KISHAN GOPAL & ANR.versusLALA & ORS.

                   [2013] 10 S.C.R. 793

                  KISHAN GOPAL & ANR.                           A
                             V.
                       LALA & ORS.
              (Civil Appeal No. 7137 of 2013)
                    AUGUST 26, 2013
                                                                B
      [G.S. SINGHVI AND V. GOPALA GOWDA, JJ.]

     Motor Vehicles Act, 1988 - ss. 140, 166 and 163A - Fatal
accident - Claim for compensation - By the parents of the
deceased (a 10 year old boy) - Courts below denied              C
compensation - On appeal, held: The claimants are entitled
to award of just and reasonable compensation -
Compensation of Rs. 5 lakhs awarded with interest at the
rate of 9% p.a. from the date of filing of claim petition.
                                                                D
     Appellants' 10 years old son died in an accident,
while he was travelling in a trolley of a tractor, driven by
respondent No.1. Criminal proceedings were initiated in
this regard against the driver and the owner (respondent
No.2) of the offending vehicle. The appellants filed claim      E
petition u/s. 140 r/w. s.166 of the Motor Vehicles Act, 1988,
claiming compensation of Rs.15,63,000/-. In the claims
proceedings, the driver and owner of the offending
vehicle were placed ex-parte, while the insurance
company (respondent No.3) contested the petition.
Claims Tribunal held that the appellants did not succeed        F
in proving that the deceased boy died because of falling
from the tractor-trolley driven rashly and negligently by
the driver and hence the appellants were not entitled to
any compensation. High Court concurred with the order
of the Tribunal and dismissed the appeal. Hence the             G
present appeal.

    Allowing the appeal, the Court

                            793                                 H
    794    SUPREME COURT REPORTS            [2013] 10 S.C.R.


A      HELD: 1.1. The Tribunal should have considered
  both oral and documentary evidence and appreciated the
  same in the proper perspective and recorded the finding
  on the contentious issues in the affirmative. But it has
  recorded the finding in the negative on the issues by
B adverting to certain statements of evidence of AW-1 and
  referring to certain alleged discrepancies in the FIR
  without appreciating entire evidence of AW-1 and AW-2
  on record properly and also not assigned valid reasons
  in not accepting their testimony. The registration of FIR
c and fiiing of the charge-sheet against the driver and
  owner of the offending vehicle are not in dispute,
  therefore, the Tribunal had no option but to accept the
  entire evidence on record and to record the finding on
  the contentious issues in favour of the appellants. [Para
D 16] [806-G-H; 807-A-B, C-D]
       1.2. Though the High Court has got power to re-
  appreciate the pleadings and evidence on record, it has
  declined to do so and mechanically endorsed the
  findings of fact on contentious issues after referring to
E certain stray sentences from the evidence of AW-1 and
  the FIR and it has erroneously held that there is a
  contradiction between the FIR, the claim petition and the
  evidence of the appellants. The approach of the High
  Court to the claim of the appellants is very casual as it
F did not advert to the oral and documentary evidence
  placed on record on behalf of the appellants, particularly,
  in the absence of rebuttal evidence adduced by the
  Insurance Company, hence the same is liable to be set
  aside. [Para 17] [808-D-G]
G
       1.3. The appellants are entitled to award of just and
  reasonable compensation, as they have lost their
  affectionate 10 year old son.         The deceased was
  assisting the appellants in their agricultural occupation
  which is an undisputed fact. Had the deceased boy been
H
      KISHAN GOPAL & ANR. v. LALA & ORS.                 795


alive, would have contributed substantially to the family A
of the appellants by working hard. Therefore, it would be
just and reasonable to take his notional income at
Rs.30,000/- and further taking the young age of the
parents, namely the mother who was about 36 years old,
at the time of accident, the multiplier of 15 can be applied B
                                            =
to the multiplicand. Thus, 30,000 x 15 4,50,000 and
50,000/- under conventional heads towards loss of love
and affection, funeral expenses, last rites. Thus, the said
amount would be fair, just and reasonable compensation
to be awarded in favour of the appellants. The said C
amount will carry interest at the rate of 9% p.a., for the
reason that the Insurance Company has been contesting
the claim of the appellants from 1992-2013 without
settling their legitimate claim for nearly about 21 years. If
the Insurance Company had awarded and paid just and
reasonable compensation to the appellants, the same D
could have been either invested or kept in the fixed
deposit, then the amount could have earned five times
more than what is awarded in this appeal. Therefore,
awarding 9% interest on the compensation awarded in
favour of the appellants is legally justified. The awarded E
amount of Rs.5,00,000/- with interest at the rate of 9% per
annum should be paid to the appellants from the date of
filing of the application till the date of payment. [Paras 18
and 19] [809-D; 810-G; 811-A-C, D-G; 812-B]
                                                                F
     Lata Wadhwa and Ors. vs. State of Bihar and Ors. (2001)
8 SCC 197: 2001 (1) Suppl. SCR 578; Sar/a Verma vs. Delhi
Transport Corporation (2009) 6 SCC 121: 2009 (5) SCR
1098; Kera/a SRTC vs. Susamma Thomas (1994) 2 SCC
176; Municipal Council of Delhi vs. Association of Victims of   G
Uphaar Tragedy (2011) 14 SCC 481: 2011 (16) SCR 1 -
relied on.

