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K.L Pasrija v. The Oriental Fire And General Insurance Co. Ltd., And Others

Punjab & Haryana High Court

Sep 27, 1984

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

On 25 May 1976, five-year-old Tarun Kumar, accompanied by his mother Saroj Pasrija, was crossing a road in Sector 16-D to reach Sanatan Dharam Mandir when a car (No. MDN-6172) driven by a lady struck him, subsequently running over and hitting a standing rickshaw scooter (CHV-422) in which its driver, Videshi Ram, was sitting. The child sustained serious injuries, was taken to a General Hospital and then to P.G.I., where he died. The parents (K.L. Pasrija and Saroj Pasrija) filed a claim petition seeking Rs. 50,000 as compensation. Separately, Videshi Ram filed a claim petition seeking Rs. 20,000.

The car owner Mohan Lal (also referred to as Manohar Lal Uppal in the opinion), his wife Mrs. Jean Uppal (allegedly the driver), and the insurance company were impleaded as respondents. The owner and the alleged driver contended that the owner had been driving and denied negligent driving; the insurance company contended Mrs. Jean Uppal was driving without a licence and so the insurer was not liable.

The Motor Accident Claims Tribunal (MACT) issued separate awards on 5 March 1979: in the parents' claim, the Tribunal found Mrs. Jean Uppal was driving without a licence, held that the driver and the child were equally negligent, and, because the driver was not insured, held the insurance company not liable; it awarded Rs. 2,500 (half of Rs. 5,000) with interest to the parents. In the rickshaw driver's claim the Tribunal found the car negligent and awarded a total of Rs. 425. The parents appealed to this Court in F.A.O. No. 326 of 1979 seeking Rs. 50,000, and Videshi Ram appealed in F.A.O. No. 587 of 1979 seeking enhancement. The owner and alleged driver filed cross-objections. The connected matters were heard together.

Legal Issues Presented

Whether on 25.5.76, at about 8.30 P.M the respondent No. 1 and/or the respondent No. 2 caused the accident in question by driving rashly and negligently car No. MDN-6172 on the road near Sanatan Dharam Temple in Sector 16-D, Chandigarh, resulting in injuries to Tarun Kumar deceased leading to his death.
If issue No. 1 is proved, whether the claimant petitioners are entitled to have any compensation for the death of the deceased? If so, of what amount and from whom of the respondents?
Whether the respondent No. 1 held valid driving licence on the date of the accident? If not what is its effect?
Whether this claim petition is not time barred qua the respondents Nos. 1 and 2?
Relief.

Arguments of the Parties

Owner and Alleged Driver (Respondents) — Principal Contentions

The owner and the alleged driver pleaded that the owner (Manohar/Mohan Lal Uppal) was driving the car and that Mrs. Jean Uppal was not driving and did not know driving.
They disputed that the car was being driven negligently and placed the entire blame on the child and the driver of the rickshaw scooter.
They produced witnesses (Surinder Bhakhu R.W.2 and H.R. Verma R.W.3) to support the claim that Mohinder Lal (owner) was driving.

Insurance Company — Principal Contention

The insurance company took the stand that Mrs. Jean Uppal was driving the car and, because she did not have a driving licence, the insurance company was not liable to reimburse.

Claimants (Parents of Deceased Child and Rickshaw Driver) — Principal Contentions

The parents asserted negligence on part of the car driver and sought Rs. 50,000 as compensation.
Three eyewitnesses (the child's mother Saroj Pasrija, Sneh Passi who accompanied her, and the rickshaw driver Videshi Ram) stated that a lady was driving the car and that she alighted from the left door after the collision; the claimants relied on these eyewitness statements to identify Mrs. Jean Uppal as the driver.
Videshi Ram claimed compensation for injuries suffered when the car struck the standing rickshaw scooter.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gorge Tharkan v. Kochappl Narayanan, 1972 A.C.J 79 (Kerala)	Instances where children (ages between 2 to 6 years) were run over and the courts attributed total negligence to the drivers; no contributory negligence attributed to the children.	Used as authority to support the proposition that contributory negligence should not be attributed to the five-year-old deceased; contributed to reversing the Tribunal's finding of 50% contributory negligence against the child.
The Motor Insurance Co. Ltd v. A.N. Pattammal, 1972 A.C.J 380 (Madras)	Similar authority on treatment of young children run over by motor vehicles — total negligence on drivers, not on children.	Relied upon to argue and justify that the child could not be held contributorily negligent; factored into the Court's reversal of the Tribunal's apportionment of negligence.
Mohan Lal v. Kumari Babbi, 1967 A.C.J 123 (Punjab & Haryana)	Another case where children (aged 2–6) were run over and courts attributed complete negligence to the drivers and none to the children.	Applied to support the legal conclusion that contributory negligence could not be fixed on the deceased child in this case.
Sunil Kumar v. Roshan Lal, 1973 A.C.J 41 (Delhi)	Authority reinforcing that young children struck by vehicles should not be held contributorily negligent; full responsibility on drivers.	Invoked to bolster the Court's conclusion that the Tribunal erred in attributing 50% contributory negligence to the child.
Zenith Papers v. Gurmit Kaur (F.A.O. No. 38 of 1984 / F.A.O. 31 of 1984), decided 6 April 1984	Held that dependency and the multiplier rule apply in cases of death of a child; the multiplier method can be used to assess damages for a deceased child.	Applied by the Court to conclude that the parents of the deceased child are entitled to an award calculated with regard to dependency and the multiplier principle; resulted in an award of Rs. 20,000 and 12% interest.

