ORIENTAL INSURANCE CO LTD Vs. SAROJ & ORS

JUDGEMENT

(1.) This appeal has been preferred by the Oriental Insurance Company Ltd. against the award dated 3.12.2009 passed by the Motor Accident Claims Tribunal (Fast Track), Kotputli whereby the claim petition filed by respondent no.1 and 2 was allowed and compensation in the sum of Rs.2,25,000/- was awarded on account of accidental death of their daughter Santosh @ Sheetal. The daughter of the claimants died on account of accident involving truck no.HR 35D 339 which was insured with the appellant insurance company. The appellants filed an application under Section 170 of the Motor Vehicles Act, which was allowed. The Tribunal held that the accident took place due to rash and negligent driving of the tractor and accordingly granted compensation of Rs.2,25,000 with interest @ 7.5% per annum from the date of filing of claim petition.

(2.) Shri Amarnath Pareek, learned counsel for the appellant has argued that the accident took place due to own negligence of the child and her parents and if proper care would have been taken, accident could have been averted. The child was playing on the road, which is meant for traffic purpose. It was argued that the learned Tribunal while awarding compensation of Rs.2,25,000/- has not applied the multiplier system. The deceased was 6 years of old at the time of accident and if the compensation was awarded on the basis of multiplier system, compensation would come to much lesser amount. It is argued that as per Section 163A of the Motor Vehicles Act, it is necessary to deduct 1/3rd of the income towards personal expenses, but the learned Tribunal has failed to give effect to the said provision and thus committed illegality while passing the award. It is argued that a girl child of 6 years cannot said to have been any earning and as such the compensation could not be awarded under the head of loss of income. Further compensation under the head love and affection etc. also could not be so erroneous. Thus, awarding compensation of Rs.2,25,000/- by the Tribunal is wholly unjustified.

(3.) Shri Amar Nath Pareek, learned counsel for the appellant in support of his arguments has relied on the judgement of Supreme Court in Oriental Insurance Co. Ltd. vs. Syed Ibrahim & Ors., 2007 ACJ 2816 and argued that in that case, the Supreme Court reversed the judgement of High Court enhancing the compensation of Rs.51,500/- to Rs.1,52,000 in the case of accidental death of a child aged 7 years. Learned counsel relied on the judgement of Supreme Court in New India Assurance Co. Ltd. vs. Satender & Ors., 2006 8 Supreme 870, in which case the compensation of Rs.1,80,000/- was granted in the case of a child aged 9 years. Learned counsel also relied on the judgement of this Court in Nanu Ram & Anr. vs. Bhojraj Gurjar & Anr., S.B. Civil Misc. Appeal No.1693/2005 decided on 24.5.2007, in which case also for the age group between 5-10 years, compensation of Rs.1,80,000/- was held to be justified. Learned counsel also cited the judgement of this Court in Abdul Zabbar & Anr. vs. Kulwant Singh & Ors.,2011 1 TAC 480 and argued that this Court relying on the judgement of Supreme Court in Manju Devi & Anr. vs. Musafir Paswan & Anr., 2005 1 TAC 609 has held that in case of a child upto 5 years old, amount of Rs.1,00,000/- would be justified as compensation. It is therefore prayed that the amount of Rs.2,25,000/-, being not justified be decreased.