    National Insurance Co.Ltd. vs. Ba/jit Kaur (2004) 2 SCC
1: 2004 (1) SCR 274 - referred to.
                                                                H
    796       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A      2. The counter affidavit of the driver-respondent No.1
  filed in the proceedings, cannot be relied upon by this
  Court at this stage as he did not choose to appear before
  the Tribunal, though he had filed statement of counter and
  neither he nor the Insurance Company adduced rebuttal
a evidence by ob~aining permission from the Tribunal
  under Section 170(b) of the Act to avail the defence of the
  insured respondent No.2, as the Insurance Company has
  limited defence as provided under Section 149(2) of the
  Act. But on the other hand, the driver would support the
C case of the appellants. [Para 16] [808-A-C]

         National Insurance Company vs. Nico/Jetta Rohtagi 2002
    (7) sec 456: 2002 (2) SuppL SCR 456 - relied on.
                          Case Law Reference:
D         2004 (1) SCR 274            referred to       Para 11
          2002 (2) Suppl. SCR 456 relied on             Para15
          2001 (1) Suppl. SCR 578 relied on             Para 18

E         2009 (5) SCR 1098           relied on         Para 18
          (1994) 2 sec 176            relied on         Para 18
          2011 (16) SCR 1             relied on         Para 18

F         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7137 of 2013.
          From the Judgment & Order dated 15.03.2011 of the High
    Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B.
    Civil Misc. Appeal No. 1283 of 2000.
G
         Praveen Kumar Jain (for Rameshwar Prasad Goyal) for
    the Appellants.

          The Judgment of the Court was delivered by
H
       KISHAN GOPAL & ANR. v. LALA & ORS.                    797


     V. GOPALA GOWDA, J. 1. This appeal has been filed by           A
the appellants questioning ·the correctness of the judgment
dated 15th March, 2011 passed in SBCMA No.1283 of 2000
by the High Court of Judicature at Rajasthan, Jaipur Bench,
affirming the judgment and award dated 25.5.2000 of the Motor
Accident Claims Tribunal, Tonk (for short 'the Tribunal') in MAC    B
case No.7/93, urging various relevant facts and legal
contentions in support of their claim made in this appeal.

     2. Necessary relevant facts are stated hereunder to
appreciate the case of the appellants and also to find out          c
whether the appellants are entitled for the reliefs as prayed in
this appeal.

      The appellants are the parents of the deceased Tikaram,
who died in a road accident on 19. 07 .1992 on account of rash
and negligent driving of the motor vehicle tractor bearing          D
registration No. RJX 5532 by the driver, as he was traveling in
the trolley which was turned upside down and he fell down from
the trolley and sustained grievous injuries and succumbed to
the same. The FIR was registered with the Police Station
Uniara, Tonk being case No.121/92. After investigation in the       E
case, charge-sheet No.81/92 (Ex.2) was filed on 30.07.1992
against the first respondent, the driver of the offending vehicle
and its owner the respondent No.2. A site map (Ex.3) was
drawn up, post-mortem of the deceased was conducted and
post-mortem Report was marked as Ex.7. The claimants, being         F
the appellants-parents, who have lost their son at the age of
10 years in the motor vehicle accident and the vehicle was
insured with respondent No.3 - the Insurance Company,
preferred claim petition under Section 140 read with Section
166 of the Motor Vehicles Act, 1988 (in short the 'M.V. Act')       G
claiming compensation for Rs.15,63,000/- under the headings
of loss of dependency, mental agony, loss of love and affection,
expenses incurred for carrying dead body and performing last
rites of the deceased son as per Hindu customs. Further, they
have, inter alia, pleaded that the son would have earned a sum      H
    798      SUPREME COURT REPORTS                (2013) 10 S.C.R.


