Syed Abdul Karim Vs. Fatima-unnisa Begum - Court Judgment

Excerpt:

.....therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the..........that 'child' means son or daughter and such parson need not be minor. in the latter judgment, emphasis is laid on the words 'unable to maintain itself.' i agree with this latter authority and hold that the word 'child' as used in section 411 of the code means son or daughter and such person need not necessarily be a minor. when age is not mentioned in the section, i cannot restrict the meaning of the word 'child' to only minors. the object of the section appears to be clear the relationship between father and child is such that when one of the parties is unable to maintain himself, the other is required to maintain him, i. e., when the father is not in a position to maintain himself, duty is cast on the child to maintain the father, and similarly when the child is unable to maintain himself, duty is oust on the father to maintain the child. the criterion is ability or disability to maintain oneself and not age. therefore, i am of the opinion that importance is not attached to the age of the person but to the ability to maintain oneself. this case is referred back to the single judge with this reply.

Judgment:

ORDER

1. Vakils for the parties were heard. A point of law in this case has been referred to us by a single Judge of the High Court, The point is, whether the word 'child' used in Section 411, Hyderabad Criminal P.C., this Section being equivalent to Section 488, Indian Criminal P.C. does not cover the ease of a daughter of 19 years so as to preclude her from suing her father for maintenance under the section. There are conflicting decisions on this point, which has been mentioned by the Hon'ble Judge in his reference. The first is reported in 36 Deccan Law Report 169, in which it is held that 'child' means one who is a minor, and the other is in 29 Deccan Law Report 244. where it is held that 'child' means son or daughter and such parson need not be minor. In the latter judgment, emphasis is laid on the words 'unable to maintain itself.' I agree with this latter authority and hold that the word 'child' as used in Section 411 of the Code means son or daughter and such person need not necessarily be a minor. When age is not mentioned in the section, I cannot restrict the meaning of the word 'child' to only minors. The object of the section appears to be clear the relationship between father and child is such that when one of the parties is unable to maintain himself, the other is required to maintain him, i. e., when the father is not in a position to maintain himself, duty is cast on the child to maintain the father, and similarly when the child is unable to maintain himself, duty is oust on the father to maintain the child. The criterion is ability or disability to maintain oneself and not age. Therefore, I am of the opinion that importance is not attached to the age of the person but to the ability to maintain oneself. This case is referred back to the single Judge with this reply.