Court's Reasoning and Analysis

The Court's analysis proceeded in discrete steps, applying both factual evaluation and legal principles cited from precedent:

Negligence of the car driver: The Court accepted that the case was one of res ipsa loquitur, observing that photographic and other evidence "clearly go to show" the car driver's negligence. The Court found further support in the consistent testimony of three eyewitnesses (the child's mother Saroj Pasrija, Sneh Passi, and Videshi Ram) who stated a lady was driving the car and that she alighted from the left door after the collision. The Court concluded that these eyewitness statements were credible.
Identity of the driver: The Court examined conflicting statements: the owner and his witnesses claimed the owner was driving and the wife did not know driving; however, the Court found the presence of the owner's supporting witnesses at the time of occurrence not established and therefore not reliable. The Court noted that a criminal prosecution had been brought against Mrs. Jean Uppal for negligent driving (in which she was later acquitted), and considered that the owner attempted to accept responsibility to protect his wife. On balance, the Court upheld the Tribunal's finding that Mrs. Jean Uppal was the driver and that she drove negligently.
Contributory negligence of the child: The Tribunal had held that the child and the driver were negligent to equal degrees, reducing parents' recovery by half. The Court concluded this was "a totally erroneous view of law." Emphasising that drivers must take greater care on busy roads (especially near markets and where children are likely to pass), the Court held that contributory negligence could not be attributed to a child in such circumstances—particularly when the driver (the lady) did not know driving and so could not control the vehicle. The Court cited four precedents where children aged between 2 and 6 were run over and courts had placed complete negligence on drivers and none on the children; relying on those authorities, the Court reversed the Tribunal's apportionment and held the entire negligence to be that of the car driver.
Quantum of compensation for the parents: The Tribunal had concluded the multiplier rule was not applicable to the death of a child. The Court relied on a Division Bench decision (Zenith Papers v. Gurmit Kaur) which applied dependency and the multiplier rule even in the death of a child. On that basis, the Court held that the parents were entitled to Rs. 20,000 as compensation and to interest at 12% per annum from the date of filing of the claim application until payment.
Compensation for Videshi Ram (rickshaw driver): The Court found no ground to interfere with the Tribunal's quantum. The Tribunal had awarded Rs. 125 for pain and suffering, Rs. 100 for medical treatment, and Rs. 200 for loss of wages (total Rs. 425) for one lacerated wound and two abrasions that could heal within a week. The Court observed that no reliable evidence was produced establishing loss of wages or medical expenses beyond what the Tribunal accepted, and thus upheld the award.
Insurance liability: Because the Court held that Mrs. Jean Uppal was driving the car and she did not have a driving licence, the insurance company could not be held liable to reimburse. Consequently, the owner (Manohar/Mohan Lal Uppal) and the driver (Mrs. Jean Uppal) were held jointly and severally liable to pay the award.

Holding and Implications

Core Rulings:

F.A.O. No. 326 of 1979 (parents' appeal) — Allowed in part: the Tribunal's finding that the child was 50% contributorily negligent was reversed; the entire negligence was held to be that of the driver of the car (Mrs. Jean Uppal). The owner and driver (Mrs. Jean Uppal and Manohar/Mohan Lal Uppal) were held jointly and severally liable to pay Rs. 20,000 to the parents of the deceased child, with interest at 12% per annum from the date of filing of the claim application until payment. Parties were to bear their own costs in respect of this relief.
F.A.O. No. 587 of 1979 (rickshaw driver's appeal) — Dismissed: no interference with the Tribunal's award of Rs. 425 to Videshi Ram.
Cross-objections filed by the owner and alleged driver were dismissed as having no merit.
The insurance company was held not liable to reimburse because the Court found the driver (Mrs. Jean Uppal) did not hold a valid driving licence on the date of the accident.

