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New India Assurance Co. Vs. Nachhan and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1984)ACC413
AppellantNew India Assurance Co.
RespondentNachhan and ors.
Excerpt:
- - the claim petition was resisted by the owner of the vehicle as well as the new india insurance company, the insurer of the vehicle......was too low. we find merit in the contention. the tribunal has recorded a finding that onkar nath claimants' son was crushed to death by the vehicle in question. the tribunal has further recorded a finding that the vehicle was being driven in a rash and negligent manner. these findings have not been challenged before us by the owner of the vehicle. on the question of compensation there is no positive evidence on record to indicate as to what pecuniary loss has been suffered by the claimants. naohkeu, father of the deceased onkar nath, stated before the tribunal that he was mallah by caste and his main occupation was to ply boat and catch fish. deceased onkar nath was student of class iv. he was not earning any month nor he was contributing any thing towards maintenance or welfare.....
Judgment:

K.N. Singh, J.

1. On 24-5-1976 at about 8.30 A.M. Onkar Nath, aged about 12 years, was crushed to death by a public carrier vehicle having registration No. UTB 6098, which was being driven by Jagmohan. The parents of the deceased boy filed claim petition before the Motor Accidents Claims Tribunal, Allahabad claiming compensation for the death of their son. The claim petition was resisted by the owner of the vehicle as well as the New India Insurance Company, the insurer of the vehicle. The Claims Tribunal by its award dated February 19, 1977, held that Onkar died on account of rash and negligent driving of the vehicle and the claimants was entitled to compensation. The Tribunal awarded a sum of Rs. 4000/- as compensation to the claimants. Aggrieved, the claimants filed appeal under Section 110-D of the Motor Vehicles Act, 1939, in this Court. On service of notice of the appeal, the Assurance Company has also filed a cross objection. The appeal and the cross objection both are being disposed of by this order.

2. On behalf of the claimant appellants it was urged that the amount of compensation awarded by the Claims Tribunal was too low. We find merit in the contention. The Tribunal has recorded a finding that Onkar Nath claimants' son was crushed to death by the vehicle in question. The Tribunal has further recorded a finding that the vehicle was being driven in a rash and negligent manner. These findings have not been challenged before us by the owner of the vehicle. On the question of compensation there is no positive evidence on record to indicate as to what pecuniary loss has been suffered by the claimants. Naohkeu, father of the deceased Onkar Nath, stated before the Tribunal that he was Mallah by caste and his main occupation was to ply boat and catch fish. Deceased Onkar Nath was student of class IV. He was not earning any month nor he was contributing any thing towards maintenance or welfare of the family. Since the boy was aged 12 years he would have attained majority after about 6 years and thereafter he would certainly have either continued the traditional occupation of his family of plying boats and catching fish or he would have engaged himself in some employment after completing his education. In any view of the matter, had the boy been alive he would have contributed towards the welfare of his parents at the rate of Rs. 100/- per mensem. In the case of death of a child and in the absence of any positive evidence relating to his potentialities with regard to his earning capacity, it is difficult to assess the actual amount of loss which the parents must have suffered. However, it cannot be ignored that parents entertain hope and sometimes rightly that the son on attaining majority would contribute to the welfare of the family. Having regard to the family status and the fact that in Mallah community even a boy at the age of 16 starts earning money plying boats, we are of the opinion that if Onkar Nath had been alive he would have made his contribution towards family after 3-4 years. In the circumstances of this case we are of the opinion that a global amount of Rs. 10,000/- be awarded to the claimant appellants.

3. Coming to the cross objection filed by the Insurance Company, we are of the opinion that the cross-objection is not maintainable. Under Section 96(2) of the Motor Vehicles Act only limited grounds are available to an insurer for contesting a claim petition. None of the grounds raised in the cross-objection fall within the grounds set out in Section 96(2) of the Act. The Insurance Company is not entitled to challenge the award of the Tribunal either on the question of compensation or on the question of rash and negligent driving of the vehicle. The cross-objection is misconceived and is liable to be dismissed.

4. In the result, we allow the appeal of the appellants and modify the award of the Motor Accidents Claims Tribunal and direct that the claimants are entitled to a sum of Rs. 10,000/- as compensation together with interest at the rate of 6% per annum from the date of the filing of the claim petition till date of payment. The claimants are entitled to the costs of the appeal.

5. The cross objection is dismissed with costs.


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