Punjab-Haryana High Court
Versha Devi & Anr vs Sheru Khan & Ors on 3 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:044871
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
105 FAO-1488-2014 (O&M)
Date of Decision : 03.04.2024
VERSHA DEVI & ANR .... Appellants
VERSUS
SHERU KHAN & ORS .... Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Atul Yadav, Advocate for the appellants.
Service of respondents No.1 and 2 exempted
vide order dated 15.01.2016.
Mr. Diwan S. Adlakha, Advocate for respondent No.3.
ALKA SARIN, J. (ORAL)
1. The present appeal has been preferred by the claimant-
appellants challenging the award dated 23.05.2013 passed by the Motor
Accident Claims Tribunal, Gurgaon on two counts. Firstly, on the ground
that it has wrongly been held to be a case of contributory negligence and
secondly, on the quantum of compensation which has been awarded for the
death of a 4-year old child.
2. The brief facts relevant to the present case are that on
25.02.2012 Baby Tulsi (since deceased) along with her mother, namely,
Smt. Versha Devi and Manoj Singh (brother of Smt. Versha Devi) and other
relatives were travelling in a Maruti Car bearing registration No.DL-2CL-
2038. They started their journey from Village Jakhora for Bullandshehar
(UP). The car was being driven by Sanjay son of Ajab Singh at a moderate
speed. It was around 10:00 am when they reached near Shekhupur Gathwa
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in the area of Police Station Khanpur (Bullandshehar) when a bus bearing
registration No.UP-15F-8464, being driven by the driver at a very high
speed and in a rash and negligent manner, came from the side of
Bullandshehar and hit the Maruti Car as a result of which all the occupants
of the Maruti Car sustained serious multiple injuries. Baby Tulsi was shifted
to Ajay Hospital, Bhopal Vihar and the other injured were shifted to a
Hospital at Bullandhsehar by the villagers. On the statement of Manoj Singh
(maternal uncle of the deceased) a case bearing FIR No.24 dated 25.02.2012
under Sections 279, 337, 338, 427 and 304-A Indian Penal Code, 1860 was
registered at Police Station Khanpur, District Bullandshehar (UP). The child
succumbed to her injuries after remaining hospitalized from 25.02.2012 to
28.02.2012. Respondents No.1 and 2 i.e. the driver and the owner of the
offending vehicle admitted the factum of the accident. However, they
asserted that the accident had occurred due to the negligence of the driver of
the Maruti Car. It was further averred that respondent No.1 was holding a
valid driving licence and the offending vehicle was insured with respondent
No.3. Respondent No.3-Insurance Company filed a separate written
statement taking a stand that the conditions of the policy had been violated
and hence there was no liability of respondent No.3-Insurance Company.
3. On the basis of the pleadings of the parties, the following issues
were framed :
1. Whether the accident in question was caused by
respondent No.1 while driving vehicle bearing
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registration No.UP-15F-8464 in a rash or negligent
manner, resulting into death of Tulsi, as alleged ?
OPP
2. If issue No.1 is proved, whether the claimants are
entitled to any compensation and if so, to what
extent and from whom ? OPP
3. Whether respondent No.3 is not liable to make
payment of any compensation on account of
alleged violation of terms and conditions of
insurance policy ? OPR-3
4. Relief.
4. The Tribunal, holding that it was a case of a head-on collision,
held it to be a case of contributory negligence. The Tribunal had assessed a
lump sum compensation to the tune of Rs.2,40,000/-; Rs.37,400/- towards
medical expenses and Rs.10,000/- for funeral expenses (Total Rs.2,87,400/-)
and since it was held to be a case of contributory negligence, it was held that
Rs.1,43,700/- is to be paid as compensation to the claimant-appellants and
recovery rights were also given to respondent No.3-Insurance Company.
5. Learned counsel for the claimant-appellants would contend that
the child was only a passenger in the Maruti Car and hence could not have
been held to be in any manner contributed to the accident. In support of his
argument, learned counsel for the claimant-appellants has relied upon the
judgment passed by the Hon'ble Supreme Court in the case of Mohammed
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Siddique & Anr. vs. National Insurance Company Limited & Ors. [AIR
2020 SC 520]. It is further contended by the learned counsel for the
claimant-appellants that the amount of compensation awarded is on the
lower side. In support of his argument, learned counsel has relied upon the
judgment passed by the Hon'ble Supreme Court in the case of Kusmi Devi
vs. Mohd. Kasim & Anr. [2024 (1) PLR (49)] to contend that an amount of
Rs.6,00,000/- was granted as compensation in the case of death of a 3-year
old child in an accident which occurred in the year 1994. The accident in the
present case took place in the year 2012.
6. Per contra, learned counsel for respondent No.3-Insurance
Company would contend that it is a case of contributory negligence. In
support of his arguments, learned counsel for respondent No.3-Insurance
Company has relied upon the judgment passed by the Hon'ble Supreme
Court in the case of Kurvan Ansari @ Kurvan Ali & Anr. vs. Shyam
Kishore Murmu & Anr. [2022 (1) RCR (Civil) 165] to contend that
though it was a case under Section 163-A of the Motor Vehicles Act, 1988,
however, notional income of the child was fixed as Rs.25,000/- per annum
for an accident which took place in the year 2004. Further reliance has been
placed upon a judgment of this Court in the case of Ravinder Kaur & Anr.
vs. Roop Lal & Ors. [2006 (4) RCR (Civil) 329] to contend that in the case
of death of a 4-year old child the compensation awarded was Rs.2,00,000/-.
