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Abdul Wahab and anr. Vs. Chandra Prakash - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1985)ACC1
AppellantAbdul Wahab and anr.
RespondentChandra Prakash
Cases ReferredSrisailam Devastanam v. Bhavani Premilamma and Ors.
Excerpt:
- - 4. learned counsel for the appellants urged that upon the material placed on the record as found also by the tribunal, it is clearly made out that the respondent no. 4 and 5). these papers bear out clearly along with the oral testimony that the said car was being run by respondent no. abdul wahab testified that the child was normal and in good health. abdul naqi was eldest child is normal health and he was naturally the recipient of immense love and affection. 5,003/- was awarded on this score as well. like any daughter, she is a nurse, a comforter and a mind at the time of need. award of compensation towards loss of consortium of a spouse is also well recognised, see srisailam devastanam v......the award of the motor accidents claims tribunal, kanpur, dated may 10, 1977.2. abdul naqi, son of abdul wahab, aged about 2 years, was at pay on the foot-path opposite the premises no. 25/39, karachi khana, kanpur on august 14, 1975 at about 5.40 p.m. the father abdul wahab was at work in cycle repairing close by car no. upg 5073, belonging to respondent no. 1. was standing at a distance of merely 20 paces from the child. driver arif, respondent no. 2, was at the steering. he gave a start to the car and proceeded from south towards north overrunning the child. abdul naqi sustained mutiple injuries; he was rushed to hospital, but be succumbed to the injuries within about two hours. first information report was lodged by abdul wahab at 8.45 p. m. the same day. on november 20, 1975, abdul.....
Judgment:

B.P. Agarwal, J.

1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939, directed against the award of the Motor Accidents Claims Tribunal, Kanpur, dated May 10, 1977.

2. Abdul Naqi, son of Abdul Wahab, aged about 2 years, was at pay on the foot-path opposite the premises No. 25/39, Karachi Khana, Kanpur on August 14, 1975 at about 5.40 P.M. The father Abdul Wahab was at work in cycle repairing close by Car No. UPG 5073, belonging to respondent No. 1. was standing at a distance of merely 20 paces from the child. Driver Arif, respondent No. 2, was at the steering. He gave a start to the car and proceeded from south towards north overrunning the child. Abdul Naqi sustained mutiple injuries; he was rushed to hospital, but be succumbed to the injuries within about two hours. First Information Report was lodged by Abdul Wahab at 8.45 p. m. the same day. On November 20, 1975, Abdul Wahab and his wife applied for the award of compensation contending that the accident occurred on account of the rash and negligent driving by the respondent No. 2. The claim was resisted by the respondents pleading that at the relevant time the car was out of order and the respondent No. 2 did not drive the same. It was also averred that the deceased was not in a position to support the parents and the claim laid for compensation is imaginary.

3. The Tribunal case to the finding. On considering the evidence placed on the record, that the accident resulting in the death of the child was caused directly due to the rash and negligent act of respondent No. 2 for which the respondent No. 1 is also vicariously liable. The plea raised for the respondents to the effect that the car was not in the working order or that that was not being driven by the respondent No. 2 was discarded as untenable. In regard to damages, however, the Tribunal observed that since the child could not have any earning of his own, the parents could not lay any claim on this score and also that they are not legible to any compensation for the alleged shock to themselves. Aggrieved, the claimants have preferred this appeal.

4. Learned Counsel for the appellants urged that upon the material placed on the record as found also by the Tribunal, it is clearly made out that the respondent No. 2 was rash and negligent in driving the car. P.W. Abdul Wahab, the father was at work about four or five paces away from the child, He is an eye-witness to the accident and nothing could be elicited in cross-examination to discard his testimony on the point. P.W. A.K. Pandey, was on the road over his motor cycle at a short distance.

5. He is named as an eye-witness in the first information report also which was lodged shortly after the incident. The child was playing over the foot-path opposite the residence of the claimants. The car driven by respondent No. 2 moved suddenly from south to north. The respondent No. 2 did not take precaution to avert collusion with the child, who was, in consequence, run over. The theory advanced for the respondents that the car in question was not in working order and that it was stationed in the workshop of one Achchey Mistry is evidently fabricated. P.W. 2 J.N. Mittal testified that U.K. Misra, the service engineer employed in the company where this witness served as an accountant, had hired this case for the period of August 12, 1975 to August 15, 1975. In corroboration the relevant bill and the voucher were also produced (vide Exs. 4 and 5). These papers bear out clearly along with the oral testimony that the said car was being run by respondent No. 1 for profit as an unregistered taxi during the relevant period. Achchey Mistri aforementioned was not examined nor any reason assigned. The insurance had expired on March 14, 1975, but immediately after this accident, respondent No. 1 rushed to get the insurance remade effective from August 16, 1975. P.W. Abdul Wahab, it also appears, could have no possible motive to implicate falsely any of these respondents. Arif, respondent No. 2, was not a stranger to him. Both had been residing in part of the same premises and it does not seem that Abdul Wahab will have had any inclination to let off the real culprit in this respect. There is no question of mistaken identify about the car or the driver thereof. Taking all these facts into account, the Tribunal has in our view rightly concluded that the accident leading to the death of the child occurred directly on account of the rash and negligent act of the respondent No. 2.

