Madhya Pradesh High Court
Dev Chand And Anr. vs Babulal Faujdar Bus Service And Anr. on 22 July, 1996
JUDGMENT S.K. Dubey, J.
1. The appellants filed this appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short 'the Act') for enhancement of compensation awarded in Claim Case No. 22 of 1987 by the Additional Motor Accidents Claims Tribunal, East Nimar, Khandwa.
2. The appellants' son Govind aged about 5 years was crossing the road along with other children on 9.5.1985 at about 5.00 p.m. and was going towards the Industries Department Office, a passenger bus No. MPC 7150 driven by respondent No. 1, owned by respondent No. 2 and insured by respondent No. 3 was coming from Harsud and was going towards Khandwa, crushed the child with rear portion of the bus. Hence, the appellants filed the application under Section 110-A of the Act and claimed compensation to the tune of Rs. 1,00,000/-.
3. The claim was contested by the respondents. The Tribunal on the evidence adduced by the parties held that the accident did not occur because of the rash and negligent driving of the bus driver; however, in terms of 'no fault liability' under Section 92-A of the Act awarded a sum of Rs. 15,000/- only. On that too no interest was awarded.
4. Mr. Ashok Lalwani, counsel for the appellant submitted that it is evident from the evidence of Ghisaji, NAW 2 and that of the bus driver, Mahavir Prasad, NAW 1, that the accident was caused due to negligence of the bus driver, while the bus was in front of Nimar Club in Khandwa, the bus driver saw the child but he did not stop the bus, hence, the driver of the bus was negligent. On compensation it was submitted that the appellants' child, who died in the motor accident, was the only hope of his parents who come from the weaker section of the society. The appellant No. 1 is a mason and at the relevant time was earning Rs. 1,900/- per month. Therefore, though the child was not earning, after his education and on attaining the age of majority he must have earned at least minimum wage of Rs. 1,000/-. Therefore, the appellants are entitled to compensation as claimed.
5. Mr. S.K. Rao, learned Counsel for respondent No. 3, supported the award and submitted that the accident was inevitable for no fault of the bus driver, as in a situation where a boy suddenly crosses the road, the driver of a vehicle in spite of taking all reasonable steps like a prudent man, cannot stop the vehicle. Therefore, the Tribunal rightly held that appellants have failed to establish rash and negligent act on the part of the driver.
6. After hearing the counsel and on reappraisal of the evidence adduced by the parties, in our opinion the accident was caused due to sole negligence of the bus driver. Admittedly, the driver of the bus saw a child running to cross the road. In such circumstances, he ought to have stopped the vehicle but he did not stop. He has also not stated that he tried to stop the vehicle but it could not be stopped as a result of which the accident occurred. If the driver would have taken care the accident could have been avoided. It is settled rule of evidence in case of accident that no negligence can be attributed on the part of infants or a child like the present one. A driver of the motor vehicle should have proper look and should take care to avert such accidents.
7. Coming to the compensation, the child was aged about 5 years. On the guess-work as the deceased was a child and was a non-earning member, looking to the intention of Parliament in the Motor Vehicles Act, 1988, that for the death of a person in case of 'no fault liability' the compensation should not be less than Rs. 50,000/-, we are of the opinion that an amount of Rs. 50,000/- would be just compensation to which the appellants would be entitled with interest at the rate of 12 per cent per annum.
8. In the result, the appeal is allowed with costs. The award shall stand substituted as indicated hereinabove. The respondent insurance company shall deposit the amount of Rs. 50,000/- with interest at the rate of 12 per cent per annum within a period of two months. Counsel's fee Rs. 750/-, if pre-certified.
C.C. as per rules.