Implications and immediate effects:

The direct practical effect is that the parents of the deceased will receive Rs. 20,000 plus 12% interest from the date of filing; the rickshaw driver’s award of Rs. 425 stands.
The insured's insurer is not liable to reimburse because the driver lacked a licence; liability rests with the owner and the driver jointly and severally.
The Court applied existing precedents (including authorities holding children are not to be held contributorily negligent in similar circumstances and a Division Bench decision recognizing multiplier/dependency for death of a child) but the opinion does not claim to establish a new general principle beyond its application of those precedents to the facts before it.

R.M.S

Appeal dismissed.

This summary is strictly limited to the information contained in the provided opinion and does not add or infer facts beyond that text.

Show all summary ...

Gokal Chand Mital, J.:— On 25th May, 1976 Tarun Kumar, aged 5 years, was going with his mother Saroj Pasrija from their house to Sanatan Dharam Mandir. They had to cross the road in Sector 16-D, leading from Sector 16-D Market to the Mandir. A car No. MDN-6172, driven by a lady which came from Sector 16-D Market, hit Tarun Kumar and after running him over hit a standing rickshaw scooter CHV-422 in which Videshi Ram, its driver, was sitting Videshi Ram also suffered injuries. The child suffered serious injuries and was removed to General Hospital in Sector 16 and then to P.G 1. where he died. The child's father K.L Pasrija and mother Saroj Pasrija filed a claim petition and demanded Rs. 50,000/- as compensation. Another claim petition was filed by Videshi Ram. He demanded Rs. 20,000/-. In the claim petitions Mohan Lal Uppal, owner of the car, his wife Mrs. Jean Uppal, who was driving the car and the insurance Company, with which the car was insured, were impleaded as parties.

2. The owner and the alleged driver of the car pleaded that it was the owner of the car who was driving it and his wife was not driving nor she knew driving. They also disputed if the car was being driven negligently. The entire blame was put on the child and the driver of the rickshaw scooter. The stand taken by the Insurance Company was that the wife of the insured was driving and since she did not have driving licence, the Insurance Company was not liable to reimburse. On the contest of the parties, the following issues were framed:—

“1. Whether on 25.5.76, at about 8.30 P.M the respondent No. 1 and/or the respondent No. 2 caused the accident in question by driving rashly and negligently car No. MDN-6172 on the road near Sanatan Dharam Temple in Sector 16-D, Chandigarh, resulting in injuries to Tarun Kumar deceased leading to his death.

2. If issue No. 1 is proved, whether the claimant petitioners are entitled to have any compensation for the death of the deceased? If so, of what amount and from whom of the respondents?

3. Whether the respondent No. 1 held valid driving licence on the date of the accident? If not what is its effect?

4. Whether this claim petition is not time barred qua the respondents Nos. 1 and 2?

5. Relief.”

3. On the evidence led in the case, Motor Accident Claims Tribunal by separate awards dated 5th March, 1979 came to the conclusion that Mrs. Jean Uppal was driving the car, she was without licence, the driver and the child were negligent in equal degree and since the driver was not insured, the Insurance Company was not liable. As regards the quantum, it was found that the parents of the deceased child had suffered a loss of Rs. 5,000/- and since the child was held guilty of negligence with the driver of the car to an equal degree, the parents were awarded half of the amount i.e Rs. 2500/- along with six per cent interest. Against the aforesaid award the parents have come to this Court in F.A.O No. 326 of 1979 to claim Rs. 50,000/-.

4. In the other claim petition it was held that the rickshaw scooter was standing on the road side and the car came and struck it and, therefore, the driver of the car was negligent. As regards; the compensation, it was found that for the three minor injuries, the claimant was entitled to Rs. 425/- (Rs. 125/- for pains suffered, Rs. 100/- for medical treatment and Rs. 200/- for loss of wages as the injuries could take maximum one weak to heal) F.A.O No. 587 of 1979 has been filed by the claimant to claim enhancement.

5. In both the appeals, the owner of the car and the alleged driver of the car have filed cross-objections for reversal of the awards of the Motor Accident Claims Tribunal. Since they are connected matters, they are being disposed of by a common judgment.

6. After hearing Mr. Lalit Mohan Suri for the claimants in the first appeal, Mr. S.S Ahlawat for the claimant in other appeal, Mr. Mukesh Ahluwalia for the owner and the alleged driver of the car and Mr. V.P Gandhi for the Insurance Company, I am of the view that there is no escape from the conclusion that it was the driver of the car who was negligent. The photographs and other evidence brought on the record clearly go to show that it was a case of res ipsa loquitur.

7. Farther support to the aforesaid finding can be added if it is found that Mr. Jean Uppal was driving the car because she in her own statement has stated that she did not know driving and did not have licence Therefore, before this support is found it has to be seen whether she was driving the car or whether her husband was driving.

