IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 256 of 2006 Pradeep Mandal and another … Appellants Versus Sanjay Verma & another … Respondents Sri V.D. Bisen, Advocate, for appellants Sri D. K. Sharma, Advocate, for respondent no. 2 Dated: April 24, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and order dated 30.01.2006 passed by Motor Accident Claims Tribunal/First Additional District Judge, Udham Singh Nagar, in Motor Accident Claim Case No. 68/2005, Pradeep Mandal & another vs. Sanjay Verma & another. Brief facts of the case, according to the claimants, are that on 27.02.2005 at about 9.15 a.m. when deceased-Manoj Kumar Mandal was going from Haldwani to Rudrapur through his cycle, the driver of Truck No. U.P.76/D-9484 dashed the deceased from rear side near P.A.C. Gate due to rash and negligence driving, on account of which deceased fell down and was crushed beneath front tyre of truck, which resulted into death of deceased- Manoj Kumar Mandal at the spot itself. The report of this accident was lodged at concerned Police Station. The claimants have pleaded that at the time of death deceased was 12 years of age and was a 2 student of class V. The claimants claimed for a sum of Rs.4,00,000/- as compensation, along with interest, against the opposite parties. The opposite party no. 1-owner of offending truck, filed written statement refuting the contents of claim petition. He has pleaded that offending Vehicle No. U.P.76/D-9484 was insured with Oriental Insurance Co. Ltd. at the time of accident and on the date of accident his driver was plying the vehicle carefully and the said accident occurred due to own rash and negligence of deceased. Therefore, the insurance company is liable to pay compensation, if any, and not the owner of vehicle. The opposite party no. 2-insurance company filed written statement and alleged that at the time of accident driver of offending vehicle was not having valid driving licence and valid papers. It has further pleaded that said accident occurred due to own rash and negligence of deceased and driver of offending vehicle was plying the vehicle unauthorizedly. Therefore, the claim petition filed against insurance company is liable to be dismissed. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the material available before it and hearing learned counsel for the parties allowed the claim petition and awarded a sum of Rs.87,000/- as compensation to the claimants, payable by opposite party no. 2-Oriental Insurance Co. Ltd. The 3 Tribunal also directed that the amount of compensation is to be paid by insurance company within a period of one month from the date of judgment, failing which, the claimants shall be entitled to get an interest @ 6% per annum on the awarded amount of compensation. Feeling aggrieved by the aforesaid impugned judgment and award, the appellants-claimants have preferred the appeal before this Court for enhancement of compensation. Heard Sri V.D. Bisen, learned counsel for appellants, Sri D.K. Sharma, learned counsel for respondent no. 2 and perused the record. I have carefully gone through the impugned judgment and award. The evidence on record shows that Pradeep Mandal who has been produced as PW-1 in this case, has deposed in his statement that accident occurred due to rash and negligence of offending vehicle. This witness has also been cross examined by insurance company, in which he denied that accident occurred due to own fault of deceased. This witness has also admitted this fact that he himself did not see the accident but he saw the offending vehicle standing at the place of occurrence. The claimants has produced Arun Kumar as PW-2, who is an eye witness of the accident and PW-2 has deposed in his statement that on 27.02.2005 at about 9.15 a.m. when he was standing in front of P.A.C. Gate, Rudrapur and Shankar Mandal and Manoj Mandal-deceased were coming through cycle, then Truck No. U.P.76/D- 9484 dashed the cycle of Shankar Mandal and 4 Manoj Mandal who were going from their side due to rash and negligence of driver of offending vehicle, on account of which Manoj Mandal died at the spot itself and Shankar Mandal sustained injuries on his person. This witness has also deposed in his statement that deceased was not at fault in the accident. This witness has also been cross examined by insurance company and he in his cross examination has deposed that on the date of accident he was going to Avas Vikas through his motorcycle. Many people are present at the place of occurrence at the time of accident. Just after accident he went to home of deceased to inform the family members of deceased and number of offending vehicle was U.P.76/D-9484 and driver of offending vehicle was caught at the spot itself. Ravi Kumar has been produced by insurance company as DW-1 but he has not been cross examined by opposite party i.e. owner of vehicle. The owner of offending vehicle was appeared before the court below in this case but neither he nor his driver has been produced before the court below as witness. The opposite parties have not produced any oral and documentary evidence on record which may prove that accident did not take place due to rash and negligence of driver of offending vehicle. The learned Tribunal after having considered the entire evidence adduced by the parties came to the conclusion that accident occurred due to rash and negligence of driver of offending Truck No. U.P.76/D-9484. I do not find any reason to disturb the finding recorded by Tribunal in this regard. As far as amount of compensation to be awarded in favour of claimants is concerned, it 5 appears from the record that the age of deceased was 11 years at the time of death and he was a student of class V. The Tribunal has assessed the annual income in a case of non-earning member at Rs.15,000/- per annum which again requires no interference. However, the Tribunal has fell in error in deducting 1/3rd amount twice. In case of child death, the Hon’ble Apex Court in the case of New India Assurance Co. Ltd. versus Satender and others, reported in (2008) 1 SCC (Cri) 96, has held that “In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.” Therefore, in case, if the notional income of the deceased is to be taken into consideration as Rs.15,000/- per annum, then after deducting 1/3rd out of it the annual dependency of the claimants comes to Rs.10,000/- per annum. In the schedule given under Section 163-A of Motor Vehicles Act a multiplier in the case of infant death is ‘15’ and if the multiplier of ‘15’ is adopted then the amount of compensation comes to Rs.10,000 x 15=Rs.1,50,000/. 6 As the claimants are entitled for a sum of Rs.1,50,000/- as compensation, therefore, the amount awarded by the Tribunal under other different heads shall not be payable to the claimants. In view of the above, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the claimants are entitled to get a sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only), as compensation, instead of Rs.87,000/- as has been awarded by the Tribunal. The amount so awarded shall be payable by the insurance company along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. (B.C. Kandpal, J.) SP 7