HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.4143
OF 2008
JUDGMENT:
The Claimants who are parents of
the deceased girl aged 8 years by name Shaik Rihana, student of 3rd
class, by the date of accident on 23.05.2004 filed claim in M.V.O.P.No.378 of
2004 on the file 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 1st
respondent insured with the 2nd respondent for the claim of
Rs.1,00,000/- originally and during pendency of the petition, the claim was
amended by enhancing to Rs.2,00,000/-, since the tribunal granted Rs.1,04,500/-
in all by fixing contributory negligence of 1/3rd on the part of the deceased and 2/3rd
on the part of the driver of the crime vehicle of 1st respondent,
with interest at 7.5% p.a. fixing liability against both the respondents by its award dated
29.12.2005, preferred the appeal with the contentions in the grounds of appeal
that the tribunal gravely erred in fixing contributory negligence and the
compensation awarded is utterly low and unjust, hence, to allow the appeal by
setting aside the award by granting the compensation as prayed for. The learned
counsel for the appellants reiterated the same in the course of the hearing.
2. Whereas, it is the contention of the
2nd respondent-Insurer, from the 1st respondent-owner of
the crime vehicle not chosen to contest, that the award of the tribunal holds
good and for this Court while sitting in the appeal there is nothing to
interfere, hence to dismiss the appeal.
3.
Perused the material on record. The parties hereinafter are referred 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 negligence on the part of the deceased girl is unjust and
unsustainable, if so, with what observations?
2.
Whether the compensation awarded by the
tribunal in O.P.No.378 of 2004 dated 29.12.2005 is utterly low and unjust and
requires interference by this Court while sitting in appeal and if so, with
what compensation, with what rate of interest and with what observations?
3. To what
result?
Point No.1:
5. The
tribunal having held that there is contributory negligence on the part of the
deceased of 1/3rd and the driver of the crime vehicle of 2/3rd,
arrived the compensation as referred supra. In fact, the manner of accident
speaks from Ex.A.3 chargesheet against the driver of the vehicle supported by
the Ex.A.1 First Information Report but the evidence of eye witness-P.W.2 shows
that it was outcome from crossing of the road by the deceased girl. No doubt on
perusal of the Ex.A.2 M.V.I. report with reference to Ex.A.3 chargesheet filed
by the police, it shows that the girl was dragged on the road and succumbed to
injuries sustained therein but that does not allow the deceased girl to escape
from the contribution in crossing the road though the vehicle driver is also at
fault. However, fixing of 33% contributory negligence on the part of the
deceased is excessive but 25% is just to be fixed and 75% on the part of the
vehicle driver of 1st respondent being the finder of last
opportunity that too the deceased girl was crossing the road.
Point No.2:
6. Now therefrom coming to the quantum of
compensation what the claimants claimed of Rs.2,00,000/- is no way excessive as
the deceased 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 of
a child aged 9 years holding that the determination of damages for loss of human
life is an extremely difficult task and it becomes all the more baffling when
the deceased is a child and/or a non-earning person and the future of a child
is uncertain and where the deceased was a child, he was earning nothing but had
a prospect to earn, so the question of assessment of compensation, therefore,
becomes stiffer and the figure of compensation in such cases involves a good
deal of guesswork and in cases where parents are claimants, relevant factor
would be age of parents. As per 25% compensation on the part of the
deceased, the claimants are entitled for the remaining percentage of
compensation amount of Rs.1,50,000/- besides Rs.2,000/- for funeral expenses
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 is
answered.
POINT No. -2:
7. In the
result, the appeal is partly allowed by enhancing the quantum of compensation
from Rs.1,04,500/- to Rs.1,54,500/- with
interest at 7½% p.a. from the date of petition (MVOP) till realization/deposit
with notice. The respondents 1 and 2 (owner and Insurer of the crime vehicle),
are directed to deposit the amount enhanced herein(including the earlier amount
of Rs.1,04,500/- if not deposited) before the tribunal within one month from
today. On such deposit or execution and recovery, the claimants are permitted
to withdraw the same. There is no order as to costs in the appeal. In all other
respects the award of the tribunal holds good.
Consequently, miscellaneous petitions, if any, pending in this appeal
shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date: 30.12.2014
VVR
