IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 292 of 2008 Roshan Lal and another ……. Appellants. Versus The New India Assurance Company Ltd. and others … Respondents. Sri S.C. Bhatt, learned counsel for the appellants. Sri T.A. Khan, learned counsel for respondent No.1. Sri Chandra Mauli Shah, holding brief of Sri Rajesh Joshi, learned counsel for respondent No.2/ owner of offending vehicle. None has appeared for respondent No.3, driver of the offending vehicle. Dated: 06-05-2009 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, has been preferred by the claimants against the judgment and award dated 14-3-2008, passed by Motor Accident Claim Tribunal/District Judge, Udham Singh Nagar, in MACT Case No. 132/2007, Roshan Lal and another Vs. New India Assurance Company and others. 2- Brief facts of the case are that on 28-1- 2007, at about 7.00 A.M. Uttam Singh, son of the claimants, was going toilet towards river side in his cycle, Truck bearing registration No. U.A. 03-2259 coming from opposite direction in a rash and negligent manner, hit the cycle of Uttam Singh, due to which he fell down and sustained grievous injuries. The driver of the Truck fled away from the place of accident. The injured was brought to Government Hospital where the doctors referred him to Pilibhit Hospital but in the meantime Uttam Singh succumbed to the injuries. The deceased at the time of accident was 10 years of age. Therefore, 2 the claimant preferred the claim petition for compensation. 3- The opposite party/New India Assurance Company contested the petition by filing the written statement and denied the contents of the petition. The insurance company has alleged that the driver of the offending truck was not having valid and effective driving license therefore breach of condition of policy was there and the insurance company cannot be held liable to pay any compensation. The insurance company also alleged that huge amount of compensation has been claimed. 4- The opposite parties/owner and driver of the offending truck did not contest the claim petition and the claim petition was heard and decided exparte against them. 5- The learned tribunal on the pleading of parties, framed relevant issues in the claim petition. Thereafter, the claimants adduced evidence in support of their case. The Tribunal after hearing learned counsel for the parties and considering the material available on record, decreed the claim petition for a sum of Rs. 57,000/- as compensation payable by New India Assurance Company. The tribunal also directed the insurance company to pay interest @ 7% per annum from the date of filing the petition till the date of actual payment on the awarded amount of compensation. 6- Feeling aggrieved, the claimants have preferred this appeal for enhancement of compensation. 3 7- Heard learned counsel for the parties and perused the record. 8- So far as the factum of accident is concerned, the learned tribunal has discussed this point while deciding issue No.1. Perusal of record reveals that P.W.2, Gyan Swaroop, is the eye witness of the occurrence. This witness has supported the version of the claimants and deposed that at the time of accident he was going towards river for toilet and the deceased was also going ahead of him in the cycle, and the truck bearing registration No. UA03-2259 coming from opposite direction, dashed the cycle of the deceased in a rash and negligent manner, due to which he sustained grievous injuries and the driver of the truck fled away from the spot along with his truck. Copy of F.I.R. has been filed on record, in which this fact has been mentioned that the accident has occurred due to rash and negligence of the driver of the truck. Copy of charge sheet submitted by the police, against the truck driver has also been filed. Therefore, the learned tribunal has rightly held that the accident was caused by the rash and negligence of driver of the truck. 9- The point of driving license, has been discussed by the tribunal on issue No.3. The tribunal has recorded a finding that copy of driving license of truck driver has been filed on record and it was valid and effective on the date of the accident. The opposite party/insurer did not adduce any evidence to refute the validity of the driving license. Therefore, the learned tribunal has rightly 4 concluded that the driver was having valid and effective driving license at the time of accident and the truck in question was insured with New India Assurance Company. 10- As far as the quantum of compensation awarded by the tribunal is concerned, the tribunal has discussed this aspect while deciding issue No.4, but the approach adopted by the trial court appears to be erroneous. The trial court has awarded a meager amount of Rs. 57,000/- as compensation and Rs.2,000/- towards funeral expenses. The Hon’ble Apex Court in the matter of New India Assurance Company Ltd. Vs. Satender Singh and others, reported in (2008) I SCC (Cri) 96, has held as under:- “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.” 11- The Hon’ble Apex Court in the above cited case applying the principles indicated in the matter 5 of State of Haryana and Anr. V. Jasbir Kaur and Ors. [2003(7) SCC 484], has awarded a sum of Rs. 1,80,000/- for the death of a child of 9 years of age. Perusal of record reveals that in the instant case the deceased Uttam Singh, at the time of accident, was 10 years of age. Therefore, keeping in view the above observation of the Hon’ble Apex Court, and the age of the deceased, I am of the view that the learned tribunal has awarded the amount of compensation on lesser side and the claimants should be awarded a sum of Rs. 1,50,000/- as compensation plus Rs. 2,000/- towards funeral expenses, total Rs. 1,52,000/-, along with interest indicated in the impugned judgment and award. 12- For the aforesaid reasons the appeal is liable to be allowed. 13- Accordingly, the appeal is allowed and the impugned judgment and award is modified up-to the extent that the claimants are entitled to get a sum of Rs. 1,52,000/- as compensation from the New India Assurance Company along with interest indicated in the impugned judgment and award, instead of Rs. 57,000/-, as has been awarded by the tribunal. (B.C. Kandpal, J.) ISB 6