A   of Rs.2000/- p.m. after the age of 18 years and he would have
    lived upto 70 years, therefore, multiplied by 52 for claiming the
    financial assistance that he could have rendered to the parents,
    the same is worked out to Rs.12,48,000/-.

8        3. Notices were served upon respondent Nos.1 and 2, the
    driver and the owner of the offending vehicle. Despite service
    of notice upon them they did not choose to appear and contest
    the proceedings and therefore, they were placed ex-parte in the
    claim proceedings before the Tribunal.
c       4. The Insurance Company appeared and filed its
  statement of counter denying the various averments of the claim
  petition and pleaded that the deceased son of the appellants
  was not studying and further disputed that there was possibility
  of earning Rs.2000/- p.m. by the deceased. It was further
D pleaded that in the FIR, it is mentioned that deceased boy was
  going in the tractor-trolley, fell down from it on account of rash
  and negligent driving of the offending vehicle by the first
  respondent, the deceased son sustained grievous injuries and
  succumbed to the same. It is further stated that the driver of the
E offending vehicle had no right to carry passenger in a tractor
  as it is exclusively required to be used for the agricultural
  operation and therefore, there is contravention of the terms and
  conditions of the insurance policy issued in favour of the owner
  of the offending vehicle. It is further stated by the Insurance
F Company that the trolley was not registered and the driver of
  the offending vehicle did not have the valid licence and hence,
  it is not liable to pay compensation as claimed by the
  appellants. On the basis of the pleadings, five issues were
  framed by the Tribunal for its determination.
G
       5. On behalf of the appellants, Kishan Gopal the father of
  the deceased was examined as AW-1. He has deposed in his
  evidence narrating the manner in which the accident took place
  and marked the documents produced by him viz. FIR, charge-
H sheet, Site Map, Notice under Section 174, Insurance cover .
       KISHAN GOPAL & ANR. v. LALA & ORS.                   799
             [V. GOPALA GOWDA. J.]
note, Mechanical Inspection, post-mortem Report, Notice under       A
Section 133 and the Registration Certificate as Exhs. 1 to 9
respectively. AW-2, who was cultivating in the adjoining field
situated near the place of accident was examined on behalf of
the appellants and he has spoken about the incident and
deposed that the deceased boy was going in the tractor-trolley      8
and the first respondent-driver was driving the tractor and the
trolley turned down and he fell down as the driver drove the
tractor with high speed negligently and he had sustained
grievous injuries and succumbed to the same. The respondent
Insurance Company have not adduced the rebuttal evidence in         c
support of its pleaded case in its counter statement. In the
counter statement of the Insurance Company, it is pleaded that
the claim petition filed by the appellants is a fabricated one in
collusion with the driver and the owner of the offending vehicle.
It is not forthcoming from the judgment of Tribunal that the        D
Insurance Company has filed the application under Section
170(b) of the M.V. Act seeking permission from the Tribunal in
the proceedings to avail the defence available for the insured
of the offending vehicle to contest the proceedings on merits.
As could be seen from the record, the lawyer of the Insurance       E
Company· has cross-examined the appellants' witnesses
before the Tribunal.

      6. The Tribunal, on appreciation of pleadings and legal
evidence on record, has answered the issue No.1, after
                                                                    F
adverting to the averments of the claim petition and evidence
on record, and held that the appellants have not succeeded in
proving that Tikaram died because of falling from the tractor-
trolley which was driven rashly and negligently by the driver.
Issue No.2 was also answered holding that the appellants are
not entitled for the compensation as claimed by them for the        G
reason that the finding recorded on the issue No.1 is in the
negative.

     7. Aggrieved by the judgment and award of the Tribunal,
the appellants filed an appeal before the High Court questioning    H
    800      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A the correctness of the findings recorded on the contentious
  issue Nos.1 & 2 contending that rejection of the claim petition
  by it is not only erroneous in fact but also suffers from error in
  law. Therefore, they have approached the High Court by filing
  an appeal for grant of just and reasonable compensation to
B them setting aside the judgment and award of the Tribunal.

       8. The learned Judge of the High Court has not exercised
  his appellate jurisdiction by reappreciating the pleadings and
  evidence on record and he had mechanically concurred with
C the findings and reasons recorded by the Tribunal on the
  contentious issues in its judgment and dismissed the appeal
  by passing a cryptic order without adverting to the pleadings,
  legal evidence and legal contentions urged on behalf of the
  parties.
D       9. The appellants are aggrieved by the impugned judgment
    and award passed by the High Court and they have filed this
    appeal urging various tenable grounds.

