1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SMT.NATI @ NATHI & ANR. Vs. SHRI BABU LAL & ANR. S.B. CIVIL MISC.APPEALNO.2032/2007 against the judgment and award dated 07.04.2007 passed by the learned Judge, Motor Accident Claims Tribunal (First), Jodhpur in Claim Case No.35/2007. DATE OF JUDGMENT :: 03rd July , 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. S.K. Sankhla, for the appellants. Mr.Jagdish Vyas for the respondents. BY THE COURT : The present appeal has been filed by the claimant -appellant against the judgment and award dated 07.04.2007 passed by learned Judge, Motor Accident Claims Tribunal, Jodhpur (in short 'the Tribunal') in Claim Case No.35/2007 2 whereby the learned Tribunal has awarded a sum of Rs.1,80,000/- as compensation in favour of claimant- appellants and the said amount has been ordered to be payable jointly and severally by the respondents alongwith interest @ 6% per annum from the date of filing of the claim petition i.e. 02.01.2007. Briefly stated the facts relevant for the disposal of the appeal are that in the morning of 26.11.06, Jitendra Kumar @ Jitu was going from Sursagar to Kailana to meet his relatives. He was traveling in city bus bearing No. RJ.19-P3657 after paying the regular fare. The city bus was being driven by Babu Lal non-claimant No.1 (respondent No.1). When the bus reached near Kailana circle at about 10, 10.15AM Jitendra (deceased) asked the conductor of the bus to stop the bus. The driver of the bus stopped the bus at the circle itself and as soon as he steeped down one foot from the bus, the driver started the bus as a result thereof Jitendra fell down and the rear wheel of the bus hit over his head causing grievous injury to him. He was admitted in the Mahatma Gandhi Hospital, Jodhpur where he succumbed to his injuries. It was stated in the claim petition that Jitendra Kumar was of 14 years and 3 he was studying at the time of accident, he was having a bright future, he would have earned more income by becoming a doctor or executive officer in future and in ensuing years he would have been a prospective bread earner of the family if he would not had died in accident . Due to his untimely death in accident, claimants suffered monitory loss as well as suffered mental shock. A claim petition under Section 163-A of the M.V. Act was filed by his parents of the deceased before the learned Motor Accident Claims Tribunal, Jodhpur against the driver -cum-registered owner (respondent No.1) and the insurer (respondent No.2) of the offending city bus and a total amount of Rs.4,07,500/- was claimed as compensation on different heads. It was prayed that reasonable compensation may be awarded and respondents may be held responsible jointly and severally to make payment for the same. After issuance of notice of claim petition, the driver-cum- registered owner of the offending bus (respondent No.1), appeared and submitted his reply and denied the averments made in the claim petition but admitted the fact of the 4 occurrence of accident and further stated that he cannot be held responsible for causing the accident. It was also stated that the said bus was insured with respondent No.2 at the time of accident, therefore, incase situation arises for the payment of compensation, then Insurance Company is respnsible for the same. It was prayed to dismiss the claim petition against him. The Insurance Company (respondent No.2) also submitted its reply denying the averments made in the claim petition but admitted the factum of the city bus being insured with them, however, in reply futher stated that the accident occurred due to the negligence of Jitendra (deceased) as he stepped down from the running bus, as a result of which he fell down. Further, it also took the stand that the driver of the said vehicle was not having a valid and effective driving licence. It was submitted that the Insurance Company cannot be made liable for the compensation and prayed to dismiss the claim petition. On the basis of pleadings of parties, the learned Tribunal framed relevant issues. 5 During trial, statement of claimant- Ramchandra was recorded as AW/1 and certain documents Ex.1 to 10 were got exhibited. No evidence was led in defence by the respondents. The learned Tribunal at the conclusion of trial held that the accident caused by the concerned bus being driven by respondent No.1 in which Jitendra lost his life out of use of the said motor vehicle. The learned tribunal also over- ruled the other defences taken by the Insurance Company and it was found that the said vehicle was insured with respondent No.2. Thus, it was held that the claimants were entitled to receive compensation from the respondents under Section 163-A of M.V. Act and vide its judgment and award dated 07.04.2007 awarded a lumpsum amount of Rs.1,80,000/- as compensation in favour of the claimants plus interest @ 6% per annum from the date of filing of claim petition i.e. 02.01.2007 till the date of realization against both respondents as stated above. Being felt aggrieved and dissatisfied with the quantum of compensation awarded by the learned Tribunal, this appeal has been preferred by the claimants for enhancement of the compensation amount. Notice of this appeal was given to the respondents and arguments were heard. 