The court clarified that a child passenger cannot be held liable for contributory negligence in an accident, and re-assessed compensation based on notional income and loss of consortium.

JUDGMENT

Mrs. Alka Sarin, J. (Oral)

The present appeal has been preferred by the claimant-appellants challenging the award dated 23.05.2013 passed by the Motor Accident Claims Tribunal, Gurgaon on two counts. Firstly, on the ground that it has wrongly been held to be a case of contributory negligence and secondly, on the quantum of compensation which has been awarded for the death of a 4-year old child.

2. The brief facts relevant to the present case are that on 25.02.2012 Baby Tulsi (since deceased) along with her mother, namely, Smt. Versha Devi and Manoj Singh (brother of Smt. Versha Devi) and other relatives were travelling in a Maruti Car bearing registration No.DL-2CL-2038. They started their journey from Village Jakhora for Bullandshehar (UP). The car was being driven by Sanjay son of Ajab Singh at a moderate speed. It was around 10:00 am when they reached near Shekhupur Gathwa in the area of Police Station Khanpur (Bullandshehar) when a bus bearing registration No.UP-15F-8464, being driven by the driver at a very high speed and in a rash and negligent manner, came from the side of Bullandshehar and hit the Maruti Car as a result of which all the occupants of the Maruti Car sustained serious multiple injuries. Baby Tulsi was shifted to Ajay Hospital, Bhopal Vihar and the other injured were shifted to a Hospital at Bullandhsehar by the villagers. On the statement of Manoj Singh (maternal uncle of the deceased) a case bearing FIR No.24 dated 25.02.2012 under Sections 279, 337, 338, 427 and 304A Indian Penal Code, 1860 was registered at Police Station Khanpur, District Bullandshehar (UP). The child succumbed to her injuries after remaining hospitalized from 25.02.2012 to 28.02.2012. Respondents No.1 and 2 i.e. the driver and the owner of the offending vehicle admitted the factum of the accident. However, they asserted that the accident had occurred due to the negligence of the driver of the Maruti Car. It was further averred that respondent No.1 was holding a valid driving licence and the offending vehicle was insured with respondent No.3. Respondent No.3-Insurance Company filed a separate written statement taking a stand that the conditions of the policy had been violated and hence there was no liability of respondent No.3-Insurance Company.

3. On the basis of the pleadings of the parties, the following issues were framed :

1. Whether the accident in question was caused by respondent No.1 while driving vehicle bearing registration No.UP-15F-8464 in a rash or negligent manner, resulting into death of Tulsi, as alleged ? OPP

2. If issue No.1 is proved, whether the claimants are entitled to any compensation and if so, to what extent and from whom ? OPP

3. Whether respondent No.3 is not liable to make payment of any compensation on account of alleged violation of terms and conditions of insurance policy ? OPR-3

4. Relief.

4. The Tribunal, holding that it was a case of a head-on collision, held it to be a case of contributory negligence. The Tribunal had assessed a lump sum compensation to the tune of Rs. 2,40,000/-; Rs. 37,400/- towards medical expenses and Rs. 10,000/- for funeral expenses (Total Rs. 2,87,400/-) and since it was held to be a case of contributory negligence, it was held that Rs. 1,43,700/- is to be paid as compensation to the claimant-appellants and recovery rights were also given to respondent No.3-Insurance Company.

5. Learned counsel for the claimant-appellants would contend that the child was only a passenger in the Maruti Car and hence could not have been held to be in any manner contributed to the accident. In support of his argument, learned counsel for the claimant-appellants has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Mohammed Siddique & Anr. v. National Insurance Company Limited & Ors. [AIR 2020 SC 520]. It is further contended by the learned counsel for the claimant-appellants that the amount of compensation awarded is on the lower side. In support of his argument, le