       As per the Office Report dated 13th December, 2012,
E Notice was issued to all the respondents. M/s M.M. Kashyap
  and Aftab Ali Khan, Advocates have filed vakalatnama and
  memo of appearance on behalf of respondent Nos. 1 and 3
  respectively and also filed counter affidavits on their behalf.
  Acknowledgement card duly signed by respondent No.2 has
F been received back in proof of the service of notice upon him
  but no one has entered appearance and filed vakalatnama or
  memo of appearance on his behalf, therefore, it is reported that
  the service of notice on him is complete.

G       10. This appeal was listed before this Court on 14.12.2012,
    when the Court was pleased to pass the following order:-

               "Send for the record of award dated 25.05.2000
          passed by Motor Accident Claims Tribunal, Tonk,
          Rajasthan in MACT Case No.7/1993.
H
         KISHAN GOPAL & ANR. v. LALA & ORS.                    801
               [V. GOPALA GOWDA, J.]
           The Registry is directed to send requisition to the         A
      Presiding Officer of the Tribunal. It is expected that the
      Presiding Officer will remit the recorcf of the case without
      any delay.

             Put up after the receipt of the record."                  B
      11. This appeal was listed before the Court on 12th August,
2013. On behalf of the appellants we have heard Mr.Praveen
Kumar Jain, Advoca\e. None appeared on behalf of the
respondents and this Court granted leave. Though respondent
Nos. 1 & 3 have filed their counter affidavits reiterating the         C
averments made in the counter statement filed by the Insurance
Company before the Tribunal extracting certain portion from the
FIR and Statements of Evidence of AW-1 - the father of the
deceased and AW-2 - the brother of the deceased and placed
strong reliance upon the definition of 'trailer' as defined under      D
Section 2(46) of the M.V. Act, and that the trolley of the tractor
is not registered with the registering Authority. The tractor with
trolley can be used only for agricultural purposes but not for
carrying passengers which would be in contravention of the
provisions of the M.V. Act and terms and conditions of the             E
policy issued covering the Motor Vehicle Tracter. Therefore, it
is stated by the Insurance Company that by allowing the
deceased boy to travel in the trolley of the tractor, the driver has
violated the terms & conditions of the insurance policy and law
and it has also placed reliance upon the decision of this Court        F
in National Insurance Co.Ltd. v. Baljit Kaur, 1 in support of its
defence wherein this Court has held that the passengers, who
travel in the goods carriage and die in the accident are not
entitled to get any compensation from the Insurance Company
under the policy.                                                      G

     12. Respondent No.1 has filed counter affidavit, stating the
following averments, the relevant paragraphs are extracted
hereunder for our perusal:-
1.   (2004) 2 sec 1.                                                   H
    802       SUPREME COURT REPORTS                  [2013] 10 S.C.R


A         "2 .. .That there is contradiction in statement of Kishan Gopal
          AW1 and Babu AW2 as Babu stated that Tikaram
          deceased fell down due to rash and negligent driving of
          tractor by Lala the Deponent herewith Whereas Kishan
          Gopal stated that Tikaram fell down due to rash and
B         negligent driving of tractor by which tractor got turned.

          3. That deceased Tikaram was not studying in School and
          there is no possibility of earning Rs.2000/- per month.

          4. That as passenger cannot travel in tractor and death
c         was caused sitting in trolly which is not allowed. The
          petitioner cannot claim any compensation for the
          negligence of Tikaram sitting in trolly. Tractor can only be
          used for agricultural purposes.

D         5. That driver had no valid licence.

          6. That learned Tribunal in its award rightly gave finding
          that there is contradiction in statement of Kishan Gopal
          AW1 and Babu AW2 as Kishan Gopal stated that his son
          died as his son was hit by Lala driving the tractor fast and
E         negligently. Whereas Babu stated that Lala was driving
          tractor rashly and negligently because of which the tractor
          got turned down and in the accident Tikaram died. As per
          the contradictions the case was not proved by the
          petitioner before the Tribunal. Further, there are
F         contradictions in the statement of witnesses and FIR.

          7. That the Insurance Company did not appear to prove
          the fact that Lala was not having valid licence to drive
          tractor.
G         8. That Insurance Company has to prove        that driver
          has not got valid licence. The finding to this effect given
          by learned Tribunal is right.

