F.A.O. No. 5435 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 5435 of 2010 Date of Decision: December 12th, 2011 Arshdeep Kaur and another .... Appellants Versus Jaspal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Binderjit Singh, Advocate, for the appellants. Ms. Kamal Bir Gill, Advocate, for Mr. G.S.Gill, Advocate, for respondents No. 1 to 2. Ms. Vandana Malhotra, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by the claimants Arshdeep Kaur through her father Balram Singh, with Balram Singh as her co-appellant, challenging the award dated 24.4.2010 passed by the Motor Accidents Claims Tribunal, Faridkot (for short, "the Tribunal") vide which an amount of Rs. 7,25,000/- was assessed as compensation in favour of the appellant but awarded half of it as she was also held negligent as her grand father, with whom F.A.O. No. 5435 of 2010 2 .. she was crossing the road, failed to take necessary precautions and safety measures while making the child cross the road. Though this appeal has been brought challenging this aspect as also for enhancement of compensation, learned counsel for the appellants has pressed for the relief to the extent that the findings of contributory negligence should be reversed and the entire amount awarded as compensation should be allowed to the claimant-appellant, Arshdeep Kaur. The case as set up by the claimant is as under : On 25.9.2008, Arshdeep Kaur, a minor girl aged about 6/7 years, was coming from her school at about 12.30 O'clock in the day along with her grand father, Nachhattar Singh. When they were opposite the floor mill of Chinder Singh in the area of village Sandhwan, they were walking on the berm of the road and while the children were crossing the road, a truck bearing registration No.RJ-19-1G-0434 came there. It was driven in a rash and negligent manner by Jaspal Singh, respondent No.1 and had hit Arshdeep Kaur and crossed over her left foot. After first aid, she was referred to GGS Medical College and Hospital, Faridkot where she remained admitted from 25.9.2008 to 31.10.2008. Her right leg had to be amputated there. The matter was reported to the police on 29.9.2008 on which, a case bearing FIR No. 181 of the said date was registered at Police Station, Sadar, Kotkapura for an offence punishable under sections 279/337 and 338 IPC. A sum of Rs. 15,00,000/- was claimed as compensation. F.A.O. No. 5435 of 2010 3 .. Jaspal Singh, who is both respondent No.1 and respondent No.2, has filed written statement denying the accident. He has also denied the claimant to have suffered any injury. The averments of the claimant in the petition have been termed as false. Respondent No.3, the insurer, has denied the maintainability of the claim petition. It has been claimed that the claim petition is vague and incomplete. The averments of the claimants in the petition have been denied in reply on merits. The FIR is claimed to be false and frivolous. The involvement of the truck in question is denied. On the pleadings of the parties, the following issues were framed by learned Tribunal. 1. Whether on 25.09.2008, at 12.30 P.M. in the area of village Sandhwan, the claimant Arshdeep Kaur daughter of Balram Singh had suffered injuries on account of her accident with the offending truck being driven by respondent No.1 rashly and negligently?OPP 2. Whether the claimant-injured is entitled to the grant of compensation, as prayed for, if so, to what amount and against whom? OPP 3. Whether the respondent No.1 was not holding a valid and effective driving licence at the time of the alleged accident, if so, its effect? OPR (3) 4. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal has held the F.A.O. No. 5435 of 2010 4 .. accident to have been an outcome of rash and negligent driving of the truck. However, it has reached the conclusion that the accident is an outcome of contributory negligence of the driver of the truck as well as the claimant, as her grand father failed to take necessary precautions and observe safety measures while making the child cross the road. Learned Tribunal assessed the compensation in a sum of ` 7,25,000/- but awarded half of it i.e. ` 3,62,500/- on account of the aforesaid finding on the negligence aspect. Aggrieved by the aforesaid finding on negligence and withholding of half of the amount of compensation, the claimant has brought this appeal. I have heard Mr. Binderjit Singh, learned counsel for the appellant, Ms. Kamal Bir Gill, learned counsel for respondents No. 1 to 2 and Ms. Vandana Malhotra, learned counsel respondent No.3-Insurance Company. I have gone through the record carefully. As I have already mentioned, learned counsel for the appellant has pressed this appeal qua the deduction of half of the amount assessed as compensation by the Tribunal for its finding on the question of negligence. Learned counsel for the appellant has nothing to say on the quantum of compensation assessed in a sum of Rs.7,25,000/-. He has submitted that the negligence is found by the Tribunal to be of Nachhatar Singh, the grand father of the child, who was with her at the time of accident. He has submitted that learned Tribunal has concluded F.A.O. No. 5435 of 2010 5 .. that the grand father of the child failed to take necessary precautions and safety measures while making the child cross the road. He has submitted that if the grand father of the child would not have been there with the child, the finding would have been otherwise. He has submitted that the Tribunal has fallen in gross error in coming to this conclusion. He has submitted that negligence, if any, on the part of Nachhatar Singh could not amount to contributory negligence on the part of the child for which the amount found as just compensation could be reduced to half. Learned counsel for respondent No. 3 has submitted on the other hand that learned Tribunal has rightly found the child to be guilty of contributory negligence. According to her, the statement of Nachhatar Singh in his cross-examination makes the picture very clear. She has stated that Nachhatar Singh appearing as AW-1 has admitted that he was bringing the claimant back around 12.30 noon. According to her, the statement of Nachhatar Singh further reads that he was on the side of the road towards the school and truck was coming from the side of Kotkapura and was going towards Faridkot. She has submitted that as per his version, the truck had hit the child while the child was crossing the road. She has submitted that if Nachhatar Singh was there with the child, he should have observed the rules of traffic and should not have allowed the child to cross the road at the time when a truck was coming there from the side of Kotkapura. She has submitted that this F.A.O. No. 5435 of 2010 6 .. statement itself is sufficient to conclude that Nachhatar Singh was negligent in allowing the child to cross the road without looking to the traffic on the road. The facts of the case make it clear that the site of accident is by the side of the school. The school appears to be there abutting the road on which the accident took place. The school and the site of accident is inside the village abadi. When some vehicle approaches abadi of a village and crosses the same, the driver of the vehicle should be extra careful in driving the vehicle because in villages, children come to the road while playing. The amount of care and caution required on the part of Jaspal Singh in driving the truck in question through abadi of the village was not observed by him and the case clearly appears to be of negligence of Jaspal Singh in driving his truck at the time of accident. It is also a fact that only Arshdeep Kaur was involved in the accident and Nachhatar Singh was not hit by the truck as stated by PW-1. He was still by the side of the school when Arshdeep Kaur started crossing the road and was hit by the truck. Nachhatar Singh cannot be said to have told Arshdeep Kaur to cross the road while himself remaining on the side of the road towards the school. Children are by nature very active and they go to the house from the school running and leaping. The amount of caution required from a grown up person while crossing the road cannot be expected from a child of the age of 6-1/2 years. The child cannot be held to have been negligent F.A.O. No. 5435 of 2010 7 .. in any degree on account of violation of any traffic rule by Nachhatar Singh. Therefore, the finding of learned Tribunal on the aspect of negligence cannot be sustained. The accident is, therefore, held to be an outcome of rash and negligent driving of truck bearing No. RJ-19-1G-0434 driven by Jaspal Singh, respondent No.1. Consequently, no cut could be imposed in the amount found as compensation on account of the injuries suffered by the appellant. The appeal is, therefore, allowed and the appellant is held entitled to the amount of Rs. 7,25,000/- as compensation instead of Rs.3,62,500/- with the interest as allowed by the Tribunal. (VIJENDER SINGH MALIK) JUDGE December 12th, 2011 som