AI Structured Summary
Not yet generated for this judgment
Judgment
Hon''ble Shri Justice A.K. Shrivastava
Feeling aggrieved by the award dated 19.05.2007 passed by learned IV Additional Motor Accidents Claims Tribunal Chhatarpur in Claim Case No. 58/2006 allowing the claim application of the claimants/appellants to the extent of Rs. 1 lac, this appeal has been filed by the claimants for enhancement of the award. In brief the facts borne out in the claim application are that on 25.10.2005 the daughter of claimants namely Chanda Ahirwar (hereinafter referred to as ''deceased'') at 10 a.m. was going on Budha-kavi road and as soon as she arrived near Siddhan at that juncture driver Kallu Singh by driving the tractor bearing No. M.P. 16-M/1935 rashly and negligently dashed the deceased, as a result of which, she sustained various injuries and in the hospital while undergoing treatment she had died. The matter was reported to the police station Civil Lines Chhatarpur and on the basis of report, a criminal case was registered. The deceased was a girl having age of 12 years and was undergoing her studies in Fifth Standard in Government Primary School Budha. Further she was contributing her services to her parents. Thus, the claimants have claimed compensation of Rs. 4.50 lac.
The averments were denied by the non-applicants who are owner, driver as well as the insurer by filing written-statement separately. Indeed driver Kallu Singh filed separate written-statement while owners (Keshav Prasad and Smt. Shanti) filed separate written-statement.
Learned Tribunal framed necessary issues and after recording of the evidence of the parties came to hold that by driving the offending tractor rashly and negligently, the same was dashed with the deceased, as a result of which she sustained injuries and lateron she succumbed to those injuries. The plea setup by the Insurer that deceased was sitting in the trolley attached to the tractor has not been found to be proved. Learned Tribunal passed an award of Rs. 1 lac and further directed that all the non-applicants are jointly and severally liable to pay compensation alongwith interest @5% per annum.
In this manner this appeal has been filed by the claimants for enhancement of the award while insurer has filed connected M.A. No. 3258/2007 with a prayer that he be exonerated because deceased was traveling as passenger in the trolley attached to the tractor.
The contention of Smt. Chourasiya learned counsel for the claimants is that it is borne out from the record that deceased was aged 12 years and she was a school going girl and was undergoing studies her and therefore learned Tribunal has assessed the compensation on lesser side. It has been contended that adequate compensation be awarded.
On the other hand Shri Shukla submitted that in the FIR which was lodged by father of deceased/claimant No. 1 Jhunju Ahirwar that the deceased was sitting in the trolley attached to the tractor which was driven rashly by Kallu Singh and therefore since this document has been relied upon by claimant himself, therefore, in view of the decision of Supreme Court Oriental Insurance Co. Ltd. v. Premlata Shukla and others 2007 ACJ 1928 the insurance company cannot be made liable. By placing reliance on Bhav Singh Vs. Smt. Savirani and Others, it has been contended by learned counsel that until and unless premium is accepted by the Insurance Company to insure the passenger, the insurer cannot be made liable to pay any compensation and thus learned counsel submits that insurer be exonerated and the appeal filed by the Insurance Company be allowed.
On the other hand, Shri Thakre, learned counsel appearing for owners and driver submitted that no accident has taken place from the tractor of the claimants which was being driven by driver Kallu Singh and therefore these respondents are not at all responsible.
Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed while appeal filed by the insurer deserves to be dismissed.
I do not find any merits in the contention of learned counsel for Insurance Company that since the FIR is being placed reliance by first claimant Jhunju therefore the insurance company should be exonerated because in the FIR it has been mentioned that deceased was sitting in the trolley attached to the tractor which was driven by driver Kallu Singh. On bare perusal of the testimony of Jhunju it is gathered that he is an agricultural labourer and thus one can infer that he belongs to backward and weaker community. Jhunju has specifically admitted in his cross-examination that after lodging the FIR he did not read it. Further he has admitted that from the persons, who accompanied him when he went to lodge the report, he did not ask what was written in that report. Specifically he has stated that the deceased was sitting in the trolley attached to the tractor was not stated by him. How it was written in the report (Ex. P/1) he cannot say. In the affidavit under Order XVIII Rule 4 CPC filed by first claimant Jhunju he has specifically stated that impugned tractor was being driven rashly and negligently by Kallu Singh and he dashed the tractor with his daughter, as a result of which, she became seriously injured and lateron succumbed to the injuries.
Another witness of the claimants Rambaksh (PW2) has categorically stated that driver of the tractor Kallu Singh was driving the tractor make Sonalika No. M.P. 16-M/1935 rashly and negligently and same was dashed with the deceased, as a result of which she sustained injuries and ultimately she had died. Not even a single question has been put to this witness in the cross-examination made by insurer in regard to fact that deceased was traveling in the trolley attached to the tractor. The entire endeavour has been put in cross-examination as to whether accident has occurred with Sonalika or Mahendra Tractor. Thus, I am of the view that learned Tribunal rightly considered the evidence of witnesses and rightly came to the hold that Kallu Singh drove the impugned tractor bearing No. M.P. 16-M/1935 rashly and negligently and dashed it to the deceased, as a result of which, deceased had died. In these circumstances, the decision of Premlata (supra) is not applicable.
The question now hinges whether learned Tribunal has rightly assessed the compensation. Admittedly the deceased was a school going girl of 12 years of age. Looking to the backward community of claimants and particularly the father of deceased is a labourer, certainly while discharging his labour work the deceased must have been taking care of household work and therefore, according to me, notional income of Rs. 15,000/- per annum is to be assessed. After deducting 1/3rd amount it comes to Rs. 10,000/-. On applying the multiplier of 15 total compensation towards general damages would come to Rs. 1,50,000/-. For all other heads the claimants are entitled to Rs. 10,000/-. Thus, in total the claimants are entitled to compensation of Rs. 1.60 lac alongwith interest @9% per annum from the date of filing of the claim application.
Resultantly, this appeal succeeds and is hereby allowed, the impugned award is modified and enhanced to the extent indicated hereinabove. However, the appeal of insurer is hereby dismissed. The claimants/appellants shall be entitled for the cost of this appeal. Counsel fee Rs. 2000/- if pre-certified. Let a copy of this order be kept in connected M.A. No. 3258/2007 filed by the Insurer.