          9. That petitioner is not entitled for any compensation.
H
        KISHAN GOPAL & ANR. v. LALA & ORS.                    803
              [V. GOPALA GOWDA, J.]
     10. That the above special leave petition may kindly be          A
     dismissed."

       13. The ground urged by the appellants in this appeal is
 that the High Court has erred in concurring with the finding of
fact recorded by the Tribunal in its judgment on the contentious      B
 issue Nos.1 & 2. It is erroneous for the reason that the same
 is contrary to substantive evidence on record in favour of the
 appellants and no rebuttal evidence is adduced by the Insurance
 Company in the case to accept its defence pleas and record
 the finding on the contentious issue Nos.1 and 2 in its favour.      C
 Further, it is urged that both the Tribunal and the High Court
 have not taken into consideration the relevant indisputed fact
 that the criminal case is registered against respondent No.1-
 the driver and respondent no.2-the owner of the vehicle and the
 charge-sheet is filed against them. Both AW-1 and AW-2
                                                                      0
 adduced evidence before the Tribunal stating that the deceased
 son of the appellants was traveling in the trolley of the tractor,
 it was turned down on account of rash and negligent driving of
 the offending vehicle by respondent No.1 and he fell down from
 the trolley and the tractor tyre ran over the body and he
                                                                      E
sustained grievous injuries and succumbed to the same.
 Further, it is urged that in the absence of evidence of either the
driver or the owner of the tractor and also in the absence of
 rebuttal evidence on behalf of the Insurance Company in
support of its pleadings, the finding of fact recorded by the
                                                                      F
Tribunal stating that the accident did not take place on account
of rash and negligent driving of the offending vehicle by the
driver is erroneous, as it has failed to consider the evidence
on record in a proper perspective in favour of the appellants.
The finding recorded by the Tribunal without appreciating the         G
entire evidence of AW-1 and AW-2 on record, by picking bits
and piece of certain sentences from evidence of the witnesses
and FIR Exh.1 and answered the contentious issue No.1
against the appellants which approach of it is erroneous, which
finding is erroneously affirmed by the High Court, mechanically
                                                                      H
    804       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A without re-appreciating the evidence and assigning valid and
  cogent reasons in support of its conclusion in concurring with
  the Tribunal. Further, it is contended that the Tribunal has since
  answered the contentious issue No.1 holding that the death of
  Tikaram is not due to rash and negligent driving of the tractor
B by its driver is not proved, it has answered the contentious issue
  No.2 stating that the question of awarding compensation as
  claimed by the appellants does not arise and consequently, it
  has rejected the claim petition, which decision of it is not only
  etroneouos, but, also suffers from error in law. Therefore, the
c learned counsel for the appellants has requested this Court to
  award just and reasonable compensation in favour of the
  appellants by allowing this appeal.

         14. On behalf of respondent Nos.1 and 3 counter affidavits
    have been filed but none appeared at the time of hearing. After
0
    hearing the learned counsel for the appellants, this app~alwas
    reserved for judgment. On.the basis of the factual and rival legal
    contentions urged on behalf of the appellants, the following -
    points are framed for consideration of this Court:-

E         (I) Whether the findings of fact recorded on issue Nos.1 &
          2 framed by the Tribunal, which finding is affirmed by the
          High Court in the impugned judgment is vitiated on account
          of erroneous reasoning?

F         (II) Whether the appellants are entitled for compensation,
          if so to what amount?

          (Ill) What award?

       15. The first point is required to be answered in favour of
G the appellants by assigning the following reasons:-

       The deceased son of the appellants died in an accident,
  while he was traveling in a trolley of the tractor bearing No.RJX-
  5532 on 19.07.1992, the trolley turned down on account of rash
H and negligent driving of the tractor by the driver-respondent
       KISHAN GOPAL & ANR. v. LALA & ORS.                    805
             [V. GOPALA GOWDA, J.]
No.1. In this regard, the FIR was.registered being FIR No.121/       A
92 with the Uniara Police Station, Tonk. On the basis of the sai.d
FIR, the investigation was made by the Investigation Officer and
charge-sheet No.81/92 was filed on 30.07.1992 against the
driver and the owner of the offending vehicle for the offences
punishable under Sections 279 and 304-A1PC read with certain         B
provisions of the M.V.Act. The FIR and the charge-sheet were
produced in the evidence of the first appellant-the father of the
deceased, who was examined as AW-1. He has also produced
and marked the site map (Ex.3), action taken under Section
114 (Ex.4), lnsur.ance cover note.Ex.5, Mechanical inspection        C
Ex.6 and post~mortem report Ex. 7 as exhibits in the evidence
to substantiate the case of.thE{appellants to show th.at accident
took place on account of rash and negligent driving of driver of
the tractor. AW-2 - Babu s/o Kishan Gopal, r/o Bhat-Ka Nada,
Tehsil Uniara, Dist. Tonk, who is an' agriculturist by occupation,   D
is examined on behalf of the appellants, who has deposed
before the Tribunal and he has stated that the deceased
Tikaram was traveling in the trolley of the tractor, which was
driven by the first respondent in a high speed, rashly and
negligently on account of which the vehicle got turned down and      E
the tyre of tractor ran over Tikaram on account of which, he
sustained grievous injuries and succumbed to the same. The
following evidence is elicited from AW-2 in his cross-
examination by the lawyer of the Insurance Company to the
following effect;           ·                           . . .. ·     F

