BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/06/2009 CORAM THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN C.M.A.No.906 of 2008 The United India Insurance Co. Ltd., Seethalakshmi Complex, Thirunagar, Madurai. ... Appellant/2nd Respondent vs. 1.R.Radhakrishnan 2.R.Meenakshi 3.D.Rajangam ...Respondents / Respondents PRAYER This Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act 1988, against the judgment and decree dated 03.01.2008 passed in M.A.C.O.P.No.563 of 2006 on the file of Motor Accidents Claims Tribunal (Principal District Court), Madurai. !For Appellant ...Mr.G.Prabhu Rajadurai ^For Respondents ...Mr.C.Vakeeswaran :JUDGMENT
It is a very unfortunate case, wherein 2. years old child died in an
accident, the Tribunal awarded a sum of Rs.1,50,000/- as compensation to the
parents and against which only the present appeal has been preferred by the
Insurance Company.
2.The case of the appellant/Insurance Company is that the vehicle named in
the claim petition was not involved in the accident and the death of the child
occurred due to asphyxia while playing with the other children in haystack and
not due to the accident. The learned counsel for the appellant relied on the
appellant’s complaint given by them to the police authority through Ex.R.2 dated
28.09.2006 and Ex.R.3 dated 08.02.2007. Further, he relied on the evidence of
R.W.1 and R.W.2 and also Ex.R.4 to contend that the child did not die due to the
accident as contended by the claimants, it died while the child was playing as
stated above. The learned counsel is unable to state as to what the stage of
the complaint given by the appellant to the police authority as bogus claim.
3.Secondly, the learned counsel also questioned the quantum of award
passed by the Tribunal stating that it is on the higher side. He also relied
upon the judgment of the Apex Court reported in 2007 ACJ 2816, Oriental
Insurance Company, Ltd., vs. Syed Ibrahim and others, wherein a boy aged about 7
years old died; the Tribunal awarded Rs.50,000/- plus Rs.1,000/- for funeral
expenses. The High Court enhanced the award to Rs.1,52,000/- and the matter was
taken to the Hon’ble Supreme Court and the Supreme Court observed that in the
cases of young children of tender age, in view of uncertainties abound, neither
the income of the deceased child is capable of assessment on estimated basis nor
the financial loss suffered by the parents is capable of mathematical
computation. In that case, the Supreme Court allowed Rs.51,500/-. Only by
relying upon the aforesaid judgment, the learned counsel vehemently contended
that the amount awarded by the Tribunal is on higher side and it has to be
reduced. He also relied upon another judgment of this Court reported in 2008
(4)T.A.C.66 (Chhattis.),Gaya Prasad Agrawal and another vs. T.A.Reddy and
others, wherein for the death of 2. years old child a sum of Rs.50,000/- was
granted as just and proper compensation.
4.On the other hand, the learned counsel for the respondent argued that
the accident occurred due to the accident caused by the van and the child did
not die for any other reason as contended by the learned counsel for the
appellant and it is not a bogus claim. He relied upon the judgment of the
Supreme Court reported in 2008 ACJ 1405, Santhosh Rani vs. Ranjit Singh and
others, in that case 13 years old child died and the Tribunal awarded
Rs.50,000/- on account of liability and the same was upheld by the High Court;
The Apex Court enhanced the compensation to Rs.2,50,000/-. He also relied upon
another Supreme Court judgment in New India Insurance Company Ltd., vs. Satendar
and others reported in AIR 2007 SC 324= 2007 ACJ 160, wherein, 9 years old child
died, the Tribunal awarded a sum of Rs.3,40,000/- plus Rs.1,00,000/- and a sum
of Rs.5,000/- for funeral expenses; High Court dismissed the appeal and the Apex
Court reduced the award from Rs.4,45,000/- to Rs.1,80,000/- following the
earlier judgment of the Supreme Court in State of Haryana and others vs. Jasfir
Kaun and others reported in AIR 2003 SC= 2003 ACJ 1800.
5.The learned counsel for the respondent relied upon another judgment
reported in (2008) 2 MLJ 510, Managing Director, Tamil Nadu State Transport
Corporation vs. M.Chinnasamy and Others, in which, 3 years old child died and a
sum of Rs.1,86,000/- was awarded by the Tribunal and the same was confirmed by
this Court. Further, he also relied upon another judgment of Karnataka High
Court reported in 2008 ACJ 1749, Premakumari and another vs. United India
Insurance Co. Ltd., and another, in that case 2. years old child died and the
Tribunal awarded a sum of Rs.83,000/- and on appeal the amount was enhanced to
Rs.1,80,000/-. After relying upon of those judgments, the learned counsel
submitted that the compensation awarded by the Tribunal need not to be reduced.