8. The child was going with his mother Saroj Pasrija and Shrimati Sneh Passi had also accompanied Saroj Pasrija for going te the temple. Both of them art the eye-witnesses of the occurrence. The third eye-witness is Videshi Ram, the driver of the scooter rickshaw, who was sitting in it. All the three have stated without hesitation that a lady was driving the car and when the car got struck up with the scooter rickshaw, she got down from the left door. They came to know about her name later on. In the face of the statements of these three eye-witnesses, no reliance can be placed on the statement of Mrs. Jean Uppal or Manohar Lal Uppal. A criminal case for driving the car negligently and causing injuries while driving negligently was filed by the Police against Mrs. Jean Uppal and probably for that reason the husband tried to own the incident in order to save his wife. Similar stand was also taken in the criminal Court where benefit of doubt was given to Mrs. Jean Uppal and she was acquitted. They have also produced Mr. Surinder Bhakhu R.W 2 and H.R Verma R.W 3 in their support to prove that Mohinder Lal was driving the car. Their presence at the time of the occurrence is not established. Therefore no reliance can be placed on the statements of these two witnesses. Accordingly I uphold the finding of the Tribunal below that Mrs. Jean Uppal was driving the Car. Hence there is no escape from the conclusion that she was negligently driving the car.

9. The next question which arises for consideration is whether the Tribunal below was right in concluding that the child was negligent to the extent of 50 per cent. To my mind this appears to be totally erroneous view of law. On all busy roads especially where market is nearby, the driver of a motor-vehicle has to take greater care and extra precaution to save the pedestrians and more so when the children are likely to pass. When Mr. Jean Uppal did not know driving so as to control the car if somebody came in front, question of fixing contributory negligence could not arise and in no case be fixed if it happened to be a child. In the following four cases children between the ages of 2 to 6 years were run over by motor vehicles and total negligence was put on the drivers of the vehicles and no contributory negligence was attributed to the children:—

(i) Gorge Tharkan v. Kochappl Narayanan . 1972 A.C.J 79 Kerala.

(ii) The Motor Insurance Co. Ltd v. A.N Pattammal . 1972 A.C.J 380 Madras.

(iii) Mohan Lal v. Kumari Babbi . 1967 A.C.J 123 Punj. & Hary...

(iv) Sunil Kumar v. Roshan Lal . 1973 A.C.J 41 Delhi.

10. According I reverse the decision of the Tribunal that the child was negligent to the extent of 50 per cent and hold that the entire negligence was of the driver of the car.

11. Next quesstion is how much compensation the parents of the deceased minor are entitled to. The Tribunal was of the opinion that the rule of multiplier was not applicable while assessing damages in case of death of a child. A Division Bench of this Court in F.A.O No. 38 of 1984 (Zenith Papers v. Gurmit Kaur . F.A.O 31 of 1984.) decided on 6th April, 1984 has held that dependency and multiplier in case of death of a child in accident has also to be evaluated. Therein one year old child when carried by the mother in her lap died as a result of accident. It was ruled that even a labourer would have been in a position to contribute Rs. 100/- per month for his parents and on that basis Rs. 19,000/- was allowed to the parents. In view of the aforesaid decision, I hold that the parents of the deceased minor child are entitled to Rs. 20,000/- as compensation. They shall further be entitled to interest at the rate of 12 per cent per annum from the date of filing of the claim application till payment thereof.

12. Adverting to the claim made by Videshi Ram, driver of the rickshaw scooter, I am of the opinion that no interference is called for in the award of the Tribunal. The claimant suffered one lacerated wound and two abrasions. No evidence was produced as to the lose of wages nor reliable evidence was produced about the medical expenses incurred by him. For the minor injuries caused, which could be cured within a week, the Tribunal below has allowed Rs. 100/- towards medical treatment and Rs. 200/- towards loss of wages, which would be at the rate of nearly Rs. 30/- per day For pain and suffering the award of Rs. 125/- also does not appear to be low. According no interference is called for in the quantum of compensation awarded to Videshi Ram.

13. Since it has been held that the car was being driven by Mr. Jean Uppal, who had no driving licence, the Insurance Company cannot be held liable to reimburse the insured. Therefore, the driver of the car i.e Mrs. Jean Uppal and its owner Manohar Lal Uppal would be liable to pay the compensation and the cross-objections filed by them have no merit.

14. For the reasons recorded above, while F.A.O No. 587 of 1979 and the cross-objections filed in this appeal and the other appeal are dismissed. F.A.O No. 326 of 1979 is allowed to the extent that the driver and the owner of the car i.e Mrs. Jean Uppal and Manohar Lal Uppal shall be jointly and severally liable to pay Rs. 20,000/- to the parents of the deceased child as compensation. On the aforesaid amount of compensation the claimants would be entitled to 12 per cent interest from the date of filing of the claim application till payment thereof. The parties are left to bear their own costs.