AO/510/2008 of NASIM and ANOTHER Vs HAFIZURREHMAN and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No.510 of 2008

Nasim & another

....Appellant

Hafiurrehman & others …..Respondents

Mr. Z. U. Siddiqui, Advocate for the appellants. Mr. P. C. Maulekhi, Advocate for the respondent no.3.

Hon’ble Alok Singh, J.

1)Present appeal has been preferred by the appellants-claimants against the judgment and award dated 29.11.2008 passed by the Motor Accident Claims Tribunal/Additional District Judge, Haldwani, District Nainital in M.A.C.P. No.92 of 2008, Nasim & another vs. Hafizurrehman & others, whereby the learned Tribunal has allowed the claim petition and awarded an amount of Rs.1,40,000/- along with interest @ 7% per annum thereon from the date of filing of the claim petition till the date of realization.

2)Brief facts of the case are that claim petition was filed by the claimants, unfortunate father and mother of the deceased alleging therein that when on 22.04.2008 deceased (Abbasu) was waiting for the bus alongwith his father near village Nola, P.S. Bhikyasen District Almora, Bus bearing no.UA04-1168 dashed the deceased, due to which, the victim sustained serious injuries and died on the spot. At the time of accident, the deceased was 5 years of age and was student.

3)The Tribunal, after considering the material evidence on record, held that the driver of the bus was driving the vehicle rashly and negligently, which resulted

in the accident causing death of the deceased. The Tribunal further found that the driver of the bus had valid licence and that the vehicle was insured with the New India Assurance Co. Ltd. Ultimately, the Tribunal allowed the claim petition for total sum of Rs.1,40,000/- as compensation along with interest @ 7% per annum from the date of filing of the claim petition till the date of realization against the insurance Company.

4)Learned counsel for the appellants vehemently argued that in Lata Wadhwa & others vs. State of Bihar & others,(2001) 8 SCC 197, Hon’ble Supreme Court held that the compensation amount for the childrenbetween the age group of 5 to 10 yearsshould be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000/- should be added and thus the total amount in each case would be Rs.2 lakhs. Learned counsel for the respondent refuted the contention and submitted that the compensation awarded to the claimants was just and proper and no interference is required.

5)After hearing the above submissions, this Court is of the view that since, in the instant case, the deceased was 5 years of age at the time of accident, the claimants hails from the lowest strata of the society, the loss of child to the parents is irrecoupable and no amount of money could compensate the parents, hence, the appropriate compensation would be Rs.1,50,000/-.

6)Learned counsel for the appellants further relied upon decision of Hon’ble Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram & others in Civil Appeal No.9581 of 2018 decided

on 18.09.2018, wherein Hon’ble Supreme Court awarded sum of Rs.40,000/- each to the father & sister of the deceased towards the loss of Filial Consortium. Hon’ble Supreme Court had also awarded sum of Rs.50,000/- towards the love and affection to the father and sister of the deceased.

7)Since the filial consortium is the right of the parents to compensation in the case of an accidental death of child; the accident leading to the death of child would have caused great shock and agony to the parents of the deceased (i.e. claimants herein) and the greatest agony for parent is to lose their child during their lifetime, hence, I deem it appropriate to award the father and mother of the deceased an amount of Rs.40,000/- each towards the loss of Filial Consortium and Rs.50,000/- each towards the love & affection. Apart from this, the appellants are also entitled for the funeral expenses @ Rs.10,000/-.

8)The next question falling for consideration is the rate of interest to be awarded. In the instant case, the Tribunal has awarded interest at the rate of 7 per cent. In Amresh Kumari vs. Niranjan Lal Jagdish Prasad Jain, (2015) 4 SCC 433 and Mohinder Kaur & Ors. vs. Hira Nand Sindhi, (2015) 4 SCC 434, Hon’ble Supreme Court has awarded the interest at the rate of 9 per cent. Therefore, the rate of interest should be 9% per annum from the date of filing of the claim petition till the realization of amount.

9)In view of above, this Court is of the opinion that apart from the compensation of Rs.1,50,000/-, the

appellants are also entitled for damages in the following manner:

10)In this way, total compensation of Rs.3,40,000/- is awarded to the claimants. The said amount of compensation will carry interest @ 9% per annum from the date of filing of claim petition till realization.

11)The present appeal is partly allowed and the impugned award of the Tribunal is modified in terms of above. No order as to costs.

Dated 08.01.2019

Rawat