Delhi District Court
) Smt. Lad Kunwar W/O Sh. Rajesh Kumar vs ) Sh. Sanjay Kumar S/O Sh. Bighan Singh on 10 June, 2011
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In the court of Sh. Ashwani Sarpal, Addl. District & Sessions Judge
cum Presiding Officer, Motor Accident Claim Tribunal,
Rohini Courts, Delhi
(MACT Case No. 784/10/09)
1) Smt. Lad Kunwar W/o Sh. Rajesh Kumar
2) Sh. Rajesh Kumar S/o Sh. Bhagwan Dass
Both R/o F-4/247, Sector-16, Rohini, Delhi
Second address: Vill. Vaidare, P.O. Urdhmao,
P.S. Garhi Malhera, Distt. Chattar Pur, M.P. ---------Petitioners
Versus
1) Sh. Sanjay Kumar S/o Sh. Bighan Singh
R/o V.P.O. Kulasi, Teh. Bahadur Garh, Distt. Jhajjar (Haryana)
2) Sh. Ashok Kumar S/o Sh. Nafe Singh
R/o H. No. 42, Near Ghota Stand, Balmiki Mandir,
Vill. Mubarak Pur, Delhi
3) The Royal Sundaram Alliance Insurance Co. Ltd.
Sundaram Towers, 45 & 46, Whites Road, Chennai ----Respondents
Date of institution---12.10.2009
Date of decision------10.06.2011
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Petitioners being the parents of deceased Master Shiva filed the present claim petition claiming therein a compensation of Rs. 10 lakhs with interest @ 12% p.a. on the ground that their son aged about 1 ½ years was standing in front of H. No. F-4/166, Sector-16, Rohini on 02.08.2009 at about 10:00 a.m. when one Tata 407 Tempo bearing no. DL-1LK-6067 being driven by respondent no. 1 in rash and negligent manner at fast speed came from DDA park side and by taking sharp left turn hit their son who expired at the spot. A criminal case under sections 279/304-A IPC was registered against respondent no. 1 vide FIR no. 429/09 in police station Prashant Vihar.
Respondents no. 1 and 2 did not file any written statements nor appeared despite service. Respondent no. 3 insurance company admitted that offending tempo was insured with it but tried to avoid its liability on various technical grounds.
Petitioners during pendency of the case were ordered to be paid sum of Rs. 50,000/- along with interest as an interim compensation under section 140 of Motor Vehicles Act on account of no fault liability but it appears that this amount has not been paid to them. On the basis of pleadings of the parties, following issues were framed on 18.01.2011:
1. Whether Master Shiva died due to road accident on 02.08.2009 at 10:00 a.m. in front of H.No. F-4/166, Sector-16, Rohini, Delhi within the jurisdiction of P.S. Prashant Vihar due to rash and negligent driving of Tata 407 Tempo bearing No. DL-1LK-6067 being driven by respondent no. 1? OPP
2. Whether the petitioners are entitled to compensation, if so, to what an extent and from which of the respondents ? OPP
3. Relief.
In order to prove their case, petitioner no. 2 examined himself as PW-1 only and filed certified copies of the criminal case record whereas counsel for -3- respondent no. 3 Insurance Company failed to lead any evidence which compelled the court to close its evidence by order. I have heard counsel for the petitioner and gone through the record. Counsel for respondent No. 3 did not appear to argue the matter. My decision on the above mentioned issues is as under:
Issue no.1:-
Petitioners have filed the certified copies of the criminal case record which shows that respondent no. 1 has been prosecuted by the police for causing the accident due to rash and negligent driving of the offending tempo. PW-1 being the father of the deceased as well as an eye witness of the accident in his affidavit of evidence disclosed how and in which manner accident took place. He specifically alleged that the tempo came at the high speed, took a sharp left turn and hit the deceased while coming on the wrong side of the road. The right side front tyre of the tempo crushed the deceased who died at the spot. Respondent no. 1 fled away from the spot of accident after leaving the tempo there. In the cross examination PW-1 stated that the deceased was standing on the side of the road (Patri) alongwith some other children. The counsel for Insurance Company through statement of PW-1 tried to show that there was a negligence on the part of the petitioners in leaving their very small child on the road alone. The site plan of the accident prepared by the police shows that PW-1 was standing at some distance away from accident spot whereas the child had come almost in the middle of the road at point C as shown in the site plan. The version of PW-1 that the deceased was standing on the 'Patri' at the time of accident appears to be incorrect. The deceased was aged about 1 ½ years only at the time of accident and was not in a position to look after himself & needed constant care & supervision but he was left alone on busy road. There appears great negligence on the part of the petitioners in leaving their child alone on the busy road and they were also not standing near by him but were present at -4- some distance. No doubt that the offending vehicle while taking a turn had come slightly on the wrong side due to high speed but certainly there is a contributory negligence also on the part of the parents of the deceased. Counsel for Insurance Company has taken a plea of contributory negligence which appears to have some force & substance. Criminal prosecution of respondent no.1 prima facie proves that tempo was being driven in rash and negligent manner due to which deceased expired but there is also an element of contributory negligence on the part of the petitioners in leaving their small child on the busy road who had come almost in the middle of the same at the time of accident.