    ·"that at the time of accident he was· carrying paddy~and
     he was one field away from the place of accident and ·he
     reached there by running. Before him, several other
     persons also reached the site of the accident and he was        G
     examined by the Investigating Officer and the same is
     accepted as· true after understanding the same". ·· ···
        "   •   <   '   •   "'   _,   ~I   .   •       >




    AW-1, .the father of the deceased boy has also spoken
about the manner in which. accident took place and his son
Tikaram died and had produced the documentary evidence               H
    806      SUPREME COURT REPORTS                  [2013) 10 S.C.R.


A   referred to supra in justification of the case pleaded by the
    appellants. In his evidence, he has stated that Tikaram was
    sitting in the trolley of the tractor and the tractor was driven by
    its driver rashly and negligently on account of which the trolley
    turned down and his son sustained grievous injuries and died.
B   The suggestion put to AW-1 in his cross-examination by the
    lawyer of the Insurance Company to the following effect

          "this is correct that when accident took place I was at
    home. It is the incident of 5 p.m. when my son had gone to graze
C   cattle. My son was made to sit in the trolley by the tractor wala."

          The lawyer of the Insurance Company has not challenged
    the evidence of AW-2 that the deceased was traveling in the
    trolley of the tractor and accident took place on account of rash
    and negligent driving of the driver. Therefore, the fact of accident
D   that took place on 19.07.1992 at 5.00 p.m. is not challenged
    by the lawyer of the Insurance Company at all. Apart from the
    said fact, no rebuttal evidence adduced by the Insurance
    Company before the Tribunal in the claim proceedings. It has
    also not obtained permission from the Tribunal under Section
E   170(b) of the M.V. Act to contest the case on the defence of
    the insured as the driver and the insured both remained ex-parte
    in the proceedings before the Tribunal and therefore, it could
    not have contested the case on merits as held by this Court in
    the case of National Insurance Company vs. Nicolletta
F   Rohtagi reported in 2002(7) SCC 456. It is also not clear in
    the counter statement filed by the Insurance Company before
    the Tribunal that the claim petition was filed by the appellants
    on account of collusion between them and respondent Nos.1
    and 2, the driver and the owner of the vehicle respectively.
G
          16. In view of the aforesaid facts, the Tribunal should have
    considered both oral and documentary evidence referred to
    supra and appreciated the same in the proper perspective and
    record.ad the finding on the contentious issue No. 1 & 2 in the
H   affirmative. But it has recorded the finding in the negative on
       KISHAN GOPAL & ANR. v. LALA & ORS.                     807
             [V. GOPALA GOWDA, J.]
the above issues by adverting to certain statements of evidence       A
of AW-1 and referring to certain alleged discrepancies in the
FIR without appreciating entire evidence of AW-1 and AW-2
on record properly and also not assigned valid reasons in not
accepting their testimony. The Tribunal should have taken into
consideration the pleadings of the parties and legal evidence         B
on record in its entirety and held that the accident took place
on 19.07.1992, due to which Tikaram sustained grievous
injuries and succumbed to the same and the case was
registered by the Uniara Police Station under Sections 279 and
304-A, IPC read with Sections 133 and 181 of the M.V. Act             C
against the first and second respondents. The registration of
FIR and filing of the charge-sheet against respondent Nos.1 &
2 are not in dispute, therefore, the Tribunal should have no
option but to accept the entire evidence on record and recorded
the finding on the contentious issue Nos.1 and 2 in favour of         D
the appellants. Further, it should have held that the deceased
son died in the tractor accident, driven by first respondent rashly
and negligently, but it has answered the above contentious issue
Nos. 1 & 2 in the negative and therefore, we have to set aside
the said erroneous findings as the Tribunal has failed to             E
appreciate the entire evidence both oral and documentary
properly to answer the issue Nos.1 & 2 in the affirmative. From
the perusal of the evidence elicited in the cross-examination
of AW-1 - the father and AW-2 who reached the spot
immediately after the accident, he had seen the accident and          F
narrated that the deceased boy had sustained grievous injuries
in the accident and succumbed to the same. The evidence on
record proved that the deceased sustained grievous injuries in
the accident on account of which he died. The Insurance
Company by cross-examining the witness No. AW-2 has                   G
categorically admitted the accident, as its counsel had put the
suggestion to him the relevant portion of which is extracted
above, which portion of evidence clearly go to show that in the
accident the deceased died, but the Tribunal has failed to
appreciate the evidence of AW-2 and also the documentary              H
    808      SUPREME COURT REPORTS                 [2013) 10 S.C.R.


