Vijay Singh And Ors vs Surta Ram And Ors (2024:Rj-Jd:28477) on 12 July, 2024

[Cites 3, Cited by 0]

Rajasthan High Court - Jodhpur

Vijay Singh And Ors vs Surta Ram And Ors (2024:Rj-Jd:28477) on 12 July, 2024

1. This misc. appeal under Section 173 of the Motor Vehicle Act, 1988 ('M.V. Act') has been filed by the appellants/claimants seeking enhancement of the compensation awarded by learned Judge, Motor Accident Claim Tribunal, Pali ('Tribunal') vide its judgment and award dated 28.11.2005 in MAC Case No.181/2003, whereby the learned Tribunal awarded compensation in favour of (Downloaded on 18/07/2024 at 08:35:16 PM) [2024:RJ-JD:28477] (2 of 6) [CMA-414/2006] appellants/claimants to the tune of Rs.1,00,000/- along with interest @ 6% p.a.

2. Briefly stated, the facts of the case are that the appellants/claimants filed a claim petition under Section 166 of the M.V. Act on 09.10.2003 claiming compensation of Rs. 15,36,500/- alongwith interest @ 18% p.a. on account of death of Master Vikky (deceased), who lost his life in the accident which took place on 18.07.2003. In the claim petition, it was inter-alia alleged that on 18.07.2003 at about 08:00 pm, while Vikky was playing in front of his house, and there is a roadways bus stand in front of their house. The driver of roadways bus while driving the bus rashly and negligently struck down the deceased, as a result of which Vikky suffered grievous injuries, owing to which he died during treatment at Bangar Hospital Pali. An FIR No.395/2003 of the accident was lodged at Police Station Kotwali, Pali. In the claim petition, it was further alleged that at the time of accident Vikky was nine years of age and studying in second standard.

3. Thereafter, the learned Tribunal issued notices to the non- claimants and upon receipt of the summons, non-claimants No.1 and 2 (driver and owner) submitted their reply on 27.03.2004 while denying the averments made in the claim petition. It was stated that the accident had taken place in the roadways bus stand compound and while reversing the bus, deceased immediately came and struck down by the bus and that there was no negligence on the part of the driver of the bus.

4. On behalf of non-claimant/respondent No.3 herein, i.e. insurance company, reply to claim petition was filed on 08.06.2004. It was inter-alia stated in the reply that the deceased (Downloaded on 18/07/2024 at 08:35:16 PM) [2024:RJ-JD:28477] (3 of 6) [CMA-414/2006] was playing within the boundary wall of the roadways bus and there was negligence on the part of parents of the deceased, who did not take care their son and allowed him to play at the bus stand compound. An objection with regard to driver of the offending bus not having valid and effective licence was also taken and thus it was prayed that on account of violation of the policy conditions, it was not liable to pay compensation, if any. On behalf of non-claimant No.4 i.e. RSRTC reply was also filed while stating therein that the deceased was playing within the boundary wall of roadways bus stand where several buses came and went down and while reversing the bus, on account of the fact that deceased came in the meanwhile there, he was truck down by the bus.

5. As per the pleadings of the parties, the learned Tribunal proceeded to frame four issues. On behalf of claimants two witnesses were examined and 23 documents were exhibited. On behalf of non-claimants three witnesses were examined and documents were exhibited.

6. The learned Tribunal thereafter final arguments of the parties and vide its judgment and award dated 28.11.2005 proceeded to quantify the award at Rs.2,00,000/-, however, since it has decided Issue No.1 against the appellants/claimants while determining 50% negligence on the part of the parents of the deceased, awarded compensation of Rs.1,00,000/- in favour of claimants on account of death of Master Vikky. The learned Tribunal awarded interest @ 6% p.a. from the date of filing of the claim petition i.e. 09.10.2003 and the liability was fastened upon non-claimants No.1, 2 and 3 jointly and severally.

