1. By way of filing this appeal, the appellants-claimants have prayed for enhancement of compensation amount awarded vide Award dated 20.8.2015 passed by the learned District Judge-cum- MACT, Court No. 1, Giridih in Title (M.V.) Suit NO. 01/2011.

2. It is the case of the claimants that on 17.7.2010, the deceased Satyajit Kumar @ Mukesh Kumar along with his friend Ayush Raj were going from Giridih to Dhanbad for appearing in examination by riding a Hero Honda Passion Motorcycle bearing registration No. JH 11E 6892. When they reached near Pandari, a truck bearing registration No. JH 10R 9835 loaded with iron ore coming towards Tundi in a very high speed dashed the motorcycle from the opposite direction causing serious injury to deceased and pillion rider. Both injured were taken to hospital where the deceased, who was a student of ClassX and was riding the motorcycle.

3. The insurers of the offending truck bearing registration No. JH 10R 9835 and the motorcycle bearing registration No. JH 11E 6892 appeared and filed their written statements. The owner and driver of the truck also appeared and took the plea that there is violation of the terms and conditions of insurance policy and all the papers of the truck including permit, driving licence of the driver were valid at the time of accident. The insurer of the truck had also taken plea that the accident had taken place because of rash and negligent act of the deceased himself, who admittedly was a minor and riding the motorcycle without a driving licence. The insurer of the motorcycle had taken plea that the accident had taken place because of rash and negligent act of the driver of the truck, thus they are not liable to pay any compensation amount.

4. On the basis of the pleading, eight issues were framed which are as follows:-

(i) Whether claim application is maintainable in present form”

(ii) Whether there is valid cause of action for the suit

(iii) Whether the deceased late Satyajit Kumar alias Mukesh Kumar died in a road accident on 17.7.2010 at about 7:10 A.M at village Newatand, while driving Hero Honda Passion Pro Motorcycle No. JH 11E 6892 which was dashed by offending truck No. JH 10R 9835 being rashly and negligently driven by O.P. No. 2

(iv) Whether said accident took place due to rash and negligent driving of truck No. JH 10R 9835 driven by O.P. No. 2

(v) Whether the deceased himself was negligent in driving motorcycle, is so to what extent

(vi) Whether owners of both vehicles possessed all valid and effective driving/vehicular documents including valid and effective driving licences at the time of accident

(vii) Whether there is violations of terms and conditions of policy of insurance and amount, if any paid by insurer is recoverable from owner of vehicles

(viii) Whether claimants are entitled for compensation, if so to what extent and from whom

Several documents were also exhibited by both the parties. The tribunal thereafter considering the age of the deceased and other aspects held that the deceased was a minor thus Rs.15,000/- per annum has been assessed as his income and the multiplier of ‘18’ was applied. Further Rs.25,000/- has been awarded under the head of loss of love and affection and funeral expenses. Thus, total Rs.2,05,000/- alongwith interest @ 9% per annum has been awarded to the claimants.

5. Counsel for the appellants-claimants submits that from the evidences on record, it is apparent that the father of the deceased was working in a Bank, thus, it can be said that the deceased had a bright future, which was not taken note of by the Tribunal. He further submits that at least compensation should have been awarded taking into consideration the principles laid down in the judgment passed by the Hon’ble Supreme Court of India in the case of Kurvan Ansari @ Kurvan Ali And Another Vs. Shyam Kishore Murmu and Another reported in (2022) 1 SCC 317.

6. Counsel for the Insurance Company submits that admittedly the deceased was aged less than 16 years, thus he could not have rode the motorcycle. He was riding the motorcycle against the provision of Motor Vehicles Act, 1988, that too without a licence. She submits that as per the FIR, the deceased dashed the offending truck from behind, resulting in the accident, whereas the witness who claimed to be an eye witness improved and changed the entire story and stated that the truck dashed the motorcycle and the accident was due to head on collision. She further submits that author of the FIR, who was the pillion rider of the motorcycle and the best witnesses on the fact of the accident, has been withheld by the claimants, thus an adverse inference should have been drawn. On these facts, as per the Insurance Company, there is no necessity to enhance the amount of compensation.

7. Heard the counsel for the appellants and gone through the award as well as lower court records.

8. The main question, which falls for consideration is as to what would be the proper amount of compensation in the facts and circumstances of the case considering the fact that the deceased was a minor and he admittedly did not possess a driving licence at the time of accident as it is admitted case that the deceased was aged about less than 16 years at the time of the accident. Section 4 (1) of Chapter 2 of the Motor Vehicle Act provides that no person under the age of 18 can ride the motorcycle in any public place, provided that after attaining the age of16 years, he can ride motorcycle with engine capacity not exceeding 50 C.C. In the instant case, it is admitted that the deceased was aged about less than 16 years, therefore, he was not authorized to ride any motorcycle.