A  evidence referred to supra, while recording the finding of fact
   on the contentious issue No.1. The counter affidavit of
   respondent No.1 filed in these proceedings cannot be relied
   upon by this Court at this stage as he did not choose to appear
   before the Tribunal, though he had filed statement of counter
B :and neither he nor the Insurance Company adduced rebuttal
  ·evidence by obtaining permission from the Tribunal under
  ·Section 170(b) of M.V. Act to avail the defence of the insured
   respondent No.2, as the Insurance Company has limited
   defence as provided under Section 149(2) of the M.V. Act. But
c on the other hand, by reading the averments from the
   paragraphs extracted from the affidavit of respondent No.1, the
   driver would support the case of the appellants.

          17. In our considered view, the Tribunal has ignored certain
    relevant facts and evidence on record while considering the
0
    case of the appellants. The High Court though it has got power
    to re-appreciate the pleadings and evidence on record, has
    declined to do so and mechanically endorsed the findings of
    fact on contentious issue Nos.1 & 2 after referring to certain
E stray sentences from the evidence of AW-1 and the FIR and it
    has erroneously held that there is a contradiction between the
    FIR, the claim petition and the evidence of the appellants. It has
    concurred with the finding of fact recorded on the contentious
    issues and accepted dismissal of the petition. The concurrent
F findings of fact are erroneous and invalid and therefore, the
  · same call for·our interference in this appeal. The approach of
    the High Court to the claim of the appellants is very casual as
    it did not advert to the oral and documentary evidence placed
    on record on behalf of the appellants, particularly, in the
    absence of rebuttal evidence adduced by the Insurance
G Company, hence the same is liable to set aside and accordingly
    we set aside the same.                                  '

         18. Point Nos.2 and 3 are answered together in favour of
    the appellants for the following reasons:-
H
          KISHAN GOPAL & ANR. v. LALA & ORS.                  809
                [V. GOPALA GOWDA, J.]
       The Tribunal having answered the contentious issue No.1,      A
  against the appellants in its judgment the same is concurred
  with by the High Court by assigning erroneous reasons and it
  has affirmed dismissal of the claim petition of the appellants
  holding that the accident did not take place on account of the
  rash and negligent driving ofthe offending vehicle by the first    B
  respondent and therefore the contentious issue Nos.1 and 2
  are an~wered in the negative against the appellants and it has
. not awarded compensation in favour of the appellants.

      Since ' we have set aside the findings and reasons             c
 recorded by both the Tribunal and the High Court on the
 contentious .issue Nos.1 & 2 by recording our reasons in the
 preceding paragraphs of this judgment and we have answered
 the point in favour of the appellants and also examined the
 claim of the appellants to award just and reasonable                o
 compensation. in favour of the appellants as they have lost their
 affectionate 10 year old son. For this purpose, it would be
 necessary for us to refer to Second Schedule under Section
 163-A of the M.V. Act, at clause No.6 which refers to notional
 income for compensation to those persons who had no income          E
 prior to accident. The relevant portion of clause No.6 states as
 under:

       "6. Notional income for compensation to those who had
       no income prior to accident:
                                                                     F


       (a) Non-earning persons - Rs.15,000/- p.a."

