofcompensation amount of Rs.1,50,000/- besides Rs.2,000/- for funeralexpenses and Rs.2,500/- for loss of estate in all comes to Rs.154,500/-for which the claimants are entitled. Accordingly, point No.1 isanswered.

POINT No. -2:

7. In the result, the appeal is partly allowed by enhancing thequantum of compensation from Rs.1,04,500/- to Rs.1,54,500/- withinterest at 7½% p.a. from the date of petition (MVOP) tillrealization/deposit with notice. The respondents 1 and 2 (owner andInsurer of the crime vehicle), are directed to deposit the amountenhanced herein(including the earlier amount of Rs.1,04,500/- if notdeposited) before the tribunal within one month from today. On suchdeposit or execution and recovery, the claimants are permitted towithdraw the same. There is no order as to costs in the appeal. In allother respects the award of the tribunal holds good. Consequently,miscellaneous petitions, if any, pending in this appeal shall standclosed.

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Dr. B. SIVA SANKARA RAO, J

Date: 30.12.2014

VVR

[1]III (2007) ACC 46 (SC)