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Judgment
Gokal Chand Mittal, J.—On 25th May, 1976 Tarun Kumar, aged 5 years, was going along with his mother Saroj Pasrija from their house to Sanatan Dharam Mandir. They had to cross the road in Sector 16-D, leading from Sector 16-D Market to the Mandir. A car No. MDN 6172, driven by a lady, which came from Sector 16-D Market, hit Tarun Kumar and after running him over hit a standing scooter rickshaw CHV 422 in which Videshi Ram, its driver, was sitting. Videshi Ram also suffered injuries. The child suffered serious injuries and was removed to General Hospital in Sector 16 and then to P.G.I. Hospital where he died The child''s father K.L. Pasrija and mother Saroj Pasrija filed a claim petition and demanded Rs. 50,000/- as compensation. Another claim petition was filed by Videshi Ram. He demanded Rs. 20,000/-. In the claim petitions Manohar Lal Uppal, owner of the car, his wife Mrs. Jean Uppal, who was driving the car and the insurance company, with which the car was insured, were impleaded as parties.
The owner and the alleged driver of the car pleaded that it was the owner of the car who was driving it and his wife was not driving nor she knew driving. They also disputed if the car was being driven negligently. The entire blame was put on the child and the driver of the scooter rickshaw. The stand taken by the insurance company-was that the wife of the insured was driving and since she did not have driving licence, the insurance company was not liable to reimburse. On the contest of the parties, the following issues were framed:
(1) Whether on 25.5.1976, at about 8.30 p.m. the Respondent No. 1 and/or the Respondent No. 2 caused the accident in question by driving rashly and negligently car No. MDN 6172 on the road near Sanatan Dharam Temple in Sector 16-D, Chandigarh, resulting in injuries to Taran Kumar deceased leading to his death.
(2) If issue No. 1 is proved, whether the claimant-Petitioners are entitled to have any compensation for the death of the deceased? If so, of what amount and from whom of the Respondents?
(3) Whether the Respondent No. I held valid driving licence on the date of the accident? If not what is its effect?
(4) Whether this claim petition is not time barred qua the Respondent Nos. 1 and 2?
(5) Relief.
On the evidence led in the case, Motor Accidents Claims Tribunal by separate awards dated 5th March, 1979 came to the conclusion that Mrs. Jean Uppal was driving the car, she was without licence, the driver and the child were negligent in equal degree and since the driver was not insured, the insurance company was not liable. As regards the quantum, it was found that the parents of the deceased child had suffered a loss of Rs. 5,000/- and since the child was held guilty of negligence with the driver of the car to an equal degree, the parents were awarded half of the amount i.e. Rs. 2,500/-along with six per cent interest. Against the aforesaid award the parents have come to this Court in F.A.O. No. 326 of 1979 to claim Rs. 50,000/-.
In the other claim petition it was held that the scooter rickshaw was standing on the road side and the car came and struck it and therefore, the driver of the car was negligent. As regards the compensation, it was found that for the three minor injuries, the claimant was entitled to Rs. 425/- (Rs. 125/- for pain suffered, Rs. 100/- for medical treatment and Rs. 200/- for loss of wages as the injuries could take maximum one week to heal). F.A.O. No. 587 of 1979 has been filed by the claimant to claim enhancement.
In both the appeals the owner of the car and the alleged driver of the car have filed cross-objections for reversal of the awards of the Motor Accidents Claims Tribunal. Since they are connected matters, they are being disposed of by a common judgment.
After hearing Mr. Lalit Mohan Suri for the claimants in the first appeal, Mr. S.S. Ahlawat for the claimant in other appeal, Mr. Mukesh Ahluwalia for the owner and the alleged driver of the car and Mr. V.P. Gandhi for the insurance company, I am of the view that there is no escape from the conclusion that it was the driver of the car who was negligent. The photographs and other evidence brought on the record clearly go to show that it was a case of res ipsa loquitur.
Further support to the aforesaid finding can be added if it is found that Mrs. Jean Uppal was driving the car because she in her own statement has stated that she did not know driving and did not have licence. Therefore, before this support is found it has to be seen whether she was driving the car or whether her husband was driving.
