B.P.AGARWAL, J. - (1.) THIS is an appeal under Section 110-D of the Motor Vehicles Act, 1939, directed against the award of the Motor Accidents Claims Tribunal, Kanpur, dated May 10, 1977.
(2.) ABDUL Naqi, son of Abdul Wahab, aged about 2 years, was at pay on the foot-path opposite the premises No. 25/39, Karachi Khana, Kanpur on August 14, 1975 at about 5.40 P.M. The father Abdul Wahab was at work in cycle repairing close by Car No. UPG 5073, belonging to respondent No. 1. was standing at a distance of merely 20 paces from the child. Driver Arif, respondent No. 2, was at the steering. He gave a start to the car and proceeded from south towards north overrunning the child. Abdul Naqi sustained mutiple injuries; he was rushed to hospital, but be succumbed to the injuries within about two hours. First Information Report was lodged by Abdul Wahab at 8.45 p. m. the same day. On November 20, 1975, Abdul Wahab and his wife applied for the award of compensation contending that the accident occurred on account of the rash and negligent driving by the respondent No. 2. The claim was resisted by the respondents pleading that at the relevant time the car was out of order and the respondent No. 2 did not drive the same. It was also averred that the deceased was not in a position to support the parents and the claim laid for compensation is imaginary. The Tribunal case to the finding. On considering the evidence placed on the record, that the accident resulting in the death of the child was caused directly due to the rash and negligent act of respondent No. 2 for which the respondent No. 1 is also vicariously liable. The plea raised for the respondents to the effect that the car was not in the working order or that that was not being driven by the respondent No. 2 was discarded as untenable. In regard to damages, however, the Tribunal observed that since the child could not have any earning of his own, the parents could not lay any claim on this score and also that they are not legible to any compensation for the alleged shock to themselves. Aggrieved, the claimants have preferred this appeal.
(3.) LEARNED Counsel for the appellants urged that upon the material placed on the record as found also by the Tribunal, it is clearly made out that the respondent No. 2 was rash and negligent in driving the car. P.W. Abdul Wahab, the father was at work about four or five paces away from the child, He is an eye-witness to the accident and nothing could be elicited in cross-examination to discard his testimony on the point. P.W. A.K. Pandey, was on the road over his motor cycle at a short distance.;