6. In regard to the damages, the contention of the appellants' learned Counsel is that the Tribunal has erred in taking the view that the appellants are not entitled to recover any amount. Abdul Wahab testified that the child was normal and in good health. The father himself carries on the work of repairing cycles. Assuming that on being grown up the deceased may not have taken to some more lucrative occupation, there is no sound basis to suppose that he will not have, in any case, engaged himself also along with his father in reparing cycle etc. and Abdul Wahab deposed indeed that deceased will have partaken of his occupation which shows that intention on his part to have employed the son in this job. It might be assumed for the sake of argument that Abdul Naqi deceased may have been fit at least to engage himself in this trade on attaining say the age of 18 years. Abdul Wahab, the father, is himself about 37 years of age at present; his wife is nearly 30 years old. Born in November, 1973 the deceased was about two years of age when he was killed. It may be easily expected in our view that in the normal course the deceased may have been available after twenty years to his parents' support. According to the estimate of the appellants, the deceased may have contributed on an average Rs. 100/- per month to the parents and this may not be regarded as exaggerated. On this calculation the amount runs to Rs. 24,000/-. For the respondents the learned Counsel argued that P.W. Abdul Wahab has not specified the income made by him from repairing cycles. In these matters the Court cannot be oblivious of things of common place. It is a matter of common knowledge that wages for manual labour having gone up, the daily earning in repairing cycles etc. has also risen appreciably and there is no likelihood of this being reduced in any substantial measure in the foreseeable future. On making allowance for such unforeseeable events as natural death being caused on any account for some disability arising in future, it is just in our considered opinion to fix the amount of compensation on this score at Rs. 20,000/- only.

7. For the appellants claim then has also been laid on the ground of mental shock and agony sufferred by them due to the death of the child. Abdul Naqi was eldest child is normal health and he was naturally the recipient of immense love and affection. A sum of Rs. 5,000/- on the score of mental shock and agony suffered by the appellants at the loss of the child is in our view reasonable.

8. Section 110-B of the Motor Vehicles Act envisages an award determining the amount of compensation which appears just to the Tribunal. The word 'compensation' means anything given to make things equivalent, a thing given to or to make amends for loss, recompense, remuneration or pay, vide State of Gujarat v. Shantilal Mangaldas : [1969]3SCR341 . In Corpus Juris Secundum, Volume No. 15 at pages 652 and 653, the meaning of the word 'compensation' with reference to injuries or loss has been defined thus :

In the sense of an act, the word has been defined as meaning an act which a court orders to be done or money which a court orders to be paid, by a person whose acts or omissions have caused loss or injury to another, in order that thereby the person demnified may receive equal value for his loss, or be made whole in respect of his injury; the giving back an equivalent in either money, which is but the measure of value, or in actual value otherwise conferred; indemnification, making amends, payment of damages, or the rendering an equivalent in value of amount a recompense or reward for some loss, injury or service, especially when it is given by statute; that return which is given for something else. More specifically with reference to injury or loss, 'compensation' has been defined as making amends ; an equivalent given to property taken or for an injury done to another, or an equivalent in money for a loss sustained.

9. The intention of the Legislature in enacting Section 110-A to 110-F of the Motor Vehicles Act would seem to be that in case of fatal accidents arising out of use of motor vehicles, the Tribunal has to determine 'just compensation' and not merely 'damages' in a more wider sense than the restricted meaning which may be given to the word 'damages'. There is an effort to recompense the person concerned to the extent it is feasible in terms of the award of money for the loss caused. The notion entertained by the Tribunal that the appellants could not claim any amount because the deceased could not render any financial assistance to them at the time when the accident took place is unsustainable. This overlooks the reasonably foreseeable support which claimants may have received in the normal course if the child had survived. In Rashid Husain and Anr. v. Union of India 1981 All. CJ 566 decided by Division Bench of which one of us (B.D. Agarwal, J.) was a Member, the deceased was a male child of about five years. The father was a clerk in an educational institution. It was observed that it could be reasonably expected that if the deceased had survived, he would have gone to school at the appropriate age and might have in any event, acquired at least the position of a clerk. The loss occurring to the parents was estimated on this basis. It was also pointed out that the mental shock sufferred by the parents on the loss of their child irrespective of their status is colossal and a sum of Rs. 5,003/- was awarded on this score as well. Other decisions are also pointers in this direction In Allah Bakhas and Ors. v. Dhirendranath Panda and Anr. 1983 ACJ 650 the deceased was a female child of about eight months only in age. The Orissa High Court awarded a sum of Rs. 8,000/- for the loss of the child to the parents observing that a daughter is of considerable assistance to her parents in our community especially in a middle class or lower middle class family. She does the house-hold chores. Like any daughter, she is a nurse, a comforter and a mind at the time of need. The parents are deprived of her affection, care and service. In E. Enjanadevi v. Arumugham and Anr. 1983 ACJ 625 the deceased was a male child of about 12 years in age. Taking into consideration the age of the boy, family environment and prospects of his future life the Madras High Court fixed a sum of Rs. 15,000/- for the death of the boy. Award of compensation towards loss of consortium of a spouse is also well recognised, see Srisailam Devastanam v. Bhavani Premilamma and Ors. 1983 ACJ 580. The denial to the parents by the Tribunal in the instant case, therefore, of compensation including for the shock and agony sufferred by them is altogether unjustified.

10. Having regard to the discussion made in the above, the appellants are, in four view, entitled to receive a sum of Rs. 25,000/- as compensation from the respondents in addition to interest @ 6% per annum simple payable from the date of the application i.e. November 20, 1975 till the date of payment. The appeal is allowed in part accordingly with proportionate costs.


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