      The aforesaid clause of the Second Schedule to Section
 163-A of the M.V. Act, is considered by this Court in the case      G
 of Lata Wadhwa & Ors. v. State of Bihar & Ors., 2 while
 examining the tortuous liability of the tort-feasor has examined
 the criteria for awarding compensation for death of children in
 2.   (2001) s sec 197.                                              H
    810      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   accident between age group of 10 to 15 years and held in the
    above case that the compensation shall be awarded taking the
    contribution of the children to the family at Rs.12,000/- p.a. and
    multiplier 11 has been applied taking the age of the father and
    then under the conventional heads the compensation of
B   Rs.25,000/- was awarded. Thus, a total sum of Rs.1,57,000/-
    was awarded in that case. After noting the submission made
    on behalf of TISCO in the said case that the compensation
    determined for the children of all age groups could be double
    as in its view the determination made was grossly inadequate
C   and the observation was further made that loss of children is
    irrecoupable and no amount of money could compensate the
    parents. Having regard to the environment from which the
    children referred to in that case were brought up, their parents
    being reasonably well-placed officials of TISCO, it was directed
o   that the compensation amount for the children between the age
    group of 5 to 10 years should be three times. In other words, it
    should be Rs.1.5 lakhs to which under the conventional heads
    a sum of Rs.50,000/- should be added and thus total amount
    in each case would be Rs.2 lakhs. Further, in the case referred
E   to supra it has observed that in so far as the children of age
    group between 10 to 15 years are concerned, they are all
    students of Class VI to Class X and are children of employees
    of TISCO and one of the children was employed in the
    Company in the said case having regard to the fact the
F   contribution of the deceased child was taken Rs.12,000/- p.a.
    appears to be on the lower side and held that the contribution
    of such children should be Rs.24,000/- p.a. In our considered
    view, the aforesaid legal principle laid down in Lata Wadhwa's
    case with all fours is applicable to the facts and circumstances
G   of the case in hand having regard to the fact that the deceased
    was 10 years' old, who was assisting the appellants in their
    agricultural occupation which is an undisputed fact. We have
    also considered the fact that the rupee value has come down
    drastically from the year 1994, when the notional income of the
H   non-earning member prior to the date of accident was fixed at
        KISHAN GOPAL & ANR. v. LALA & ORS.                   811
              [V. GOPALA GOWDA, J.]
 Rs.15,000/-. Further, the deceased boy, had he been alive A
 would have certainly contributed substantially to the family of the
 appellants by working hard. In view of the aforesaid reasons, it
 would be just and reasonable for us to take his notional income
 at Rs.30,000/- and further taking the young age of the parents,
 namely the mother who was about 36 years old, at the time of B
 accident, by applying the legal principles laid down in the case
 of Sar/a Verma v. Delhi Transport Corporation, 3 the multiplier
 of 15 can be applied to the multiplicand. Thus, 30,000 x 15    =
 4,50,000 and 50,000/- under conventional heads towards loss
 of love and affection, funeral expenses, last rites as held in C
 Kera/a SRTC v. Susamma ThomaS, 4 which is referred to in
 Lala Wadhwa's case and the said amount under the
 conventional heads is awarded even in relation to the death of
 children between 10 to 15 years old. In this case also we award
 Rs.50,000/- under conventional heads. In our view, for the o
 aforesaid reasons the said amount would be fair, just and
 reasonable compensation to be awarded in favour of the
 appellants. The said amount will carry interest at the rate of 9%
 p.a. by applying the law laid down in the case of Municipal
 Council of Delhi v. Association of Victims of Uphaar E
  Tragedy, 5 for the reason that the Insurance Company has been
 contesting the claim of the appellants from 1992-2013 without
 settling their legitimate claim for nearly about 21 years, if the
 Insurance Company had awarded and paid just and reasonable
 compensation to the appellants the same could have been F
either invested or kept in the fixed deposit, then the amount
could have earned five times more than what is awarded today
 in this appeal. Therefore, awarding 9% interest on the
compensation awarded in favour of the appellants is legally
justified.                                                           G

      19. Accordingly, we pass the following order:
3.   (2009) s sec 121.
4.   (1994) 2 sec 11s.
s.   c2011) 14 sec 481.                                             H
    812              SUPREME COURT REPORTS          (2013] 10 S.C.R.


A         (I) The appeal is allowed and the impugned judgments and
          awards of both the Tribunal and High Court are set aside.

          (II) The awarded amount of Rs.5,00,000/- with interest at
          the rate of 9% per annum should be paid to the appellants
          from the date of filing of the application till the date of
B
          payment.

          (Ill) we· direct the Insurance Company to issue the demand
          draft drawn on any Nationalized Bank by apportioning the
          compensation amount equally with proportionate interest
c         and send it to the appellants within six weeks from the date
          of receipt of a copy of this judgment.

                                                "    Appeal allowed.




           .   I,~