7. Heard.
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8. In the present case, firstly dealing with the contention regarding
contributory negligence. Even if it was a case of contributory negligence, the
child who was 4-year old and was travelling with her mother in the car could
not be have been held to have contributed to the accident in any manner.
Being a mere passenger there was no role played by the child which could
have in any manner contributed to the accident. The Hon'ble Supreme Court
in the case of Mohammed Siddique (supra) has held as under :
"13. But the above reason, in our view, is flawed. The
fact that the deceased was riding on a motor cycle along
with the driver and another, may not, by itself, without
anything more, make him guilty of contributory
negligence. At the most it would make him guilty of
being a party to the violation of the law. Section 128 of
the Motor Vehicles Act, 1988, imposes a restriction on
the driver of a two wheeled motor cycle, not to carry
more than one person on the motor cycle. Section 194C
inserted by the Amendment Act 32 of 2019, prescribes a
penalty for violation of safety measures for motor cycle
drivers and pillion riders. Therefore, the fact that a
person was a pillion rider on a motor cycle along with
the driver and one more person on the pillion, may be a
violation of the law. But such violation by itself, without
anything more, cannot lead to a finding of contributory
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negligence, unless it is established that his very act of
riding along with two others, contributed either to the
accident or to the impact of the accident upon the
victim. There must either be a causal connection
between the violation and the accident or a causal
connection between the violation and the impact of the
accident upon the victim. It may so happen at times, that
the accident could have been averted or the injuries
sustained could have been of a lesser degree, if there
had been no violation of the law by the victim. What
could otherwise have resulted in a simple injury, might
have resulted in a grievous injury or even death due to
the violation of the law by the victim. It is in such cases,
where, but for the violation of the law, either the
accident could have been averted or the impact could
have been minimized, that the principle of contributory
negligence could be invoked. It is not the case of the
insurer that the accident itself occurred as a result of
three persons riding on a motor cycle. It is not even the
case of the insurer that the accident would have been
averted, if three persons were not riding on the motor
cycle. The fact that the motor cycle was hit by the car
from behind, is admitted. Interestingly, the finding
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recorded by the Tribunal that the deceased was wearing
a helmet and that the deceased was knocked down after
the car hit the motor cycle from behind, are all not
assailed. Therefore, the finding of the High Court that 2
persons on the pillion of the motor cycle, could have
added to the imbalance, is nothing but presumptuous
and is not based either upon pleading or upon the
evidence on record. Nothing was extracted from PW3 to
the effect that 2 persons on the pillion added to the
imbalance.
14. Therefore, in the absence of any evidence to show
that the wrongful act on the part of the deceased victim
contributed either to the accident or to the nature of the
injuries sustained, the victim could not have been held
guilty of contributory negligence. Hence the reduction of
10% towards contributory negligence, is clearly
unjustified and the same has to be set aside."
In view of the above the finding qua contributory negligence
cannot be sustained and the same is accordingly set aside.
9. Learned counsel for respondent No.3-Insurance Company has
vehemently argued that the Hon'ble Supreme Court in the case of Kurvan
Ansari @ Kurvan Ali (supra) in the case of death of a 7-year old child had
assessed the notional income as Rs.25,000/- though it was a case under
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Section 163-A of the Motor Vehicles Act, 1988. Though in the case of
Kusumi Devi (supra) an amount of six lakhs was awarded by the Hon'ble
Supreme Court, this Court is inclined to assess the income as per the dictum
laid by the Hon'ble Supreme Court in the case of Kurvan Ansari @
Kurvan Ali (supra) fixing a notional income for the deceased child. Since
the Act is a beneficial piece of legislation, the Courts are always inclined to
see where the claimants can get maximum benefit within the four corners of
the law as laid down. The accident in the case of Kurvan Ansari @
Kurvan Ali (supra) pertains to the year 2004 and the accident in the present
case pertains to the year 2012. For an accident which had taken place in the
year 2004 their Lordships have assessed the notional income of the deceased
as Rs.25,000/- per annum and applied a multiplier of '15' and also awarded
funeral expenses and filial consortium. Keeping in view the fact that the
present accident took place in the year 2012, the notional income of the child
is assessed as Rs.50,000/- per annum. Multiplier of '15' would have to be
applied since the deceased was a child of 4 years. The claimants would also
be entitled to funeral expenses of Rs.18,000/- and filial consortium of
Rs.48,000/- each (being parents of the deceased).
10. Accordingly, the reworked compensation is as under :
Sr. No. Heads Compensation Awarded
1 Notional income Rs.50,000/-
2 Multiplier 15 (Rs.50,000/- x 15) = Rs.7,50,000/-
3 Funeral expenses (Rs.15,000+20% increase) Rs.18,000/-
4. Loss of Consortium :
(i) Filial Rs.96,000/- (48,000 x 2)
5 Total Compensation Rs.8,64,000/-
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11. The amount in excess of and over and above the amount
awarded by the Tribunal shall also attract interest @ 7.5% per annum from
the date of filing of the claim petition till the realization of the entire amount.
The amount shall be apportioned between the claimant-appellants as directed
by the Tribunal. Recovery rights, as given by the Tribunal, are maintained.
12. In view of the above discussion, the present appeal is allowed
and the award passed by the Tribunal is modified accordingly. Pending
applications, if any, also stand disposed off.
03.04.2024 (ALKA SARIN)
Aman Jain JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
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