HIGH COURT OF CHHATTISGARH. BILASPUR (SB: Hon'ble Shri Justice Rangnath Chandrakar) Misc. Appeal (0 No. 688 of 2007 f^ <- Appellants Respondents v<_:.. The Oriental Insurance Company Ltd., through Divisional Manager, No.2 Chawla Compiex, Sainagar, Devendra Nagar Road, Tahsit and Distt. Raipur. Versus 1. Ajmer Khan s/o. Hasim age about 35 years, resident of village Uparpara, Abhanpur, Thana Abhanpur, Distt. Raipur, C.G. 2. Smt. Rasidan Bee w/o. Ajmer Khan age about 30 years, resident of village Uparpara, Abhanpur, Thana Abhanpur, Distt. Raipur, C.G. 3. Lokesh Kumar s/o. Shri Kartik Ram Kosale,age about 32 years, resident of Bagdehipara Gobra Navapara, Razim, Distt. Raipur, C.G. 4. Manmohan Agrawal, s/o. Fulchand Agrawal, age about 40 years, resident of Sadar Bazar, Nayapara, Main Road, Razim, Distt. Raipur,C.G. (owner of vehicle No. CG04-Z-0961). (Appeal under Section 173 of Motor Vehicle Act,1988) Present: Mr. Sudhir Agrawal, counsel for the appellant. Mr. C.R. Sahu, counsel for respondents No. 1 and 2. Mr. K.K. Dewangan, Advocate appeared on behalf of Mr. Alok Nigam, counsel for respondents No. 3 & 4. ORDER (27-6-2011) 1. The Insurance Corr^pany has preferred this appea! against the award dated 27-1-2007 passed in Claim Case No. 50/2006 by IX Additional •"T^^ a^\ ] :^..'%^ '^sz^ t vs Motor Accident Claims Tribunal (for short, "the Tribunal"), Raipur, whereby learned Tribunal has awarded an amount of Rs.1,56,000/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment in favour of claimants/respondents No.1 and 2 and against owner and insurer of the vehicle and fastened the liability on them to pay the amount of compensation to the claimants, jointly and seyerally. Brieffacts of the case, in a nutshell, are that on 21-12-2005 at about 1.00 p.m. when deceased Alham was going on road, all of a sudden, \ respondent No.3 - Lokesh Kumar driving the offending vehicle - Metador bearing regjstration No. CG-04/0961 rashly and negligently dashed the deceased as a result of which he sustained injuries and died. As against the compensation of Rs. 14,20,0007- claimed by the appellants/claimants, unfortunate parents of deceased Alham by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 21-12-2005, the Tribunal awarded atotal sum of Rs. 1,56,000/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment. The Tribunal on a close scrutiny of the entire evidence led before it held that the deceased Alham died on account of injuries sustained by him in the motor accident on 21-12-2005; the accident occurred due to rash and negligent driving of the driver of the offending \ vehicle Metador CG04/0961; the above offending vehicle on the date f of incident was insuVed with The Oriental Insurance Company Ltd. ^y "' ", I.i.Ng$& 1 v^-~~^^:l and thelnsurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay compensation to the claimants. Learned counsel appearing for the appellant vehemently argued that the claimants falsely mentioned the Metador No. CG04/J/0961 in the said accident for getting the compensation purpose whereas the said vehicle was not involved in the accident and ther@ was some manipulation in FIR regarding the number of the vehicle. The father of the deceased Ajmeer Khan (PW/1) has stated in para 2 of his deposition that the deceased was earning Rs.20/- per day and when the independent income of deceasedis proved, the Tribunal should not have held the notional income of Rs.15000/- pgr year. He further submits that ignoringall the aforesaid facts the Tribunal awarded a total sum ofRs.1,56,000/- tothe claimants, therefore, the impugned award passed by the Tribunal be set aside and the appellant/lnsurancecompany be exonerated from liability. Per contra, Shri C.R. Sahu, learned counsel appearing for claimants/respondents No. 1 and 2 supporting the impugned award contended that there was no manipulation in the FIR, Metador vehicle CG.No.04/0961 was involved in the said accident and after considering all the aspects of the matter the Tribunal has awarded a total sum of Rs.1,56,000/- ascompensationwhich isjust and proper in the facts and circumstances of the present case. Shri K.K. Dewangan, learnedcounsel appearing for respondents No. \ 3 and 4 supporfed the submissions of the insurance company. '\ ••. r ^ 8. I have heard learned counsel for the parties, perused the impugned award and record ofthe Tribunal. 9. On perusalof FIR (Ex.P/2), there is apparent over-writing on the numberof offending vehicle but on the other documents, such as requisition for postmortem report (Ex.P/3), prepared immediately after the incident, it is mentioned "CG-04/0961" and AW/2 Nazir Khan has clearly stated in para 5 of his cross examination that he himself saw the number of offending vehicle and denied the suggestion that as the offending vehicle fledaway, therefore, he could not see the number of theoffending vehicle. Thus, there was no likelihood of manipulation in the number of offending vehicle as has rightly been held by the learned Tribunal. 10. Claimants' son Alham was shown to be 10 years of age in his postmortem report and there is no dispute regarding the age of the deceased. So far as the submission relating to notionalincome of the deceased is concerned, learned Tribunal while consideringthe independent income ofthe deceased held in para 9 ofthe impugned award that it was not proved by the cogent evidence that the deceased was earning Rs.20/- per day, therefore, as per the law the notionalincome of Rs.15000/- per annum has been fixed 11. Hon'ble the Supreme Court while considering as to what would be the justand proper compensation for the death of a child aged about 7 years in the case of Oriental Insurance Company Ltd., Vs. Syed Ibrahim and others, reported in 2007 (4) TAC 385 (SC) has \ observed in paras 9 & 10which read as below: "9. Thi^ court in Lata Wadhwa while computing compensation made distinction between the x-"^ 'x i ll^ftlfe 1 '^^"y ili r'->< deceased children falling within the age group of 5 to 10 years andage group of 10 to 15 years. 10. In cases of young children of tender age, in view of uncertainties around, 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 is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation." 12 In the matter of Lata Wadhwa and others vs State of Bihar and others, reported in 2001 (8) SCC 197, the Apex Court observed in para 11 that "so far as the award of compensation in case is children is concerned, Shri Justice Chandrachud has divided them into two groups; the first group between the age group of 5 - 10 years and thesecond group between the age group of 10-15 years. In case of children between the age group of 5- 10 years, a uniform sum of Rs.50,000/- has been held to be payable by way of compensation to which the conventional figure of Rs.25,000/- has been added". Taking note of the aforesaid, the Apex Court in the case of Oriental Insurance Company Ltd., Vs. Syed Ibrahim and others (Supra) held that the compensation of Rs.51,500/- was just and proper compensation for the death of a child aged about seven years. 13. Considering all the facts and circumstances of the case and the fact that the claimants^' son deceased Alham was aged ten years only 6n the date of accident which falls within the age groupof 5-10 isy^ ,^^'^ f:fc)' 6 ^ <s r years, 1 am of the considered opinion that an amount of compensation of Rs.1,56,000/- awarded by the Tribunal by impugned award is excessive which is liable to be set aside and is setaside. 14. Accordingly, the appeal is partly allowed and the impugned award is modified to the extent that Rs.75,000/- is awarded in stead of Rs.1,56,000/-. Sd/- R.N. Chandrakar Judge r~>^iaju