9. Now the question is as to how the accident had taken place. C.W. 3- Ram Lakhan Viswakarma stated that he is an eye witness to the accident. He submitted that he saw that a young boy with pillion rider was driving the motorcycle and was going to Tundi when the offending truck, driven in rash and negligent manner, coming from Tundi dashed the motorcycle head on, which resulted in death of the deceased. As per his statement, the accident is head on collision between the motorcycle and the truck.

10. FIR is also on record. The author of the FIR is none other than the pillion rider of the motorcycle, who also sustain injury. He stated in his fardbeyan that the deceased had taken him as pillion rider and was going towards Pandari. A truck was ahead of them and the driver of the truck had suddenly applied the brake, as a result of which, the deceased who was riding the motorcycle got disbalanced. Both of them fell down, as a result of which, the deceased and the author of the FIR sustained injury and later on, the deceased died. Thus, I find that there are two versions about the accident. This Ayush Raj who was the pillion rider was not produced as a witness by the claimants, rather the claimants have produced C.W.3, who is an alleged eye witness, stated about the fact of the accident. Version of C.W. 3 is absolutely different than the version of the author of the FIR. Fardbeyan is the first version of the accident. In this case, from the first version, I find that the motorcycle was behind the truck, as the driver of the truck applied brake suddenly, the deceased who was riding the motorcycle, got disbalanced and fell down sustaining injury. From the statement of C.W. 3, it was a case that there was a head on collision. Minor discrepancy can be overlooked, but in the instant case, discrepancy is major. Further, the author of the FIR was not produced, which creates doubt in the mind of the court as to which is the correct version and as to how the accident had taken place. This Court is not relying upon the statement of C.W.3, as he has given absolutely a different story from that of the fardbeyan of the FIR. It will be evident from the FIR that the offending truck was not fully at fault for causing the accident. There was much contribution on the part of the deceased also coupled with that admitted fact that he being a minor less than 16 years was riding the Motorcycle without a licence.

11. Further it is admitted that the deceased was aged less than 16 years at the time of accident and was not eligible for riding motorcycle, but he was riding the motorcycle, and got dis-balanced. The motorcycle, fell down as the driver of the truck suddenly applied the brake. An experienced rider who would have had a licence will keep safe distance between the vehicles while driving the same. Further law prohibits a minor aged less than 16 years to ride a motorcycle. An act of a minor, less than 16 years, riding a motorcycle, is a negligent Act. Further from the FIR, it is clear that the deceased fell down after being disbalanced. Thus, he was not a good rider also, naturally, as he was aged less than 16 years, who cannot be said to have good experience in riding a motorcycle. Thus, I find that there was contributory negligence on the part of the deceased at least to the tune of 25%.

12. The Hon’ble Supreme Court in the case of Kurvan Ansari (Supra) has held that the claimants are entitled receive Rs.4,70,000/- as compensation in the case of death of a deceased, who is aged about 7 years. Paragraphs 15 and 16 of the said judgment run as under:

“15. In view of the judgments in Puttamma, R.K. Malik and Kishan Gopal, we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in Rejendra Singh relied on by the learned counsel for respondent No. 2 insurance company would not render any assistance to the case ofthe insurance company

16. In view of the above, we deem it appropriate to take notional income of the deceased at Rs.25,000/ (rupees twenty five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier of 15, as prescribed in schedule-II for the claims under Section 163-A of the Motor Vehicles Act, 1988, it comes to Rs.3,75,000/- (Rs.25000 x multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs.40,000 each towards filial consortium and Rs.15,000/- towards funeral expenses. Thus, the appellants are entitled to the following amounts towards compensation:

(a) Loss of dependency : Rs.3,75,000.00

(b) Filial Consortium (Rs.40,000x2) : Rs.80,000.00

(c) Funeral Expenses : Rs.15,000.00

Total : Rs.4,70,000.00”

13. Thus, this Court applying the principle laid down by the Hon’ble Supreme Court in the case of Kurvan Ansari (Supra) holds that the claimants are entitled to Rs.4,70,000/-.

14. The claim of the appellants that since the father of the deceased was working in Bank, thus the future of the deceased was bright and he could have earned much more is not accepted by this Court. Working status of the father of a deceased cannot be the basis to assess the merit of a child. If this argument is accepted then the children of the people of lower strata of this Country would not have occupied top prestigious public offices and posts. Thus, this Court feels that the claimants are entitled for an amount of Rs.4,70,000/- as compensation from which, 25% is to be deducted on account of own negligence of the deceased.

15. The claimants are entitled to Rs.3,52,500/- [Rs.4,70,000 - Rs.1,17,500 (25% of Rs.4,70,000)]. The Tribunal has awarded an amount of Rs.2,05,000/-. Thus the claimants are entitled to an additional amount of Rs. 1,47,500/- (one lakh forty seven thousand five hundred) (Rs.3,52,500- Rs.2,05,000), which will carry interest @ 7% per annum from the date of award till the same is paid.

16. The Award is modified to the aforesaid extent. Accordingly, this appeal stands disposed of.