The main legal point established in the judgment is that carrying multiple children on a two-wheeler does not necessarily constitute contributory negligence, especially in the case of minors. The judgment also emphasizes the importance of assessing loss of dependency in cases involving minors.

G. P. MITTAL, J.

1. These are Cross Objections to MAC APP. 301/2008 preferred by the National Insurance Company Limited against the Appellants herein and the owner and the driver of the TSR. MA APP. 301/2008 was dismissed as withdrawn by order dated 15.09.2010. The Cross Objections filed by CM APPL No.5436/2010 were registered as MAC APP.724/2011. Since the main Appeal has been dismissed as withdrawn, my task is to decide the Cross Appeal.

2. The Appellants who are the parents of deceased Kumari Heena @ Sweety, a minor child (aged about 5 years) seek enhancement of compensation of Rs. 1,64,500/-.

3. The Claims Tribunal opined that the deceased father who was driving the two wheeler number DAA 6304 also contributed to the accident and, therefore, fasten liability to the extent of 75% only on the driver, owner and Insurer of TSR number DL-1RA-9850 which had caused the accident. The contention raised on behalf of the Appellants are:-

(i) There was no contributory negligence, if three persons were riding on a two wheeler. Reliance is placed on Babu Singh v. Mohd. Irfan & Ors., (IV) 2009 ACC 813 (DB).

(ii) The compensation is too meager and low in view of the judgment of this Court in National Insurance Company Limited v. Farzana & Ors., 2009 ACJ 2763.

4. Per contra, it is submitted that the contributory negligence on the part of the deceased’s father was writ large as one child was standing in front of the driver’s seat whereas two children were riding on the pillion seat. It is submitted that in case of a child it is very difficult to assess the loss of dependency. The compensation awarded cannot be said to be inadequate.

NEGLIGENCE

5. The Tribunal dealt with the issue of negligence in Para 9 of the impugned judgment. The same is extracted hereunder:-

“9. PW-1 on this aspect deposed that her daughter Heena @ Sweety aged four and a half years died in road side accident on 13.03.1998. PW-2 on this aspect deposed that on 13.03.1998 at about 12 noon he was going on his scooter alongwith his children to the house of his brother-in-law (Sadu) and when he reached at Third Pushta, Usmanpur at about 12.45 P.M. an autorickshaw which was coming from opposite direction and trying to overtake the other vehicles lost its control and hit his scooter from front side due to which he and his children fell down. For few minutes he was in conscious condition but thereafter he became unconscious. He saw the number of autorickshaw as DL-1RA-9850. When he regained conscious he found himself in GTB Hospital. His daughter Heena @ Sweety died in that accident. In cross examination he admitted that at the time of driving of his scooter one of his kid was standing in front of him and two were riding on pillion seat. He denied the suggestion that he fell down as he was under the influence of liquor and there was a speed breaker on the way. On perusal of file I find that driving licence of Sh. Rakesh Kumar petitioner is on judicial file and it was valid for the period from 01.12.1986 to 30.11.2012 for driving light motor vehicles. Copy of charge sheet against respondent No.1 has been filed and proved as Ex.R2W2/4, copy of driving licence of Salik Ram respondent No.1 as Ex.R2W2/5 and copy of RC of offending vehicle as Ex.R2W2/6. The criminal court record also includes MLC of Sweety @ Heena, her postmortem report and copy of insurance policy. Charge sheet Ex.R2W2/4 implicated respondent No.1. The evidence on record and particularly discussed herein above has established that Heena @ Sweety sustained fatal injuries due to rash and negligent driving of offending vehicle by respondent No.1. The evidence has also established that there was some contributory negligence on the part of Shri Rakesh Kumar as he was riding his scooter with three children in violation of traffic rules. ……..”

6. A reference may be made to a judgment of this Court in Pushpa Rani v. Anokha Singh Etc. 1976 RLR 52, where one child was sitting on the front seat and another child was sit