1. Heard Sri S.K. Mehrotra holding brief of Sri Manish Goyal, learned counsel for appellant and Sri Ram Singh, learned counsel appearing for claimant-respondent and perused the record.
2. This First Appeal From Order filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellant- Oriental Insurance Company Ltd., having arisen from judgment and award dated 29.01.2005 passed by Motor Accident Claims Tribunal / Additional District Judge, Court No. 19, Allahabad in M.A.C.P. No.299 of 2004 against the award of Rs.2,25,000/- awarded to the claimant respondent.
3. The brief facts of the case go to show that minor has died in the accident.
4. The grounds of the present case are that the oral evidence adduced on behalf of the claimant being contradictory, the identity of the vehicle involved was not established on record and evidence as available on record established that the deceased himself contributed to negligence as the accident took place on the right side of the road. The age of parents is a relevant factor and multiplier method taking into consideration the age of parents ought to have been adopted by learned Tribunal. Merely on the basis of the presumption have awarded an amount of Rs.2,25,000/-. The first ground that the child himself was negligent is not established on record, the deceased is not proved to have contributed to the accident taken place. Therefore, on the record and finding, it cannot be said that the minor was in any way negligent. The accident occurred at 2 p.m. when the driver drive a vehicle rashly and negligently. The chargesheet was laid against the driver of the vehicle. Though the insurance company filed its written statement raising all kind of defences it did not prove any of them. It has been contended that the multiplier should that of the parents however that issue is no longer res integra and, therefore, was not rest.
5. Learned counsel for appellant relied on Division Bench Judgment in Ranjan Prakash and others Vs. Divisional Manager and another (2011)14 SCC 639 has categorically held that:
"8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation in an appeal by owner/insurer for reducing the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
6. Leaned counsel for appellant has also placed reliance on recent Full Bench Judgment in the case of Akhil Bhartiya Marwari Agarwal Jatiya Kosh and others Vs. Brijlal Tibrewal and others, Civil Appeal Nos. 12088-12089 of 2018 arising out of SLP (C) Nos. 10093-10094 of 2016, wherein held that broad principle at play here i.e. the scope of an appeal in the absence of a cross-appeal and the resultant power of such Appellate Court. The Apex Court while deciding the dispute therein has held that:
"12.1. .... In an Appeal preferred by the original defendants, as observed above, at the most, the High Court can dismiss the Appeal and confirm the judgment and decree. However, the appellants original defendants cannot be put in a worse condition than beyond the judgment and decree passsed by learned Trial Court which was appealed before the First Appellate Court and that too in the absence of any cross appeal or cross objection by the original plaintiffs.
Therefore also, the impugned orders passed by the High Court which, as such, will go beyond the judgment and decree passed by the learned Trial Court are not sustainable, more particularly, in absence of any cross appeal and/or other the cross-objection by the original plaintiffs. Once the High Court has dismissed the appeal preferred by the appellants original defendants, in that case, in an appeal preferred by the original defendant, the High Court could not have passed any further order beyond the judgment and decree passed by the learned Trial Court appealed. Thus, by passing the impugned order, it can be said that the High Court has passed order beyond the scope and ambit of the appeal before it and has exceeded in its jurisdiction not vested in it."
7. Sri Ram Singh, learned counsel for claimant-respondent has vehementally opposed the submission of learned counsel for appellant and rely on the following judgments:-
(i) First Appeal From Order No. 2389 of 2016, National Insurance Company Limited Vs. Vidhyawati Devi and 2 others.
(ii) 2017 (4) TAC 288 Ald HC, New India Assurance Company Limited Vs. Resha Devi and others.
(iii) (1999) 8 SCC 229, Delhi Electric Supply Undertaking Vs. Basanti Devi and another
(iv) 2015(1) TAC 673 (SC), Jitendra Kimshankar Trivedi Vs. Kasam Daud Kumbhor and others
(v) 2017 (1) AICC 692, Nagma Bano Vs. Harish Chandra Gupta and others.
8. Having considered the decisions in both the appeal and the cross objection will have to fail the reason. The Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and later judgment has held that the death of a child will be compensated looking to the age. In this case Rs.2,25,000 is just compensation, I have not discussed the judgment cited by Sri Mehrotra which speaks about enhancement and absence of oral evidence as the judgment in Ranjan Prakash and others Vs. Divisional Manager and another (2011)14 SCC 639 and 2017 (1) AICC 692, Nagma Bano Vs. Harish Chandra Gupta and others held that Rs.2,25,000 would be just compensation hence the appeal fails.
9. It is submitted by learned counsel for claimant-respondent that in minor death, it has been held by Division Bench judgment in Nagma Bano Vs. Harish Chandra and others, 2017 (1) AICC 692 that the income of the deceased is to be assessed to the tune of Rs. 30,000/- per annum and the multiplier of "15" would be applied and Rs.50,000/- would be added toward conventional heads. The submission of learned counsel for claimant-respondent is rejected.
10. This appeal requires to be dismissed as the submission of Sri Ram Singh, learned counsel for respondents is that compensation should be enhanced is also rejected, as this cannot be entertained.
11. In that view of the matter, the amount awarded by Tribunal is Rs.2,25,000/- and deceased is 9 years old boy, therefore, the amount cannot be reduced, nor can it be enhanced,
12. In view of the above, appeal and oral cross objection of claimants-respondents are dismissed.
Order Date :- 31.1.2019 Shubhankar