(Downloaded on 18/07/2024 at 08:35:16 PM)

[2024:RJ-JD:28477] (4 of 6) [CMA-414/2006]

7. The appellants/claimants have preferred this misc. appeal seeking enhancement of the compensation.

8. Learned counsel for the appellants/claimants vehemently submitted that while passing the judgment and award the learned Tribunal has seriously erred in holding the claimants' contributory negligence to the extent of 50%. Learned counsel for the appellants submitted that in fact the deceased was playing on the footpath and it was the negligence on the part of the driver of the offending bus, who while taking the bus back, firstly failed to use horn and thereafter even without caring to see in the side glass caused accident, however, the learned Tribunal has seriously erred in fastening negligence on the part of the claimants. Learned counsel for the appellants further submitted that as per the 'Naksha Mauka', the footpath was 10' wide, where the deceased was playing and the driver of the bus without taking safety measures by plying bus rashly and negligently drove over the bus on the deceased. Learned counsel for the appellants further argued that at the time of accident the deceased was nine years of age and was studying in second class and if he would alive, he could have secured government service or could do business, however, this fact has also not been considered by the learned Tribunal. Learned counsel for the appellants further argued that the deceased was not having any personal income and the learned Tribunal firstly erred in considering the income of the deceased as Rs.15,000/-, which was too meager and also erred in deducting 1/3rd notional income, whereas as per Section 163A of the Act, no deduction could have been made.

(Downloaded on 18/07/2024 at 08:35:16 PM)

[2024:RJ-JD:28477] (5 of 6) [CMA-414/2006]

9. Learned counsel for the appellants further submitted that towards the heads of love and affection, the learned Tribunal has awarded meager compensation, which ought to be suitably enhanced. Learned counsel for the appellants thus prayed that the impugned judgment and award passed by the learned Tribunal may be modified and the compensation may be enhanced.

10. On the other hand, learned counsel for the respondents/non- claimants submitted that the appellants/claimants are not entitled for enhancement of the compensation awarded, inasmuch as the learned Tribunal after considering the evidence by the parties has awarded adequate compensation and thus prayed for dismissal of the present misc. appeal.

11. I have considered the submissions made by counsel for the parties and have perused the material available on record.

12. This Court finds that the deceased, son of the appellants No.1 and 2 died in the accident, while he was playing in front of his house on a 10' wide footpath on account of rash and negligent driving of the bus by the driver-Respondent No.1, who while taking the bus back, hit the deceased. In this regard, the FIR was registered being FIR No. 395/2003 with the Sadar Police Station. On the basis of the said FIR, the investigation was made by the Investigation Officer and charge-sheet was filed against the driver and the owner of the offending vehicle. Further, from the evidence brought on record, wherein the witnesses have stated that the deceased was playing on the footpath, and in the meanwhile, the driver of the offending vehicle while taking the bus did not apply horn or indicator drove over the same on Vikky on account of which, he sustained grievous injuries and succumbed to the same. (Downloaded on 18/07/2024 at 08:35:16 PM)

[2024:RJ-JD:28477] (6 of 6) [CMA-414/2006]

13. This Court finds that the deceased boy, had he been alive, would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reason, it would be just and reasonable for me to consider his notional income as per the Guidelines issued by Rajasthan State Legal Service Authority dated 15.04.2021, wherein it has been provided that in the cases, where the deceased is a child of age 5 to 10, compensation of Rs.3,50,000/- has to be granted, which this Court deems it appropriate to award and hereby awards Rs.3,50,000 - Rs.1,00,000/- (the compensation amount already paid to the claimants) i.e. Rs.2,50,000/-.

14. In view of above discussion, the misc. appeal preferred by the appellants/claimants is partly allowed. While upholding the finding arrived at by learned Tribunal holding 50% negligence on the part of the parents of the deceased, the judgment and award passed by learned Tribunal is modified and the claimants are held entitled to receive enhanced compensation of Rs.1,25,000/- [Rs.2,50,000/2 = 1,25,000/-] with interest at the rate of 6% p.a. from the date of filing of the application till the date of payment. The enhanced compensation amount is to be paid within three months from today, failing which the same shall carry interest @ 7.5% p.a. for the subsequent period (i.e. after three months from today) till actual payment is made.

(DR.NUPUR BHATI),J 51-DJ/-

(Downloaded on 18/07/2024 at 08:35:16 PM) Powered by TCPDF (www.tcpdf.org)

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur