Case: Pandurang Narayandas Sarda Vs. Subhash Gopal Changale &amp; Others

consideration the fact that the claimants would have been required to spend for education of the child and by the time he would have started earning the claimants would have been more than 40 and 50 years of age. Shri Sawant learned Counsel appearing for the claimants has placed strong reliance upon the decision of the Madhya Pradesh High Court in (United India Insurance c. v. Ismail and others) and particularly para 8 thereof, which reads as under :---"Learned Counsel for the claimant respondents has cited two cases involving death of young boys aged 7 years and 9 years respectively, namely, (Saraswatibai v. Damodar Prasad)8, 1987 Acc C J 501 High Court. of M.P. and (Hassa Mal v. Jatti Ram)9, (1987)1 T.A.C. 231, Rajasthan High Court In the first of these two cases, the amount of compensation assessed by the High Court in appeal was Rs. 50,000 and in the second it was assessed as Rs. 48,000/-. It is inevitable that in assessing compensation, element of estimate and to some extent conjecture enters into the computation of compensation, but comparable cases do provide satisfactory guidance in judging whether the Tribunals award as to quantum of compensation is arbitrary or unreasonable. The amount of compensation of Rs. 50,000 as assessed by the learned Tribunal cannot be regarded as excessive or unreasonable in the circumstances."In our view if the compensation awarded by the learned Member of the Tribunal is tested on this touch stone, it cannot be said that the compensation awarded is so exerbitant or is not based on any material so as to call for any interference in these appeals.10. In MACP No. 170 of 1984, the deceased Sharad was aged about 11 years and was taking education. He was the only male child of the claimants. There is no other male member in the family. The applicants are the mother and the sister of the child. The history shows that even the father of Sharad was murdered after the strike of Mill Workers in 1983. Parvatibai alone was maintaining the family and was getting Rs. 300 per month as pension from the Mill. Deceased Sharad had taken admission in the Vthe Standard in King George High School Dadar for Marathi medium. In all Tribunal has granted Rs. 40,000 as compensation to the claimants for the death of Sharad. Having regard to the fact that Sharad was the only male member of the family and was the hope of the future, coupled with the attending circumstances, it cannot be said that the compensation allowed at Rs. 40,000 call for any interference. It is pertinent to note in this behalf that the claimants had claimed Rs. 2 lacs as compensation and the learned Member has only awarded compensation to the tune of Rs. 40,000 out of which Rs. 15,000 is payable by the Insurance Company.11. It was then contended by Shri Kudrolli that so far as MACP No. 193 of 1984 is concerned, the boys Sudhakar and Prabhakar were aged about 14 and 11 years respectively. He has not disputed the grant of compensation to the tune of Rs. 35,000 for each child. However, according to him additional compensation of Rs. 16,000 granted to the claimants towards the amount spent for the treatment of applicants (i.e claimants) is wholly illegal as it is not based on any principles. It is also contended by him that for the pain and/or sufferings of the applicants nothing could be paid under the provisions of the Motor Vehicles Act. In support of this contention he has placed strong reliance upon a decision reported in 1986(1) A.C.J. 94 (Nasruddin & anr. v. Kadir Ahmed and anr)10 and a decision of the Supreme Court in A.I.R. 1985 S.C. 106 (N. Sivammal and ors v. The Managing Director, Pandian Roadways Corpn. and ors.)11, wherein the Supreme Court observed that "award of compensation under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained". Similar view seems to have been taken by the Full Bench of the Andhra Pradesh High Court in A.I.R. 1987 AP 127 (Andhra Pradesh State Road Corpn. Hyderabad v. Ch. Narasavva and ors.)12. No other view has been brought to out notice by Shri Sawant learned Counsel for the claimants nor he was able to justify the award of Rs. 16,000 under this head on any principles. Therefore, it will have to be held that the amount of compensation on the said head is wholly unsustainable. Hence that part of the finding and order passed by the Tribunal will have to be set aside and it will have to be held that the claimants in this case will be entitled to get compensation of Rs. 70,000 and not Rs. 86,000, as awarded by the Tribunal. It is needless to say that out of this Rs. 70,000 Insurance Company will be liable to pay Rs. 30,000 under section 92-A of the Act since the said claim involves death of two children.12. It was then contended by Shri Kudrolli that so far as MACP No. 248 of 1984 is concerned it is quite obvious from the evidence on record that Somnath the boy injured has suffered permanent disability because of the accident. From the evidence of the doctor it is clear that there were disfigurations on account of the scars of burns. The evidence further indicates that the burn injuries have resulted in permanent disablement. This position is not disputed by Shri Chaphekar. Therefore out of the total compensation of Rs. 28,000 granted for the personal injuries of Somnath. Rs. 7,500/- will be payable by the Insurance Company under section 92-A of the Act The tribunal has granted interest at the rate of 12% p a from the date of application itself, which is obviously in tune with the decision of the Supreme Court in A. I.R. 1987 S.C. 70 (Jagbir Singh and others v. General Manager, Punjab Roadways & ors.)13, the same is hereby confirmed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]3. Since in these appeals it is not disputed that the accident took place because of the rash and negligent driving of Kishor, it is not necessary to deal with the evidence in that behalf. To say the least from the evidence it appears that Kishor was not able to control the vehicle as a result the car left the road, crossed the Nala entered the Varandh of the hotel. Hence a conclusion is inavitable that the accident took place because of the rash and negligent driving of the drive Kishor, son of the owner of the car Pandurang Narayandasis not possible for us to accept this contention of Shri Kudroli. According to the owner of the car Pandurang, Kishor was born on 29th January, 1966 and if that date is taken as correct date of birth he attained the age of majority on 29th January, 1984 and therefore, was major on the date of accident. On the other hand it is the case of the Insurance Company that Kishor was born on 29th of July, 1966 which means he had not attained the age of majority on the date of accident. In support of its case the Insurance Company examined one Hindurao Shinde, who was entrusted with the investigation about the age of Kishor. Prabhakar Kende an employee of Narmada Education Academy was also examined. From the record produced by Prabhakar Kende it is clear that Kishor was admitted to the academy on 7th of June, 1971 and in the admission form Exhibit 78 his date of birth is shown as 29th of July, 1966, though the name of the boy is shown as Kamal Kishor. There is no dispute that Kishor is the same person. Exhibit 78 also shows that formarly he was studying in Bal Manohar Mandir Kanyashala at Satara and admission was taken at the age of 5 years. Exhibits 77 andare the school leaving certificates. In all these documents the date of birth is shown a 29th of July, 1966. From the evidence of Vijay Patil, who was working in the Sangamner Municipality coupled with the extract of entry in the birth register as well as in the nurshing home, it is quite obvious that Chandrakala w/o Pandurang N. Sarada of Sangamner delivered a boy on 29th of July, 1966. Though a dispute was raised that it could be another Sarada there is no doubt that the entry relates to Kishor and none else. The evidence of Mukund Gagdil who is running Vatsalaya Nurshing Home, corroborates the evidence given by the other witnesses and, therefore, we also agree with the finding recorded by the learned Member of the tribunal that the date of birth of Kishor is 29th of July, 1966. The other documentary evidence on which reliance was placed by the appellant is neither primary evidence nor there is any material to indicate on what basis the birth date was shown as 29th of January, 1966. The learned Member of the Tribunal has rightly commented upon the said document s and had come to the conclusion that the date of birth of Kishor is 29th of July, 1966 and, therefore, he was below 18 years of age on the date of83 shows that Kishor had applied on 6th of March 1984 for a learners licence and had deposited Rs. 6/under receipt No. 826326/6237/78 and it bears signature of Kishor. The serial number given in 14754. The said licence was valid upto 5th of June,1984. Exhibit 82 is the permanent driving licence of Kishor dated 6th June, 1984 obviously after the date of accident. However, we agree with the learned Member of the Tribunal that there are suspicious circumstances indicating that the evidence in that behalf is not trustworthy. Sanjay Kukade, as clerk from the RTO office, Pune who is incharge of licence department has stated that the alleged receipt is not available. Arun Sankpal also from the same office and working in the same department has stated that to obtain a permanent licence first the person has to obtain a learners licence. From the evidence it appears that as per the cash book the learners licence was issued in the name of one Bhapkar. Thus there is obvious discrepancy in the entry in the cash book which showed that the receipt was issued in the name of one Bhapkar though the learners licence is issued in the name of Kishor. He also stated that there is no entry in the name of Kishor on 6th of March, 1984. It is no doubt true that certain documents are not available on record since they are destroyed. Obviously therefore the so called learners licence is shrouded with suspicion. The learned Member has also rightly observed that Kishor is a resident of Satara and he had no business to go to Pune for obtaining a learners licence. Therefore we agree with the finding recorded by the learned Member of the Tribunal that Kishor was not having even a learners licence on the date ofis not possible for us to accept this contention of Shri Kudrolli. Section 3 and section 4 as well as rule 16 will have to be read together and if so read it is quite obvious that a person under the age of 18 years will not be entitled to get a learners licence qua a motor vehicle even under rule 16 of the Rules. Hence we have no hesitation in agreeing with the finding recorded by the learned Member of the Tribunal that Kishor was not having a valid driving licence on the date ofour view apart from the presumption that the driver was driving the vehicle with the knowledge and consent of the owner, which presumption is rebuttable in this case, the Insurance Company has discharged the burden of proving the said fact. Kishor, the driver of the car has stated in his deposition that on the date of accident, only his cousin brother Goverdhandas was present in the house and he took the keys of the car from the house and went towards Bogda withfor making a vague statement, it is no where stated by Kishor that he was not allowed to drive the vehicle by his father. His very conduct in taking the keys of the car from the house and going with his cousin brother clearly indicate that it was with the permission of his father. If Exhibit No. 64 statement of Pandurang recorded by the police could be relied upon, then the statement made by Kishor before the police could also be used to appreciate his evidence. In his statement before the police Kishor has stated that he was always taking the car for driving with the permission of his father and accordingly he has gone on that day also. Kishors previous statement was put to him when he was in the witness box. On the other hand Pandurang has not entered the witness box. Therefore on the basis of the evidence on record it is established by the Insurance Company that Kishor was driving the car with the permission of his father Pandurang. Hence the question of liability of the Insurance Company will have to be determined on the basis of this finding i.e. Kishor was a minor on the date of accident, that he was not holding any valid licence to drive the car and that he was driving the car with the permission of hisof the vehicle. In view of the aforesaid findings we agree with the view taken by the learned Member of the Tribunal that the Insurance Company is not liable to indemnify the owner of the car for the compensation.8. However, we find some substance in the contention of Shri Kudrolli that so far as the compensation payable under sectionof the Act, is concerned, the Insurance Company will be liable. To say the least this position is conceded by Shri Chaphekar. This concession of Shri Chaphekar is based on the decisions of the Supreme Court in A.I.R. 1987 S.C. 1660 (Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and anr.)4, and 1988(3) Bom.C.R. 29 : A.I.R. 1988 S.C. 1332 (Guru Govekar v. Miss Filomena F Lobo and others)5. In Guru Govekars case the Supreme Court has observed "while it may be true, as we have observed earlier, that under the Law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the compensation by virtue of the provisions of section 94 and section 95 of the Act, referred to above". Therefore we hold that the Insurance Company will be liable to indemnify the owner so far as the compensation payable under sectionof the Motor Vehicle Act is concerned. Similar view seems to have been taken by the Rajasthan High Court in A.I.R. 1987 Rajasthan 77 (Narendra Singh v. Oriental FireGeneral Insurance Co. Ltd. Delhiors.)6, and A.I.R. 1987 Rajasthan 106 (Mohanlal v. National Insurance C. Ltd.n our view if the compensation awarded by the learned Member of the Tribunal is tested on this touch stone, it cannot be said that the compensation awarded is so exerbitant or is not based on any material so as to call for any interference in theseregard to the fact that Sharad was the only male member of the family and was the hope of the future, coupled with the attending circumstances, it cannot be said that the compensation allowed at Rs. 40,000 call for any interference. It is pertinent to note in this behalf that the claimants had claimed Rs. 2 lacs as compensation and the learned Member has only awarded compensation to the tune of Rs. 40,000 out of which Rs. 15,000 is payable by the Insuranceis needless to say that out of this Rs. 70,000 Insurance Company will be liable to pay Rs. 30,000 under sectionof the Act since the said claim involves death of twothe evidence of the doctor it is clear that there were disfigurations on account of the scars of burns. The evidence further indicates that the burn injuries have resulted in permanent disablement. This position is not disputed by Shri Chaphekar. Therefore out of the total compensation of Rs. 28,000 granted for the personal injuries of Somnath. Rs. 7,500/will be payable by the Insurance Company under sectionof the Act The tribunal has granted interest at the rate of 12% p a from the date of application itself, which is obviously in tune with the decision of the Supreme Court in A. I.R. 1987 S.C. 70 (Jagbir Singh and others v. General Manager, Punjab Roadwaysors.)13, the same is hereby confirmed.