6.Heard the learned counsel for the appellant and the learned counsel for
the respondent. On perusal of the counter statement filed by the Insurance
Company would reveal that the allegations in the claim petition were denied in
general. Each and every allegation made in the claim petition was not denied
specifically Para No.5 of the counter statement filed by the Insurance company
is extracted as follows:
“This respondent reserves its right to file additional statement of objection
later, on receipt of additional information. D.Rajangam, who alleged to drive
the van at the time of accident is not having any valid driving license. This
accident is a hit and run case, in which the lorry Regn.No. and its owner
details are not known to the petitioners, therefore, a false case has been
registered by Thirunagar Police against the 1st respondent’s van driver. The
petitioners claim of Rs.50,000/- under no fault liability is not maintainable”.
7.The allegation in Paragraph 5 of the counter statement would show that
the accident was a hit and run case, whereas the stand of the appellant during
the trial was that the child did not die due to the accident, but died due to
asphyxia while she was playing along with other children in the haystack. The
Insurance Company did not take any definite stand as to whether the child died
in the accident or while playing. As per the counter statement before the
Tribunal was that the appellant did not plead that the child died while playing
and the claim was a bogus one. In the absence of pleading to the effect that the
child died due to asphyxia during the play in the haystack, the appellant
company cannot set up such a plea. It is well settled law that any amount of
evidence in the absence of pleading is of no avail. The following are the
judgments in support of the above said principle: 2003(1) CTC 254, 2007(1) CTC
392; 2001(1) CTC 160. Hence, in the absence of plea the contention of the
appellant that the child died while playing is liable to be rejected.
8.To decide about cause of the death of the child, the post martem report
could be considered. The post martem report of the child Ex.P.4 reads as
follows:
“The deceased would appear to have died on usual and Haemo RRhage due to abdomen
injuries”.
The above report reveals that the child died on usual and Haemo RRhage due to
abdomen injuries. There was no cross examination by the appellant Insurance
Company in this regard and no contra evidence was adduced by the Insurance
Company to show that the child did not die due to the accident.
9.On the other hand the evidence of P.W.1 and P.W.2 would show that the
child died only due to accident. The Ex.P.1 F.I.R. also reveals that the
accident occurred due to negligent driving of the driver of the van and on that
basis, the charge-sheet was also filed. It was marked as Ex.P.2 and the Motor
Vehicle Inspector Report was marked as Ex.P.3. If the child died due to
asphyxia, there could not have been any injury in the abdomen. The injury in the
abdomen would only prove the child died due to injury caused in the accident.
P.W.2 was the Eye witness to the accident and spoke of the accident. Moreover,
the Tribunal rightly concluded that there was no evidence on the side of the
appellant to prove that the child did not die in the accident. The Tribunal
found that there was medical evidence to prove the stand of the appellant. The
Tribunal observed that the police authority did not make any investigation by
examining the witness regarding the bogus claim.
10.The aforesaid evidence of P.W.1 and P.W.2 as well as the documentary
evidence filed before the Tribunal would show that the child died due to the
accident only. In those circumstances only the Tribunal came to the conclusion
that the child died in the accident caused by the vehicle, insured with the
appellant/Insurance company.
11.It is very unfortunate that the parents lost their only child in the
tender age. Immortal Tamil Poet Thiruvalluvar devoted a chapter for “Children”
(MAZHALAI SELVAM) denoting their importance in one’s life. No amount would
compensate the loss of the child especially only child of the claimants. Even if
sun or star or moon or karpakavriksha or even kamadhenu is given to the affected
parents, will it or will they be alternate for their child? Certainly not. To
put it in nutshell”. Nothing in the world is equal to their child”. In that
event, this court has to make a sincere effort to suitably compensate them. No
amount of money can compensate for the loss of the child. Definitely loss of the
child caused a vaccum in the life of the appellant. The loss of son was
described in the great Epics “Mahabaratha” and “Ramayana”. King Dasaratha died
due to puthrasogha, when Rama went to Jungle.
12.Ex.P.5 is the Family Planning Certificate which showed that the mother
had undergone a Family Planning operation and in that event the chances of
having a child is remote. Even for child’s death, the Hon’ble Supreme Court in
a recent judgment in R.K.Malik & Anothers vs. Kiran Pal and Others, reported in
2009(8) SCALE 451, held that future prospects of the child could be taken into
consideration for awarding compensation. Considering the fact that the parents
lost their only male child and based on the evidence and the judgment of the
Hon’ble Supreme Court, this Court finds that the Tribunal rightly awarded a sum
of Rs.1,50,000/- to the parents and the same is reasonable. Though there are
uncertainties about the prospects of the child, that cannot be a ground to deny
compensation for the case of this nature. This Court in Managing Director,
Tamil Nadu State Transport Corporation vs. M.Chinnasamy and others reported in
(2008)2 MLJ 510 awarded a sum of Rs.1,86,000/- for the death of the three year
old child.
14.Taking into consideration of the aforesaid judgment, this Court finds
that the award of Rs.1,50,000/- along with interest at 7.5% for the loss of
child is just and the same is sustained. Accordingly,the appeal is dismissed.
No Costs.
ns
To
The Motor Accidents Claims Tribunal
(Principal District Court),
Madurai.