IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 165/2008 Padam Kuwar & 2 others …Claimants/Appellants. Versus Divisional Manager, National Insurance Company & 2 others ….Opp. Parties/Respondents. Sri B.S. Adhikari, learned counsel for the appellants. Mr. D.S. Patni, learned counsel for the respondent/Insurance Company. Dated: 3-10-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 4-2-2008, passed by Motor Accident Claims Tribunal/District Judge, Champawat, in MACT Case No. 09 of 2007, Padam Kuwar @ Beer Bahadur and others Vs. Kishori Lal and others. 2- Brief facts of the case, giving rise to this appeal, are that on 16-1-2005 at about 9 P.M. Karan Bahadur was travelling in Maruti Car bearing registration No. U.A. 03-3467. Near Nursery on Laluwapani Road, the said Car met with accident due to rash and negligence of its driver, in which Karan Bahadur sustained grievous injustices and succumbed to the injuries at the spot. 3- The opposite party No.1, owner of the offending Maruti Car U.P. 093-2467 contested the claim petition and denied the allegations made in the claim petition. He alleged that the accident has occurred due to mechanical defect in the Car and there was no fault on the part of its driver. The Car was insured with National Insurance Company and the liability to pay compensation is upon the insurer. 2 4- The opposite party No.2, National Insurance Company also contested the claim petition by filing written statement and denied the allegations made in the petition. The Insurance Company alleged that the driver of the offending car was not having valid driving license. The deceased was travelling in the offending car in an unauthorized manner and he was a gratuitous passenger. Hence the Insurance Company cannot be held liable to pay any compensation. 5- The opposite party No.3, driver of the offending car also filed his written statement before the Tribunal and denied most of the allegations made in the claim petition. He alleged that he was driving the offending car in a moderate speed in a cautious manner. The accident has occurred due to the presence of frost on the road. The vehicle was insured with National Insurance Company and the liability, if any, is upon the insurer. 6- The learned Tribunal, on the basis of pleadings of parties, framed relevant issues in the claim petition. The claimants in support of their claim adduced oral as well as documentary evidence. However the opposite parties filed some documents in support of their case. 7- The learned Tribunal after hearing learned counsel for the parties and perusing the material available on record, decreed the claim petition for a sum of Rs. 1,09,500/- as compensation against the National Insurance Company and directed to pay the amount of compensation within a period of 30 days failing which interest @ 8% per annum shall be payable from the date of filing the petition till the date of actual payment. 3 8- Feeling aggrieved the claimants have preferred this appeal before this court for enhancement of the compensation. 9- Heard learned counsel for the parties and perused the record. 10- So far as the factum of accident is concerned, it is admitted to the parties that the Maruti Car UA 03- 2467 met with accident on the date and time as alleged in the claim petition in which the deceased Karan Bahadur has died. But the contention of the owner/driver of the offending car is that the accident has occurred due to the fact that frost was on the road due to which the car got slipped and met with accident. On the other hand the allegation of the claimants is that the accident has occurred due to rash and negligence of its driver. To prove the factum of rash and negligence, claimants have produced P.W.2 Lakshman Lal who was present at the spot. He has deposed that on 16-1-2005 he had come to Laluwapani in a private jeep. He saw that in the night at about 9 P.M. Maruti Car UA 03-2427 was coming at a high speed. The driver of the Car was driving it in an uncontrolled manner. Near Champawat Nursery when he reached 100 yards ahead he heard noise from behind and saw the car has met with accident. Next day when he was returning he saw that the Car was there in a damaged condition and he came to know that a person has died in the said accident. Survey report has also been filed on record but in the said report it has not been mentioned that the deceased was travelling in the offending car in an unauthorized manner. The opposite parties did not adduce any evidence to establish that the accident was the result of some mechanical defect or due to slippery road. No defect has been detected in the 4 offending car at the time of accident in the survey report submitted by the Surveyor of the Insurance Company. Therefore, the entire material available on record, clearly establish that the accident was the result of rashness on the part of its driver. It has come on record that the driver of the offending vehicle was having valid driving license and the vehicle was insured with National Insurance Company. Therefore, the learned Tribunal has rightly concluded that the accident has occurred due to the negligence of its driver and the insurance company is liable to pay the compensation. 11- So far as the quantum of compensation is concerned, learned counsel for the claimants has submitted that the tribunal has awarded a meager amount of compensation for the death of the deceased. He also contended that the tribunal has awarded conditional interest and the same be given from the date of filing of the petition till the date of actual payment. 12- Perusal of record shows that the deceased was a boy of 16 years of age. In the case of a child death the age of the parents is to be taken into consideration. This Court in other cases pertaining to child death has awarded a compensation of Rs. 1,50,000/- along with interest @ 7.5% per annum. 13- Learned counsel for both the parties have fairly conceded that a sum of Rs. 1,50,000/- along with interest @ 7.5% per annum from the date of filing the petition till the date of actual payment is just and proper compensation. 14- Accordingly, the appeal is allowed. The impugned judgment and award dated 4.2.2008 is 5 modified upto the extent that the claimants are entitled to get a sum of Rs. 1,50,000/- as compensation from the National Insurance Company along with interest @ 7.5% per annum from the date of filing the petition till the date of actual payment instead of Rs. 1,09,500/- along with conditional interest @8% per annum, as has been awarded by the Tribunal. (B.C. Kandpal, J.) ISB 6