The child was going with his mother Saroj Pasrija and Sneh Passi had also accompanied Saroj Pasrija for going to the temple. Both of them are the eye-witnesses of the occurrence. The third eye-witness is Videshi Ram, the driver of the scooter rickshaw, who was sitting in it. All the three have stated without hesitation that a lady was driving the car and when the car got stuck up with the scooter rickshaw, she got down from the left door. They came to know about her name later on. In the face of the statements of these three eye-witnesses, no reliance can be placed on the statement of Mrs. Jean Uppal or Manohar Lal Uppal. A criminal case for driving the car negligently and causing injuries while driving negligently was filed by the police against Mrs. Jean Uppal and probably for that reason the husband tried to own the incident in order to save his wife. Similar stand was also taken in the criminal Court where benefit of doubt was given to Mrs. Jean Uppal and she was acquitted. They have also produced Mr. Surinder Bhakhu RW 2 and H.R. Verma RW 3 in their support to prove that Manohar Lal was driving the car. Their presence at the time of the occurrence is not established. Therefore no reliance can be placed on the statements of these two witnesses. Accordingly I uphold the finding of the Tribunal below that Mrs. Jean Uppal was driving the car. Hence there is no escape from the conclusion that she was negligently driving the car.
The next question which arises for consideration is whether the Tribunal below was right in concluding that the child was negligent to the extent of 50 per cent. To my mind this appears to be totally erroneous view of law. On all busy roads, especially where market is nearby, the driver of a motor vehicle has to take greater and extra precaution to save the pedestrians and more so when the children are likely to pass. When Mrs. Jean Uppal did not know driving so as to control the car if somebody came in front, question of fixing contributory negligence could not arise and in no case can be fixed if it happened to be a child. In the following four cases children between the ages of 2 to 6 years were run over by motor vehicles and total negligence was put on the drivers of the vehicles and no contributory negligence was attributed to the children:
(i) George Tharkan v. Kochappi Narayanan 1972 ACJ 79 (Ker);
(ii) Motor Owners'' Insurance Co. Ltd. v. A.N. Pattammal 1972 ACJ 380 (Mad);
(iii) Mohan Lai v. Kumari Babbi 1967 ACJ 123 (P &H); and
(iv) Sunil Kumar v. Roshan Lal 1973 ACJ 41 (Del).
Accordingly I reverse the decision of the Tribunal that the child was negligent to the extent of 50 per cent and hold that the entire negligence was of the driver of the car.
Next question is how much compensation the parents of the deceased minor are entitled to. The Tribunal was of the opinion that the rule of multiplier was not applicable while assessing damages in case of death of a child. A Division Bench of this Court in F.A.O. No. 38 of 1984 Zenith Papers v. Gurmeet Kaur decided on 6th April, 1984 has held that dependency and multiplier in case of death of a child in accident has also to be evaluated. Therein one year old child when carried by the mother in her lap died as a result of accident. It was ruled that even a labourer would have been in a position to contribute Rs. 100/- per month for his parents and on that basis Rs. 19,000/- was allowed to the parents. In view of the aforesaid decision, I hold that the parents of the deceased minor child are entitled to Rs. 20,000/- as compensation. They shall further be entitled to interest at the rate of 12 per cent per annum from the date of filing of the claim application till payment thereof.
Adverting to the claim made by Videshi Ram, driver of the scooter rickshaw, I am of the opinion that no interference is called for in the award of the Tribunal. The claimant suffered one lacerated wound and two abrasions. No evidence was produced as to the loss of wages nor reliable evidence was produced about the medical expenses incurred by him. For the minor injuries caused, which could be cured within a week, the Tribunal below has allowed Rs. 100/- towards medical treatment and Rs. 200/- towards loss of wages, which would be at the rate of nearly Rs. 30/- per day. For pain and suffering the award of Rs. 125/- also does not appear to be low. Accordingly no interference is called for in the quantum of compensation awarded to Videshi Ram.
Since it has been held that the car was being driven by Mrs. Jean Uppal, who had no driving licence, the insurance company cannot be held liable to reimburse the insured. Therefore, the driver of the car, i.e. Mrs. Jean Uppal and its owner Manohar Lai Uppal would be liable to pay the compensation and the cross-objections filed by them have no merit.
For the reasons recorded above, while F.A.O. No. 587 of 1979 and the cross-objections filed in this appeal and the other appeal are dismissed, F.A.O. No. 326 of 1979 is allowed to the extent that the driver and the owner of the car, i.e. Mrs. Jean Uppal and Manohar Lai Uppal shall be jointly and severally liable to pay Rs. 20,000/- to the parents, of the deceased child as compensation. On the aforesaid amount of compensation the claimants would be entitled to 12 percent interest from the date of filing of the claim application till payment thereof. The parties are left to bear their own costs.