Counsel for the petitioners argued that in case of small child and minors, there can not be any contributory negligence. The case law Dikcha vs Jamaludin 2005 ACJ 1054 is distinguishable from the facts of the present case because in the cited case the driver has not examined himself to prove his defence that the parents of the child had left him unattended on the road. However, in the present case facts point out clear negligent conduct of leaving small child alone on the part of petitioner.
Andhra Pradesh High Court in case Talasila Sandhya vs A.P. State Road Transport Corporation 1999 ACJ 629 held that there can not be any negligence or contributory negligence as against a child of tender age. In this case the two girls had suffered injuries while crossing the road and it was not a death case. Here in the present case, the negligence on the part of the petitioners is clearly visible as they had left their very small child unattended who had reached in the middle of the road and their parents i.e. petitioners were present at some distance from the spot of accident and could not reach at the spot of accident to save the child.
Rajasthan High court in case Ram Kumari Sharma vs Ram Kishan 1985 ACJ 493 held that negligence can not be attributed to child of the age of seven years who was crossing the road and run over by a truck. In case Mohan Lal vs Kumari Babbi 1967 PLR 578 while describing the duties of -5- the driver of the motor vehicle and the right to use the road by the children held that the parents of the child who allowed him go unattended on the road can not be treated as sufficient to interpret that the child had suffered injuries due to his own faults. Madras High Court in case President Malik Dhinar English Medium School vs Babudin 2005 (2) RCR (Civil) 571 also of the view that no contributory negligence can be attributed to the victim of the tender age. However, according to the Supreme Court observations given in later case Sudhir Kumar Rana vs Surender Singh Civil Appeal no. 3321 of 2008 decided on 06.05.2008 held that ordinary the doctrine of contributory negligence is not applicable in case of children with the same force as in the case of adults but it is not laying down any law that a child can never be a guilty of contributory negligence as it is a question of fact. Thus, in view of the subsequent judgment of the Supreme Court, the previous judgments of different High Courts can be ignored and the fact of contributory negligence can be seen in case of children as well as of their parents also.
Counsel for petitioners cited case law Ranjeet Kaur vs Union of India 2010 ACJ 1270 and argued that since no issue on contributory negligence was framed so no findings can be given in this regard but I am of the view that this argument can not be accepted because in the written statement of Insurance Company in para no. 7 of preliminary objection, this objection of contributory negligence has been taken. The question what exact compensation should be paid as per issue no. 2 indirectly covers all the objections of respondent no. 3 upon which the extent of compensation depends. Otherwise also for the fault on the part of the court in not framing the appropriate issue, the party should not be allowed to suffer. Moreover, when from the evidence of PW-1 and other circumstances, it is clear that there was a great negligence on the part of the petitioners in not taking proper care of their child of 1 ½ years old and leaving him unattended on the road, I am of the view that atleast 50% of the compensation amount should be reduced on account of contributory negligence on their part. Had it a case of injury, then -6- the injured child may not be held liable for any contributory negligence but it is a death case and the parents of the deceased child should not be allowed to get unjust compensation on account of their own faults and carelessness. Had the petitioners been vigilant and careful or had attended their small child, then the accident could have been avoided but they were at a distance & could not reach child in time to save him. Though there was negligent driving on the part of respondent no.1 also but there is negligence & carelessness on the part of the petitioners also, so in my opinion the 50% reduction in the compensation amount would be appropriate on account of contributory negligence. Hence this issue is decided in favour of petitioner and against the respondents accordingly.
Issue no.2:-
The deceased was a small child of 1 ½ years at the time of death and was incapable to earn anything. Delhi High Court in cases Banwari Lal Vs Rishi Prakash MAC APP.556/10 decided on 27.09.2010 & National Insurance Co. vs Farzana 2009 ACJ 2763 held that in case of death of a child, a total compensation of Rs. 3.75 lakhs be given under all the heads as full and final. Hence, by going into these above judgments, I deem it proper to grant a sum of Rs. 3.75 lakhs compensation to the petitioners under all pecuniary and non pecuniary heads. However, in view of 50% reduction on account of contributory negligence, the net compensation amount payable to the petitioners comes to Rs.1,87,500/- only.
The offending vehicle was admittedly insured with the respondent no. 3. Respondent no. 3 could not brought on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes liable to pay entire compensation amount.-7-
In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get the amount of Rs. 1,87,500/- from respondent no. 3 to be divided in equal shares. If they have already received the interim compensation, then the same shall be deducted from the above amount. Petitioners shall be entitled to interest at the rate of 7.5% p.a. on the award amount from the date of institution of the petition i.e. 12.10.2009 till realization.
Issue no.3 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay sum of Rs.1,87,500/- to the both petitioners in equal proportions (including interim compensation) along with interest at the rate of 7.5 % p.a. from 12.10.2009 till this amount is fully paid.
It is further ordered that out of compensation amount of the petitioners, sum of Rs.50,000/- each be deposited in FDRs for a period of 5 years in their names. These FDRs shall not be encashed without permission of the court but the petitioners are allowed to withdraw quartely interest on their respective FDRs. Original FDRs be shall be kept by the Manager of the bank in safe custody but duly attested photocopies be given to petitioners. No loan or advance shall be allowed to be taken on these FDRs.
Copy of this judgment be given to petitioners and counsel for respondent no. 3 Insurance Company. File be consigned to record room.
(Ashwani Sarpal)
Dated: 10.06.2011 Judge, MACT (Outer-II)
DELHI