6 During the course of arguments, learned counsel for the appellant submitted that the learned Tribunal has not properly considered and appreciated the material available on record, while awarding compensation. It was contended that it was well proved on record that the deceased was a young boy of 14 years and he was studying. It was expected that he would have become a bread-earner, if he would not had died in accident and the claimant would have been benefited by his income. But due to untimely death, the claimant has suffered a loss. It was also contended that in case of non-earning members of like age, the Hon'ble Supreme Court and the High Courts have granted in various judgments a lupsum amount of Rs.2,25,000/- as compensation. Special reference was given with regard to judgment given in Manju Devi & Anr. vs. Musafir Paswan & Anr. (2005 ACJ, 99). In that case, the age of the deceased was 13 years and the apex court has gratned Rs.2,25,000/- as compensation. It was also contended that in a recent case, this Court has laid down the criterion for awarding compensation according to age. Reference was made to judgment given in Smt. Malti & 52 Ors. vs. M.K.Vasu and 52 Ors. (2008 WLC (1), (Raj.) 589 ). It was submitted that in 7 case of age between 10-15 years of the deceased, a lump sum award of Rs.2,25,000/- has been awarded. The learned counsel for the applicant also cited other judgments given in Leela Devi vs. Sohanlal & Ors. (ACTC 2007 (2) 886), Kamlesh & Ors . vs. RSRTC &Ors.(RLW 2005 (3) Raj.1654) and N.I.C.Ltd. vs. Bhit Singh (ACTC 2001, 215). It was also urged that the learned tribunal has awarded 6% per annum interest, without asserting any cause . Thus, interest be awarded at 12% per annum on total compensation amount from the date of filing of claim application. On these submissions prayer was made to allow the appeal and it was prayed that the compensation awarded by the Tribunal may be modified and enhanced with interest. On the other hand, the learned counsel for the respondents, refuted the contentions and it was stated that in this case, the age of the deceased was not proved. Inspite of that the Tribunal has granted reasonable compensation of Rs.1,80,000/-, now there is no scope of further enhancement and prayed to dismiss the appeal. I have considered the rival contentions and perused the 8 finding and the conclusion drawn thereon. The main question for consideration which arises in appeal is whether the awarded compensation is not just and adequate and it requires enhancement ?. I have perused the statement of claimant . It has been established that the age of the deceased was 14 years at the time of accident and he was studying in VIIth class. There was no rebuttal from the respondents' side. The statement of the father cannot be disbelieved. Thus , the contentions of respondents are mot sustainable. Though it has been stated that along with study he was also earning, but the earnings were not found proved. But even in case of non- earning persons of like age, Hon'ble the Supreme Court and High Courts have awarded compensation while considering the notional income of the deceased. In this case also deceased was studying in VIIth Class and his future was bright, he would have been a good earner. Thus, the claimants have been deprived from the income of deceased. Considering his age they were entitled to receive compensation of Rs.2,25,000/-. This Court has awarded Rs.2,25,000/- as compensation in case deceased was of like age. The learned Tribunal has relied , while determining the compensation on the decision of the Supreme Court in New 9 India Assurance Co. Ltd. vs. Satender (2006)13 SCC 60). But that was a case where compensation was to be awarded under section 166 of M.V.Act and in that case the age of deceased was 9 years only. Considering the facts, compensation was awarded but that is not the position in the present case. Here in this case the claim has been filed under section 163-A of the M.V.Act and the age of the deceased was found to be 14 years. Therefore, the said judgment was not applicable. Thus, the conclusion drawn by the learned Tribunal is not sustainable. It is a fit case, where the awarded compensation of Rs.1,80,000/-, be enhanced to Rs.2,25,000/-, the conclusion is also found support by the above mentioned judgments. The learned tribunal further has awarded 6% per annum interest, that is on lower side and without giving any cause that is not tenable. The claimants are entitled to receive 7.5% per annum interest on the total compensation amount. It is also well established that the vehicle was insured with the Insurance Company. Thus, the owner and the insurer are jointly and severally held responsible to pay the enhanced amount of compensation, along with interest at the rate of 7.5% per annum on total compensation amount from the date of 10 filing of the application. On the basis of aforesaid discussion, the appeal is partly allowed and the judgment and award is modified to this extent that the awarded compensation of Rs.1,80,000/- is enhanced to Rs.2,25,000/-. Further the claimant will also get interest at the rate of 7.5% per annum from the date of filing of the petition. Both the respondents are held jointly and severally responsible for the payment of same. As the vehicle is insured , therefore, the Insurance Company is directed to make payment within two months from the date of the order, failing which the claimant will be entitled to recover the same as per law. Considering the facts of the case, cost of the appeal made easy. (MANAK MOHTA), J. l.george